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HomeMy WebLinkAbout5266 APPEALS BOARD MEMBERS Ruth D. Oliva, Chairwoman Gerard P. Goehringer Lydia A. Tortora Vincent Orlando James Dinizio, Jr. Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 Tel. (631) 765-1809 Fax (631) 765-9064 http://southoldtown.northfork.net BOARD OF APPEALS TOWN OF SOUTHOLD FINDINGS, DELIBERATIONS AND DETERMINATION MEETING OF AUGUST 2, 2004 Appl. No. 5266 - Mary Zupa Street Location: 580 Basin Road (Paradise Point), Southold CTM Parcel ID: 1000-81-1-16.7 RECEIVED AUG 4 2004 Reconsideration in accordance with the May 6, 2004, Supreme Court Decision of the Hon. James Catterson, J.S.C. (Index No. 03-29553) regarding the following: Appl. No. 5266 regarding Appeal filed by MARY ZUPA concerning property at 580 Basin Road, Southold; 1000-81-1-16.7. SEQRA DETERMINATION: The Zoning Board of Appeals has visited the property under consideration in this application and determines that this review falls under the Type II category of the State's List of Actions, without an adverse effect on the environment if the project is implemented as planned. FINDINGS OF FACT In accordance with the May 6, 2004, Supreme Court Decision of the Hon. James Catterson, Justice of the New York State Supreme Court, the Board hereby makes the following findings and determination concerning Application Number 5266 submitted by Mary Zupa. The Zoning Board of Appeals held a public hearing on this application on March 20, 2003, June 5, 2003, July 24, 2003, and August 21, 2003, at which time written and oral evidence were presented. Based upon all the testimony, documentation, personal inspection of the property, and other evidence, the Zoning Board finds the following facts to be true and relevant: 1. The applicant has appealed from the Building Department's Notice of Disapproval, dated October 30, 2002 and alternatively seeks variance under Sections 100-24(B) and 100-32 of the Town Code to permit construction of a single family dwelling on property located at 580 Basin Road, Southold, parcel No. 1000-81-1-16.7. 2. The application had been disapproved by the Building Department on the grounds that 1) construction of a single family dwelling on a nonconforming 75,687 sq. ft. parcel is page 2 - August 2, 2004 Re: Appl. No. 5266 - M. Zupa CTM Parcel Id: 1000-81-1-16.7 not permitted in the R-80 District; 2) the lot is not recognized under the Zoning Code and it is used as a marina; and 3) the construction of a single family dwelling would constitute a second use. 3. The Zoning Board's files reflect that in 1995, James and Barbara Miller applied for a building permit to permit two uses on the property (a non-conforming pre-existing marina and a single family dwelling). Setback variances were also needed with respect to the siting of the proposed dwelling. The Building Department issued a Notice of Disapproval on essentially identical grounds as were issued with respect to the present application. 4. The Millers appealed to the Zoning Board, seeking to overturn the Notice of Disapproval or, alternatively, to obtain variances. The appeal was denied on August 9, 1995. No Article 78 proceeding was commenced by the Millers to review the Board's denial of their application. 5. The applicant's property is zoned R-80 and is approximately 1.7 acres. A sub- stantial portion of the property is surrounded by water and wetlands. 6. There is conflicting evidence in the record as to whether the applicant's property is a lot "approved by the Southold Town Planning Board" thus a recognized "lot" under Section 100-24(2) of the Town Code. 7. In 1981, it appears that the Planning Board approved to set off the lot with essentially the same dimensions as the applicant's property. The Building Department issued a vacant land Certificate of Occupancy. However, subsequent memoranda from the Planning Board, and other evidence, call into question the intent of the set off. 8. The issue is academic, however, since if the lot were not a recognized, pre- existing substandard lot that continued to be held in single and separate ownership, the unique facts and circumstances here would warrant the grant of the small area variance otherwise needed to construct a single family dwelling on the property. 9. However, whether the construction of a conforming single family dwelling can be built "as of right" if the lot were a "recognized lot" or with an area variance if it were not a "recognized lot", the proposed use of the property as sought by the applicant is complicated by the fact that the property has been and continues to be used in part as a pre-existing nonconforming marina. P~ge 3 - August 2, 2004 Re: Appl. No. 5266 - M. Zupa CTM Parcel Id: 1000-81-1-16.7 10. The facts with respect to the pre-existing marina use remain unchanged since this Board's denial of the 1995 variance application referred to above, other than the present applicant claiming that the marina use is "illegal". The Board is advised that the claim was dismissed by the Supreme Court on procedural standing grounds only and not on the underlying merits. 11. The marina is principally utilized by the applicant's neighbors, members of the Paradise Point Association. The Association asserts its rights to maintain the marina and to use applicant's property for that purpose. The applicant's property is the sole means of upland access to the marina. 12. Thus, the applicant's property is burdened with a pre-existing non-conforming use. 13. The residential use sought by the application is a permitted use in the R-80 district. The applicant is proposing to put a permitted use on the property that is already being used in a nonconforming manner. 14. Under Section 100-241(G) of the Town Code, this proposed change to a conforming use can only occur if either the non-conforming use is abandoned or, alternatively, a variance is sought to permit the non-conforming use to continue along with the conforming use. The pertinent part of Section 100-241(G) reads as follows: '~Nhenever a nonconforming use of a premises has been changed to a conforming use, anything in this Article to the contrary notwithstanding, the nonconforming use of such premises shall no longer be permitted unless a variance therefor shall have been granted by the Board of Appeals." 15. In order to build the proposed dwelling, the legal, nonconforming marina use could no longer operate unless a variance is granted permitting it to remain. 16. This case presents an extremely unusual circumstance for the Board. Normally, the owner of the property owns and controls the nonconforming use on it and would either agree to discontinue its use or apply for a variance under Section 100-241(G) to allow it to remain while a conforming use is added to the property. Here, however, the nonconforming use is owned and controlled by the Association that is not the fee owner of the property. The owner of the nonconforming use and the owner of the fee title to the property appear to be steadfastly opposed to co-existence. No application has been made for the variance Page 4 - August 2, 2004 Re: Appl. No. 5266 - M. Zupa CTM Parcel Id: 1000-81-1-16.7 contemplated in Section 100-241(G) that would permit the non-conforming marina use to continue while permitting construction of the home. Without such variance, the property cannot be used for both uses. 17. If the property were not already used by a nonconforming marina, this Board would grant the applicant the area variance sought from the two-acre minimum required by the Section 100-32 of the Town Code for the following reasons: a. The benefit to the applicant of constructing a residential home outweighs the detriment to the health, safety, and welfare of the neighborhood caused by such construction. b. The grant of the variance will not produce an undesirable change in the character of the neighborhood because the neighborhood is predominantly residential. c. The grant of the variance will not create a significant detriment to nearby properties because the application seeks to construct a house within all legal setback limits. d. The benefit sought by the applicant cannot be achieved by another feasible method other than an area variance. In order to construct a house on this property, the applicant requires a variance. e. The requested relief is not substantial. The applicant's property is approximately 70,000 square feet in area, some 87.5% of the 80,000 square feet required. This does not dramatically change when square footage attributed to easements and the marina use is subtracted. f. Evidence has not been submitted to show that the grant of the variance will have an adverse impact on physical or environmental conditions in the neighborhood. On the contrary, the applicant has received the appropriate permits from the New York State Department of Environmental Conservation and the Town Trustees. The parcel is situated in such a way that a house constructed with conforming set backs would not have any adverse impacts on any adjoining or nearby parcels. g. The difficulty was self-created. The applicant purchased the property with knowledge that the planned construction will not conform to the current Town Page 5 - August 2, 2004 Re: Appl. No. 5266 - M. Zupa CTM Parcel Id: 1000-81-1-16.7 requirements. However, this is one factor to be considered which is not automatically dispositive. h. The grant of the relief is the minimum action necessary and adequate to enable the applicant to construct a residential house on the premises, while preserving and protecting the character of the neighborhood and the health, safety, and welfare of the community. The proposed construction complies with all applicable setback requirements. 18. However, the relief requested by the applicant can only be conditionally granted since simultaneous to any approval, the nonconforming marina use must be abandoned or a variance must be applied for to permit it to remain as required under Section 100-241(G). 19. Since the nonconforming use is owned and operated by the Association, the applicant cannot unilaterally abandon the use. While the applicant and the Association could apply for a variance to allow the nonconforming use to remain on the property after it is put to a conforming use, no such variance application has been made at this time and the Board will not pre-judge any such application. BOARD RESOLUTION/DETERMINATION: Now, therefore, on motion by Chairwoman Oliva, seconded by Member Goehringer, it was RESOLVED, that based upon the foregoing, the Board grants the area variance sought by the applicant to permit construction of a single family home on less that 80,000 square feet with full compliance with ail setback requirements on condition, however, that no building permit be issued until the nonconforming marina use is removed or a variance is granted to permit its continued use in conjunction with a residential use. Vote of the (Member Odando recused himself; adopted (3-0). Board: Ayes: Members Oliva (Chairwoman), Goehringer, and Tortora. Member Dinizio abstained.) This Resolution was duly RUTH D. OLIVA, CHAIRWOMAN 8/3/04 Approved for Filing ~M]~TH, FIT~YKELSTEIN, LUNDDERO, ISLHR AND YAKABOSKI, LLP (631) 727-4100 BY RECEIVED MAY 7 2O~4ay /l:q-x'hm · , Ruth 01 iva zq~*.~_9~ or A~,a~L- Chair of the Zonin9 Board of Appeals 53095 Main Road P.O. Box 1179 Southold, New York 11971 2004 Re: Zupa v. Zoning Board and Paradise Point Association Dear Ruth: Enclosed please find a copy of Justice Catterson's order that rules that collateral estoppel does not apply since the Millers were not "in privity" with Zupa. As you will see, the Judge does not comment on the merits at all and remands the case to the Zonin9 Board to do so. Please ~ive me a call after you and the Board have reviewed this decision and we can discuss the options available. FAI/cs cc. Patricia A. Finnegan, Esq. by mail SHORT FORM Oi~DER IlWDEX NO. 29553/0~ SUPREME COURT - STATE O1~ NEW YORK lAS PART XXXVlll S~O~ COUNTY Henorable J.4d~l~S M~ CATTEI~ON Application of MARY $. ZUPA, Pe~itieacr, For a .lvd..mm~,t Pursuan~ t~ C.P.L.R. Article 78 ZONING BOARD OF APPEAL~ OF THE TOWN OF $OUTHOLD aad PARADISE POINT ASSOCIATION, R/D: 01-05-04 MOTION NO.: 0~1 Mot-D PEITrIONRR,$ ATTORNRY Eric i~ssle~ Wicktmm, B~v. asler, Oordoa & Ge. asa, PC 275 Broad Hollow Rd. ~it~ 111 Melv~e, N.¥. 11747 RISSPONDENTS' ATTORIigY Smith, Fiakclst~ta, L~ Islet and Yakaboski, LIP Arty for Zoni~ Bomi of Appeals ofth~ Town of Seatbold 456 Ori~_ Avenue P.O. Box 389 R~v~d~ad~ N.Y. 11901 St~lg~n R. Angel ~seks, Hdt~ & A~gel, Es~. Atl~ for P~e P~ A~o~ ~. 108 ~t ~ S~t ~erhe~, N,Y. 11~1 Upon reading and filing the following l~pers in this matter: (1) Order to Show hes~d in this Court Sanuary 5, 2004 and supporting papers (including Petitioner's Memorandum of Law in Support of Petition) by pctitiontnT, (2) Return volumes 1, II, II, IV, and V, pages I - 1421 by respondent Zening Board of Appeals of the Town of $outhold; (3) Affidavit received in this Court January 5, 2004 and supporting pa!~rs by respondent Paradise Point Association, lac.; (4) Mcrnonmdum of Law submittal on behalf of respondent Paradise Point Association, ][ne. dated Sanuary 2, 2004 by respondent Paradise Point Associalion, Inc.; (5) Verified A~swcr dated De~erabvr 30, 2003 by respondent Paradise Point Association, Inc.; (6) Verified Answer dated D~ceml0~r 23, 2003 by respondent Zoning Board of APl~als of thc Town of Sero. hold; (7) Memorandum of Law Zoning Board of Apl~als of the Town of $outhold by responckmt Zolling Board of Appeals of the Town of Southold; and now, UPON DUE DELIBERATION AND CONSIDERATION BY TH~ COURT of ~e foregoing, thc motion is decided as follows: ORDERED that the December 4, 2003 decision of the respondent Zoning Board of Appesls of the Town of Southold is vacate~ and the matter remitted for proceedings oansistznt with lifts desi~ion. It is further ORDERED that counsel tot' the petitioner is ~ to serve a copy of this Order upon the rea'pondents in this mat~cr. The facts iu this C.P.L.R. Aziicle 78 petition are largely undisputed, hl 1995 Sames and Barbara Miller were contract vlmdees for ~he purchase o£a vacant 1.7 acre parael ofresidantial real property located at 580 Basin Road, Southold, New York~ The propmty is located within ii hom~avners associatioa known as Paradise Point Association, Inc. Ia respondent in this petition]. As corttract vendees, the Millers applied to the $ou~hold Town Building D~mhuant [hereiuafl~- ~'fmred to as the "Bui]din~ Dapa~anant'~ for a permit to construct a singlo family re~idance at 580 Basin Road. The Buildi~ D~parlme~t denied the application on the irounds tha~, inter alia. approval of the reaponde~t Zoning Board of Appeals of the Town o£ Southold [hereinafter r~ferred to as the "ZBA"] was required for a setback variance and a second use on property in a residential area. The Building Department de~-~,ined that a set of docks on the property utilized by the homeowners association constituted a second use that was prohibited under the town code. The ZBA denied the Millers' application on August 23, 19~$ on the iroongs that, inter alla. thee were "altemative~ for [the Millers] to pursue to better plan for existing marina uses or for a principal residanOal building which will better fit widtin an appropriate upland area with ~reater s~thacks from the water and wetland areas, with less reduction in scfoacks and less relief." The Millers did not ohellenge the dccisiun in an Article 78 proceedin& nor did they purchase the propetiy ill question foHowlng the decision. Petitioner Mar~ Zupa [hereinai%r referred to as "Zupa"] purohased the subject prop~, by deed of April S, 2002.z Zupa th~'n apphed to the Build/nE Department to construct a single fam/ly rodde~oe on the property. The Building Department denied thc application and Zupa appealed to thc ZBA. Ultiw~tely, thc ZBA isancd a decision on December ~, 2003 denying the Zupa application on h% grounds of res judica~a and collateral asf~pel. For thc reasons that follow, flint dec/sion is vacated arid thc rflatler r~mitted to the ZBA for proceedings consistant with this decision. In 1916, then Chief ,fudge Bartlett of the Court of Appeals held that:, '$usiice rsqulrca that every cause be once fairly and impartially tried; the public tranquillity demands tha~ having been onan so tried, all litigation of that question, and betwee~ those parlies, should be closed Fish v. Vanderlip. 218 N.Y.29, 36-37, 112 N.E. 425 (1916) quoting (~-'enleaf's Evidence §§ 522-.623. Thst principle is no less valid today. The doctrine of estoppel in New York is derived ~rom the English Common Law with roots the time of the Millers' application, the property was owned by Chance Cur~, Gilman Halleubeok, Gary Sinning, and Paradise of Southold, Inc. 2There is no copy of that deed in the return or in any of the papers submitted to the Court in support of or in opposition to the petition. 2 &ting to Ro~an tin~s, "The role is ~ a j~l~em in ~o~ ~ c~ot ~ a~d, ~ for ~ a~mst p~ ~ ~ to ~ R ~g r~eived ~ ~e ~plcs of~l, to wMch, it ~ essm~l ~a~ it shoed be ~1." St. lo~ v. Fowler. 229 N.Y. 270, 274, 128 ~. 199, ~ (1~0) ~t d~ied. ~9 N.Y, 608. 129 N.B. 927 (1921) ~~ 56 N.Y, 22, 11 Sic~ (1874). Sillily, in U~ 5~e ~ ~c~ ~. v, Adi~k Po~ & ~.i~t Co~ 2~ A~. 5~, ~ 201 N.Y.S. ~3, ~ (3d ~t 1~3) ~ ~ held ~t: The estoppel of a fonuer judgment does not depend upon teclmicalities, but rests on broad principle of justice, that an issue once finally determined bctwcan thc parties on the me,its cannot be litigated afterward. It is a role of oanveniance and public policy. It is not n rule, which for the sake of technical congruity stands in the way of substantial justice. "A judgmant is not conclusive of any matter whiclg from the nature of the case, the form of thc action, or the character of the pleadings, could not have ~ adjudicated in the former suit." Black on Sudgmants, vol. 2 (2d Ed.) § 618. Almost a c~ntm~ later in Buschcl v. Bain. 97 N.Y.2d 295, 303, 740 N.Y.$,2d 252, 257, 766 N.E,2d 914, ._, (2001) the Court of Appe, als reiterated that, "[c]ollateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue raised in a prior action or proceeding and decided against that party or those in privity." Citing Rvan v. New York Telenhone Comvanv. 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 826, 467 N.E.2d 487 (1984). The Court set out the test to be employed: Two requirements must be met before collateral estoppel can I~ invoked. Therc must be an identity of issue which has necessarily been decided in the prior action ~l is decisive of the present action, and thcre must have been a full and fair oppon'unity to contest the decision now said to be controlling (see, Oilbcr~ v. BarbJe~l, 53 N.Y.2d 25~, 291,441 N.Y.$.2d 49, 423 N.E.2d 807 ([1981]). Tbe litigant seeking the benefit of collateral estoppel must demonstrate that the decisive issue was necessarily decided in the Ixlor action against a party, or one in privity with a party (see, id.) The party to be precluded from rclitigafing the issue bears the bm'dca of demonstrating tho absence of a full and fair opportunity to con,cst the prior determination. 97 N.Y.2d at 303-304, 740 N.Y.S.2d at 257, 766 N.l!.2d at __; sec Davidson v. Anleriean Bio Metliea! com.. 299 A.D.2d 390, ~ 749 N.Y.S.2d 98, 99 (2d Dvpt 2002); Rilzanoloos v_ American Musannl of ~ 29'/ADff. d 728, ~ 747 N.Y.S.2d 566, 568 (2d D~pt. 2002); ~ ~ 295 A.D.2d 482, __, 744 N.Y.S,2d 464, 465 (2d Dept. 2002). The do~ine of res judie~ta or 'claim preclusion' employs a similar test: Under res judicata, or claim pr~chision, a valid final judgmant bars future actions belween the same parties on thc same causc of action. As a general nde, "once a claim is Brought to a final conclusion, all other claims arising ?ut of the same tnmsaction or series of Iransacfions are barred, even ifbesed upon difference theories or if seeking a d/fferent remedy." Thus, where a plaintiff in a later ac~/an brin~s a cla/m for demaffes that could have been presellted in a prior Article 7g praceediII8 a~ainst the sa~e party, 3 by res ~udioam. Parker v. Bhuveit Volunteer F/re Co. h'w.. 83 N.Y.2d 343, 347-348, 690 N.Y.S2d 478, 481, 712 N.E2d 647, 649-650 (1999) (citations omitted). See Wavlouis v. Baum. 281 A.D2d 636, __, 723 N.Y,S.2d 57 (2d Dept. 2001); ~ 269 A.D.2d agO, 707 N.Y.SZt Ill, 112 (2d Dept. 2000) ('°the doctrine of res judicato applied only to the ~adsa~tioa or series oftran~actior~s; it does not c~-clld to all causes of action ar/sing out cfa course of dealing bctwsen part/es and those in lmv/ty w/th th~n."). The doc~in~ of collateral estoppel and rcs judicata are bohh applicable to proceedings brought pursuant to C.P.L.R. Article 78. Houess 52 Com. v. Town of Fishkill. 266 A.D2d 510, 698 718 (2d Dvpt. ! 999) l~av¢ to myoeal d~nicd. 84 N,Y~.d 762, 708 N.Y.$.2d 51,729 N.E.2d 708 (2000) (oollale~l estoppel); pavia v. Board ofTrusteo~. 111 A,D.2d 17, 488 N.Y.g.2d 685 (lst DepL 1985) gtT'd 68 N.Y.2d 702, 506 N.Y.$.2d 308, 4~7 N.E.2d 675 (1986') (res judieam). Both respondents cite Jensan v. Zonin~ Board of Awe~ls of The Village of Old Wesburv, 130 A.D,2d $49, 51 $ N.Y.$,2d 283 (2d Dept.) avocal d~iod, 70 N.Y.2d 611 (1987) for tho proposition that, "absent a change in factz or eiromr, sl~ces, or a decision to grant a rehearing, a prope!~y owner, or subsequent landowner, cannot in a subsequent application, cure deficiencies in a prior appheation, where tiw application resulted irt a determination~ or again atl~ot to persuade a Board to//~a~t relief which previously was denied.' Respondent Paradise Point Memorandum of Law at page 7; see also respondent Zonillg Board of App~ls Memoraadum of Law at pages $ and [;. Tiffs position represents a considerable distor~on of the holding of lcl~san, aurora, h aensen, thc Second Dcpartlllent reaff;.med the applicab/]it~ of both doctrines to CPLR Article 78 determinations and held that petitioner must demonstrate a "chan~ in material fact" to proceed with a subsequent applieatiou for a variaaee. 130 A.D.2d at ,515 N.Y.5.2d at 284285. However~ the fact omflted from both respondouia' analysis is that the petitioner in .~ense0, suvra, was the same party who had commenced a prior application for a variance before the same Zoning Board of Appeals for essentially the sallze reli=f. Thus~ lensen, amain, simply did not address the question of whether the earlier deterrrdnatlon of the Zoning Board of Appeals would bind a subsequent In thc instant case, it is undisputed that Zupa was not party to thc ZBA's 1995 decision on thc Millers'application, Thus, zny appllcatlon of either collateral asfopp~l or res ~udicata aEaJnst Zupa necessarily first lxirns on the question of privity. Respondent Paradise Point contends that the case of Miller v. Board of Zonine Aooeals for the Villaec of Westhurv. New York Law $ouraai, August 16, 2000, page 26, col. I (Sup. Ct. Nassau Co. 2000) stands for the proposition that, "[al subsequent landowner is bound by the determinations and lindings of fact of a zoning board of appeals made prior to th~ ownership of the property, absent changed facts or circumstences." See Respondent Paradise Point's Memorandum of Law at page 9. Tho auprvme Court in Miller [no relation to the Millers in the instant cas~] held that onnlract v~ndess who applied for a variance were in "direct privity" with the vendor~' prior application and hencefoffil subject to the dooll'inc of coll~,,J. ~topp¢l. ~ Court fia'ther held that as contract vendees, the p~tiiioners in thc latter proceeding were also barred by collateral ~toppd because they "acquired a cond/tional interest in thc subject parcel aler the rendition of judgment (i~l thc prior application to thc Zoning Boar~ Matter of Conmlercial Casualty Insurance Cornoauv/Tromaine), 2~7 A.D. 536, 539, 13 N.¥.S.2d 754, 757-758 (3d Dept.) reanmment denied 257 A.D. 1080, 14 ~.Y.S.~ 807 (3d D~L) 1~ m ~ ~icd 281 N.Y. di~i~ble bom ~ose of ~e inset p~on. o~ appli~t m ~e ~ ~d ~us s~od ~ch ~la~p bem~ Z~ ~d ~, lot ~ q~a~. ~, ~ ~ m le~y re~i~ ~l~en~p ~ ~ ~Hms. 5~ w~ n~ a p~ to ~ c~act with ~e ~1~ n~ did d~i~. F~ly, ~a ~dno c~c~ ~laa~p ~ ~e od~al o~ at ~ ~ of~e ~ ~A deci~on. The ZBA in its d~cision of December 4, 2003 appmrs to asstune pfi~dty betmveen 7-~pa and the Millers. The return of the instmlt p~tiun conta/ns various aiscuss/om and legal memoranda on th/s issues of res judicata and collateral estoppel However, the Court was unable to discern any evidence of recurd that establish~ pfivlty behveeu Zupa and either th~ Millers ur the title owners to the property at the time of the Millers' appl/cat/on.J Ordinarily, the party seeking tO invoke ~he doch"ines of res iudicaia or collaleraJ ~stopp¢l has the burden of proving the requisite el~cuents, first and foremost of which is the threshold question ofprivity. ~ Parker v. Blauvdt Volunteer Pi~z Company. Inc.. suora. 93 I, LY.2d 343,690 N.Y.S.2d 478, 712 N-E.2d 647; Rvan v. N~w York Teleohone Coai~,~¥, supra. 62 N.Y2d 494, 478 N.Y.S.2d 823, 467 N.E.2d ~87. Howe, er, this is · pro~¢¢ding b~ought pur~uaut to thc C.P.L.R. Artiolo 78 and tho question before the Court is wh~hor the ZBA's legal conclusion that th~ Zupa appeal was barred by the application of res jud/cata and collateral estoppel is arbitrary and cnpricious and w/thout support in the record. The z~l~resentstions of counsel for respondent Peradise Point Associalion, Inc. regarding privity are insufficient to support the D~ember 4, 2003 decision of the ZBA as they wer~ not before the pruA prior to that de~ision. The submissions by counsel for the Z~A are also barren of citation to the re~ord. Similarly, although the Court is under no duty to s~u-~h the rewrd as contained in the return, the Court was simply tumble to locat~ anythi-s in the record bcfur~ the ZBA that supports any a~aurfion o£privity b~tween Zupa and the Millers. See e.t.. Ovst=r Bay Associates Limited Parmerzh/v v. The Town Boa~ of th~_,q,~.~t.I/,~/ll~.~B~16 300 A.D,2d 410, 755 N.Y.$.2d 671 (2d Dept. 2003). There, fore, the dadsion of Decelllber 4, 2003 is vacated and the matter is remitted to the ZBA for proeccdings consistent with this &x~ision. Th= above constitutes the decision and order of the Court. Date: May 6, 2004 ~/FINAL ~)L~O$IIION ENTER .M. Catterson, J.S.C. ZCounsel to respondent Paradise point Association, Ino. referred to the issue in ~ affirmation of January 2, 2004 at paragraph 9 and in the Memorandum of Law in Opposition to th~ .Petitiori of the same date. How~v~, there is no citation to the return nor the rucord before the ZBA. APPEALS BOARD MEMBERS Ruth D. Oliva, Chairwoman Gerard P. Goehringer Lydia A. Tortora George Horning Vincent Orlando BOARD OF APPEALS TOWN OF SOUTHOLD FINDINGS, DELIBERATIONS AND DETERMINATION MEETING OF DECEMBER 4, 2003 Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971-0959 Telephone (631) 765-1809 ZBA Fax (631) 765-9064 http://southoldtown.northfork.net RECEIVED ~ .'oo DEC 5 2003 SoUthol~ Town Clerk Action in accordance with the November 14, 2003 Supreme Court Decision of the Honorable James Catterson, J.S.C. (Index #03-25606) reqardin.q the following: Appl. No. 5266 regarding Appeal filed by MARY ZUPA concerning property at 580 Basin Road, Southold; 1000-81-1-16.7. SEQRA DETERMINATION: The Zoning Board of Appeals has visited the property under consideration in this application and determines that this review falls under the Type II category of the State's List of Actions, without an adverse effect on the environment if the project is implemented as planned. FINDINGS OF FACT The Zoning Board of Appeals held a public hearing on this application on March 20, 2003, June 5, 2003, July 24, 2003, and August 21, 2003, at which time written and oral evidence were presented. Based upon all the testimony, documentation, personal inspection of the property, and other evidence, the Zoning Board finds the following facts to be true and relevant: 1. The applicant has appealed from the Building Department's Notice of Disapproval, dated October 30, 2002 and alternatively seeks a variance under Sections 100-24B and 100-32 of the Town Code to permit construction of a single family dwelling on property located at 580 Basi'n' Road (Paradise Point), parcel # 1000-81-1-16.7. 2. The application had been disapproved by the Building Department on the grounds that: (a) construction of a single family dwelling on a non-conforming 75,687 sq. ft. parcel is not permitted in the R-80 District; (b) the lot is not recognized and its use is as a marina; and (c) the construction of a single family dwelling would constitute a second use. 3. The Zoning Board files reflect that in 1995, James and Barbara Miller applied for a building permit to construct a single family dwelling on this parcel. The Building Department Page 2 - December 4, 2003 ZBA Appl. No. 5266 - Mary Zupa CTM 1000-81-1-16.7 at Southold issued a Notice of Disapproval on essentially identical grounds as was issued with respect to the present application. 4. The Millers appealed to the Zoning Board, seeking to overturn the Notice of Disapproval or, alternatively, to obtain variances. The appeal was denied on August 9, 1995. No Article 78 proceeding was commenced by the Millers to review the Board's denial of their application. 5. In their application for a building permit and again in their application to this Board, the Millers sought permission to construct the single family dwelling as a second use on the parcel. The Millers stated that the property was already used as a boat basin. 6. Among the many issues presented by the current application is whether it is barred by the doctrines of res judicata and collateral estoppel due to the Board's denial of virtually the identical application in 1995. 7. The applicant argues that the doctrines do not apply to this application since there has been a significant change in facts and circumstances since the 1995 Board decision. Specifically, the applicant contends that, among other things, that the Miller application sought permission to allow the two uses, marina and residential, to co-exist, where as Ms. Zupa claims that she has demanded the removal of the marina use. The applicant asserts that the marina use is illegal and not permitted. Moreover, the applicant contends that the right asserted by the objectants to traverse her property on pre-existing roads to access the jetty and as a turn-around have been terminated and are likewise illegal. 8. Both the applicant and the objectants acknowledge that there are two actions presently pending in the Supreme Court, County of Suffolk, that directly bear on the ongoing validity of the use of the property as a marina and as to the objectants' rights to use the interior roads on the premises. One case is Zupa et. al. v. Paradise Point Association, Inc. (Index No. 02-25843) and the other is Paradise Point Association, Inc. v. Zupa (Index No. 02- 22401). The Board is advised that both actions are pending before Justice Catterson. 9. By Findings, Deliberations and Determination signed on September 30, 2003, this Board denied the application without prejudice to renew depending upon the resolution of the legal issues asserted in the two Supreme Court actions. 10. The applicant commenced an Article 78 proceeding to challenge the September 30, 2003 decision, which resulted in a judgment of the Supreme Court remanding the matter to this Board and directing that it make a determination based upon the record before it. 11. Pursuant to the Court's direction, this Board makes the following additional findings and determinations: a. The present appeal from the Building Department denial of a building permit is barred by the doctrines of res judicata and collateral estoppel in light of this Board's decision on the Miller application in 1995 which similarly sought permission to construct a single family Page 3 - December 4, 2003 ZBA Appl. No. 5266 - Mary Zupa CTM 1000-81-1-16.7 at Southold dwelling on this same property. The Zupa application was denied for essentially the same reasons as was the Miller application. The current applicant has not shown that there has been any change of facts since the Miller decision. The Millers conceded that the property was used as a marina and that their proposed single family dwelling would create a second principal use on the property. There is no dispute that the marina that existed at the time of the Miller decision is still in full use. Thus, nothing has in fact changed since the Miller application. The use of the property remains as is. The only "new" claim Ms. Zupa makes with respect to the marina is that it is "illegal" and that she has demanded its removal. However, that claim does not change the fact that the marina is presently there and in use. b. Moreover, the variance sought is substantially the same as was sought in the Miller application. In her submittal on the issue of res judicata, Ms. Zupa attempts to distinguish the Miller variances by identifying two alleged differences: "The Miller application sought a setback variance. The Zupa application seeks not setback variance. The application seeks one permitted and legal use" (page 3 of applicant's memorandum on res judicata, emphasis as in the original). However, the first distinction is of little consequence since the principal issue in the Miller variance application was the proposed mixed use of the property, which has a buildable area of some 70,000 square feet where 160,000 square feet would be required for the two uses. Ms. Zupa's variance application, which she concedes is premised on the claim that there is only "one permitted and legal use" (referring presumably to the single family dwelling being applied for) is contrary to the Miller determination and the facts as they currently exist. c. Similarly, the rights of others to traverse the property and use the jetty areas were identified in the Miller variance application and there has been no showing of any change in facts with respect to those factors as well, with the exception that the applicant has indicated that a fence has been erected to cut off access. The right to do so is being litigated in the Supreme Court actions identified above. d. The applicant has failed to produce any substantial evidence of a change in facts that would warrant deviation from the res judicata and collateral estoppel and effect that must otherwise be afforded this Board's denial of the similar, 1995 Miller application (see Mattituck Products Co., LLC. v. Town of Southold Zoning Board of Appeals, Suffolk County Index No. 98-20985, by Seidel, J.). BOARD RESOLUTION/DETERMINATION: Now, therefore, on motion by Member Tortora, seconded by Chairwoman Oliva, it was RESOLVED, that, based upon the foregoing, the Board is barred by the doctrine of Page 4 - December 4, 2003 ZBA Appl. No. 5266 - Mary Zupa CTM 1000-81-1-16.7 at Southold res judicata and collateral estoppel from reviewing this application based upon its decision on the Miller Application (Appeal No. 4314), dated August 23, 1995. Vote of the Board: Ayes: Members Oliva (Chairwoman), Goehringer and Tortora. Member Orlando abstained. Member Horning was absent. This Resolution was duly adopted {3-0). Ruth D. Oliva, Chairwoman 12/5/03 Approved for Filing APPEALS BOARD MEMBERS Lydia A. Tortora, Chairwoman Gerard P. Goehringer George Homing Ruth D. Oliva Vincent Orlando Appl. No. 5266 - Mary Zupa Street Location: 580 Basin Road, Southold (Paradise Point) CTM #1000-81-1-16.7. Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971-0959 ZBA Fax (631) 765-9064 Telephone (631) 765-1809 http://southoldtown.northfork.net BOARD OF APPEALS TOWN OF SOUTHOLD REC~EIVED FINDINGS, DELIBERATIONS AND DETERMINATION ~'~ MEETING OF SEPTEMBER 25, 2003 ; ~,~. Southold Town Clerk PROPERTY FACTS/DESCRIPTION: The applicant's property is vacant land consisting of 75,687 sq. ft. of land area in an R-80 Low-Density Residential District, as shown on the January 7, 2002 survey map prepared by Joseph A. Ingegno, L.S. survey, revised January 23, 2003. The property is improved with uses related to the existing Boat Basin, including ingress and egress, easement areas, parking and related wooden step structure, concrete pads. The property has frontage with road access at the westerly end of Basin Road, and is bordered on the north by Southold Bay (Town Harbor), on the west by a canal, on the south by a Boat Basin. BASIS OF APPLICATION: Building Department's October 30, 2002 Notice of Disapproval, citing Section 100-244B, in its denial of a building permit application to construct a single- family dwelling for the reason that: The construction of a single family dwellinq, on a non-conforming 75,687 square foot parcel in the R-80 District, is not permitted pursuant to Article II, Section 100-24B, which states: "All lots which are recoqnized by the town pursuant to the above section shall not receive any buildinq permits or other development entitlements." The lot has been determined not to be a recognized lot. In addition, the proposed sinqle family dwellinq is not permitted pursuant to Article Iff, Section 100-32, which states, No building or premises shall be used and no buildin.q or part thereof shall be erected or altered in the A-C, R-80, R-120 and R-400 Districts unless the same conforms to the Bulk Schedule and Parkin.q Schedule incorporated into this chapter with the same force and effect as if such re.qulations were set forth herein in fulL." The property currently has a marina use in place. The construction of a single family dwelling would constitute a second use. Bulk Schedule requires 80,000 square feet of land area per use. Tota ot coveraqe, followinq the construction, will be less than 20 percent. A notice of disapproval and subsequent appeal (~,314) was denied on Auqust 23, 1995, based on the above referenced information and a number of other issues. Page 2 - September 25, Appl. No. 5266 - Mary Zupa CTM #1000-81-1-16.7 at Southold RELIEF REQUESTED: Applicant wishes to construct a 60 x 100' (irregular) single family dwelling with attached garage, centered on the upland area of the property between the shoreline of Southold Bay (to the north) and the shoreline of an underwater body of water referred to as the Boat Basin. Proposed building setbacks, land contours, flood elevations, tidal wetlands, bulkheading, docks, and other data are shown on the survey map prepared by Joseph A. Ingegno, L.S. dated January 7, 2002, revised August 26, 2002. FINDINGS OF FACT The Zoning Board of Appeals held a public hearing on this application on Mamh 20, 2003, June 5, 2003, July 24, 2003, and August 21, 2003, at which time written and oral evidence were presented. Based upon all testimony, documentation, personal inspection of the property, and other evidence, the Zoning Board finds the following facts to be true and relevant: 1. The applicant has appealed from the Building Department's Notice of Disapproval, dated October 30, 2002 and alternatively seeks a variance under Sections 100-24B and 100-32 of the Town Code to permit construction of a single family dwelling on property located at 580 Basin Road (Paradise Point), parcel # 1000-81-1-16.7. 2. The application had been disapproved by the Building Department on the grounds that: 1) construction of a single-family dwelling on a non-conforming 75,687 sq. ft. parcel is not permitted in the R-80 District; 2) the lot is not recognized and its use is as a marina; and 3) the construction of a single family dwelling would constitute a second use. 3. Hearings were held on the application on March 20, 2003, June 5, 2003, July 24, 2003, and August 21, 2003. 4. The Zoning Board's files reflect that in 1995, James and Barbara Miller applied for a building permit to construct a single family dwelling on this parcel. The Building Department issued a Notice of Disapproval on essentially identical grounds as was issued with respect to the present application. 5. The Millers appealed to the Zoning Board, seeking to overturn the Notice of Disapproval or, alternatively, to obtain variances. The appeal was denied on August 9, 1995. No Article 78 proceeding was commenced by the Millers to review the Board's denial of their application. 6. In their application for a building permit and again in their application to this Board, the Millers sought permission to construct the single-family dwelling as a second use on the parcel. The Millers stated that the property was already used as a boat basin. Page 3 - September 25, Appl. No. 5266 - Mary Zupa CTM #1000-81-1-16.7 at Southold 7. Among the many issues presented by the current application is whether it is barred by the doctrines of res judicata and collateral estoppel due to the Board's denial of virtually the identical application in 1995. 8. In a myriad of submittals, the applicant argues that the doctrines do not apply since there has been a significant change in facts and circumstances since the 1995 Board decision. Specifically, the applicant contends that, among other things, that the Miller application sought permission to allow the two uses, marina and residential, to co-exist, where as Ms. Zupa claims that she has demanded the removal of the marina use. The applicant asserts that the marina use is illegal and not permitted. Moreover, the applicant contents that the right asserted by the objectants to traverse her property on pre-existing roads to access the jetty and as a turn-around have been terminated and are likewise illegal. 9. Both the applicant and the objectants' acknowledge that there are two actions presently pending in the Supreme Court, County of Suffolk, that directly bear on the ongoing validity of the use of the property as a marina and as to the objectants' rights to use the interior roads on the premises. One case is Zupa et. al. v. Paradise Point Association, Inc. (index No. 02-25843) and the other is Paradise Point Association, Inc. v. Zupa (Index No. 02- 22401). The Board is advised that both actions are pending before Justice Catterson. 10. The legal issues asserted in the two Supreme Court actions bear directly on the merits of the application before the Board. If the Court rules that the marina use is valid, then the issue of the res judicata/collateral estoppel effect of the 1995 Miller application and determination will have to be resolved by this Board. If the marina use is found to be illegal, then that issue will not be before this Board. 11. Similarly, the rights of others to traverse the applicant's property must be decided by the Supreme Court before this Board can address the applicant's request for a variance. The location and size of the proposed dwelling could be directly affected if the Court sustains the rights of others to continue to use the existing roads, paths and turn-around situated in the center portion of the property. DETERMINATION BOARD RESOLUTION: In considering all of the above factors and applying the balancing test under New York Town Law 267-B, motion was offered by Chairwoman Tortora, seconded by Members Horning and Oliva, and duly carried, to render the following determination; Based upon the foregoing, the Board must await the determination of these legal issues by the Supreme Court before rendering a decision on the "merits" of the case. Simply put, the parties have asked the Supreme Court to determine the "merits," and the outcome of this application to the Board could be substantially different depending on the Court's ultimate rulings. 3 · 'Page 4 - September 25, Appl. No. 5266 - Mary Zupa CTM #1000-81-1-16.7 at Southold The application is therefore denied without prejudice so that the applicant can re- open her application upon the final determination of the Supreme Court actions. Vote of the Board: Ayes: Members Tortora (Chairwoman), Goehringer, Homing, and Oliva.) (Member Orlando, abstained, and was absent.) This Resolution was duly adopted (4-0). LpAp~ppraovA;dT~ortrO~l;n~hairwoman 9/'~0/03 P]~TNING BOARD MEMBERS.~'~ ~' ' ~ O~LOWS~,~. / ~ D Ch~rman ~ RICED CA~O WILL~ J. C~ME~ ~NNETH L. EDW~DS ~TIN SIDOR P.O. Box 1179 Town Hall, 53095 State Route 25 Southold, New York 11971-0959 Telephone (631) 765-1938 Fax (631) 765-3136 MEMORANDUM Date: June 16, 2003 PLANNING BOARD OFFICE TOWN OF SOUTHOLD RECEIVED JUN 2 3 2003 N~ ~G ~O~RD OF AOpt~AL$ To: Lydia Tortora, Chairwoman, Zoning Board of Appeals From: Valerie Scopaz, ^ICP, Town Planner ~~ Re: AppI#. 5266 Zupa Paradise Point SCTM# 1000-81-1-16.7 In reference to the request for information, attached you will find copies of various letters and documents from our file on the above project. Included are two maps dated June 30, 1981 and May 11, 1981 of the Paradise Point subdivision, which are referenced in the documents. We hope this will help in the review. Thank you in advance. Cc: file APPEALS BOARD MEMBERS Lydia A. Tortora, Chairwoman Gerard E Goehringer George Homing Ruth D. Oliva Vincent Orlando TOWN MEMO BOARD OF APPEALS TOWN OF SOUTHOLD Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971-0959 ZBA Fax (631) 765-9064 Telephone (631) 765-1809 http://southoldtown.north fork.net TO: FROM: DATE: SUBJECT: Valerie Scopaz, Town Planner and/or Planning Board Lydia Tortora, ZBA Chairwoman ~3~)td ~ June 2, 2003 Prior Planning Board Approved Map (Reft CTM 1000-81-1-16.7) The Board of Appeals has an application pending concerning property located at the end of Paradise Point, formedy owned by Sinning & Others, and now owned by Mary Zupa. Would you please furnish a copy of the Planning Board approved map or any other information that would clarify lot recognition or creation of 16.7. Thank you. JUN 1 1 2003 Planning Boanl -~,-~,-',., to, ,~c~o~ ~ ',90¢ PLANNING BOARD MEMBERS BENNETT ORLOWSKI, JR. Chairman RICHARD CAGGIANO WILLIAM J, CREMERS KENNETH L. EDWARDS MARTIN SIDOR ~ P.O. Box 1179 Town Hall, 53095 State Route 25 Southold, New York 11971-0959 Telephone (631) 765-1938 Fax (631) 765-3136 PLANNING BOARD OFFICE TOWN OF SOUTHOLD MEMORANDUM To: Mike Verity, Principal Building Inspector Damon Rallis, Building Permits Examiner From: Planning Board ~ Re: Paradise Point Lot # 1000-81-1-16.7 Date: October 29, 2002 The Pla~ming Board reviewed your request to determine whether the referenced lot is a buildable lot. The history of subject lot is as follows: 1 The lot was created as residual open space/access of the ?aradise Point Subdivision filed with the Suffolk County Clerk on April 11, 1963. The file contains a Covenant and Restriction dated February 11, 1963. It is unknown if the Covenant and Restriction was filed with the Suffolk County Clerk. If filed, applicable clauses include: No Structure or structures, including but not limited to, dwellings, outbuildings, and fences, shall be erected or constructed or allowed to remain unless the plans and specifications thereof and the location thereof shall have first been submitted to m~d approved by the Building Committee of the Paradise Point Corporation, its successors and assigns, in writing. The Paradise Point Corporation its successors and assi~s may release, alter, amend and annul all or any of these covenants and restrictions with the consent in writing of all property own m~qAa~ RECEIVED ZONING BOARD OF APPEALS 3. The April 11, 1963, subdivision approval granted by the Planning Board was subject to tWo conditions: a. Approval of the Suffolk County Board of Health b. Expanding the turn~around at the end of Basin Road to 100 x 100 feet. The turn-around and easement on the recorded 1963 Paradise Point Subdivision Map is not shown on the most recent plat submitted. The fate of the rum-around should be determined. On June 14, 1981 the Planning Board approved a set off as indicated on the Paradise Point Corporation, lots titled Club House 2.75 acres and a unnumbered lot on Southold Bay 1.7 acres directly east of the inlet basin. This action was a result of a request from the applicant's agent in a letter dated May 22, 1981. The agent requested the set-off pursuant to Section 106-13A of the code o£the Town of Southold. It is the general consensus that this action was taken in order to allow the remainin~ subdivided lands to be subdivided as a minor subdivision. On March 8 and March.29, 1990 two letters from Ms. Valerie Scopaz stated that the set-off action did not guarantee buildability of the lots and due to the fact that there is no filed map; recommended to the applicant at the time, to apply for subdivision approval. In a May 9, 1995 letter Ms. Melissa Spiro reiterated that the map for the set-off was not endorsed or recorded in the Suffolk County Clerk Office. In addition, the PB did not guarantee the set-off lots as buildable. To be considered buildable the, proposed buildings must meet all code requirements in addition to receiving Suffolk County Department of Health Approval. In a June 6, 1995 Memo to the Zoning Board of Appeals from Richard Ward, Chairman, Mr. Ward states that the Planning Board does not plan to take any further steps in regard to this set-off, as it is no longer within its jurisdiction. The Planning Board's still maintains the position that the set-off although referenced through a Planning Board resolution dated June 4, 1981 is incomplete in regard to the endorsement and filing provisions of Chapter 106 of the Southold Town Code and New York Town Law. The Planning Board in accordance with Mr. Ward's June 6, 1995 memo, will not take any further steps in regard to this set-off, as it is no longer within its jurisdiction. ¸3' T Q,~ ~V~ ~_S~Q.~I~QiL O Southold, N.Y. 11971 HENRY E. RAYNOR, Jr., Chairman JAMES WALL BENNETT ORLOWSKI. Jr. GEORGE RITCHIE LATHAM, Jr. Nilliam F. Mullen, Jr. TELEPHONE 765-1938 January 22, 1982 Mr. William B. Smith P.O. Box 146 $outhold, New York 11971 Dear Mr. Smith: The following action was taken by the Southold Town Planning Board, at a regular meeting, Monday, January 18, 1982: RESOLVED that whereas, a formal application for the approval of a subdivision plat entitled Minor Subdivision of Paradise Point Corp- oration was submitted to the Planning Board on July 27, 1981, and an application fee of $100.00 was paid on July 20, 1981, and WHEREAS, a public hearing was held on said subdivision application and plat at the Town Hall, Southold, New York, on August 31, 1981 at 7:30 p.m., and WHEREAS, the requirements of the Subdivision Regulations 04 the Town of Southold have been met by said subdivision plat and appl'ication, NOW, therefore, be it RESOLVED that the application of Paradise Point Corporation for approval of said subdivision plat prepared by Roderick Van Tuyl, P.C. dated June 30, 1981 and amended November 3, 1981, be approved and the chairman be authorized to endorse approval on said subdivision plat, subject to the following conditions: No lot shall be subdivided or its lot lines changed in any manner at any future date unless authorized by the Southold Town Planning Board. / No sanitary disposal facility shall be installed or constructed within 100 feet of the edge of the marsh or the edge of Southold Bay. dUN · William B. Smi'~ 'pg. '2 ~ ~January 22, 1982 Erosion and sediment control measures shall be required during and immediately after construction on each lot to insure that stormwater runoff will not carry eroded and other deleterious materials into Southold Bay and the wetlands within the parcel. Approval of this subdivision shall be made subject to the subdivision's meeting the requirements and standards of the Suffolk County Department of Health Services. The above conditions shall be filed as covenants and restrictions in the office of the County Clerk on or prior to the granting of approval to this subdivision. The chairman will endorse his signature on said map, upon receipt of a copy of the filed covenants and restrictions and three (3) final maps. Yours very truly, HENRY E. RAYNOR, jR., CHAIRMAN SOUTHOLD TOWN PLANNING BOARD By Susan E. Long, Secretary LEGAL NOTICE Notice of Hearing NOTICE IS HEREBY GIVEN that pursuant to Section 276 of the Town Law, public hearings will be held by the Southold Town Planning Board at the Town Hall, Main Rqad, Southold, New York, in said town on the 31st day of Augsut, 1981, on the question of the following: 7:30 p.m. Approval of the minor subdivision of Paradise Point Corporation located at Southold in the Town of Southold, County of Suffolk and State of New York and bounded and described as follows: BEGINNING at a monument set on the easterly line of land now or formerly of Kerester, said monument marking the northerly term- inus of the westerly line of Paradise Point Road and the southerly terminus of the northwesterly line of a private road known as Robinson Road; running Kerester, tow courses:- (1) N. 19© 15' 20" (2) N. 18© 29' 20" thence along said land now or formerly of E. 519.03 feet; thence E. - 440 feet, more or less, to ordinary high water mark of Town Harbor; thence easterly along said high . water mark 376 feet to other land of Paradise Point Corp.; thence along said other land, two courses: (1) S. 4© 30' W. - 610 feet, more or less; thence (2) S. 38© 31' 40" E. - 100.0 feet to the northerly corner of lot 12, shown on "Map of Paradise Point, Section I", filed in the Suffolk County Clerk's Office as map #3761; thence along said lot 12, two courses: (1) S. 51© 28' 20" W. - 92.90 feet; thence (2) S. 23© 47' W. - 120.0 feet to the northerly line of said Robinson Road; thence along said line of Robinson Road, two Courses: (1) N. 66© 13' W. - 376~70 feet; thence (2) Southwesterly on a curve to the left, having a radius of 175 feet, a distance of 274.88 feet to the point of beginning. Containing 9½ acres, more or less. 7:45 p.m. Approval of the minor subdivision of Marie Cassidy located at Arsharmomaque in the Town'of Southold, County of Suffolk, and State of New York bounded and ~-~/~9_~a~o_llows: /, JUN232003 BEGINNING at a point on the southerly line of Albertson Lane at the northeasterly corner of the premises herein de- scribed, being the northwesterly corner of land of Andrew Cassidy; running thence along said land of Andrew Cassidy and along land of Catherine Cassidy, S. 1O 48' 00" E. - 965.79 feet; thence continuing along said land of Catherine Cassidy, N. 89° 52' W. - 316.51 feet to land of Guarnashelli; thence along said land of Guarnashelli, N. 0° 08' 00" E. - 931.40 feet to land of Copin; thence along said land of Copin, N. 78° 01' E. -208.0 feet to said Southerly line of Albertson Lane; thence along said southerly line of Albertson Lane, S. 82° 55' E. - 81.16 feet to the point of BEGINNING. Containing 6.605 acres. 8:00 p.m. Approval of the minor subdivision of Robert C. Nelson, Jr. located at Bayview in the Town of Southotd, County of Suffolk and State of New York and bounded and de- scribed as follows: ALL that certain lot, piece or parcel of land beginning at a concrete monument set on the boundary line between land of the party of the first part and land of "Goose Bay Estates", as shown on a map entitled "Map of Goose Bay Estates at Southold, Long Island," filed in the Suffolk County Clerk's Office Nov. 13, 1934 as Map. No. 1176; being the northwesterly corner of land conveyed by the party of the first party to Rix McDavid by deed dated June, 1949; from said point of beginning running along boundary line North 17 degrees 34 minutes 30 seconds East 330 feet, more or less, to a dredged canal leading to Goose Creek; thence in a general easterly direction along said dredged canal about 250 feet; thence in a general southerly direction along the westerly edge of another dredged canal leading to Goose Creek, about 250 feet, to land now or formerly of Howard A. Toedter; thence along said land of Toedter, (now or formerly) South 17 degrees 40 minutes 30 seconds West 190 feet, more or less; thence along the northerly line of a certain 30 foot right of way (#3 as hereinafter described) and along said land now or formerly of McDavid, North 72 degrees 25 minutes 30 seconds West 320.39 feet to the point of beginning. I JUN 3 2003 OFAPPEALS~d ~ 1) Together with a right of way 30 feet in width from a point on the southerly'boundary of the property here- inabove described at the northeasterly corner of said land now or formerly of McDavid, southerly about 760 feet, thence easterly at right angles to said 30 foot right of way (#2) as described below). 2) Also with a right of way 30 feet in width over said land now or formerly of Toedter and adjoining the westerly boundary thereof, from North Bayview Road northerly about 1620 feet to said dredged canal leading to Goose Creek. 3) Also with a right of way 30 feet in width, the northerly line of which is said southerly boundary of the property hereinabove described, from said point on said southerly boundary at said northeasterly corner of McDavid; (now or formerly) easterly about 170 feet to said land now or formerly of Toedter and to said 30 foot right of Way (#1) as described above). 4) Also with a right of way beginning at a point about 35 feet southerly from said dredged canal along the easterly line of said 30 feet right of way #(2) described above; and running northeasterly about 1400 feet to the "Ncrth Road tc Bayview". Any person desiring to be heard on the a~ove matter should appear at the time and place above specified. BY ORDER OF THE SOUTHOLD TOWN PLANNING BOARD HENRY E. RAYNOR, JR., CHAIRMAN PLEASE PUBLISH ONCE, AUGUST 20, 1981 AND FORWARD THREE AFFIDAVITS OF PUBLICATION TO THE SOUTHOLD TOWN' PLANNING BOARD, MAIN ROAD, SOUTHOLD NEW YORK 11971 Copies mailed to the follcwing on August 10, The Suffolk Times Marie Cassidy William Smith Abigail Wickham · Supervisor William R. Pell, 1981: HENRY E. RAYNOR. Jr.. Chairman ."2EDEP.:C.~. E CO.qD~N JAMES WALL BENNETT ORLOWSKI, Jr. GEORGE RITCHIE LATHAM. Jr. William F. Mullen, Jr. P Southold, N.Y. 11971 TELEPHONE 765- 19.~8 August 4, 1981 Mr. William B. Smith 220 Mechanic Street P. O. Box 146 Southold, New York 11971 Dear Mr. Smith: The following action was taken by the Southold Town Planning Board at a regular meeting held August 3, 1981. RESOLVED to approve the sketch map of the minor subdivision of Paradise Point Corporation, said map dated June 30, 1981, lo- cated at Southold. RESOLVED to set 7:30 p.m., Monday, August 31, 1981 at the Town Hall, Main Road, Southold, New York, as the time and place for a public hearing on the question of the approval of the minor subdivision of Paradise Point Corporation located at Southold, subject to receipt of any outstanding paper work. Very truly yours, HENRY E. RAYNOR, JR., CHAIRMAN SOUTHOLD TOWN PLANNING BOARD By Linda Kimmins, Secretary JU~ ,~ 3 2003 HENRY E. RAYNOR, Jr.. Cflaitman F~_~pE~!C~ ~_ enD_nON JAMES WALL BENNETT ORLOWBKI. Jr. GEORGE RITCHIE LATHAM. Jr. William F. Mullen, Jr. Southold, N.Y. 11971 TELEPHONE 765- 1938 June 4, 1981 Mr. GeOrge Fisher Senior Building Inspector Town Wall Southold, New York 11971 Dear Mr. Fisher: The following action was taken by the Southold Town Planning Board at a regular meeting held June 1, 1981. APPROVAL to set off as indicated on subject of Paradise Point Corporation, lots titled Club House 2.75 acres and an unnumbered lot on Southold Bay 1.7 acres directly east of the inlet basin. Also an amendment to the resolution to include lot 17 as shown on map of May 11, 1981. This approval is subject to a one year review. Yours truly, HENRY E. RAYNOR, JR. , CHAIRMAN SOUTHOLD TOWN PLANNING BOARD By Linda Kimmins, Secretary 'Wilhom ,Smitla 220 MECHANIC STREET P.O. BOX 146, SOUTHOLD, N.Y. 11971 (516) 765-3042 MAIN ROAD & SKUNK LANE CUTCHOGUE, N.Y. 11935 (516) 734-5657 REAL ESTATE [ vou~ aNC,O~ ] e) LICENSED BROKER WATERFRONT PROPERTIES -- HOMES LOTS & ACREAGE ESTATE AND COMMERCIAL PROPERTIES APPRAISING Nay 22, 1981 Southold Town Planning Board Main Road Southold, New York 11971 Attentions Nr. Henry Raynor, Chairman Gentlemens Regarding the map of Paradise Point, dated Nay ll, 1981, I request that the point lot of 2-3/4 acres with the club house on it and the Southold Bay lot of 1.7 acres be designated as setoffs as per 106-13A of the code of the Town of Southold. Very truly yours, PARADISE POINT CORP. William B. Smith, ~Agent ] ./UN ;~ ,',-1 2003 ~ ,~NIN,.'~ ~OARD OF APP Wdho, Smith 220 MECHANIC STREET P.O. BOX 146, SOUTHOLD, N.Y. 11971 (516) 765-3042 MAIN ROAD & SKUNK LANE CUTCHOGUE, N.Y. 11935 (516) 734-5657 REAL ESTATE LICENSED BROKER WATERFRONT PROPERTIES - HOMES LOTS & ACREAGE ESTATE AND COMMERCIAL PROPERTIES APPRAISING May 14, 1981 Southold Town Planning Board Southold Town Hall Southold, New York 11971 Attention: Mr. Henry Raynor, Chairman Gentlemen: The enclosed application for subdividing one lot, #17 of 1½ acres, west of Dryads Basin, Paradise Point Road, is for one residence. The remaining upland and meadow acreage shown as lots 12A, 13A, 14A, 1SA &~16A is attached to filed map lots 12, 13, 14, 15 & 16. The owners, Paradise Point Corporation, do hereby covenant to the Southold Planning Board ~hat there will not be any residence or part of a residence built upon these extensions of land. Nor will there be more than one residence on 12, 13, 14, 15 & 16. Thank you for your consideration of this project. Very truly yours, William B. Smith Enc. Agent BENNETT ORLOWSKI, JR. Chairman RICHARD CAGGIANO WILLIAM J. CREMERS I~NETH L. EDW~I:t,DS ~WTIN H. SIDOR MEMORANDUM PLANNING BOARD OFFICE TOWN OF SOUTHOLD P.O. Box 1179 Town Hall, 53095 State Route 25 Southold, New York 11971-0959 Telephone (631) 765-1938 Fax (631) 765-3136 R CEIVED JUN - 4 Date: June 4, 2003 To: Lydia Tortora, Chairwoman, Zoning Board of Appeals From: Valerie Scopaz, AICP, Town Planner / Re: Appl#. 5266 Zupa Paradise Point SCTM# 1000-81-1-16.7 The matter referencing the above parcel will require time to research. We request that the ZBA Board hold open this appeal and give us a fair amount of time to research this project. This matter will need to be brought to the Planning Board attention at a work session and the next scheduled date is June 9, 2003. Thank you in advance. Cc: file, PB APPEALS BOARD MEMBERS Lydia A. Tortora, Chairwoman Gerard P. Goehringer George Horning Ruth D. Oliva Vincent Orlando BOARD OF APPEALS TOWN OF SOUTHOLD February 14, 2003 'i Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971-0959 ZBA Fax (631) 765-9064 Telephone (631) 765-1809 http://southoldtown.northfork.net t:ax and Reguk : Mail Catherine Mesiano, Inc. Attn: Cathy Mesiano 12 Mill Pond Lane East Moriches, NY 11940 Re: AppJ. No. 5266 - V. Zupa Application Reviews Dear~ As a follow-up to our telephone message the other day, our office may have sent a form of incomplete notice dated 2-11-03 to you by fax. Please disregard this fax if it was received by your office because it was in error. We apologize for any inconvenience this may have caused. Thank you. Sincerely yours, Linda Kowalski ZBA Secretary (63 I) 765-1809 To~ Re: Office of BOARD 01~ APPEALS 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 (631) 765-9064 fax (alt. fax 765-1823) Applicant Appeal No. ( ) Your application has been advertised for a public hearing. In the interim, please furnish the following document which was listed on the instruction sheet but inadvertently not included when the application was submitted to our department for processing: or ( ) The application is not signed and notarized and is enclosed for re-submission. or ( ) Your application is not complete for the reasons noted below. Or ~1~ The following documentation was missing in your submission of this application. Information Re uested from Instruction Sheet : (). Notice of Disapproval issued by the Building Inspector atter review for this particular project map. ( ) Filing fee check in the amount ors ~ is due. ( ) An original map, or duplicate of the map to the map preparer's full scale, is necessary. ( ) Setbacks to the property lines are necessary at the closest points from the subject building area. Please show on a map or similar diagram. ( ) Copies of current deed and/or tax bill of the subject parcel. Additional In fo rma rio n Re~..eg..u_es_te~_[: OFFICE OF · BOARD OF APPEALS'" Southold Town Hall 53095 Main Road Southold, NY 11971 765-1809 tel. r 765-9064 ZBA fax. REPLY FORM ( /~our appl~ation is incomplete for the reasons noted below. ( ) it is requested that the following be forwarded as soon as possible (witt~in about 7 days, if feasible). The a~vertising deadline is 22 days before the meeting date and the information is necessary for review and advertising purposes. You may forward the information by fax at 765- 9064, however, please send the original by mail. Thank you. ( ! The appeal was n'~t filed within 60 days of the decision of the Building Inspector. //) Missing information- please see missing information checked below. Please submit all the ~ocumentation, together with information noted below. If you have any questions, please call ~s at 768-1809. Thank you. Information requested' ~ ( ) Notice of Disa . particular project map. issued by the Building Inspector after his/her review of this Check payable to the ( ) Signature and notar information are needed. ( ) An original and six of preparation to be shown.) ( ) Setbacks must be s name. (/}. Six (6) sets of a dle~,awl (from natural grade). ~Loo ~ were not included. (Preparer's name and date ~ubject building to all property lines, with proparer's doors, number of stories, and average height ( ) Ownership Search back to April 23, parcels, certified by a title insurance corn for the subject parcel and all adjoining nsuring the Town for $25,000. ( ) Copies of all current deeds and tax bills (~)'/Other: parcels back to HE/4RY g. RAYNOR. ,tr.. Chairman ~'AMF.,S WALL BF-.NNETf OR~WSKI. Jr. ~EORGE ~HIE ~AM. Jr. William F. Mullen, Southold, N.Y. 11971 TELEPHONE 785-19~ June 4, 1981 Hr. GeOrge Fisher Senior Building Inspector Town ~all Southo~, New York' 1197~ Dear Mr. Fisher: The following action was taken by the Southold Town Planning Board at a regular meeting held June 1, 1981. APPROVAL to set off as indicated on subject of Paradise Point' Corporation, lots titled Club House 2.75 acres and an unnumbered lot on Southold Bay 1.7 acres directly east of the inl6t basin. Also an amendment to the resolution to include lot 17 as shown on map of May 11, 1981. This approval is subject to a one year review. Yours truly~ HENRY E. RAYNOR, JR., CHAIRMAN SOUTHOLD TOWN PLANNING BOARD By Linda Kimm£ns, Secretary TOWN OF SOUTHOLD OFFICE OF BUILDING INSPECTOR TOWN HALL $OUTHOLD, N. Y. 11971 May 21, i~ ~ 765-1502 1981 Planning Board Town Hall Main Road Southold~ New York 11971 Re: Paradise Point Corporation, Minor Subdivision Plot by Roderick Van Tuyl P. C., Bevised Hay 11, 1981 Gentlemen: According to the Assessors and Town Tax Map, the Private Roads and the proposed lot of 1.7 acres by the basin and the lot aT the point of .2 7~'+ acres are all under the same ownership. When you have approved these lots as separate lots, I will gladly issue Certificate of Occupancy for each lot as Hr. William Smith, agent for Paradise Point Corp., has applied for. I understand the approximate square area at the Westerly end of Basin Road will be part of the road and a turn around area given access also to the Basin. Do any Of the roads, Robinson Road, Basin Road or Briar Road, comply to the definition,of a street in Chapter 100, Zoning Article 1, 100-13, Page 10014 of the Code of the Town of $outhold? No Building Permit can be issued unless they are improved to the satisfaction of the Planning Board or the Zoning Board of Appeal gives access approval. .OHF:Jd . Sincerely, / !.' George H. Fisher -' Sr. Building Inspector VICTOR j. ZUPA A'I'I'ORNEY AT LAW 4565 PARADISE POINT ROAD SOUTHOLD, NEW YORK 11971 TELEPHONE (631) 765-6112 FACSIMILE (631) 765-6119 vzupa~concentric, net October 30, 2002 Mr. Damon Rallis Building Department Town of Southold Southold, NY 11971 Dear Mr. Rallis. Re: Lot 81.1.1000.16.7 (Lot 16.7) I understand from Cathy Mesiano, Mary Zupa's representative for the building department application, that one of the reasons that you are considering denying a building permit for Lot 16.7 is that it is not recognized as a lot. Before making that decision, I want to make sure that you have taken into consideration, documents from the building department and the planning board which clearly indicate Lot 16.7 was created as a lot by the Planning Board in 1981. I believe that a denial of a permit using this as an issue violates Southold Town Code {}100-24 which requires your department to recognize a lot approved by the Planning Board prior to 1983. in this regard, the term "buildable lot," which from previous discussions with representatives of building and planning, means a lot with all approvals from other agencies, health, trustees, etc., is distinguished. A legal lot as used by the Planning Board and the Town Code is one which has the Town's recognition as a lot which may be buildable if other approvals are obtained. While the Planning Board does not have the jurisdiction to provide these other approvals, those issues can never be reached if there is no lot recognition. See Town Code §100- 24(B). The following indicates that the Planning Board created a legal lot on June 1, 1981 by setoffwhich is authorized by Town Code §A106-13 (subdivision) and was its practice in creating lots: 1. Resolutions dated June 1, 1981 approving Lot 16.7 as a lot; 2. Letter from the Planning Board to the Building Department dated May 21, 1981 and corresponding letter of response from the Planning Board dated June 4, 1981 indicating that a lot was created by the June 1, 1981 resolution; 3. Memo to file from Valerie Scopaz, Town Planner, indicating that Lot 16.7 was setoff as a lot (along with two other lots) and that vacant land Certificates of Occupancy were issued on all three lots on June 12, 1981 (a CO for one of the lots is attached). This memo distinguishes between a "lot" and a "the buildability of the lot"; and 4. Tax payment receipt indicating that Lot 16.7 is taxed by the Town of Southold as a separate residential lot. 5. Minor Subdivision map and tax map showing Lot 16.7 as a separate lot. Please note that I have previously addressed this issue in a memo to Gerry Goehringer dated September 18, 2001, a copy of which was provided to the Chief Building Inspector, Mike Verity. I enclose a copy of that memo, without enclosures. I ask that you take into consideration the Planning Board's resolution and the Town Code in reaching any decision on this issue. Cc: Cathy Mesiano Eric Bressler 2 ' Planning Board -4- June .1, 1981 spondence from the ~uffolk County Department of Health Services re- garding the SEORA, correspondence to the Suffolk County Planning Commission, copy of the legal notice, metes and bounds description, correspondence from the applicants attorney, sketch plan approval for this subdivision on March 26, 1980, I would assume it is March 1981, also declaration of lead agency status with Southold Town Planning Board, application for approval of plot, short environmental assessment form. This completes the file. This is a tract of prop- erty that's being divided into two. The tract of property consists of fifty-nine and one-half (59%) acres, one plot being thirteen acres to the north, the second plot being fourty-six acres to the south. As is the procedure of public hearings, I will ask is there anyone present this evening who would like to speak in opposition to'this proposed minor subdivision of the Henry Jennings Estate? Hearing none, is there anyone present this evening who would like to speak in favor of this proposed minor subdivision of the ~ ~Estate? Rudolph Bruer: On behalf of the'estate, I would just like to re- irradiate what I spoke to you gentlemen earlier on the site pian approval. The purpose, I represent the estate whose selling it subject to the division of the property, we've been advised by the proposed purchaser, a Dr.. Damlanos, that it would be used for=grape growing purposes and the purpose of the.' spli={ing of it is that the larger piece is going to be used as a farm. Respectively, we ask the board to allow the division of the property, thank you. Mr. Raynor: 'Is there anyone else present this evening who woul~ like to speak in favor of this proposed subdivision? Is there anyone present this evening that has some information that may be neither pro nor con but should come before this board at this time? Hearing none, is there any member of the board that has any questions? Mr. Orlowski, Mr. Latham, Mr. Wall, Mr. Mu!Ien? All answered in the negative.. Mr. Raynor= There being no further questions we will deem this hearing closed and thank you for coming down this evening. Milton Mehlman minor subdivision. J~ Strong appeard before the board to discuss with them his request that the right-of-way be changed from 50 feet to 25 feet. The board feels that 50 feet' for =he right-of-way is needed if not at this time but for the future. Mr. S.trong's request has been denied. On motion made by Mr. Orlowski, seconded by Mr. Latham, it was I~ESOLVED to set-off as indio~ted of the minor subdivision Paradise Fo~n~ uorp thr~uarter ~cres eno &n unnum~e~e? }o= of~l.7 ac~ ctl eas= o~ inlet Vote of the Board: Ayes: Raynor, Wall,'0rlowski, Mullen, Latham Paradise Po£n= Corpora=ion to inolud~ lot ~17 a~ shown on ~ Vote of =he Board: Ayes: Raynor, Orlowski, Wall, Mullen, La=ham On mo=ion made by Mr. La=ham, seconded by Mr.'Wall, i= was RESOLVED to approve a variance in what will amount to ~hir=y- one (31) spaces in =he already approved site plan of ~- ~inq Center for use in =he evening for what the applicant has in- dicated as ~,.ea=er number three. Vote of =he Eoard: Ayes: Raynor, Orlowski, Wall, Mullen, La,ham David A. Geula minor subdivision. The entire board made inspection o~ property and found no particular problems with ~he layout. . ~ On mo=ion made by Mr. La=ham, seconded by Mr. Orlowski, it was RESOLVED =ha= ~he Sou=hold Town Planning Board declare itself .ead agency in regard to =he State Environmental Quality Review Ac= in the mat=er of the minor subdivision of David A. Geula located a= Fishers Island. An initial determination of non-significance has been made. Vote of the Board: Ayes: Raynor, Orlowski, Mullen, La,ham Abstain: Wall Mr. Wall abstained from taking ac=ion regarding this subdivision as he is =he broker of =his property. * * * On motion made by Mr. Latham, seconded by Mr. Mullen, it was ~' RES'OLVED to approve the sketch map of the minor subdivision of David A. Geula located a= Fishers Island. Vote of the Eoard: Ayes: Raynor, Orlowski, Mullen, Latham Abstain: Wall Mr. Wall abstained from taking action regarding this subdivision as he is the broker of this property. ~%RILYN QUI NTANA TAX RECEIVER BILL NUMBER: OWNER NAME: 1ST HALF TAX $2,409.94 TOWN OF SOUTHOLD TAX PA.YM~NT RECEIPT CONSOLIDATED TAX LEVY 2001/2002 05/30/2002 09~02 009710 ,~ SWIS: 473889 TAX MAP NUMBER: 81.-1-16.7 SINNING JOHN D JR & ORS LOCATION: 580 BASIN RD 2ND HALF TAX PENALTY TOTAL T;~ TOTAL PAYMENTS $2,409.95 $24.10 $4,819.89 $4,843.99 **** PAYMENT **** PAYMENT PAYOR DESC DATE TAXES PAID PENALTY PAID BATCH METHOD SINNING JOHN D JR & 1ST HALF 01/18/2002 $2,409.94 $24.10 219 CHECK/213 VICTOR ZUPA 2ND HALF 05/30/2002 $2,409.95 $0.00 403 CHECK/330 ELIZABETH A. NEVILLE TOWN CLERK REGISTRAR OF VITAL STATISTICS MARRIAGE OFFICER RECORDS MANAGEMENT OFFICER FREEDOM OF INFORMATION OFFICER Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (631) 765-6145 Telephone (631) 765-1800 southoldtown.northfork.net OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD TO: Southold Town Zoning Board of Appeals FROM: Elizabeth A. Neville DATED: November 18, 2002 RE: Zoning Appeal No. 5266 Transmitted herewith is Zoning Appeals No. 5266 - Mary Zupa - Zoning Board of Appeals application for variance. Also included is a notice of disapproval, letter from Catherine Mesiano, ZBA Questionnaire, application for permit to NYS United States Army Corps. of Engineers, proposed activity, letter from Planning Board, copy of deeds, letter from Mary Zupa, and survey. MEMORANDUM Preliminary Statement This memorandum is directed to the one issue that Mr. Goehringer requested be addressed, i.e. whether the failure to comply with the procedures for a subdivision pursuant to NY Town Law with respect to a plat entitled "Minor Subdivision Made For Paradise Point" affects tax lot SCTM 1000.81.1.16.7 (hereinafter called "Lot One") as a legal buildable lot. As explained below, Lot One was created as a building lot by setoff and not by subdivision under the Southold Town Code. The fact that the application for the setoff of Lot One was made at the same time as the application for a subdivision of a different parcel owned by the Paradise Point Corporation, and is shown on the plat for the subdivision, is irrelevant. The viability of Lot One as a single and separate building lot is not affected by irregularities in complying with the subdivision procedural requirements of NY Town Law §276. As hereinafter shown, official records maintained by the Town and the County show Lot One to be a single and separate building lot. Statement of Facts In 1963, the Map of Section One of Paradise Point (filed in the County Clerk's Office as Map 3761) subdivided the Paradise Point property into 16 building lots, with four separate and non-contiguous parcels of land remaining. EXHIBIT 1, Rolled Map 3761. These separate and non-contiguous parcels of land are identified in Exhibit 1 as follows: Lot One: parcel of land to the east of the Basin bounded by Southold Bay, the Basin and lands of Curcuru (labeled on Exhibit 1 and Exhibit 4, and hereinafter called, "Lot One"). Colored red on Exhibit 1 and Exhibit 4. Lot 17: A parcel of land bounded by Southold Bay, Briar Lane and Lot 11 (labeled on Exhibit 4, and hereinafter called, "Lot 17"). Colored orange on Exhibit 4. The Clubhouse Parcel: A parcel of land comprising Paradise Point itself (labeled on Exhibit 4, and hereinafter called, "the Clubhouse Parcel"). Colored Green on Exhibit 4. 4. The Meadowlands Pamel: A pamel of land comprising mainly wetlands (labeled on Exhibit 4, and hereinafter called, the "Meadowlands Pamer') to the rear of Lots 12 through 16. And bounded by Southold Bay, Briar Lane, Lots 12 through 16 and an adjoining landowner to the west. Colored yellow on Exhibit 4. The body of water shown on Map 3761 and labeled the "Canal and Basin" is a tidal and navigable body of water shown by NY State records in Albany, and by title search, to be owned by the Town of Southold by virtue of the Andros patent. EXHIBIT 2. In 1969, by deed dated January 11, 1969 and recorded in Liber 6584 Page 537, Paradise Point Corporation conveyed a 75'x200' parcel of land from Lot One to the Curcurus. This parcel was contiguous to a lot that was conveyed to them by deed dated September 2, 1966 and recorded in Liber 6026 Page 406 on which the Curcurus maintained a single-family dwelling. This 75'x200' parcel was not a legal lot under the Town Code that existed in 1969, which required a 100 foot width, although the Curcurus built a garage/apartment on this parcel. No approval from the Town was obtained at the time for the lot line change. The Town and the County have construed this as a merger of the two lots with the lot they already owned for tax and other purposes. Southoid Town Code § 100-25. This changed the lot line on the easterly side of Lot One and resulted in a diminution of the area of Lot One. No action to abate under NY Town Law §268 was ever taken. In 1981, the Paradise Point Corporation submitted two applications (EXHIBIT 3) to the Town of Southold: 1 ) an application to setoffLot One and the Clubhouse Lot, and 2) an application to subdivide the Meadowlands Parcel and Lot 17; this subdivision application was initially shown on a preliminary plat as a major subdivision to subdivide the Meadowlands Parcel into five lots denominated Lots 12A through 16A which would be merged individually into the corresponding numbered lots, i.e. Lots 12 through 16. ' EXHIBIT 4 Folded Map of Minor Subdivision. With respect to the setoffs of Lot One, Lot 17 and the Clubhouse Lot, the Planning Board passed a resolution on June 1, 1981 that those lots were setoff and that Lot 17 also would be considered as a setoff. · With respect to the subdivision of the Meadowlands Parcel and Lot 17, after consultation with the town attorney, apparently it was determined that Lot 12A was insignificant and that Lot 17 was separated from the Meadowland Parcel by Briar Lane and from Lot One by the Basin, and that there were only four lots that resulted from the subdivision. Hence, the plat could be submitted as a minor subdivision. See distinctions between a major and minor subdivision in § A106-13 of the Southold Town Code; Minutes of the Planning Board Meeting dated March 17, 1981 and June 1, 1981 (EXHIBIT 5) Also see preliminary plats and other documents in Planning Board file. 2 RESOLVED to set-off as indicated of the minor subdivision Paradise Point Corporation lots entitled "Club House" of two and three quarter acres and an unnumbered lot on Southold Bay [Lot One] consisting of 1.7 acres directly east of the inlet basin. and RESOLVED to entertain an amendment to the resolution with regard to Paradise Point Corporation to include lot #17 as shown on the map of May 11, 1981. Minutes of Planning Board dated June 1, 1981.EXHIBIT 5 The minor subdivision of the Meadowlands Parcel into four lots was approved by resolutions of the Town Board on August 3, 1981 and on January 18, 1982. See Planning Board minutes. EXHIBIT 5. The Chairman of the Planning Board did not endorse the plat and the plat was never filed in the county clerk's office.' The official internal records of the Town confirm that Lot One, the Clubhouse Parcel and Lot 17 are approved setoffs, and single and separate building lots. See for example Letters dated May 21, 1981, June 4, 1981 and Certificate of Occupancy dated June 12, 1981 stating Lot 17 is a "Single and Separate Lot as Approved by the Southold Town Planning Board, June 1, 1981 ." EXHIBIT 6" With respect to the County and the Town, all three lots have been taxed as single and separate building lots since 1981. EXHIBIT 8, Current Real Estate Map on file in Assessor's office. A visit to the County Health Department on September 17, 2001 and an examination of their records show that all three lots are single and separate building lots. In 1989, the successors to the Paradise Point Corporation granted an easement along the westerly boundary of Lot One to a homeowners association in Paradise Point. The easement was for ingress and egress only to docks and a jetty it maintained on the Basin. EXHIBIT 9. The docks are nonconforming uses and are not permitted. There are no structures on Lot One associated with the docks (except as they attach to the shoreline) and there is no "marina." · It can be surmised that the owners may have decided that since the four subdivided lots were being merged into other existing buildable lots, and that they could not be built upon, that further action was superfluous. '° The Minor subdivision map also has been relied upon in deeds to the purchasers of lot and the areas of these lots have been relied on to satisfy set back restrictions and are included as separate taxable lots on the assessment maps. The parcel of land which includes beachfront and was dedicated to the use of certain residents of Paradise Point has been relied on. This parcel was not requested to be setoff and is labeled the Beach Property on the Minor Subdivision. The Planning Board file is also marked "Approved." See e.g. documents in EXHIBIT 7 Legal Points THE CREATION OF LOT ONE AS A BUILDING LOT BY "SETOFF" IS IN COMPLETE CONFORMITY WITH NEW YORK LAW AND THE SOUTHOLD TOWN CODE A. Lot One was not the result of a subdivision, i.e. a division of a parcel of land into two or more lots Section 276 of NY Town Law provides the procedures that a Town must follow for the approval of plats of subdivisions, but leaves it to a town to decide what a "subdivision" is, and to regulate it. Thus, NY Town Law §276 (4)(a) defines "Subdivision" as follows: "Subdivision" means the division of any parcel of/and into a number of lots, blocks or sites as specified in a local ordinance,/aw rule or regulation, with or without streets or highways, for the purpose of sale, transfer of ownership, or development. The term "subdivision" may include any alteration of lot lines or dimensions of any lots or sites shown on a plat previously approved and filed in the office of the county clerk or register of the county in which such plat is located. Subdivisions may be defined and delineated by local regulation as either "major" or "minor", with the review procedures and criteria for each set forth in such local regulations. [Emphasis Added] The Southold subdivision regulation defines the term "subdivision" as follows: The division of any parcel of land into two (2) or more lots, plots, blocks, sites or other divisions of land, with or without streets or highways, including any extension of an existing street, or for the purpose, whether immediate or future, of sale or building development and including resubdivision; provided, however, that the term "subdivision"shall not include the setoff or creation of a single lot from a parcel of land, provided that before any such setoff or creation shall take place, the owner shall submit such proposal to the Planning Board for its approval and determination of whether such setoff or creation constitutes a subdivision. ·.. [Emphasis Added] As previously stated, NY Town Law §276 leaves to a town to determine what constitutes a "subdivision." Moreover, it does not require that a town implement subdivision regulations, only that if it does, it must follow the procedures contained in Section 276. Delaware Midland Coro. v. Villaqe of Westhampton Beach, 79 Misc. 2d 438, 359 N.Y.S.2d 944, 950 (Sup. Ct., Suffolk Co. 1974), ("It 4 is therefor the holding of this court that a village board of trustees by ordinance or a planning board by regulations can define the term "subdivision"....), affirmed 48 A.D.2d 681,369 N.Y.S.2d 378 (2d Dept. 1975); As stated in the Practice Commentary to {}276: A community need not require subdivision approval. Town Law {}276 (4)(a) defines the term subdivision in a general manner. Although the definition describes in broad terms what subdivision is, it does not define when subdivision approval is required as a prerequisite to the filing of a subdivision plat or obtaining building permits. That determination, that is, when subdivision approval is required, is solely within the discretion of each town, as determined in the town's zoning law or, more commonly, subdivision regulations .... Subdivision review may be defined by a municipality to include the division of any parcel of land into two or more lots and, as the statutory definition makes clear, the change in any lot line of an existing lot. However, should it so desire, a town may require subdivision approval only, for example, for the creation of five or more lots. [Citations Omitted] Lot One, and the two other setoff parcels, were not contiguous and existed as single and separate parcels of land. These single lots were created as the result of setoff and not by subdivision. The Town in §A106 chose to expressly provide that a setoff was not a subdivision. Furthermore it chose not to include lot line changes within the meaning of the term subdivision. B. It was not necessary for the creation of Lot One to follow the procedural requirements of NY Town Law §276 since it was created by "setoff" and not by subdivision. NY Town Law §276 includes mandatory procedural requirements to be followed if there is a subdivision. This includes signing by the Chairman of the Town Planning Board and filing in the county clerk's office. Since Lot One was not the result of a subdivision, its creation as a single a separate building lot is not subject to the procedural mandates of NY Town Law § 276. The Town and the County since their approval in 1981 have treated the three setoff lots as single and separate building lots. Any irregularities in complying with the procedural requirements of NY Town Law apply, if at all, only to the subdivided lots, i.e. Lots 12A through 16A, and not to Lot One which was a setoff and not a subdivision lot under the Southold Town Code. 5 Conclusion Lot One is a building lot created by setoff and not by subdivision. Therefore any failure to comply with the procedural requirements of NY Town Law [}276 which apply only to subdivision, does not affect Lot One as a building lot. Dated: September 18, 2001 Southold, NY Respectfully Submitted Victor J. Zupa 4565 Paradise Point Road Southold, NY 11971 631 765-6112 EXHIBITS EXHIBIT 1: Map of Paradise Point No. 3761 (Rolled up) EXHIBIT 2: Letter and documents from NY State as to ownership of Basin EXHIBIT 3: Letters from Smith applying for set off and subdivision EXHIBIT 4: Map of Minor Subdivision (Folded) EXHIBIT 5: Minutes of Planning Board from 1981 and 1982 EXHIBIT 6: Single and Separate CO for Lot 17 and cover letters EXHIBIT 7: Deed of Lot 12 and 12A and letters relating to Lot 16 and 16A EXHIBIT 8: Current County Assessors Map for Paradise Point EXHIBIT 9: Deed creating easement to docks maintained on Basin TO: Catherine Mesiano A/C Zupa 12 Mill Pond Lane East Moriches, NY 11940 Please take notice that your application dated October 30, 2002 For permit for construction of a single family dwelling at Location of property 580 Basin Road, Southold, NY County Tax Map No. 1000 - Section 81 Blockl Lot 16.7 Is returned herewith and disapproved on the following grounds: FORM NO. 3 NOTICE OF DISAPPROVAL DATE: October 30, 2002 ~-~ Aut~[~i,z.~d~ ignat ur e CC: file, Z.B.A. Note to Applicant: Any change or deviation to the above referenced application may require additional review from the Southold Town Building Department. The construction of a single family dwelling, on a non-conforming 75,687 square foot parcel in the R- 80 District, is not permitted pursuant to Article 1I, Section 100-24B, which states, "All lots which are not recognized by the town pursuant to the above section shall not receive any building permits or other development entitlements." The lot has been determined not to be a recognized lot. In addition, the proposed single family dwelling is not permitted pursuant to Article III, Section 100- 32, which states, "No building or premises shall be used and no building or part thereof shall be erected or altered in the A-C, R-80, R-120, R-200 and R-400 Districts unless the same conforms to the Bulk Schedule and Parking Schedule incorporated into this chapter with the same force and effect as if such regulations were set forth herein full." The property currently has a marina use in place. The construction of a single-family dwelling would constitute a second use. Bulk schedule requires 80,000 square feet of land area per use. Total lot coverage, following the construction, will be less than 20 percent. A notice of disapproval and subsequent appeal (#4314) was denied on August 23, 19.~5, based on the above referenced information and a number of other issues. ~ ~) For Office Use Only: Fee $ ~¢:~, '~Asslgned AppL No. Office Notes: -~ ~ ~- APPLICATION TO THE SOUTHOLD TOWN BOARD OF APPEALS RECEIVED Office Notes: __ For Office Use Only -- Fried By: ~, ~ c~C Date Assigned/Assignment No. i~? 4 70:132 Soutbold Town Cleric Parcel Location: House No.~,0 Street ~-~A.5 ~ ~0 J~ C~. Hamlet $CTMlOOOSection ~1 Block / Lot(s) /&.'~ ~tS~e/. ~ ~neDb~ct ~,-~ I ~) ~P~L T~ ~TEN DETE~A~ON OF THE B~D~G ~SPECTOR DATED: AppHcan~ner(s): ~ ~ / ~ ~P~ Telephone: ~3/' ~X Telephone: ~ 3 / ' 2 7 ~'- ~ ~ ~/ Please s~c~ who you ~h earr~pondence to ~ m~ed to, ~om the above ~sted names: ~ App~ean~ner(s) ~Autho~d Representh~ve ~ Other: WHEREBY THE BUILDING INSPECTOR DENIED AN APPLICATION DATED ~/~/o~ FOR: ~ B~d~ P~rmit U Ce~ea~ of ~cupan~ ~ Pr~Ce~eate of Oecup~ey U Change of ~ ~ermit for ~t Con~truc~on Other: / / q'/o Provision~f~he Zoning Ordinance Appealed. Indicate Article, Section, Subsection and paragraph of Zoning Ordinance by numbers. Do not quote the code. Article ~ Section 100- ~ q Subsection ~ Type of AppeaL An Appeal is made for: [] A Variance to the Zoning Code or Zoning Map. [] A Vnrionec due to lack of access required by New York Town Law-Section 280-A. [] Interpretation of the Town Code, Article Section ~Reversal or Other A prior appeal~ has [] has not been made with respect to this property UNDER Appeal No. q3/q Year I~q~ . Page 2 of 3 - Appeal Application Part A: AREA VARIANCE REASONS (attach ex)Ya sheet as needed): (1) An undesirable change will not be produced in the CHARACTER of the neighborhood or a detriment to nearby properties, if granted, because: (2) The benefit sought by the applicant CANNOT be achieved by some method feasible for the applicant to pursue, other than an area variance, because: (3) The amount of relief requested is not substantial because: (4) The variance will NOT have an adverse effect or Impact on the physical or environmental conditions in the neighborhood or district because: ($) Has the variance been serf-created? ( ) Yes, or ( ) No. If not, is the construction existing, as built? ( ) Yes, or ( ) No. (6) Additional Information about the surrounding topography and building areas that relate to the dtiflculty in meeting the code requirements: (affach exfra sheet as needed) This is the MINIMUM that is necessary and adequate, and at the same time preserves and protects the character of the neighborhood and the health, safety, and welfare of the community. ( ) Check this box and complete PART B, Questions on next page to apply USE VARIANCE STANDARDS. (Please consult your alterney..~, thenvise, plea,~..l~roceed to the sianature and notary area below. / //~-// · //'/// /~g-n~Cure of APPellant o~'~,uth~rJz~l Agent ' (Agent must submit Authorization from Owner) Sworn to before.me this (Notary Public) c~ ~/0S/6 soJ!dxq u0!gs[uJuJ00 ~unoo ~lo~ns '0961.9/_~OJ.O 'ON Y, JoA ~eN Jo ele~,S o!lqnd fuetoN N311:i8,0 Mary S. Zupa 580 Basin Road, Southold, NY SCTM # 1000-81-1-16.7 REASON FOR APPEAL A Vadance to the Zoning Ordinance is requested for the reason that 1. An undesirable change will NOT be produced in the CHARACTER of the neighborhood or a detriment to nearby properties, if granted because: a) THE SUBJECT LOT WAS CREATED BY RESOLUTION OF THE SOUTHOLD TOWN PLANNING BOARD ON JUNE 1, 1981 AS A SINGLE FAMILY HOMESlTE. ALTERNATIVELY, IF IT IS FOUND THAT THE 1981 RESOLUTION DID NOT CREATE THE LOT, THE LOT WAS CREATED BY DEED CONVEYING THE IDENTICAL LOT WHICH WAS RECORDED IN 1981. THE LOT AND ALL SURROUNDING PROPERTIES ARE ZONED R-80. THE PROPOSED USE AND ACTIVITY IS CONSISTENT WITH THE ZONING AND EXISTING USE IN THE NEIGHBORHOOD. b) THE PURPORTED "MARINA USE" IS ATTENDENT TO LOT # 16.10, THE BASIN, NOT TO THE SUBJECT PROPERTY. LOT #16.7 IS NOT A "MARINA" UNDER CHAPTER 100-13 BECAUSE IT IS NEITHER PRIMARILY USED NOR PRIMARILY INTENDED FOR THE USE OF THE DOCKING OF BOATS. THERE IS A DESCRIBED EASEMENT WHICH PROVIDES ACCESS THROUGH THE ZUPA LOT TO THE BASIN. THE DOCK STRUCTURES ARE LOCATED ALMOST ENTIRELY ON LOT #16.10 EXCEPT FOR THE LANDWARD MOST PILES WHICH ANCHOR THE DOCK STRUCTURE. WE DO NOT BELIEVE THAT THE EASEMENT FOR INGRESS AND EGRESS CONSTITUTES A USE, PRINCIPLE OR OTHERWISE, THAT SHOULD PROHIBIT THE iNTENDED PRIMARY USE OF THE SUBJECT LOT AS A SINGLE FAMILY DWELLING. 2. The benefit sought by the applicant CANNOT be achieved by some method, feasible for the applicant to pursue, other than the area vadance because: a) WE DEMONSTRATE THAT THE SUBJECT LOT SHOULD BE RECOGNIZED BY THE TOWN AS A LEGAL LOT. ALL DOCUMENTATION CLEARLY DEMONSTRATES THE INTENT OF THE DEVELOPER AND THE TOWN TO CREATE LOTS TO BE USED AS SINGLE FAMILY HOMESITES. b) THERE IS NO RECORD OF PERMITS OR OTHER AUTHORIZATION DOCUMENTING THE "MARINA USE". THE "MARINA USE" IS, AT BEST, A NON-CONFORMING USE WHICH "SHALL NOT BE ENLARGED, ALTERED, EXTENDED, RECONSTRUCTED OR RESTORED OR PLACED ON A DIFFERENT PORTION OF THE LOT....". THERE IS AMPLE EVIDENCE THAT THE EXISTING DOCKS HAVE BEEN ENLARGED, ALTERED AND EXTENDED. SUCH ACTION AT LEAST PUTS TO QUESTION THE LEGALITY OF THE "MARINA USE". IN ANY EVENT, THE USE IS SPECIFIC TO LOT # 16.10, NOT THE ZUPA LOT. Mary S. Zupa 580 Basin Road, Southold, NY SCTM # 1000-81-1-16.7 3. The amount of relief requested is not substantial because: a) THE EXISTING LOT OF 72,747.5 SQ.FT. (EXCLUSIVE OF JETTY AREA) EXCEEDS THE BULK REQUIREMENTS OF 40,000 SQ.FT. UNDER BULK SCHEDULE AA AND REPRESENTS A 90% CONFORMING LOT UNDER CURRENT CODE REQUIREMENTS. THE SUBJECT PROPERTY MEETS THE CRITERIA SET FORTH PURSUANT TO 100- 24 AS A RECOGNIZED LOT. b) THE PROPOSED ACTIVITY REPRESENTS THE SOLE USE OF THE SUBJECT PROPERTY. The variance will NOT have an adverse effect or impact on the physical or environmental conditions in the neighborhood or distdct because: ALL PROPOSED ACTIVITY WILL BE CONDUCTED IN A MANNER CONSISTENT WITH THE TERMS AND CONDITIONS OF ANY WETLANDS PERMITS, HEALTH DEPARTMENT PERMITS AND BUILDING PERMIT. THE SUBJECT PROPERTY IS LARGER THAN MOST OTHER LOTS IN PARADISE POINT AND WILL EASILY SUPPORT A SINGLE FAMILY DWELLING WITH ACCESSORY STRUCTURES. STORMWATER RUNOFF WILL BE CONTAINED ON-SITE, BUFFER AREAS WILL BE ESTABLISHED IN AREAS ADJACENT TO WETLANDS AND ALL SANITARY FACILITIES WILL BE INSTALLED PER CURRENT STANDARDS. IN ADDITION, USE OF THE LOT AS A RESIDENCE WILL ELIMINATE SECURITY CONCERNS FOR ADJOINING OWNERS, ONGOING TRESPASS AND GARBAGE DUMPING ON THE SITE. (THESE HAVE BEEN AN ON-GOING CONCERN.) Has the variance been self-created? ( ) Yes ( X ) No. If not, is the construction existing, as built? ? ( ) Yes ( X ) No. This is the MINIMUM that is necessary and adequate, and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community. Catherine Mesiano, Agent for Mary Zupa Page 3 of'3 - Appeal Application Part B; REASONS FOR USE VARIANCE Iff reauested): Each and Every Permitted Use under the Zoning Regulations for the Particular Diskict Where Located (please consult your attorney before completing): (describe or cannot realize a reasonable return for each and every permitted use under the particular district where the property is located, demonstrated by evidence. The applicant CANNOT realize a REASONABLE RETURN because: sheet). 2. The the property is unique because: 3. The allegecl because: not apply to a substantial portion of the district or neighborhood 4. The request will not alter -haracter of the neighborhood because: 5. The alleged hardship has because: 6. This is the minimum relief necessary, character of the neighborhood, and the healtt explaln on a separate sheet ff necessary.) preserving and protecting the ~d weffare of the community. (Please 7. The spirit of the ordinance will be observed, public safety will be secured, and substantial justice will be done because: (Please explain on a separate sheet ff necessary.) Sworn to be{ore me this ~:1~,~ ~_~°f .................. O ~200-" (Notary Public) (~/) Check this box and complete PART A, Questions on previous page to apply AREA VARIANCE STANDARDS. (Please consult your attorney.) Otherwise, please proceed to the sianature and notary area below. S~nature of Appellant or Authorized Agent (Agent must submit Authorization from Owner) ZBAApp ~30~2 Zupa Property 580 Basin Road, Southold PROPOSED ACTIVITY Construction of a 60' x 100' (irreg.) single family dwelling, garage, porch and patio, on-site sewage disposal system, free-form, in-ground (gunite) pool (approx. 16' x 32') and pervious driveway. Dry wells as needed to contain roof run-off and pool backwash. All proposed structures setback 75' from bulkhead / wetlands. Septic system setback >100'. In-place replacement of approx. 500' bulkhead on bay side, canal and basin side. Timber piles, stringers, lay logs. C-LOC Series 9000 sheathing. Install approx. 52' new Iow sill bulkhead for erosion control on basin side from west end of existing bulkhead. Backfill and revegetate. Install 4' wide steps from bulkhead to beach (approx. 3.5') at east end of bay side bulkhead. Clear and mulch 4' wide path to steps. Re-vegetate approx. 350' along basin side shoreline with native and salt water tolerant species. Remove overhanging trees and branches as needed to expose wetland areas. Re-grade banks as needed for stabilization. Mulch paths for erosion control. Provide 50' buffer landward of bulkhead / edge of wetland. Re-vegetate sections of buffer area per attached plan. Revegetate jetty with native grasses. Remove existing asphalt driveway Add pervious finish to existing dirt driveway. Provise pervious parking area at driveway entrance. Remove deteriorated wood dock. LEGAL NOTICE SOUTHOLD TOWN BOARD OF APPEALS THURSDAY, MARCH 20, 2003 PUBLIC HEARING NOTICE is HEREBY G1VEN, pursuant to Section 267 of the Town Law and Chapter 100 (Zoning), Code of the Town of Southold, the following public hearing will be held by the SOUTHOLD TOWN BOARD OF APPEALS at the Town Hall, 53095 Main Road, P.O. Box 1179, Southold, New York 11971-0959, on Thursday, March 20, 2003, at the time noted below (or as soon thereafter as possible): 2:30 p.m. Mary Zupa//5266 - Applicant requests Variances under Sections 100-24B and 100-32, based on the Building Department's October 30, 2002 Notice of Disapproval for construction of a single family dwelling. The reasons stated in the Notice of Disapproval are: 1) the construction of a single family dwelling on a nonconforming 75,687 sq. fl. parcel in the R-80 District is not permitted; 2) the lot is not recognized, and its use is a marina, and 3) the construction of a single family dwelling would constitute a second use. Location of Property: 580 Basin Road, Southold (Paradise Point); Parcel #1000-81-1-16.7. The Board of Appeals will hear all persons, or their representatives, desiring to be heard at each heating, and/or desiring to submit written statements before the conclusion of each hearing. Each hearing will not start earlier than designated above. Files are available for review during regular business hours. If you have questions, please do not hesitate to call (631) 765-1809. Dated: February 25, 2003. Lydia A. Tortora, Chairwoman Board of Appeals OWNER - F.,~C)~R~AE~ OWNER ~.~ TOWN OF SOUTHOLD PROPERTY VI LLAGE 'o//o/Y F~+, RECORD CARD SUB. v' LOT W TYPE OF BUILDING RES. SEAS. VL ~// FARM IMP. TOTAL DATE FARM T__~lje 1 Tilla1~e 2 Tillable 3 Woodlond Swampland COMM. CB. MIS~. Mkt. Value REMARKS Acre BELOW ABOVE Value .,~ - Lg-J"'71 Value Per Acre FRONTAGE ON WATER Brushlond FRONTAGE ON ROAD House Plot DEPTH BULKHEAD DOCK Total Bldg, :ension fension tension rch ,rch :rage ~c~tio oral COLOR TRIM Basement Ext. Walls Bath nterior Finish LR. Fire Place -lear DR. Type Roof Rooms 1st Floor BR. Recreation Roorr Rooms 2nd Floo~ FIN. B. )ormer Driveway /~ Town oF SO~THOLD PROPERTY RECORD CARD OWNER FORMER OWNER STREET N S VI LLAGE W DIST. SUB. / LOT ES. LAND SEAS. VL ~// FARM COMM. CB. MISC. Mkt. Value TOTAL DATE j REMARKS IMP. AGE FARM 'illable 1 'illable 2 illa~j 3 /oodland wampland rushland louse Plot oral NORMAL Acre BUILDING CONDITION BELOW ABOVE Value FRONTAGE ON WATER FRONTAGE ON ROAD DEPTH e) BULKHEAD DOCK Value Per Acre M. Bid, Porch Porch Breeze¥ Garage Patio O.B. Tot a I COLOR TRIM Foundation Bath Dinette Basement Floors K. Ext. Walls Interior Finish LR. Fire Place Heat Type Roof Recreation Roorr Dormer Driveway Rooms 1st Floor Rooms 2nd FIoo~ DR. FIN. B. /~.._~, __ ~. ~ ~__/~ ~ OF ~OiJTHO1.D PROPL=RTY OWNER STREET VILLAGE DIST. ~.~ SUB. LOT FORMER OWNER S W ~ TYP~ OF BUILDING ~ND IMP. TOTAL DATE REMARKS AGE BUILDING CONDITION N~ NO~L BELOW ABOVE FARM Acre Value ~er Value Ac re Tillable I Tillable 3 woodland ' Swampland FRONTAGE ON WATER Brushland FRONTAGE ON ROAD DEPTH House Plot ~ ~/ BULKH~D Total DOCK Extensi, Extensi COLOR TRI,M ' Foundation Bath Basement Floors Ext. Walls Fire Place Interior Finish Heat inette LR. DR. Type Roof Rooms 1st Floor BR. Porch Recreation Roorr Rooms 2nd Flora FIN. B. Porch Dormer Driveway Garage Patio Total ~- -- -~---.~.-,.,- ,. RES. S~S VL FA~ AGE ~"N EW FARM BUILDING CONDITION NORMAL BELOW ABOVE Acre Value Per Value Acre Tillable I 'illable 2 vampland 'ushland )use Plot tal FRONTAGE ON WATER FRONTAGE ON ROAD DEPTH BUI KHEAD DOCK M. Bldg. Extension Extension Extension Porch Porch Breezeway Garage Patio Total COLOR TRIM Foundation Bath Basement Floors Ext. Walls Interior Finish Fire Place Heat Type Roof Recreation Roan Dormer Driveway Rooms 1st Floor Rooms 2nd Floo FORMER OWNER N RES. SEAS. LAND IMP. AGE NEW Form Tillable 2 Tillable 3 md ~wamplond ~rushlond House Plot ¥~ta I VL. TOTAL DATE BUILDING CONDITION FARM NORMAL i BELOW Acre Value Per Acre COM/M. IND. CB. REMAR~,: ACREAGE j TYPE OF BUILDING ABOVE Value .Z_-) Jf M. Bldg. J-~ - I J Foundation J Bath sion , Basement Floors Extension .~ Ext. Walls Interior Finish Extension Fire Place Neo¢ Porch Attic Porch Rooms 1st Floor Breezeway Patio Rooms 2nd Floor Garage Driveway / ~ OA ?' Joseph A. Ingegno Land Surveyor 2 POOLS; 6' OEEP, 8' diD. 1 S 89'23'08' E 21.63' T T 0 ~ N ! TEST SURVEY OF PROPERTY SITUA TED A T BAYVIEW TOWN OF SOU/HOLD SUFFOLK COUNTY, NEW YORK S.C. TAX No. 1000-81-01-16.7 SCALE 1"--50' JANUARY 7, 2002 JANUARY 29, 2002 REVISED LOT AREA NOTATION FEBRUARY 14, 2002 RD~'ISED DRIVEWAY LABELS MAY 15, 200.?, LOCATER WETLANDS & ADDED TOPOGRAPHICAL SUF~VE¥ dUNE i, 2002 ADDED SITE PLAN AOOUST 5 2002 REVISED WETLANDS LiN[, SITE PLAN & ADDED TEST HOlE No. 2 AUGUST 25, 2002 ADDED PROPOSED SEPTIC SYSTEM JANUARY 23 200.3 ADDED DRYWELL% & HAY BALES LOT AREA INCLUDING THE BULKHEAD AREA AT THE NORTHWEST PORTION OF = 75,687..36 sq, ff. THE LOT PROJECTING INTO SOUTHOLD BAY (TO BULKHEADS & TIE LINES) 1.7.38 ac. LOT AREA EXCLUDING THE BULKHEAD AREA AT THE NORTHWEST PORTION OF = 72,747.53 sq. ff. THE LOT PROJECTING iNTO SOUTHOLD BAY (TO BULKHEADS & TiE LINES) 1.670 ,ac. CHICAGO TITLE rNSURANCE COMPANY MARY S. ZUPA (TOW,~v' HARBOR) N 82'07 2~ E N 88'54'02" E TaE FACE or BULKHFAD '~ 134.02' .JOSEPH J. SEYMOUR STATE OF NEW YORK EXECUTIVE DEPARTMENT OFFICE OF GENERAL SERVICES MAYOR ERASTUS CORNING 2ND TOWER THE GOVERNOR NELSON A ROCKEFELLER EMPIRE STATE PLAZA ALBANY, NEW YORK 12242 EDMOND F. SCHORNO - FIRST DEPOTy COMMISSIONER March 8, 2000 Ms. Marie Page Assistant Vice President Title Officer Fidelity National Title Insurance Company of New York 24 Commerce Drive Riverhead, New York 11901 Dear Ms. Page: Re: Status of Tax Map Parcel 16.10 Southold, Suffolk County This is in response to your letter to Mr. Louis Gnip regarding the status of the small canal parcel of land off Southold Bay. The records in our office indicate that the lands in question were part of the Andros Patent granted October 31, 1676. The grant included all Rivers, Lakes, Waters, etc. The State of New York does claim sovereign ownership of all ungranted lands in the Peconic Bay up to the high water mark. In an area such as the canal in question, the limits of the State ownership would run from headland to headland at the mouth of the canal. A copy of our water grant index map for this area is enclosed for your use. Thank you for your interest in the lands underwater program, which is administered by -[he Office of General Services. Please contact me at (518) 486-1479 if you have any further questions. Sincerely, Richard W. Bennett, L.S. Public Lands Surveyor Examiner Bureau of Land Management Enclosure '227 of the SHORE lANE OF SUFFOLK COUNTY. N.Y. showing ~he made by ~so ~e L~E 0F 0~G~ ~GH WA~ER. PR~P~D FOR THE CO~ISSIOHEES OF THE L~D ~ ~e ~ee~on of H. A- VAP ALSTYpK. STATK ~pGIpKK6 ApO ~U6V~Y06. ]~06. ,.2?o 97 IO3 103 H5 97 96 94 LANDS UNDERWATER CLAIMED BY THE TOWNSHIPS TOWN OF TOWN OF SOUTHOLD; ALL LANDS UNDERWATER SOUTH BOUNDARY OF' TOWN IS THE HIGHt WATER MARK OF PECONIC 15 GARD~NERSJ BAYS. ALL LAND UNDERWATER IN ANY HARBOR, BAY~ OR CREEK,SHALL- INCLUDE ALL WATERWAYS al_ CREEKS CUTTING THE .,HORN LIHE OF THE [ ~.W~L~;;.HE AY. HWM FROM HEADLAND T~ BROOKNAVEN; ALL LANDS UNDERWATER ALL LANDS UNDERWATER MOUNT SINAI HARBOR PORT JEFFERSON' HARBOR, SETAUKET HARBOR , CONSCIENCE BAY. ANDROS PATENT ~ OCT. 31 , 1676. TOWN OF SOUTHOLD vs. FRANCES B. PARKS 4lmlsc. reporls~ p.456, offlrmed 97oppellote d~v. 636, offidovid NY. 515. SOUTHOLD TOWN ORDINANCE 1944 5 1949. NICOLLS PATENT , MAR.7 , )G66. DON~AN PATENT , DEC.27,16B6. r30 126 12o 114 rOB I02 n7 NOTE; JURISDICTIONAL LIMIT OF TOWNSHIPS FOR REGULATION 3... ~. ~2~ OF VESSELS tS 1500 FT. FROM SHORE.(N.Y.$. TOWN LAW ART. 9 , ~ 99 SECTION 150, SUBSECTION 17.) ?, .- ¢' 90 / 84 OB 93 ,,~ 90 49%% 97 0 S A T 2277 2278 2279 2281 VIOTOR J. ZUPA ATI'ORNEY AT LAW 4565 PARADISE POINT ROAD SOUTHOLD, NEV~ YORK 11971 TELEPHONE (816) 765-6112 FACSIMILE (518) 785-6119 E-~_~m VZUDa@concentric.net 718 WEED STREET NEW CANAAN, CT 06840 TELEPHONE (203) 966-3430 FACSIMILE (203) 966-1724 October 22, 1999 New York State Department of Environmental Conservation Division of Environmental Permits Building 40-SUNY Stony Brook, New York 11790-2356 Attn: Mr. George Hammarth Re: 1-4738-02105/00001 (the Basin) Dear Mr. Hammarth: Thank you for taking the time to speak to me today and for verifying the ownership of a tidal body of water known as the "Basin" from maps maintained by the DEC. You have verified that the "Basin" (the surface water and bed) which relates to the above referenced permit and which is depicted on the attached sheet prepared by EN- Consultants, is owned by the State of New York. Sincerely, 283 Wilhom B. ,Smitt, 220 MECHANIC STREET P.O, BOX '14B, SOUTHOLD, N.Y. 11671 (516) 765-3042 MAIN ROAD & SKUNK LANE CUTCHOGUE, N.Y. 11935 (516) 734-5657 REAL ESTATE LICENSED BROKER WATERFRONT PROPERTIES- HOMES LOTS& ACREAGE ESTATE AND COMMERCIALPROPERTIES APPRAISING Nay 22, 1981 Southold Town Planning Board Main Road Southold, New York 11971 Attention, Mr. Henry Raynor, Chairman Gentlemen, Regarding the map of Paradise Point, dated May ll, 1981,.I request that the poSnt lot of 2-3/4 acres with the club house on it and the Southold Bay lot of 1.7 acres be designated as setoffs as per 106-13A of the code of the Town of Southold. Very truly yours, PARADISE POINT CORP. William B. Smith, ~Agent Wilhom , mitl 220 MECHANIC STREET P.O. BOX 146,$OUTHOLD, N.Y. 11971 (516) 765-3042 MAIN ROAD & SKUNK LANE CUTCHOGUE, N.Y. 11935 (516) 734-5657 REAL ESTATE LICENSED BROKER WATERFRONT PROPERTIES - HOMES LOTS & ACREAGE ESTATE AND COMMERCIAL PROPERTIES APPRAISING May 14, 1981 Sou:hold Town Planning Board Southold Town Hall Southold, New York 11971 Attention: Mr. Henry Raynor, Chairman Gentlemen: The enclosed application for subdividing one lot, #17 of 1~ acres, west of Dryads Basin, Paradise Point Road, is for one residence. The remaining upland and meadow acreage shown as ~ots 12A, 13A, 14A, 15A &~[6A is attached to filed map lots 12, 13, 14, 15 & 16. The owners, Paradise Point Corporation, do hereby covenant to the Southold Planning Board Shat there will not be any residence or part of a reaAdence built upon these extensions of land. Nor will there be more than one reaidence on 12, 13, 14, 15 & 16. Thank you for your consideration of this project. Eno. Very truly yours, William B. Smith Agent Planning Board -7- 0~ber 16, 1980 P~radise Point Cor'..~oration. M-~. [~iiliam B. Smith pre~ented maps of this su~odivision. ~. Raynor a_nd ~. Gordon will inspect the property. T~ne Boe. rd will require an affidavit of o~,a~ership as this is a corporation. matter reverts to sketch map and in all probability will t~-ke a minimum of one year to process. . M~. Orlowski mad~ a motion, seconded by Mr. ~all and carried t~at at the request oz the Zoning Board of Appeals for an opinion oz the Planming Board regarding the split of property of l~nurber, the Plauning Board does not favorably view such a spolit becaus~ of the close orozimity to salt water and the possible intrusion~- on the ~t~=r ~hed. This property is on M~ttituck Creek. On motion made by Mr. Gordon, seconded by ~h-. Latham, it ;.ms ~SOLVED to accept the following conditions placed on the minor subdivision of property of Lloyd Terry by the Suffolk County Planning Commission ~ud ~he same be placed on the map: 1. No clearing, excerpt that required for o~dinary mainten~uce,[~ or grading shal% Se done within d~e setoack area along thm top oz the blufz and on the face of the bluff in order to~ help prevent the erosion of ~e bluff. 2. No stormwater resulting from the development and improve- ment of the subdivision or any of its lots shall be discharged over ~e top edge of the bluff or down its face in any unar~uer. .Access to the beach shall be restricted to a single location on each lot and then only by a suitable structure designed and constructed so as not %o disturb the stability of the bluff. No sanitary disposal facility shall be located within 100 feet of the top of the bluff. There shall not be any f'~rther subdivision of this property without the review and approval of the To~n Planning Board. The Planning Board does hereby over-ride the following condition of the Suffolk Co~u~ Planning Commission: 'Planning Board -6- ~ch 17, 1981 8:45 p.m. Public Hearing on the question'of the approval of the minor subdivision of Peconic Bay Gardenst Inc. located at Peconic. Richard Cron, attorney for the applicant, was present at the hearing. Mr. Orlowski read the legal notice of hearing and presented proof of publication in the Suffolk Times. Mr. Orlowski: In going over the file today, I find there is no affidavit of ownership. Mr. Cron presented the affidavit at this time. Mr. Orlowski: We do not have the'county's recommendations yet. Is there anybody here that is in opposition to this subdivision? Hearing none, is there anybody here in favor of this subdivision? Mr. Cron: I a~. here on behalf of the applicant and as you can observe from the map itself it is a four lot minor subdivision. I would take it we may have to go to the Zoning Board of Appeals with respect to lot number one'in light of the 50 feet required setback. It would only have 138.5 feet. The zoning ordinance requires 150 feet. We take that as not too serious a problem in light of the size of the lots as they are substantially oversized. I would assume you want some kind of restriction on it which we would be happy to give you. I would ask that it be approved subject to approval of other departments. Mr. Latham: What is the ten foot right-of-way? Mr. Cron: I would assume it is in a deed of record. probably for Egans to get to Indian Neck Lane. It is Mr. Orlowski: Does anyone have anything to add either pro or con? Mr. Wall, Mr. Mullen, Mr. Latham, any questions? (all negative) I will declare this hearing closed and thank you for coming down. Paradise Point Corporation. William B.'Smith appeared before the board. This is an approved excePted subdivision iD the Town of Southold. The developer would like to increase the size of the lots to include the meadowland now in the name of the corporation. Mr. Orlowski would like to have an inspection of the property and also to talk to the town attorney as to whether this has to be a major subdivision. Mr. Smith offered to show the property to the Planning Board whenever they plan the inspection. George Husin~ minor subdivision. The following are the conditions the map was made subject to by the Suffolk County Planning Commission. No lot shall be subdivided or changed in any manner at any future date unless authorized by the Southold Town Planning Board. -2- April 6, 1981 Planning Board /Paradise Point Corporation. Mr. William B. Smith appeared before the J ~oard to determine if an i]~spection had been made of the property. The board has not had an opportunity but will set up a date and let Mr. Smith know. ~ On motion made by Mr. Latham, seconded by Mr. Muilen, it was f.~%\ ~,~ ~ un, rove the sketch map of the minor subdl~s~n~ ~\~'/Georqe L. Penny IV (Hahn proper~y;locau~u.~ ~ . March 16, 1981. Vote of the Board: Ayes: Raynor, Orlowski, Latham,' Mul'len On motion made by Mr. 0rlowski, seconded by Mr. Latham, it was .~ ...... = '~wn Planning Hoard declare %tself ,%~ . RESOLVED that the ~ou~no~ ~u ~--~ronmental Quality Review Act located at Southolu of non-significance. Vote of the Board: Ayes: Raynor, Orlowski, Latham, Mullen On motion made by Mr. Orlowski, seconded by Mr· Latham, it was t 8-00 p.m., Monday, April 27, 1981 at the Town RESOLVED to se ' - ~- ....... ~ ~me and place for a public '~'~"/Hall, Main Road, Southold, New xo£~,_~= .... ---~enn'- I~ (Hahn property) Cheering on the minor subdivision oz ~eorqe ~. ~ . located at Southold. Vote of the Board: Ayes: Raynor, Orlowski, Latham, Mullen Dalchet -Chet Orlowski property at Cutchogue. -This sketch map was ~eview~d. Because it is the only ingress and egress for the property of Pung with the exception of a cut on the Main Road, an extension of Pierce Drive should be constructed to Town Highway Specifications between Lot 7 and Lots 8 .and 9. Lot 6 is a flaglot but there is no alternative. There is no provision for park and playground. The board would like money in lieu of land in an amount to be determined. The flaglot into Lot 2 should be changed to incorporate the 25 feet into Lot 1 with a right-of-way over same =o Lot 2. 7:45 p.m. Public Hearing on the question of the approval of the minor subdivision of Baxter Properties~ Inc. located at Cutchogue. Mr. Burt Lewis and Abigail wickham, attorney for the applicant, appeared at the hearing. Mr. Raynor read the legal notice of hearing and presented proof of publication in the suffolk Times. -4- 8:15 p.m. Public Hearing on the question of the approval of the minor subdivision of Fishers Island Utility Company. Mr. Raynor opened the hearing. Motion was made by Mr. Orlowski, seconded by Mr. Latham and carried to recess the public hearing on the matter of the approval of the minor subdivision of Fishers Island Utility Company until receipt of corrected map. On motion made by Mr. Orlowski, seconded by Mr. Latham, it was Long RESOLVED to approve the amendment to the site plan of Eastern Island K. O. A., as requested by Richard Wilton, to include an additional building to be used for recreational purposes. Vote of the Board: Ayes: Raynor, Wall, Orlowski, Latham, Mullen Paradise Point Corporation. Mr. William B. Smith appeared before the board. Mr. Raynor has not been able to contact the town attorney to determine how this matter should be handled. He will contact Mr. Smith when he has done so. On motion made by Mr. Orlowski, seconded by Mr. Wall, it was ~ RESOLVED that the Southold Town Planning Board has reviewed the /proposed parking plan of John and Mary Pietrodangelo for property ~located at 52340 Main Road, Southold, which is proposed to be changed to a florist and upstairs apartment and directs that 2400 square feet of the property be devoted to parking area. Vote of the Board: Ayes: Raynor, Wall, Orlowski, Latham, Mullen 8:30 p.m. Public Hearing on the question of the approval of the minor subdivision of Pipes Cove at Greenport. Present were Robert Scott, Mr. and Mrs. Paul Dinizio. Mr. Raynor read the legal notice of hearing. land presented proof of publication in the Suffolk Times. Mr. Raynor: In the file we have a copy of the legal notice, receipt from the Town Clerk's Office in the amount of $50, short environmental assessment form signed by Robert Scott representing Joseph Carff, the owner. We have correspondence from this board tot he New York State Department of Environmental Conservation with regard to the State Environmental Quality Review Act, correspondence from this board to the Suffolk County Planning Commission, waiver of the subdivision requirements for the county,'correspondence from this board setting tonight as the hearing. There is also a deed description and the applicant's application in the file. As is the procedure Planning Board -4- June .1, 1981 spondence from the Suffolk County Department of Health Services re- garding the SEQRA, correspondence to the Suffolk County Planning Commission, copy of the legal notice, metes and bounds description, correspondence from the applicants attorney, sketch plan approval for this subdivision on March 26, 1980, I would assume it is March 1981, also declaration of lead agency status with Southold Town Planning Board, application for approval of plot, short environmental assessment form. This completes the file. This is a tract of prop- erty that's being divided into two. The tract of property consists of fifty-nine and one-half (59%) acres, one plot being thirteen acres to the north, the second plot being fourty-six acres to the south. As is the procedure of public hearings, I will ask is there anyone present this evening who would like to speak in opposition to this proposed minor subdivision of the Henry Jennings Estate? Hearing none, is there anyone present this evening who would like to speak in favor of this proposed minor subdivision of the Henry Jennings Estate? Rudolph Bruer: On behalf of the estate, I would just like to re- irradiate what I spoke to you gentlemen earlier on the site plan approval. The purpose, I represent the estate whose selling it subject to the division of the property, we've been advised by the proposed purchaser, a Dr.. Damianos, that it would be used for:grape growing purposes and the purpose of the'splitting of it is that the larger piece is going to be used as a farm. Respectively, we ask the board to allow the division of the property, thank you. Mr. Raynor: Is there anyone else present this evening who woul~ like to speak in favor of this proposed subdivision? Is there anyone present this evening that has some information that may be neither pro nor con but should come before this board at this time? Hearing none, is there any member of the board that has any questions? Mr. Orlowski, Mr. Latham, Mr. Wall, Mr. Mullen? Ail answered in the negative. Mr. Raynor: There being no further questions we will deem this hearing closed and thank you for coming down this evening. Milton Mehlman minor subdivision. John Strong appeard before the board to discuss with them his request that the right-of-way be changed from 50 feet to 25 feet. The board feels that 50 feet for the right-of-way is needed if not at this time but for the future. Mr. S~rong's request has been denied. On motion made by Mr. Orlowski, seconded by Mr. Latham, it was RESOLVED to set-off as indiCated of the minor subdivision Paradise Point Corporation lots entitled "Club House" of two and three ,quarter acres and an unnumbered lot on Southold Bay consisting of 1.7 acres directly east of the inlet basin. Vote of the Board: Ayes: Raynor, Wall, Orlowski, Mullen, Latham planning Board -5- Oe 1, 1981 On motion made by Mr. Orlowski, seconded by Mr. Wall, it was W~ RESOLVED to entertain an amendment to the resolution with re- ~gard to Paradise Point Corporation to include lot 417 as shown on the map of May 11, 1981. Vote of the Board: Ayes: Raynor, Orlowski, Wall, Mullen, Latham On motion made by Mr. Latham, seconded by Mr. Wall, it was RESOLVED to approve a variance in what will amount to thirty- one (31) spaces in the already approved site plan of Mattituck Shop- ping Center for use in the evening for what the applicant has in- dicated as theater number three. Vote of the Board: Ayes: Raynor, Orlowski, Wall, Mullen, Latham David A. Geula minor subdivision. The entire board made inspect½on of property and found no particular problems with the layout. ~ *** On motion made by Mr. Latham, seconded by Mr. Orlowski, it was RESOLVED that the Southold Town Planning Board declare itself .ead agency in regard to the State Environmental Quality Review Act in the matter of the minor subdivision of David A. Geula located at Fishers Island. An initial determination of non-significance has been made. Vote of the Board: Ayes: Raynor, Orlowski, Mullen, Latham Abstain: Wall Mr. Wall ~.s he is abstained from taking action regarding this subdivision the broker of this property. On motion made by Mr. Latham, seconded by Mr. Mullen, it was : RESOLVED to approve the sketch map of the minor subdivision of David A. Geula located at Fishers Island. Vote of the Board: Ayes: Raynor, Orlowski, Abstain: Wall Mullen, Latham Mr. Wall abstained from taking action as he is the broker of this property. regarding this subdivision Planning Board -2- August 3, 1981 James Manos minor subdivision. During the discussion of the field report it was noted that ~this subdivision should be sent to the ZBA for a 280-A (right of access). On motion made by Mr. Orlowski, seconded by Mr. Latham, it was RESOLVED that the Southold'Town Planning Board declare itself lead agency in the matter of the minor subdivision of James Manos located in Mattituck under the State Environmental Quality Review Act. An initial determination of non-significance has been made. Vote of the Board: Ayes: Raynor, Orlowski, Latham, Mullen Long Island Nurseries minor sq~o_~n. During the discussion of the field report it was noted that the board should request a large-lot easement for this property. On motion made by Mr. Orlowski, seconded by Mr. Latham, it was RESOLVED that the Southold Town Planning Board declare itself lead agency in the matter of the minor subdivision of Long Island Nurseries located at Mattituck under the State Environmental Quality Review Act. An initial determination of non-significance has been made. Vote of the Board: Ayes: Raynor, Orlowski, Latham, Mullen On motion made by Mr. Orlowski, seconded by Mr. Latham, it was RESOLVED to approve the sketch map of the minor subdivision of Paradise Point Corporation said map dated June 30, 1981 located at Southold. Vote of the Board: Ayes: Raynor, Orlowski, Latham, Mullen On motion made by Mr. Latham, seconded by Mr. Orlowski, it was RESOLVED to set 7:30 p.m., Monday, August 31, 1981, at the Town Hall, Main Road, Southold, New York, as the time and place for a public hearing on the question of the approval of the minor subdivision of Paradise Point Corporation located at Southold, subject to receipt of any outstanding paper work. Vote of the Board: Ayes: Raynor, Orlowski, Latham, Mullen HENRY E. I~A. YNOR, ,Ir.. C~airman JAMES ~ALL BENI~'~ ORLOWSKI, ,Ir. GEORGE RITCHIE LATHAM. ,Ir. William F. Mullen, Southold, N.Y. 11971 TELEPHONE 765 - 1938 Jr. · A regular meeting o~ ~he Southold Town Planning Board was held at 7:30 p.m., Monday, August 31, 1981, at the Town Hall, Main Road, Southold, New York. Present were: Chairman Henry E. Raynor, Jr. Member G. Ritchie Latham, Jr. Member William F. Mullen, Jr. Member Bennett Orlowski, Jr. 7:30 p.m. Public Hearing on the question of the approval of the minor subdivision of Paradise Point Corporation located at Southold. Present was William Smith, acting agent for Mr. Schuddy and Mr. Hallenbeck, part of the Corporation. Mr. Raynor read the legal notice of hearing and presented proof of publication in the Suffolk Times. Mr. Raynor: In reviewing the files, we have the following items: Number one, receipt from town clerks office in the amount of filing fee of $100.00, correspondence from this board approving the sketch plan of the minor subdivision set this evening as the time, his metes and bounds description, correspondence from both the applicant's broker and from the building inspector, short environmental assess- ment form pertaining to the State Environmental Quality Review Act, statement concerning no grading, new road construction, new drainage structures to be forth coming, application for the approval of the plat, notice of legal hearing. There'are no letters from the Super- intendent of Highway-as this subdivision requires no new extension of town roads or services. As is the policy of this board, we will ask this evening if anyoMe would like to speak in opposition to this proposed subdivision entitled Paradise Point Corporation? Hearing none, Is there anyone present who would like to speak in favor of this proposed subdivision entitled Paradise Point Corporation? Mr. William Smith: I am acting as agent for the Paradise Point Corporation and Mr. Schuddy and Hallenbeck, part of the Corporation and anyone not familiar with it, the four parcels we are talking about are only going to be added to final map lots that were done in the past, in fact 1967, I believel These four lats will have this extension added to them but, there can only be buildings on the filed maps that are up in the woodlands and will be below that. That is what the owners have agreed tc, and that is what we are here for, I believe. (2) August 31. 1981 Mr. Raynor: Thank you Mr. Smith.. Is there anyone else present this evening who would like to speak in favor of this proposed subdivision? Hearing none, what Mr. Smith has said actually ties up an excess of 10 acres of prime wetlands, so that. is one more step in the fact that we have been able to preserve what is down and I think this type of subdivision pretty well speaks for itself. Whatever the determination of the board, would be subject to the consideration of the Suffolk County Planning recommendations and subject to any recom- mendations from other agencies with State Environmental Quality Review Act. Is there anyone this evening who has any information per- taining to this subdivision that may be neither for nor against, but should be brought to the attention of this board at this time? Hearing none - Mr. Latham, Mr. Mullen, Mr. Crlowski, Do you have any questions? (All Negative) There being no further questions or comments from the board, we will deem this 'hearing closed. Thank you gentlemen for coming down this evening. On motion made by Mr. Orlowski, seconded by Mr. Mullen, it was RESOLVED that the Southold Town Planning Board declare itself lead agency in the matter of the minor subdivision of Paradise ~D~~r~D~ located at Southold under the State Environmental ~uality Review Act. An initial determination of non-significance has been made. Vote of the Board: Ayes: Raynor, Mullen, Latham, Orlowski On motion made by Mr. Latham, seconded by Mr. Mullen, it was RESOLVED to set 7:30 p.m., Monday, September 28, 1981 at the Town Hall, Main Road, Southold, New York, as the time and place for ~L]Llic_b,~.X..~S' on the question of the approval of the minor sub- division of Harold E. Tuthill. Vote of the Board: Ayes: RaynOr, Mullen, Latham, Orlowski Smith, Carter, Elanchard Minor Subdivision request for a change of name from Richard A. and Dorthea E. Howard to Richard A. and Martha Howard was tabled until next meeting , as the Fishers Island Board member was not present. On motion made by Mr. Latham, seconded by Mr. Multen, it was RESOLVED to ap~oye the Nicolas Fontana minor subdivision, located in Mattituck, subject to. the Suffolk County Planning recom- mendations. Vote of the Board: Ayes: Raynor, Mullen, Latham, Orlowski On motion made by Mr. Orlowski, (S) 9/28/81 seconded by Mr. Latham, it was RESOLVED that the Southold Town Planning Board approve the minor~' ~ subdivision entitled Paradise Point Corporation~ located at Southold, subject to the Suffolk County Department of Planning recommendations and State Environmental Quality Review Act-Department Environmental Conservation's determination. Vote of the Board: Ayes: Raynor, Latham, Mullen, Orlowski On motion made by Mr. Latham, seconded by Mr. Orlowski, it was RSSOLVED that the Southold Town Planning Board approve the minor subdivision of Robert C. Nelson~ located at Bayview Southold, subject to the Suffolk Count~ Department of Planning recommendations and Department of Environmental Conservation's determination. Vote of the Board: Ayes: Raynor, Latham, Mullen, Orlowski The following was introduced by Mr. Latham, seconded by Mr. Mullen: Pursuant to Article 8 of the Environmental Conservation Law State Environmental Quality Review Act and 6NYCRR Part 617, Section 617.10 and Chapter 44 of the Code of the Town of Southold, notice is hereby given that Southold Town Planning Board as lead agency for the action described below ~as determined that the project will not have a significant effect on the environment. DESCRIPTION OF ACTION The minor subdivision of Robert C. Nelsonr is a two lot subdivision located at Bayview, Southold. The project has been determined not to have a significant effect on the environment for the following reasons: An environmental assessment has been submitted which indicated that no significant adverse effects to the environment were likely to occum should the project be implemented as planned. Because there has been no response in the allotted time from the New York State Department of Environmental Conservation it is assumed that there is no objection nor comments by that agency. Applicant should be aware that a permit may be required because of the proximity to the wetlands. The Suffolk County Department of Health Services has indicated its agreement with the lead agency designation. Prio~ to commenting on the Water supply or septic system, test well and a determination from State DEC concerning wetlands would be necessary. a pg. 6 1/18/82 An environmental assessment has been submitted which indicated that no significant adverse effects to the environment were likely to occur should the project be implemented as planned. Because there has been no response in the allotted time from the New York State Department of Environmental Conservation it is assumed that there is nq objection nor comments by that agency. Applicant should be aware that a permit may be required because of the proximity to the wetlands. The Suffolk County Department of Health Services has indicated its agreement wi~h the lead agency designation. It has reviewed the project and finds this area has a questionable water supply. Prior to commenting, they would normally require a test well. ~ The project will meet all the requirements of the Code of the Town of Southold Subdivision of Land Regulations. : Further information can be obtained by contacting Mrs. Susan E. Long, Secretary, Southold Town Planning Board, Main Road, Southold, New York 11971 On motion made by Mr. Wall, seconded by Mr. Mullen, it was RESOLVED that the Southold Town Planning Board accept Suffolk County Planning recommendations with the deletion of recommendation number seven and number eight on the subdivision entitled "Hilary Prid~en", located at Laurel. Vote of the Board: Ayes: Raynor, Latham, Mullen, Orlowski, Wall The following was introduced by Mr. Mullen, seconded by Mr. Latham, and carried: Pursuant to Article 8 of the Environmental Conservation Law State Environmental Quality Review Act and 6NYCRR Part 617, Section 617.10 and Chapter 44 of the Code of the Town of Southold, notice is hereby given that Southold Town Planning Board as lead agency for the action described below has determined that the project will not have a significant effect on:~he environment. DESCRIPTION OF ACTION The minor subdivision of Paradise Point Corporation is a four- lot subdivision located at Southold. The Project has been determined not to have a significant effect on the environment for the following reasons: pg. 7 An environmental assessment has been submitted which indicated that no significant adverse effects to the environment were likely to occur should the project be implemented as planned. Because there has been no response in the allotted time from the New York State Department of Environmental Conservation it is assumed that there is no objection nor comments by that agency. Applicant should be aware that a permit may be required because of the proximity to the wetlands. The Suffolk County Department of Health Services has indicated its agreement with the lead agency designation. Due to the history of a limited water supply in the Paradise Point area, a water supply study is recommended prior to any further approvals. The project will meet all the requirements of the Code of the Town of Southold Subdivision of Land Regulations. Further information can be obtained by contacting Mrs. Susan E. Long, Secretary, Southold Town Planning Board, Main Road, Southold, New York 11971 On motion made by Mr. Orlowski, seconded by Mr. Wall, it was RESOLVED that whereas, a formal application for the approval of a subdivision plat entitled Minor Subdivision of Paradise Point Corp- oration was submitted to the Planning Board on July 27, 1981, and an application fee of $100.00 was paid on July 20, 1981,and WHEREAS, a public hearing was held on said subdivision application and plat at the Town Hall, Southold, New York, on August 31, 1981 at 7:30 p.m., and WHEREAS, the requirements of the Subdivision Regulations of the Town of Southold have been met by said subdivision plat and application, NOW, therefore, be it RESOLVED that 'the application of Paradise Point Corporation for approval of said subdivision plat prepared by Roderick Van Tuyl, P.C. dated June 30, 1981 and amended November 3, 1981, be approved and the chairman be authorized to endorse approval on said subdivision plat, subject to the following conditions: No lot shall be subdivided or its lot lines changed in any manner at any furure date unless authorized by the Southold Town Planning Board. No sanitary disposal facility shall be installed or constructed within 100.feet of:~the edge of the marsh or the edge of Southold Bay. pg. 8 1/18/82 Erosion and sediment control measures shall be required during and immediately after construction on each lot to insure that stormwater runoff will not carry eroded and other deleterious materials into Southold Bay and the wetlands within the parcel. Approval of this subdivision shall be made subject to the subdivision's meeting the requirements and standards of the Suffolk County Department of Health Services. The above conditions shall be filed as covenants and restrictions in the office of the County Clerk on or prior to the granting of approval to this subdivision. Vote of the Board: Ayes: Raynor, Latham, Mullen, Orlowski, Wall After reviewing Inspector John Davis' road inspection report 9209 re- garding the roads located in Bexidon Estates and West Creek Estates the board took the following actions: On motion made by Mr. Latham, seconded by Mr. Mullen, it was RESOLVED that the Southold Town Planning Board approve the roads located in West Creek Estates~ filed map 43848, for the Building In- spector to issue building permits. Vote of the Board: Ayes: Raynor, Latham, Mullen, Orlowski, Wall On motion made by Mr. Orlowski, seconded by Mr. Wall, it was RESOLVED to deny approval of the roads located in Bexidon Estates, filed map 91472 and no building permits be issued to lots numbered 48, 4, 53, and 55 (1), 10, ll,.and 12 (4), 44 and 45 (7) or to the lots located on Arshamomaque Avenue where the existing road is approx- imately nine feet in width. Vote of the Board: Ayes: Raynor, Latham, Mullen, Orlowski, Wall ' On motion made by Mr. Mullen, seconded by Mr. Latham, it was RESOLVED to set 7:30 p.m. Mondayr February 8~ 1982, at the Town Hall, Main Road, Southold, New York for the next meeting of the $outhold Town Planning Board. Vote of the Board: Ayes: .Raynor, Latham, Mullen, Orlowski, Wall pg. (2) lO/8/82 On motion made by Mr. Mullen', seconded by Mr. Wall, it was RESOLVED that the Southold Town Planning Board approve the reduction' in the number of parking spaces, from 28 to 27, on the site plan of Irwin Thompson, located at Southold, for the construction of a ramp for the handicapped. Vote of the Board: Ayes: Raynor, Latham, Mullen, Orlowski, Wall Paradise Point Minor Subdivision - As the approval of this subdiv- ision was given with a condition that the rear meadow lands will not be building lots, it was the concensus of the board to leave the determination of the location of the proposed dwelling to the des- cretion of the Building Inspector with regard to the wetlands. On motion made by Mr. Mullen, seconded by Mr. Latham, it was RESOLVED that the Southold Town Planning Board refer the site plan of North Fork Bank & Trust Co., to be located at Mattituck, to the Building Inspector for certification and investigation as to whether the area designated on the sporting goods shop is retail sales area or storage area. Vote of the Board: Ayes: Raynor, Latham, Mullen, Orlowski, Wall It was the concenus of the Plannin~ Board to contact Mr. Ahlers, Esq. for additional legal opinions. Richard On motion made by Mr. Latham, seconded by Mr. Mullen, it was RESOLVED that the Southold Town Plannihg Board approve the minor subdivision of Allerton Cushman, located at Fishers Island for the issuance of a Building Permit subject to consideration of the Suffolk County Planning Commission's recommendations before the issuance of a final CO. Vote of the Board: Ayes: Raynor, MulIen, Latham, Orlowski, Wall FORM NO. 4 TOWN OF SOUTHOLD BUILDING DEPARTMENT Town Clerk's Office Southold, N.Y. Certificate Of' Occupancy ZI0524 No ................. Date .June ]~ 19 B.1. THIS CERTIFIES that the ~.q~ .............. ~ ................ Location of Pr erty ..... .Br±ar.~pe.~ .......... ~ ...... .~outh~].d ~ .Me~ Jerk' ........ op ...... House No. S~reet Hamlet County Tax Map No. I000 Section · · .~ 1 ....... Block ..... 1 ......... Lot ...~/0..1.5 ....... ~.n,.ov. Paradise Point .C.oy.p. FiledMapNo LetHe 1~ ........ ~itDalVI$10n .......................... · ............. · conffrms substantially to the applicable provisions of the Zoning~... Code of the Town of Southold. The premises are located in the ....... A Res~dentia! and Agric,,lt,,ral ' District and may be used.. for such uses as are presently authorized by the Zoning Code in such. district sub0ect to, however, all of the. requirements of the Zoning.. Code. "This is a Single and Separate Lot as Approved by the Southold Town Planning Board, June 1, 198~. No Building Permit can be issued before the Access is Approved in accordance with section 280-a of the Town Law". The certificate is issued to .... P.a.r.a.d. ~..s .e. ?.o.kn.t' .C.o..rp: .................................. · towner._le?_?_rj?_~_ntJ_- of thc aforesaid ,~.6~C, .. Building Inspector TOWN OF SOUTHOLD OFFICE OF BUILDING INSPECTOR TOWN HALL SOUTHOLD, N. Y. 11971 May 21 , . 765-1802 1981 Planning Board Town Hall Main Road Southold, Ne~ York 11971 Re: Paradise Point Corporation, Minor Subdivision Plot by Roderick Van Tuyl P. C., Revised May 11, 1981 Gentlemen. According to the Assessors and Town Tax Map, the Private Roads and the proposed lot of 1.7 acres by the basin and the lot aT the point of 2 ~ acres are all under the same ownership. When you have approved these lots as separate lots, will gladly issue Certificate of Occupancy for each lot Mr. William Smith, agent for Paradise Point Corp., has applied for. I I understand the approximate square area at the Westerly end of Basin Road will be part of the road and a turn around area given access also to the Basin· Do any of the roads, Robinson Road, Basin Road or Briar Road, comply to the definition of a street in Chapter 100, Zoning Article 1, 100-13, Page ~0014 of the Code of the Town of Southold? No Building Permit can be issued unless they are improved to the satisfaction of the Planning Board or the Zoning Board of Appeal gives access approval. GHF'Jd ~ Sincerely, George H. Fisher Sr. Building Inspector H£NRY £. RAYNOR, 2t.. Chairman JAM£S WALL BENNETT ORLOWSKL .l'r. O£ORGE: RITCI-IIE: LATI{AM. Will£am F. Mullen, 8outhold. N.Y. 11971 TELEPHONE; 765- 1938 June 4, 1981 Mr. Ge6rge Fisher Senior Building Inspector Town ~all Southold, New York 11971 Dear Mr. Fisher: The following action was taken by the Southold Town Planning Board at a regular meeting held June 1, 1981. APPROVAL to set off as indicated on subject of Paradise Point Corporation, lots titled Club House 2.75 acres and an unnumbered lot on Southold Bay 1.7 acres directly east of the inlet basin. Also an amendment to the ~esolution to include lot 17 as shown on map of May 11, 1981. This approval is subject to a one year review. Yours truly, HENRY E. RAYNOR, JR., CHAIRMAN SOUTHOLD TOWN PLANNING BOARD By Linda Kimmins, Secretary 3~9~ 10450 THI~ INDENTURE, B~N ~ GRIFFO, ~esiding at 263 Scott Drive, ~~ic Beach, New York 11509, ~.' ~2602 ! i ANGELA GRI , residing at 6 Midfarm Road, 4 e0 New York 11570 HENRY E. KAYNOR, Jr., Chairman JAMES WALL BENNETT ORLOWSKI, Jr. GEORGE RITCHIE LATHAM, Jr. WILLIAM F. MULLEN, h. Southold, N.Y. 11971 TELEPHONE 765-1938 October 13, 1982 Mr. Victor Lessard Building Administrator Southotd Town Hall Southold, New York 11901 Re: Paradise Point 16 & 16A Dear Mr. Lessard: Please let this confirm our discussion concerning the above at our meeting Friday, October 8, 1982. Approval was given to this minor subdivision with a condition that the rear meadow lands will not be building lots. It was the concensus of our Board to leave the determination of the location of the proposed dwel'ling to the descretion of the Building Inspector with regard to the wetlands. I have attached a copy of correspondence from William B. Smith, agent, dated May 14, 1981 regarding the use of those lots in question. If you have any questions, please contact our office. Very truly yours, HENRY E. RAYNOR, JR., CHAIRMAN SOUTHOLD TOWN PLANNING BOARD Attch. By Susan E. Long, Secretary JOHN M. CONROY FRANK GIORGIO, JR. ROBERT M. OE PO'I'O WILLIAM MERRITI' SUSAN M. PIERINI CONROY, GIORGIO, DE POTO & [V[ERRITT ATTORNEYS AT LAW 75 JACKSON AVENUE SYOSSI~T, NI[W YORK 11791 October 12, 1982 OCT 13 R£C' (516) 921-7120 JOSEPH M. CONROY ('~s94-1s?e) FRANK GIORGIO SR. HERBERT P. GIORGIO COUNSEL Southold Town Planning Board Town Hall Main Road Southold, New York 11971 RE: Hallenbeck to Burke Paradise Point Subdivision Dear Sirs: Our clients are under contract to purchase lots known as 16 and 16A in the Paradise Point subdivisions. We, of course, will only be able to build on lot 16. A certificate of occupancy exists for the lot eventhough it is vacant. The C.O. refers to the lot as being "single and separate". The lot is a substandard lot but is obviously a legal building plot. As the situation now stands we would have to allow for a rear yard of 37.5 feet. We would prefer to utilize lot 16 A (several hundred feet long) as "rear yard". Upon inquiry at the Building Department we were advised that this could be accomplished if the Planning Board "merged" the two lots. We would then be able to build 37.5 feet further from the road, subject of course, to D.E.C. requirements. We therefore request such a merger with the understanding that the merger would not adversly affect the existing C.O. (~Z10250) and our ability to build on lot 16. We are sending a copy of this letter to Edson and Bruer because they represent Mr. Hallenbeck, the contract vendor and the owner of neighboring lots. They may wish to make a similar request or comment upon our application. If you have any questions or suggestions, respond immediately. ~({~JMC:jb please call me and we will cc: Edson and Bruer, Esqs. 1000 SECT. 081.00 BLOCK LOTS 1989 CONSULT TOUR ~WYI BI SIGNINO THIS INS~UMINT · THIS INSTRUMI~ SHOd~II USID IY ~WYIIS ONLY T~IS IND~NT~RE~ um]ethe 23rd 4~I o~ February , nlnet~ hmd~,n4 eighty nine, B~ J. L~E C~Y, as to a 37% interest, residing at 13 North Street, Greenwich, Connecti~t, 06830; and GIL~ H~LE~ECK, as to a 32% interest, residing at Cove East, 115 Lake Shore Drive, N. Palm Beach, Florida, 33408; and GA~Y SI~ING, as to a 29% interest~ re- siding at 200 Watchung Drive, Hawthorne, New Jersey, 07506; and PAR~ISE OF SO~HOLD, INC., as to a 2% interest, a domestic corpora- tion having its principal .office at (no ~) Robinson Road, P. O. Box 724s Southold, New York, 11971; as tenants in co~on and as their interests appear, ~o{~e~rst~,and P~ISE POINT ASSOCIATIONs INC., a domestic T~e As Not-for-Profit Corporation, having its principal office at (no ~) Robinson Road, P. O. Box 243, Southold, New York, 11971~ party of the second part, WITNF=~qETH, that the party of the first part, in consideration of 1 Cr'~l it-,! L"Y - i ..... Ten and no/100 ($10.00) .... dollars, lawf~ mon~ o~ ~e United S~tes, :. paid by the party of the second part, d~s here~ grant Md ~lmse unto the party of ~e second part, ~e hei~ or suc~s~rs and nssi~s of ~e pa~y of the stand part louver, PARCEL I: ALL ~at ~rtain plot, pie~ or ~rcel of land, wi~ ~e buildin~ and impr~em~ thereon er~ted, situate, lying~d~i~ at Balrview, near S~uthgld, in the Town of Southold, County of Suffolk and State of New York, known and designated as Robinson Road, Basin Road, Briar Lane. Canal. Basin,'and Drain lncated be- tween lots nuatbered .12 and 13,~as sho~n on a cgrtain map entitled, 'Map o~ Section dna, Paradise Poln~ 'at ~ayvlew,' ,and fzled in the Office of the Clerk of the County of Suffolk on Aprll 11, 1963 as Map No. 3761; and including RobinSon'Road to ihs eastern terminus as shown on a certai~ m~p entitled, "Minor Subdivision made for Paradise ~oint CorPoration, Paradise ~oint, New York," Amended May 11, 1981 by Roder~ck va9 Tuy%, p..c.:, Licensed Land Surveyors, Greenport, New York. TOGETHER with an easement over:and across those lands immediately adjoining the westerly side of'Basin Road as shown on the aforesaid map entitled, "Ma~ of Section One, Paradise Point at Bayview," and filed in the office'of the,Clerk of the Coun~y,of Suffolk on April 11, 1963 as Map NO. 3761, said easement being'more particularly bounded and described as followsl BEGINNING at a point, which point is the southwesterly corner of Lot NO. 4 as shown on the aforementioned filed map; RUNNING THENCE South 30 degrees 08 minutes 40 seconds West along the westerly side of Basin Road, 51.65 feet, to land now or formerly of Maynard; THENCE along said land now or formerly of Ms,nard South 15 degrees 35 minutes 40 seconds West, 30 feet, more oF less, to the Basin and Canal as'shown on the aforementioned filed map; TMENCE 'in a westerly, northwesterly and northerly direction along the shore of said Basin and Canal as it winds and turns, 600 feet, more or less, to the ordinary high water mark of Town Harbor (also known as Southold Bay); THENCE in'an easterly direction along the ordinary high water mar~ of Town'~zbor ~also kno~%'~3 Southcl~ Bay) astir winds'and tUrns, 25 feet, more or less, to a point mark- ed by the westerly end of a bul~head; THENCE South 6 degrees 00'min- utes W~st, '75.00 feetl T~ENCE South 6'degrees 00 minutes East, 85.00 feet; THENCE South 65 degrees 00 minutes East, 200.00 feet; THENCE North 59 degrees'30 minutes East, 123.00 feet to land how or former- ly of Curcuru$ THENCE'along Said land now or 'formerly of Curcuru South 74 degrees 24 minutes 20 seconds East, 76.49 feet to the point or ~lace of BEGINNING, and as such easement is shown on a certain map entitled, "Map of Property at Paradise Point, Southold, N. Y.," Revised August 9, 1988 by RodePick Van Tuyl, :pj C., 'Li6ensed Land Surveyors, Greenport, New York; said easement to be used by the 1080t party of the second part for free and unobstructed acces~ to the Basin and Canal as shown on the aforesaid filed map; for the con- struction and maintenance of bulkheads, cribs, j~tties, docks, etc., as may be deemed appropriate by the party of the second part; for the installation and maintenance of a fresh water well or wells; and for such other purpose or purposes as are consistent with the Constitution of the party of the'second part including, but not limited tog Providing for the care and main~&~'of"~h~ Beaches, Waters, Bulkbeads~ Roads, Club Houses, Buildi~gs'.o~ Other structures, and other Recreation Facilities; supervising recreation, spnre~ boating, bathing, etc.; perpetuating the standard and tone of tMe community; promoting health, welfare, mor~ls, pleasures, recreation, indoor and outdoor games, etc.; and promoting sociability and good fellowship for the~members of the corporation. TOGETHER with all'the: ri~ht~i~l~'~nd'interes~'o~ the party of the first part in and to lands lying under the high water mark of Town Harbor (also known as Southold Bay) including any and all jetties protruding into said Town Har~)r (also known as Southold Bay). PARCEL II~ ALL that certain plot, piece or parcel of land with the buildings and improvements thereon erected, situate, lying and being at Bay- view, near Southold, in the Town of Southold, County of Suffolk and State of New York, being more particularly bounded and described as follows~ BEGINNING at a point, which point is the northerly corner of Lot No. 12 as shown on a certain map entitled, "Map of Section One, Paradise point at Ba~iew," and filed in the office of the Clerk of the County of Suffolk on April 1!, 1963 as Map No. 3761; RUNNING THENCE North 38 degrees 31. minutes 40 seconds West along land now or formerly of Griffo, 100.00 feet to~ land now or formerly of Curry; THENCE along said land now or formerly of Curry~ North 4 degrees 30 minutes East, 610 feet, more or less, to the ordinary high water mark of Town Harbor (also known as Southold Bay); THENCE in an east- erly direcLion alon~ the ordiDary high water mark of To~ Harbor (also known as Southold Bay)~as it Finds add turns, 75 feet, more or less~ to a certain Canal as sho~ on the aforementibned filed map; THENCE in a southeasterly direction, along the Canal as it wiDds and turns, 350 feet, mere or less, to the northerly line of Lot No. 17 as shown on a certain map entitled, "Minor Subdivision made for Paradise Point Corporation, Paradise Point, New York," Amended May 11, 1981 by Roderick Van Tuyl, P. C.; THENCE along said Lot No. 17 the following three courses and distances~ 1) North 85 degrees 30 minutes West, 90.00 feet; 2) South 4 degrees 30 minutes West, 325.00 feet~ 3) South 38 degrees 31 minutes 40 seconds East, 82.98 feet to Briar Lane as shown on the aforementioned filed map; THENCE along said Briar Lane South 14 degrees 56 minutes 30 seconds West, 18.67 feet to the point or place of BEGINNING. TOGETHER with all the right, title and interest of the party of the first part in and to lands lying under the high water mark of Town Harbor (also know~ as Southold Bay), including any and all jetties protruding into said To,aa Har~r (also known as Southold Bay). THIS CONVEYANCE is made in the usual and regular course of business actually conducted by the party of the first part, PARADISE OF SOUTHOLD, INC. ~ 1080-14 557 TOGKTHER with all right, title and interest, if any, of the party of the first part in and to any streets and roads abutting the above described premises to the center lines thereof, 'I'O~KTH~R with the appurtenances and all the estate and rights of the party of the first part in and to said premises, TO HAVE AND TO HOLD the premises herein granted unto the party of the second part, the heirs or successors and asslg~s of the party of the second part forever. AND the party of the first part covenants that the party of,the first part'has not done or suffered anything whereby the sald.p.remises have been incumbered n any way_ whatever except as a~ore~aid. AND the party of the first part, in compliance with:~e~t:ios~. 1~ Ri 'the ~i~' T'~g'~ve~a~t;'thai ~e ~ar~l; the first part will receive the consideration for this conveyance'and will hold the right tO receive such consid- eration as a trust fund to be applied first for the purpose of pay ng the cost of the improvement and w~ app y the sam~'first to'the payment of the cost ot the improvement before using any part of the total of the same for The word·"party'.' shall be construed as if it read "parties" whebever the:sense· oi' this.indenture so requires. IN WITNF.~$ wHr~REOF, the pa~y o{ the first part bas duly executed this deed the day and year first above written. /'~. LANF CURRy,-->. pAR,P~SE OF $OL~HO~,D~ INC. E A L FLORIDA :TA?E aF~ ¢ouMrf ap ~KLM BEACH Onthe 14th dayo! February, 19 89 , befo£e me ~rsonally ~me GIL~N ~LE~ECK to me ~own to ~ the i~di~d~ d~ in ~d who execmed the foregoing instruct, and a~owled~ ~t On the .2~'~'/dayof '~-~-' "<'~':' 19 ~'? before me to me Imovm to be-~e indlvtdu~l . dg.~cdbed ~n and who Not;ary Pub~i~ .... STATE OF NEW YOLK,' COUNTY OP SUFFOLK . Ss~ ss, personally ~me John D. S~nin~ I ~ully ~me Chan~ Curry to me known, who. b~ng by me d~y sworn, did dele and [e~ me ~o~ to be the person describ- saythat he~sidelat (no ~) Robinson Road, ed and appointed atto~ey in fact in Box 724s Southold, New York, 11971 ; that he is the President of PARADISE OF SOUTHOLD, INC, , the eorporatlo~ described in and which executed the foregoing instrument that he knows the seal of ~ad corporatlon: that the seal alTu~ed to said instrument is such corporate seal; that it was so affixed by order of the board, of directors of said corpora- tion. and that he slgoe~ h~ name thereto by llke order. illar.,jai. CURRY, ET 'fo and by a certain power of attorney executed by J. LANE CURRY, dated May 29, 1987, to be recorded in the Of- lice of the Clerk of the County of Suffolk simultaneously with the fore- ~oin~ instrument and acknowledged to me' that she had executed the fore~o- in~ instrument a~ _~ act~?f___the _said -J~ CURRY: S~C'rEON 0 81. O0 BLOC. A O1, O0 005.000, 014.000, p/o ~OT 015.000, p/o 016.000 COUNTY OK TOWN 1000 Distributed by V ll]SNF~'¥ It k]ll~f EDWARD JOHN BOYD V, ESQ. 54655 MAIN ROAD, P. O. BOX 1468 SOUTHOLD, NEW YORK zlpN~ 11971 ~3 A'I'TOP. N'~r AT 4~ P.~LD~- ~OI~FI' RO~D SOUT~OLD, NEW YORK: 119~1 vzuoa~concentric.net TELEPHON"£ (631) VIA FACSIMILE i JUN - 4, 2003 i ,,~ 8outhold Zoning Board of Appeals 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 Re: Application of Mary' S. Zupa 580 Basin Road (SCTM 1000.81.1.16,71 Dear Ms. Kowalski: Yesterday I spoke with my neighbor Vincent Orlando and asked if he had read the documents and memo submitted on May 19, 2003. He stated that he had not even received them. Seven copies of this submittal were provided to you, five of which were specifically designated with the individual names of the Board members. As t mentioned to you on May 19 when I brought the documents in to you, the purpose of this early submittal was to give the members enough time to read the materiels and then ask questions before the headng. This was done for the purpose of allowing the Board to dose the hearing on June 5. My wife, Mary has reported that her communications with your office over the last couple of weeks has indicated that all members have received their copy except for Mr. Horning. Could you please check on this? PAGE Cc; Eric Bressler, Esq, Very Truly Yours, Gilda D. Jensen 112 Putnam Park Greenwich, Connecticut 06830 MARCH 17, 2003 SOUTHOLD TOWN BOARD OF APPEALS TOWN HALL 53095 MAIN ROAD P. 0. BOX 1179 SOUTHOLD, N. Y. 11971-0959 RE: MARY ZUPA #5266 APPLICATION FOR BUILDING PERMIT SCHEDULED FOR MARCH 20, 2003 THURSDAY 2:30 P. M. GENTLEMEN: I AM WRITING AS A REPRESENTATIVE FOR CHANCY D. CURRY, MEMBER OF PARADISE POINT ASSOCIATION, SOUTHOLD, N. Y. SINCE I AM UNABLE TO ATTEND THE MEETING OF MARCH 20TH, AT 2:30 P. M. IN REGARD TO THE ABOVE, I WOULD LIKE M~ VIEWPOINT KNOWN IN THIS MATTER. I SUPPORT THE CONTINUED USAGE AND ACCESS TO THE PARADISE POINT BOAT DOCKS BY OUR RESIDENTS. IF WE ARE ALLOWED TO CONTINUE TO HAVE THESE DOCKS, AS WE HAVE FOR MANY YEARS, I DO NOT OPPOSE THE ZUPA'S PLAN TO BUILD A HOUSE ON THEIR. LOT. CC: KEVIN BARR 11 DIRKSEN DRIVE WILTON, CT. 06897 TOWN OF SOUTHOLD BUILDING DEPARTMENT TOW/q'HALL SOUTHOLD, NY 11971 TEL: (631) 765-1802 FAX: (631) 765-9502 www. northfork.net/Southold/ Examined ., 20 Approved / ,20 Disapproved a/c t0(9}0 ~ Expkafion ,20__ PERMIT NO. Building Inspector BUILDING ~ APPLICATION CHECKLIST Do you have or need the following, before applying? Board of Health 3 sets of Building Plans pl~nnlng Board approval Survey. Check Septic Form N.Y.S.D.E.C. Trustees Contact: APPLICATION FOR BUILDING PERMIT Date INSTRUCTIONS a. This application MUST be completely filled in by typewriter or in ink and submitted to the Building Inspector with 3 sets of plans, accurate plot plan to scale. Fee according to schedule. b. Plot plan showing location of lot and of buildings on premises, relationship to adjoining premises or public streets or areas, and waterways. c. The work covered by this application may not be commenced before issuance of Building Permit. d. Upon approval of this application, the Building Inspector will issue a Building Permit to the applicant. Such a permit shall be kept on the premises available for inspection throughout the work. e. No building shall be occupied or used in whole or in part for any purpose what so ever until the Building Inspector issues a Certificate of Occupancy. f. Every building permit shall expire if the work authorized has not commenced within 12 months after the date of issuance or has not been completed within 18 months from such date. If no zoning amendments or other regulations affecting the property have been enacted in the interim, the Building Inspector may authorize, in writing, the extension of the permit for an addition six months. Thereafter, a new permit shall be required. APPLICATION IS HEREBY MADE to the Building Department for the issuance cfa Building Permit pursuant to the Building Zone Ordinance of the Town of Southold, Suffolk County, New York, and other applicable Laws, Ordinances or Regulations, for the construction of buildings, additions, or alterations or for removal or demolition as herein described. The applicant agrees to comply with all applicable laws, ordinances, building code, housing code, and regulations, and to admit authorized inspectors on premises and in building for necessary inspections. (Signature of applicant or name, ff a corporation) 0rifling address of applicant) fJ.~y State whether ap~icant is owner, lessee, agent, architect, engineer, general contractor, electrician, plumber or builder Name of owner of premises /~ ~ ~. &. '"-J (As~)on the tax roll or latest deed) If applicant is a corPoration, signature of duly authorized officer (Name and title of corporate officer) Builders Lie~isc, No. Plumbers License No. Electricians License No. Other Trade's License No. 1. Location of land on which proposed work will be done: House Number Street Hamlet County Tax Map No. 1000 Section Subdivision (Name) Block / Filed Map No. Lot /~' 7 Lot 2. State existing use and occupancy ofpre~i,'ses and intended use and oCqupancy ofprop~osed constmctiom a. Existing use and occupancy V/0.~O~- /L~Jr~-~? ~ b. Intended use and occupancy ~4T~- 5~'~ 3. Nature of work (check which applicable): New Building /)~ Addition Alteration Repair Removal Demolitiont Other Work Estimated Cost Fee If dwelling, number of dwelling units If garage, number of cars (Description) (To be paid on filing this application) Number of dwelling units on each floor 6. If business, commercial or mixed occupancy, specify nature and extent of each type of use. 7. Dimensions of existing structures, if any: Front Height. Number of Stories Rear Depth Dimensions of same structure with alterations or additions: Front Depth Height. Number of Stories 8. Dimensions of entire new consmmtion: Front Rear Depth Rear Height Number of Stories 9. Size of lot: Front 5). ~, :5, Rear Depth 10. DateofPurchase q/0~- mameofFormerOwner ~tZ4~.~_o 11. Zone or use district in which premises are situated 12. Does proposed construction violate any zoning law, ordinance or regulation? YES__ NO/~ 13. Will lot be re-graded? YES__ NO __Will excess fill be removed fi.om premises? YES NO t~ 14. Names of Owner of premises Name of Architect Name of Contractor Address Phone No. Address Phone No Address Phone No. 15 a. Is this property within 100 feet of a tidal wetland or a freshwater wetland? *YES ~( * IF YES, SOUTHOLD TOWN TRUSTEES & D.E.C. PERMITS MAY BE REQUIRED. b. Is this property within 300 feet of a tidal wetland? * YES/~ NO__ * IF YES, D.E.C. PERMITS MAY BE REQUIRED. NO 16. Provide survey, to scale, with accurate foundation plan and distances to property lines. 17. If blevation at any point on property is at 10 feet or below, must provide topographical data on survey. STATE OF NEW YORK) SS: COUNTY OF_~g~ (Q3,/~r T/"/¢7 ~ t ,'~ ~ /~,5 ~ being duly sworn, deposes and says that (s)he is the applicant (Name of individual signing contract) above named, (S)He is the (C~ntractor, Agent, Corporate Officer, etc.) of said owner or owners, and is duly authorized to perform or have performed the said work and to mmke reno ~qle~ms apphcatton; that all statements contained in this application are tree to the best of his knowledge and belief; and that the work will be performed in the manner set forth in the application filed therewith. Sworn to before me th/s A ~.~t3 ~ dayof ~ 20 0.,,~_. l~taW Public JOYCE M. WILKINS NetaP/Publlo, Stata of New Y~od~ NO. 4952246, Suffolk Coumy Term Expires June 12, ~l. O0 ~ Page 11 In the Matter ef Ralph Freddolino, Appellant, v. Village of Warwick Zoning Board of Appeals et al., Respondents. 66852 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRDDEPARTMENT 192 A.D.2d 839; 596 N.Y.S.2d 490; 1993 N.Y. App. Div. LEXIS3725 April 15, 1993, Decided April 15, 1993, Entered PRIOR HISTORY: [*** 11 Appeal (transferred to this Court by order of the Appellate Division, Second Department) from a judgment of the Supreme Court (Cowhey, 1.), entered October 11, 1991 in Orange County, which dismissed petitioners application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Village of Warwick Zoning Board of Appeals denying petitioner's application for an area variance. CASE SUMMARY PROCEDURAL POSTURE: Petitioner land owner sought review of a judgment from the Supreme Court in Orange County (New York) which dismissed his application for review of a determination by respondent zoning board of appeals denying the land owner's application for an area variance. The action was transferred by order of the Appellate Division, Second Department. OVERVIEW: The land owner sought an area variance so that he could raze buildings on his property and construct a larger building. The zoning board of appeals denied the land owner's application. The trial court dismissed the land owner's N.Y.C.P.L.R. art. 78 proceeding challenging the zoning board of appeals' determination. The land owner reapplied for the same area variance and it was again denied. The trial court dismissed the land owner's second N.Y.C.P.L.1L art. 78 proceeding challengingthe zoning board of appeals' determination and alleging that the area coverage limit was unconstitutional on its face and as applied. The court affirmed the trial court's judgment. First, the entire proceeding was barred by res judicata because the parties, property, issues, facts, and relief sought were the same in both proceedings. The application of res judicata was not affected by the introduction of inure evidence during the second zoning board of appeals hearing. Second, the facial challenge could not be maintained under the guise of an N.Y.C.P.L.R. art. 78 proceeding. However, the trial court could have addressed the merits of the claim by eanvexting it into a declaratory judgment action. OUTCOME: The court affirmed the trial court's judgment dismissing the land owners application for review ora determination by the zoningboard of appeals denying the land owner's second application for an area variance. CORE CONCEPTS - Civil Procedure: Preclusion & Effect of Judgments: Res Iudicata Real & Personal Propexty Law: Zoning & Land Use: Zoning Generally The doctrine of res judicata applies to the quasi- judicial determinations of administrative agencies, including municipal zoning Wibnnals, as well as to orders and judgments of judicial tribnngls end precludes the re-presentation of claims which p~viously were litigated on the merits or might have been litigated at the time. Civil Procedure: Preclusion & Effect of Judgments: Res Judicata Real & Personal Property Law: Zoning & Land Use: Zoning Generally The commencement of a subsequent proceeding simply to cure defects in the proof and to improve the quality thereof is not a distinction which precludes the application of res judicata. Civil Procedure: Preclusion & Effect of Judgments: Res Iudicata Res judicata operates not only to bar those claima actually litigated but also those which share such a measure of identity that a different judgmem in the 192 A.D.2d 839, *; 596 N.Y.S.2d 490, **; 1993 N.Y. App. Div. LEXIS 3725, *** Page 12 second would destroy or impair rights or interests established by the first. Civil Procedure: Remedies: Declaratory Relief A facial challenge cannot be maintained under guise ~f a N.Y.C.P.L.R. art. 78 proceeding. COUNSEL: Law Offices of Michael H. Sussman (Michael H. Sussman of counsel), Goshen, for appellant. Monte J. Roseustein (Bernard I. Kunert, Florida, of counsel), Middletown, for respondents. JUDGES: Weiss, P. J., Yesawich Jr., Levine and Crew III, JJ., concur. OPINIONBY: Mahoney, J. OPINION: [*839] [*'491] Mahaney, J. Petitioner is the owner of a one-acre parcel of land located in a "general commercial district" in the Village of Warwick, Orange County, which is improved with three commercial buildings. When the square footage of these structures (i.e., a 1,600 square-foot office building, a 2,200 square-foot motel and a 1,000 square-foot rental dwelling) is added to the square footage of the parking lot and waiknvays, the total development coverage is approximately 80%[***2] Of the square footage of the parcel itself. In 1989, petitioner sought to raze both the office building and the motel (3,800 square feet) and replace these structures with one 11,550 square-foot commercial building to house retail stores, thus raising the total development coverage to approximately 86.5%. While retail stores are a permitted use in a general commercial district, because a 1988 amendment to the local zoning ordinance limit~ the total development cevemge on parcels in that district (including structures, internal roadways, walkways, parking and any macadam area) to 40% of the total square footage Of the parcel, an area variance was required. While petitioner made such application (hereinal~er the 1989 variance reques0, it was denied by respondent Village of Warwick Zoning Board Of Appeals (hereinal~r respenden0. Petitioner's subsequent CPLR article 78 petition challenging respondent's determination on grounds that it was arbima~y and capricious was dismissed. Four months atter dismissal Of his CPLR article 78 proceeding, petitioner mapplied for the same area variance, this time [*840] submitting expert testimony regarding the condition of the buildings, [***3] cost of repair, appraisals, rental projeetious and other facts supportive ~f a finding et'practical hardship (hereinafter the 1990 variance request). At the conclusion of several days of hearings respondent again denied the application, concluding that petitioner had not shown any change of facts or circumstances since the prior hearing to establish that compliance with the zoning regulations would cause him practical aifficulty or preclude him from realizing a reasonable return on his investment. Petitioner then brought the instant CPLR article 78 proceeding. [**492] While he again claimed that the denial of his request was arbitrmy and capricious, he also raised constitutional claim~, seeking a declaration that the 40% total development coverage limit is unconstitutional on its face and as applied. In its answer respondent raised the defense of res judicata. Supreme Court found adequate support for the determinalion both as to its substance and the lack of changes in circumntanea, rejected the as-applied constitutional challenge and re/used to consider the facial challenge because it was not properly presented in a CPLR ardcle 78 proceeding. Petitioner appeals. In[***4] our view the entire proceeding is barred by res judicata, h is well established that the doctrine of res judicatu applies to the quasi-judicial determinations of ~rlmlnistrative agencies, including municipal zoning Lribunals (see, Ryan v New York Tel. Co., 62 Nl'2d 494; Matter of Kennedy v Zoning Bd of Appeals, 145 AD2d 490, 491; Jensen v Zoning Bd. of Appeals, 130 AD2d 549, 550, Iv denied 70 NY2d 611; Jones v Young, 257 App Div 563, 566), as well as to orders and judgments of judicial Lribunals and precludes the re-presentation of claim~ which previously were litigated on the reerits or might have been litigated at the time (see, e.g., Matter of Hodes v Axelrod, 70 NY2d 364, 372; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250NT304, 306-307). A review of the record in this case reveals that the parties, property, issues, facts and relief sought in the 1989 variance request are essentially identical to those present in the 1990 variance request. Indeed, petitioner concedes as much in his brief, arguing only that the quality of proof submitted was different. However, it is beyond cavil that the commencement Of a subsequent proceeding simply[***5] to cure defects in the proof and to improve the quality thereof is not a distinction which precludes the application of res judicata (cf., Jensen v Zoning Bd. of Appeals, supra). Wlfile, concededly, the coustitafional claimg were not raised in the prior proceeding, it is well [*841]established that res judicata operates not only to bar those claimn actually litigated but also those which share "such a measure Of identity that a different judgment in the second would destroy or 192 A.D.2d 839, *; 596 lq.Y.S.2d 490, **; 1993 N.Y. App. Div. LEXIS 3725, *** Page 13 impair rights or interests established by the first" ( Schuylkill Fuel Corp. v Nieberg Realty Corp., supra, at 307; see, Matter ofReilly v Reid, 45 NY2d 24, 28). Such is the case here. The as-applied challenge is based upon raspondent's alleged selective application of the ordinance. While not specifically denominated as an equal protection violation in petitioner's original CPLR article 78 petition, a review thereof reveals that selective application/disparate standards was one of the underlying bases upon which annulment of respondent's denial of petitioner's 1989 variance request was sought and thus already has been impliediy adjudicated (cf, Matter of Kennedy v Zoning Bd. of Appeals, [**'6] supra). As regards the facial challenge, while obviously such could notbe maintained under guise ofa CPLR article 78 proceeding (see, e.g., Matter ofKovarsky v Housing & Dev. Admin., 31 NY2d 184, 191), inasmuch as the Village of Warwick was a named party respondent in the prior article 78 proceeding, there would have been no impediment to converting that portion of the petition into a deelarato~y judgment action and addressing the merits thereof in that context (cf, Jensen v Village of Old Westbury, 160 AD2d 768). While petitioner thus technically was precluded from litigating the 1990 area variance request, raspondem nonetheless permitted petitioner to remake his argument. Supreme Court also reconsidered and, in our view, properly reaffirmed the denial of petitioner's "new" application on the merits. While petitioner's expert testimony established that the motel and office [**493] building were in disrepair, it was also established that neither was in threat of structural failure. This, combined with petitioner's failure to submit "dollars and cents" evidence regarding what he paid for the property or the present income he derives therefrom so as to establish[***7] his inability to realize a reasonable return from it, belies any argument that respondent's determination was athitra~ or capricious. Finally, petitioner has submitted nothing but the barest, conchiso~y allegations which are patently insufficient to support either of his constitutional claims. * [*842] Weiss, P. J., Yesawich Jr., Levine and Crew Ili, JJ., * It is to be noted that even if petitioner's 1990 variance request is labeled as one for rehearing of the original application and even assuming, erguendo, that a village zoning board, like a town zoning beard, has authority to entertain an application for rehearing when new facts are presented changing aspects of the case (compare, Village Law ~ 7-712, with Town Law ff 267 [6]; see, Young Israel v Board ofStds. & ~4ppeals, 39 -/ID2d 51, 53-54), we agree with Supreme Court that no changes in circllmstance were shown here. Ordered that the judgment is affirmed, without[***8] Supreme Court of New York, Appellate Division, SecandDepartmant 130 A.D.2d 549; 515 N.Y.S.2d 283; 1987 N.Y. App. Div. LEXIS46552 May 11, 1987 CASE SUIVIMARY Page 7 PROCEDURAL POSTURE: Petitioner landowner challenged the decision of the Supreme Court, Nassau County (New York), which dismissed the proceeding under h~ E C.P.L.R. 78, initiated by the landowner, to review a der .erminafion by respondent, a village zoning board of appeals, which denied the landowners application for an area OVERVIEW: The landowner owned two lots that were treated and used as one parcel for decades. The landowner sold the lot containing a residence. The remaining lot was not available for development in accordance with the zoning regulations. The landowner's application for a variance was denied by the zoning board of appeals. The landowner challenged the determination in a § 78 proceeding and the trial court dismissed the action and confirmed the determination of the zoning board of appeals. The landowner then reapplied for the same area variance. The zoning board of appeals again denied his request. The landowner brought another proceeding under § 78 in which he again claimed that the denial of his ~luest for an area variance was arhitraty, capricious, and unconstitutional. On appeal, the court affirmed the dismissal on the grounds of res judicata. The doter~ination of the zoning board of appeals, which was confirmed by the trial court, served as a complete bar to the subsequent proceeding in which the same relief was sought. The landowner had a full and fair opportunity to litigate his cJaimn, and the legal issues raised were the same as those which governed his earlier application. OUTCOME: The court affirmed the dismissal ofthe proceeding. CORE CONCEPTS- Civil Procedure: Preclusion & Effect of Judgments: Res J'udicata Civil Procedure: Preclusion & Effect of Judgments: Collateral Estoppel Administrative Law: Agency Adjudication: Hearings The principles of res judieatu and collateral estoppel apply to the quasijudicial determinations of administrative agencies. JUDGES: [***1] Thompson, J. P., Bracken, Rubin and Eibor, JJ., concur. OPINION: [*549] [*'283] In a proceeding pursuant to CPLR axficle 78 to review a determination of the respondent Zoning Board of Appeals of the Village of Old Westbu~, dated Saly 8, 1985, [**284] which denied the petitioner's application for an area variance, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Lockman, $.), entered May 7, 1986, which dismissed the proceeding. Ordered that the judgment is affirmed, without costs or disbursements. By deed dated July 30, 1952, the petitioner and Iris former wife took title to two building lots, designated as lots Nos. 21 and 22 of section 10, block B, on the Map of Pinewood Estates, in the Village of Old Westbmy, New York. At that time, each separate lot constituted a legal building panel, available for the development of a single-family ~sidenco. Lot No. 22 harl been improved with a residence, but lot No. 21 was then and remains, vacant. The petitioner and his wife resided in the house located on lot No; 22. Page 7 Kay E. Jeusen, Appellant, v. Zoning Board of Appeals of theVillage of Old Westbury, Respondent [NO NUMBER IN ORIGINAL] Supreme Court of New York, Appellate Division, SeoondDepaxtment 130 A.D.2d 549; 515 N.Y.S.2d 283; 1987 N.Y. App. Div. LEXIS46552 May 11, 1987 CASE SUMMARY PROCEDURAL POSTURE: Petitioner landowner challenged the decision of the Supreme Court, Nassau County (New York), which dismissed the proceeding under N.Y. C.P.L.R. 78, initiated by the landowner, to review a det~rminatian by respondent, a village zoning board of appeals, which denied the landowner's application for an area OVERVIEW: The landowner owned two lots that were treated and used as one parcel for decades. Tlie landowner sold the lot containing a ll~idellce. The remaining lot was not available for development in accordance with the zoning regulations. The landowner's application for a variance was denied by the zoning board of appeals. The landowner challenged the determination in a § 78 proceeding and the trial court dismissed the action and confirmed the determination of the zoning board of appeals. The landowner then reapplied for the same area variance. The zoning board of appeals again denied his request. The landowner brought another proceeding under § 78 in which he again claimed that the denial of his request for an area variance was athitraty, capricious, and unconstitutional. On appeal, the court affirmed the dismissal on the grounds of res judieata. The determination of the zoning board of appeals, which was confirmed by the trial court, served as a complete bar to the subsequent proceeding in which the same relief was sought. The landowner had a full and fair opportunity to litigate his claims, and the legal issues raised were the same as those which governed his earlier application. OUTCOME: The court affirmed the dismissal of the proceeding. CORE CONCEPTS- Civil Procedure: Preclusion & Effect of Judgments: Res/udicata Civil Procedure: Preclusion & Effect of Judgments: Collateral Estoppel Administrative Law: Agency Adjudication: Hearings The p.rinciples of res judicata and collateral estoppel apply to the quasijudicial determinations of admlni.~ative agencies. JUDGES: [***1] Thompson, $. P., Bracken, Rubin and Eiber, JJ., concur. OPINION: [*549] [**283] In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Zoning Board of Appeals of the Village of Old Westbmy, dated Suly 8, 1985, [**2841 which denied the petitioner's application for an area variance, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Locknmn, J.), entered May 7, 1986, which dismissed the proceeding. Ordered that the judgment is affirmed, without costs or disbursements. By deed dated July 30, 1952, the petitioner and his former wife took title to two building lots, designated as lots Nos. 21 and 22 of section 10, block B, on the M~p of Pinewood Estates, in the Village of Old Westbury, New York. At that lime, each separate lot constituted a legal building parcel, available for the development of a single-family residence. Lot No. 22 had been improved with a residence, but lot No. 21 was then and remains, vacant. The petitioner and his wife resided in the house located on lot No. 22. Page 8 130 A.D.2d 549, *; 515 N.Y.S.2d 283, **' 1987 N.Y. App. Div. LEXIS 46552, *** In December 1952 the Zoning Ordinance of the Village of Old Westbmy was mended in such a way that lot No. 21 no longer constituted[***2] a parcel whicl~ by itself would be av',filable for the development of a single-family house. In 1964, the two adjoining lots were conveyed by the petitioner and his wife to a third party, who shoffiy thereafter reconveyed both lots to the petitioner Kay Erik Jensen individually. In 1980, the petitioner contracted with Donald and Catherine Clay Combs to convey only lot No. 22 to them. That lot was later conveyed to lVlr. and Mrs. Combs, thus leaving the petitioner with the ownership of lot No. 21 which, as noted above, was not available for development in accordance with the zoning regulations in effect since December of 1952. ['550} On or about January 13, 1983, the petitioner requested an area variance with respect to lot No. 21, claiming that the parcel is "unmarketable" without the requested variance. After a hearing, the respondent Zoning Board of Appeals of the Village of Old Westbmy denied this application. The Zoning Board of Appeals, in a determination dated May 9, 1983, found that for the some 30 years that the petitioner had owned lots Nos. 21 and 22, those lots "were treated and used as one parcel". The petitioner challenged the foregoing determination in a prior[***3] proceeding pursuant to CPLR article 78. In a judgment dated November 15, 1983, the court (Stark, J.), dismissed the proceeding and confirmed the determination of the Zoning Board of Appeals. The petitioner then reapplied for the same area variance. The Zoning Board of Appeals, by determination dated July 8, 1985, again denied the petitioner's request. The petitioner then brought the instant proceeding pursuant to CPLR article 78 in which it was again claimed that the denial of his request for an area variance was arbitrary, capricious, and uncoustitutional. The court (Lockman, J.), again dismissed the proceeding, holding that the doctrine of res judicata served to bar the petitioner from the relief sought. This appeal followed. We affirm. The principles of res judicata and collateral estoppel apply to the quasijudicial determinations of administrative agencies (see, Ryan v New York Tel. Co., 62 NY2d 494; cf., Matter of Venes v Community School Bd. of Dist. 26, 43 N72d 520). Under traditional principles of res judicata the May 9, 1983 determination of the Zoning Board of Appeals, which was confirmed by the court, served as a complete bar to the instant proceeding in[***4] which the same relief was sought. The petitioner had a full and fair opportunity to litigate his clalm~ In 1983, and the legal issues raised here are the same as those which governed his application in 1983. Furthermore, the petitioner has failed to show that there occurred between 1983 and 1985 any change in a material fact which might permit the Zoning Board of Appeals to reconsider its earlier decision (cf., Manitou Sand & Gravel Co. v Town of Ogden, 55 NY2d 790, revg 81 AD2d 1019; Matter ofBlanco v Blum, 67AD2d 947, 948). It is true that, at the second hearing before the Zoning Board of Appeals, the petitioner adduced proof which tended to establish certain facts (e.g., that the ['551] value of lot No. 21 [**285] with an area variance is $185,000, while its value without a variance is only $46,000) which were not proved at the first hearing. However, all this shows is that the petitioner had improved the quality of his proof, not that the facts themselves had changed. We find no authority for the proposition that a claim which has been litigated fully once may be relitigated again, simply in order to permit the losing party to cure a defect in this[***5] proof. Thus, the Supreme Court properly dismissed this proceeding on the basis of res judicata. 130 A.D.2d 549, *; 515 N.Y.S.2d 283, **' 1987 N.Y. App. Div. LEXIS 46552, *** Page 8 In December 1952 the Zoning Ordinance of the Village of Old Westbury was mended in such a way that lot No. 21 no longer constituted[***2] a parcel which, by itseff would be available for the development ora single-family house. In 1964, the two adjoining lots were conveyed by the petitioner and his wife to a third party, who shortly them, after reconveyed both lots to the petitioner Kay Erik Jeusen individually. In 1980, the petitioner contracted with Donald and Catherine Clay Combs to convey only lot No. 22 to them. That lot was later conveyed to Mr. and Mrs. Combs, thus leaving the petitioner with the ownership of lot No. 21 which, as noted above, was not available for development in accordance with the zoning regulations in effect since December of 1952. [*550] On or about Janmuy 13, 1983, the petitioner requested an area variance with respect to lot No. 2 I, claiming that the parcel is 'hmmarketable" without the requested variance. After a hearing, the respondent Zomg Board of Appeals of the Village of Old Westbmy denied this application. The Zomg Board of Appeals, in a determination dated May 9, 1983, found that for the some 30 years that the petitioner had owned lots Nos. 21 and 22, those lots "were treated and used as one parcel". The petitioner challenged the foregoing determination in a prior[***3] proceeding pursuant to CPLR article 78. In a judgment dated November 15, 1983, the court (Stark, J.), dismissed the proceeding and confirmed the determination of the Zoning Board of Appeals. The petitioner then reapplied for the same area variance. The Zoning Board of Appeals, by determination dated July 8, 1985, again denied the petitioner's request. The petitioner then brought the instant proceeding pursuant to CPLR article 78 in which it was again claimed that the denial of his request for an area variance was arbitrary, capricious, and unconstitutional. The court (Lockman, J.), again dismissed the proceeding, holding that the doctrine of res judicatu served to bar the petitioner from the relief sought. This appeal followed. We affirm. The principles of res judicata and collateral estoppel apply to the quasijudicial determinations of administrative agencies (see, Ryan v New York Tel. Co., 62 NY2d 494; cf., Matter of Vanes v Community School Bd. of Dist. 26, 43 NY2d 520). Under traditional principles of res judicata the May 9, 1983 determination of the Zoning Board of Appeals, which was confirmed by the court, served as a complete bar to the instant proceeding in[***4] which the same relief was sought. The petitioner had a full and fair opportunity to litigate his claims in 1983, and the legal issues raised here are the same as those which governed his application in 1983. Furthermore, the petitioner has failed to show that there occmxed between 1983 and 1985 any chan~e in a material fact which might permit the Zoning Board of Appeals to reconsider its earlier decision (cf., Manitou Sand & Gravel Co. v Town of Ogden, 55 NY2d 790, revg 81 AD2d 1019; Matter ofBlanco v Blum, 67AD2d 947, 948). It is true that, at the second hearing before the Zoning Board of Appeals, the petitioner adduced proof which tended to establish certain facts (e.g., that the ['551] value of lot No. 21 [**285] with an area variance is $185,000, while its value without a variance is only $46,000) which were not proved at the first hearing. However, all this shows is that the petitioner had improved the quality of his proof, not that the facts themselves had changed. We find no authority for the proposition that a claim which has been litigated fully once may be relitigated again, simply in order to permit the losing party to cure a defect in this[***5] proof. Thus, the Supreme Court properly dismissed this proceeding on the basis of res judicata~ Page 7 Kay E. Jeusen, Appellant, v. Zoning Board of Appeals of theVillage of Old Westbuw, Respondent INO NUMBER IN ORIGINAL] Supreme Court of New York, Appellate Division, SecondDepartment 130 A.D.2d 549; 515 N.Y.S.2d 283; 1987 N.Y. App. Div. LEXIS46552 May 11, 1987 CASE SUMMARY PROCEDURAL POSTURE: Petitioner landowner challenged the decision of the Supreme Court, Nassau County (New York), which dismissed the proceeding under N.Y.C.P.L.R. 78, initiated by the landowner, to review a de~rmination by respondent, a village zoning board of appeals, which denied the landowner's application for an area OVERVIEW: The landowner owned two lots that were treated and used as one parcel for decades. The landowner sold the lot containing a residence. The remaining lot was not available for development in accordance with the zoning regulations. The landowner's application for a variance was denied by the zoning board of appeals. The landowner challenged the determination in a § 78 proceeding and the trial court dismissed the action and confirmed the determination of the zoning board of appeals. The landowner then reapplied for the same area variance. The zoning board of appeals again denied his request. The landowner brought another proceeding under ~ 78 in which he again claimed that the denial of his request for an area variance was arbitrary, capricious, and unconstitutional. On appeal, the court affirmed the dismissal on the grounds of res judicata. The determination of the zoning board of appeals, which was confirmed by the trial court, sarved us a complete bar to the subsequent proceeding in which the same relief was sought. The landowner had a full and fair opportunity to litigate his claims, and the legal issues raised were the same a~ those which governed his earlier application. OUTCOME: The court affirmed the dismissal of the proceeding. CORE CONCEPTS- Civil Procedure: Preclusion & Effect of Judgments: Res Judicata Civil Procedure: Preclusion & Effect of Judgments: Collateral Estoppel Administrative Law: Agency Adjudication: Hearings The principles of res judicata and collateral estoppel apply to the quasijudioial determlnntions of administrative agencies. JUDGES: [***1] Tliompson, J. P., Bracken, Rubin and Eiber, Jl., OPINION: [*549] [**283] In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Zoning Board of Appeals of the Village of Old Westbury, dated Jniy 8, 1985, [**284] which denied the petitioner's application for an area variance, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Lockman~ J.), entered May 7, 1986, which dismissed the proceeding. Ordered that the judgment is affirmed, without costs or disbursements. By deed dated July 30, 1952, the petitioner and his former wife took title to two building lots, designated as lots Nos. 21 and 22 of section 10, block B, on the M~p of Pinewood Estates, in the Village of Old Westbury, New York. At that time, each separate lot constituted a legal building parcel, available for the development of a single-family residence. Lot No. 22 had been improved with a residence, but lot No. 21 was then and remains, vacant. The petitioner and his wife resided in the house located on lot No. 22. 130 A.D.2d 549, *; 515 lq.Y.S.2d 283, **; 1987 lq.Y. App. Div. LEXIS 46552, *** Page 8 In December 1952 the Zoning Ordinance of the Village of Old Westbmy was amended in such a way that lot No. 2t no longer constituted[***2] a parcel which, by itself would be available for the development of a single-family house. In 1964, the two adjoining lots were conveyed by the petitioner and his wife to a third party, who shortly thereafter reconveyed both lots to the petitioner Kay Erik Jeusen individually. In 1980, the petitioner contracted with Donald and Catherine Clay Combs to convey only lot No. 22 to them. That lot was later conveyed to Mr. and Mrs. Combs, thus leaving the petitioner with the ownership of lot No. 21 which, as noted above, was not available for development in accordance with the zoning regulations in effect sInce December of 1952. [*550] On or about January 13, 1983, the petitioner requested an area variance with respect to lot No. 21, claiming that the parcel is "nnmarketable" without the requested variance. At, er a hearing, the respondent Zoning Board of Appeals of the Village of Old Westhury denied this application. The Zoning Board of Appeals, in a determination dated May 9, 1983, found that for the some 30 years that the petitioner had owned lots Nos. 21 and 22, those lots "were treated and used as one parcel". The petitioner challenged the foregoing determination in a prior[***3] proceeding pursuant to CPLR article 78. In a judgment dated November 15, 1983, the court (Stark, J.), dismissed the proceeding and confirmed the determination of the Zoning Board of Appeals. The petitioner then reapplied for the same area variance. The Zoning Board of Appeals, by determination dated July 8, 1985, again denied the petitioners request. The petitioner then brought the instant proceeding pursuant to CPLR article 78 in which it was again claimed that the denial of his request for an area variance was arbitrary, capricious, and unconstitutional. The court (Lockman, J.), again dismissed the proceeding, holding that the doctrine of res judieatu served to bar the petitioner from the relief sought. This appeal followed. We affirm. The principles of res judicata and collateral estoppel apply to the quasijudicial determinations of administrative agencies (see, Ryan v New York Tel. Co., 62 NY2d 494; cf., Matter of Venes v Community School Bd. of Dist. 26, 43 NY2d 520). Under traditional principles of res judicata the May 9, 1983 determination of the Zoning Board of Appeals, which was confirmed by the court, served as a complete bar to the instant proceeding in[***4] which the same relief was sought. The petitioner had a full and fair opportunity to litigate his claimn in 1983, and the legal issues raised here are the same as those which governed his application in 1983. Furthermore, the petitioner has failed to show that there occurred between 1983 and 1985 any change in a material fact which might permit the Zoning Board of Appeals to reconsider its earlier decision (cf., Manitou Sand & Gravel Co. v Town of Ogden, 55 NY2d 790, revg 81 AD2d 1019; Matter ofBlanco v Blum, 67 AD2d 947, 948). It is true that, at the second hearing before the Zoning Board of Appeals, the petitioner adduced proof which tended to establish certain facts (e.g., that the ['551] value of lot No. 21 [**285] with an area variance is $185,000, while its value without a variance is only $46,000) which were not proved at the first heating. However, all this shows is that the petitioner had improved the quality of his proof, not that the facts themselves had changed. We find no authority for the proposition that a claim which has been litigated fully once may be relitigated again, simply in order to permit the losing party to cure a defect in this[***5] proof. Thus, the Supreme Court properly dismissed this proceeding on the basis of res judieata. Page 7 Kay E. Jeusen, Appellant, v. Zoning Board of Appeals of tboVillage of Old Westbmy, Respondent [NO NUMBER IN ORIGINAL] Supreme Court of New York, Appellate Division, SecandDepartment 130 A.D.2d 549; 515 N.Y.S.2d 283; 1987 N.Y. App. Div. LEXIS46552 May 11, 1987 CASE S UIVliV~ARY PROCEDURAL POSTURE: Petitioner landowner challenged the decision of the Supreme Court, Nassau County (New York), which dismissed the proceeding under N.F.C.P.L.R. 78, initiated by the landowner, to review a determination by respondent, a village zoning board of appeals, which denied the landowner~s application for an area variance. OVERVIEW: The landowner owned two tots that were treated and used as one parcel for decades. The landowner sold the lot containing a residence. The remaining lot was not available for development in accordance with the zoning regulations. The landowner's application for a variance was denied by the zoning board of appeals. The landowner challenged the determination in a ~ 78 proceeding and the trial court dismissed the action and confirmed the determination of the zoning board of appeals. The landowner then reapplied for the same area variance. The zoning board of appeals again denied his request. The landowner brought another proceeding under § 78 in which he again claimed that the denial of his request for an area variance was arbitrap/, capricious, and unconstitutional. On appeal, the court affumed the dismissal on the grounds of res judicata. The determination of the zoning board of appeals, which was confirmed by the trial court, served as a complete bar to the subsequent proceeding in which the same relief was sought. The landowner had a full and fair opportunity to litigate his ctaimn, and the legal issues raised were the same as those which gevemed his earlier application. OUTCOME: The court affirmed the dismissal of the proceeding. CORE CONCEPTS - Civil Procedure: Preclusion & Effect of Judgments: Res Sudicata Civil Procedure: Preclusion & Effect of Judgments: Collateral Estoppel Administrative Law: Agency Adjudication: Hearings The p.rinciples of res judicata and collateral estoppel apply to the quasijudicial detenninatious of administrative agencies. JUDGES: [***1] Thompson, J. P., Bracken, Rubin and Eiber, JJ., concur. OPINION: ['5491 [*'2831 In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Zoning Board of Appeals of the Village of Old Westbmy, dated July 8, 1985, [**284] which denied the petitioner's application for an area variance, the petitioner appeals fxom a judgment of the Supreme Court, Nassau County (Lockman, I.), entered May 7, 1986, which dismissed the proceeding. Ordered that the judgment is affirmed, without costs or disbursements. By deed dated July 30, 1952, the petitioner and Ids former wife took title to two building lots, designated as lots Nos. 21 and 22 of saction 10, block B, on the Map of Pinewood Estates, in the Village of Old Westbmy, New York. At that time, each separate lot constituted a legal building parcel, available for the development of a single-family residence. Lot No. 22 had been improved with a residence, but lot No. 21 was then and remains, vacant. The petitioner and his wife resided in the house located on lot No. 22. ts,' 130 A.D.2d 549, *; 515 N.Y.S.2d 283, **' 1987 N.Y. App. Div. LEXIS 46552, *** Page 8 In December 1952 the Zoning Ordinance of the Village of Old Westbmy was mended in such a way that Itt No. 21 no longer constituted[***2] a parcel which, by itseff would be available for the development of a single-family house. In 1964, the two adjoining lots were conveyed by the petitioner and his wife to a third party, who shortly thereal~er reconveyed both lots to the petitioner Kay Erik Sansen individually. In 1980, the petitioner contracted with Donald and Catherine Clay Combs to convey only lot No. 22 to them. That Itt was later conveyed to Mr. and Mrs. Combs, thus leaving the petitioner with the ownership of Itt No. 21 which, as noted above, was not available for development in accordance with the zoning regulations in effect since December of 1952. [*550] On or about January 13, 1983, the petitioner requested an area variance with respect to lot No. 21, claiming that the parcel is "unmarketable" without the requested variance. After a hearing, the respondent Zoning Board of Appeals of the Village of Old Westbmy denied this application. The Zomg Board of Appeals, in a determination dated May 9, 1983, found that for the some 30 yearn that the petitioner had owned lots Nos. 21 and 22, those lots "were treated and used as one parcel". The petitioner challeaged the foregoing determination in a prior[***3] proceeding pursuant to CPLR article 78. In a judgment dated November 15, 1983, the court (Stark, J.), dismissed the proceeding and confilaned the determination of the Zoning Board of Appeals. The petitioner then reapplied for the same area variance. The Zoning Board of Appeals, by determinalion dated Suly 8, 1985, again denied the petitioner's request. The petitioner then brought the instant proceeding pursuant to CPLR axticle 78 in which it was again claimed that the denial of his request for an area variance was arbitral, capricious, and unconstitutional. The court (Lockmnn. J.), again dismissed the proceeding, holding that the doctrine of res judicala served to bar the petitioner from the relief sought. This appeal followed. We affirm. The principles of res judicata and collateral estoppel apply to the quasijudicial determinations of administrative agencies (see, Ryan v New York Tel. Co., 62 NY2d 494; cf., Matter of Venes v Conummity School Bd. of Dist. 26, 43 NY2d 520). Under traditional principles of res judicata the May 9, 1983 determination of the Zoning Board of Appeals, which was confirmed by the courh served as a complete bar to the instant proceeding in[***4] which the same relief was sought. The petitioner had a full and fair opportunity to litigate his claims in 1983, and the legal issues raised here are the same as those which governed his application in 1983. Furthermore, the petitioner has failed to show that there occurred between 1983 and 1985 any change in a material fact which might permit the Zoning Board of Appeals to reconsider its earlier decision (cf., Manttou Sand & Gravel Co. v Town of Ogden, 55 NY2d 790, revg 81 ~tD2d 1019; Matter ofBlanco v Blum, 67~D2d 947, 948). It is true that, at the second hearing before the Zoning Board of Appeals, the petitioner adduced proof which tended to establish certain facts (e.g., that the ['5511 value of lot No. 21 [*'285} with an area variance is $185,000, while its value without a variance is only $46,000) which were not proved at the first hearing. However, all this shows is that the petitioner had improved the quality of his proof, not that the facts themselves had changed. We find no authority for the proposition that a claim which has been litigated fully once may be relifigated again, simply in order to permit the losing party to cure a defect in this[***5] proof. Thus, the Supreme Court properly dismissed this proceeding on the basis of res judicata. 8:15 p.m. Appl. No. 4314 - Variance request for JAMES AND BARBARA MILLER ~ contract vendees. (Owner: Paradise of Southold, Inc. and Others). 580 Basin Road, Southold; Paradise Point, Section One, 1963 Filed Map No. 3761; 1000-81-1-16.7 (formerly p.o 16.4). The Chairman read the .legal notice of hearing and part of the application for the audience. CHAIRMAN: I have a copy of the survey indicating a proposed house and proposed swimming pool area. I guess the easiest way to say it, it's proposed 58 feet, 51 feet at its closest point to the Basin, and approximately 100 feet pardon me, I'm in reverse, I apologize, approximately 100 feet from the basin and approximately 51 feet at its closest point to the bulkhead on Peconic Bay. And I have a copy of the Suffolk County Tax Map indicating this and surrounding and surrounding properties in the area. Is there somebody that would like to be heard? ANNETTE ADERESTO, ESQ: Good evening, Mr. Chairman. My name is Annette Aderesto of Blake and Aderesto, 18 Railroad Road, Center Moriches, NY. I represent the applicants who are contract vendees, James and Barbara Miller. The application before you requests permission to build a single-family dwelling, garage, pool and decks on a 1.79 acre parcel which consists of 78,000 square feet. This application is based on conformity, practical difficulty and economic hardship. The subject parcel is a parcel known as Tax Lot District 1000, Section 81, Block 1, Lot 16.7 located at Paradise Regular M~eting of June 7, 1995 Southold Town Board of Appeals Point, Southold, New York. This parcel was designated as a single and separate lot on June 1, 1981 by the Planning Board of this Town. In addition, a (vacant land) Certificate of Occupancy for the subject parcel was also issued by the Building Department on June 12, 1981. And I would just like to read the language of that Certificate of Occupancy, approved by the Southold access to a street .... " "...This is a single and separate lot as Town Planning Board June 1, 1981 with This lot has been held. in single and separate ownership since the date of that grant and since the date of that C.O. Thus, I believe this is a buildable lot. In addition, subsequent to the filing of this application, as late as yesterday on June 6, 1995, the Planning Board determined that it had approved this lot in 1981, that it would not request Department of Health approval of the reconfiguration of this lot as approved in 1981 and the Planning Board in addition is not requiring the 1981 map to be filed with the County Clerk's Office. Also, the Planning Board advised they are not requiring any amendment to the 1963 map of Paradise Point. No further steps need be taken with this Planning Board regarding the buildability of this lot. Accordingly, on the first variance requested, I believe this lot is a single and separate lot and a buildable lot pursuant to the Town action taken in 1981. This parcel is recognized by the Planning Board as a buildable lot today without requiring any additional map filings in the Suffolk County Clerk's Office. Page /~ Hearing cript Regular Meeting of June 7, 1995 Southold Town Board of Appeals Also, on the fourthvariance, Basin Road abuts this property and the subject premises, and it gives access to the subject premises. The applicant has no intention of extending Basin Road as they have legal access from Basin Road and as a C.O. from the Town states, they have access to the Road. Therefore, I believe that the fourth variance requested is unnecessary, and perhaps the Board will consider making a motion to withdraw that request. A review of the tax map of the area indicates that this parcel is almost twice as large as the majority of lots on Paradise Point. This lot was always intended to be a separate building lot. The area of the lot is 78,000 square feet which in substantial compliance with the 80,000 sq. ft. required in the R-80 zone, thus there is conformity to the area. As to the subject of two uses on the subject premises, the lot currently has an easement running with the land in favor of Paradise Point Associates, Inc. This is utilized for parking and access to approximately 13 boats slips in the boat basin. I must emphasize that this is a private association. It is not open to the public. The boat basin itself is a separate tax parcel known as District 1000 Section 81 Block 1 Lot 16.8. And it consists of 84,000 sq. ft. Thus, the total square footage of the two parcels, tax lot 16.7 and 16.8 is 162,000 sq. ft., which is in excess of the 160 sq. ft. that the town feels is required for two uses on one premises. The only reason an easement is necessary to access the Boat Basin and the Boat Basin in entirely underwater. Thus, for obvious reasons, for Page ~ Hearing '1 cript Regular Meeting of June 7, 1995 Southo]d Town 'Board of Appe. als parking of cars to get to the boat slips, there must be an easement on Lot 16.7 which is the subject parcel. It must be stressed again that the Association is private. This is a minimal use. We're talking about approximately 13 boat slips. It's not open to the public and it's a seasonal use. The boat basin has been used and docks present at the boat basin since the late 1950s. Tax lot 16.7 has been used to gain access to the boat basin since the mid-1960s, and so it was in existence when the Planning Board issued their decree that this was a buildable lot in 1981. The parking was also in existence at that time and it was in existence when the Building Department issued their C.O. on this lot. The third variance requested by the applicant tonight is for a 51-ft. setback from the existing bulkhead. This variance is based on practical difficulty with the 'land. The subject parcel as the Board can see from the survey is an irregularly shaped parcel. In addition to being an irregularly shaped parcel, the topography map shows that this parcel varies greatly in elevations. The bulkheading of this parcel is on its north side and part of its westerly side. The parcel is surrounded by water on three sides. The location of the house 51 feet from the existing bulkhead places the rear of the residence at the septic systems 100 feet from the wetlands are on the southerly and easterly portion of the premises, that portion which is not bulkheaded. This 100 ft. setback is required by the D.E.C. In addition, the house has been proposed on one of the higher elevations of the property, and this would be advantageous in Page /~ Hearing ri cript Regular Meeting of June 7, 1995 Southold Town Board of Appeals preventing any flooding of the proposed structure. At this time, I would ask that the Board acdept Mr. Fred Wood who is a licensed real estate appraiser to testify as an expert on this application. CHAIRMAN: Good evening, Mr. Weber. How are you? MR. FRED WEBER: My name is Frederick Weber. I'm a licensed real estate appraiser having appraised real property in Suffolk County for the past 22 years. I have appeared before your Board previously. I believe the most recent was about three years and there was a change obviously in the Board Members since that time. CHAIRMAN: We're getting better looking. MR. WEBER: Yes, I would grant that. The fairer sex is also present here at this Board. Ms. Aderesto had described the property and the topography, and the fact that the parcel is surrounding by water quite adequately so I won't be going into that in any great detail. But I would like to describe the area with regard to the zoning, lot width, lot size, and thii~gs of that sort. As you can see from the Suffolk County Tax Map which you have in front of you the subject property is significantly larger than any of the adjoining and surrounding properties by a factor of two in many cases. There are obviously larger parcels elsewhere within this community larger than the subject property, but in the immediate area this is one of the larger parcels, and as you have heard, it does have an area of 78,000 sq. ft. So the variance that's being requested is nominal. Two-thousand square foot variance, or actually 2-1/2 percent with regard to your ordinances. Page ,~ Hearing cript Regular Meeting of JUne 7, 1995 Southold Town Board of Appeals The adjoining parcels have varying style residences on them. We have a mixture of residences, and I do have some photographs to leave with you that vary from single-family - I should say one-story residences, we have two-story, contemporary style residences, two-story colonials, and various configurations or branches. These dwellings as I see them vary in nature, I would guess from the oldest probably being somewhere about 25 to 30 years old. The newest being, having been constructed very recently. So we have an area that homogeneous with regard to its variations. There are varying styles of residences. Varying ages of residences. And varying sized size. So the subject property being a newer residence on a larger lot would fit in with the general scheme of things in the Paradise Point subdivision. It's my opinion therefore that based on the conformity that I've explained to you this evening that there would be no adverse effect on the character of the area should the variance be granted for the 2,000 sq. ft. relief in lot area. I further my opinion that there will be no physical change in the neighborhood, by the granting of this requested variance. It's further my opinion that there will be no adverse effect on the surrounding properties, immediately adjoining, or any of the surrounding parcels with regard to the reduction in value of those properties or with regard to the use and enjoyment of residence will neighborhood. any of those parcels. It's my opinion that the be constructed at this site will not detract from the In fact its location and lot size enhance the overall Page ~ ! Hearing ~1~'script Regular Meeting of June 7, 199§ Southold Town Board of Appeals value of this location, my opinion is there will be no change and will have sufficient utilities and services available. With regard to the relief for the setback on the bulkhead. Your ordinances require 75 feet.' What's proposed is 51 feet, and as indicated by Mrs. Aneresto, the topography of the site varies considerably from obviously the sea level along the shore lines, the three shore lines, to as great as, I believe, it's 16 feet. The residence is sited in such a way that it takes advantage of the high ground for several reasons: for view, also for minimizing the environmental impact on the site. You can see if we located the residence in other spots within the site, it would require more clearing and greater grade, which would have even a greater effect on the environment. Based on the survey that you have in front of you of the adjoining properties, I believe that's owned by the Curcuru's and based on what I could observe in the field by walking the property and estimating guestimating the setbacks of at least the adjoining residence to the east, that appears to be less than 75 feet. By my estimate which is crude, I would say it's between 55 and 60 ft. setback. I would further venture an opinion that that is probably true of other residences constructed in Paradise Point probably under prior zoning ordinances. It's my opinion in regard to the requested relief for setback that this again would not change the character of the area if this variance should be granted, and it would not have any adverse effect on the adjoining properties, nor would it physically change the character of the neighborhood. 'Page .4'~ - Hearing ,-t~script Regular Mdeting of June 7, 1995 Southold Town Board of Appeals It's my opinion further that there would be no adverse effect on the use of the enjoyment of the surrounding properties should this variance be granted. That would conclude my testimony, Mr. Chairman. I'm going to leave the Board with some. photographs of the properties that were mentioned in the immediate area, and I would be happy to answer any questions that the Board may have. CHAIRMAN: I have one request from you, and we'll see if there are any questions first (from the audience). You're welcome to give me the pictures. Thank you. MR. WEBER: Thank you. CHAIRMAN: Does anybody have any questions of this real estate agent, broker? MEMBER VILLA: I have one question that I could ask. You're talking about value here and this Board, of course, when we entertain a variance we try to give a minimum amount of variance granted. I'm looking at the proposed house which is 76 feet wide and 76 feet deep, and it seems to be an excessive size building for the -. Isn't there a way that that could be reduced and get a greater setback from the bulkhead? MR. WEBER: That's always possible, a physical change in size, however, I would like to answer that in this way. The property as you see is a ~ery strategically placed parcel. It has waterviewof the basin, it has actually three water frontages, and it has a spectacular view of the Southold Bay. The parcel itself as you know has a very large - has a great value. Based on market activity and Page ~ Hearing~nscript Regular Meeting of June 7, 199§ Southold Town Board of Appeals sales in this location, it's probably somewhere between 400 and 500,000 dollars for the value of this parcel, as a buildable site. With that sort of land investment, we're interested in trying to relate to the structure that would be built on this parcel to the value of the parcel, so that would of course be a larger home. And I think it's a matter of preference in this case, but obviously a smaller home could be placed on this site, but I think that would be an undervaluation of the pa'rcel based upon the great value of the site. There is no in my opinion there is no direct damage created to any of the surrounding properties by the size of the residence since the site is fairly well wooded. Both on the side facing the boat basin and on the east side of the property, so the size of the house would not be visible even to the neighbors, and even by the configuration, it would only be visible from the bay side itself. It would not be visible from the other-- MEMBER VILLA: Yes, but the setbacks are basically determined to try and protect our water quality. We're not worrying about the neighboring parcels as much as we worry about our waters out here. MR. WEBER: Yes, and I understand that. And I'm assuming, Mr. Villa, that the Suffolk County Water Authority - excuse me, Suffolk County Health Department would be assuring that the quality of the water would not be (). MEMBER VILLA: Well, thes)'re taking care of the sanitary but the larger the house, generally the everything that goes along with it. a very expensive house. You're more activity is involved and You're going to have, you know, going to probably have very Page ~(,z ~ Hearing scr{pt Regular Meeting of June 7, 1995 Southold Town Board of Appeals expensive landscaping, which means probably more cultivation, everything that goes along with it. That's also true but we have a single-family residence here. It does not contain any apartments or anything of that sort. MEMBER VILLA: I realize that. MR. WEBER: And if memory serves me right, I believe that are four bedrooms - excuse me, three bedrooms. Three bedrooms. So that in and of itself would limit the number of occupants in the house. But I understand the grounds would be greater because of' the size of it. MEMBER VILLA: I just look at the size of the house as being rather large. SECRETARY TO CHAIRMAN:. Do you know the square footage of the hoUse? CHAIRMAN: Looking at it now, it's about 5,000 square feet (with decks, etc.). MR. WEBER: It was pointed out to me that the association requires a minimum square foot home of 2,400 square feet. The area of this particular residence is 3200 square feet. So it is in excess. But it's not significantly larger than 2400 square feet which is already here with the garage. MEMBER DINIZIO: Well, certainly 2400 Sq. ft. is better than 3200. MEMBER WEBER: It's definitely smaller than 3200. Again, I go back to - previously, this, being a very large lot, 1.79 acres which is significantly larger than any of the parcels in the area, and if you've been, and I'm sure you've visited or are familiar with this site, there are some very large homes located in this community on Page ~ ~ Hearing ~script Regular Meeting of June 7, 1995 Southold Town Board of Appeals very small I shouldn't say very small, smaller lots than this particular parcel. In some regards, as small as half of the size. And I would venture while I did not attempt to measure the size of those residences, they are fairly large homes in there. Which I am sure, at least approach the 3,000 square foot size of this - this is a one-story residence, it makes it look larger. MEMBER DINIZIO: I would just like to comment, you know, and carry one Bob's comments that, you know, the laws that we have currently - the up-zoning that we have was created for just that - to limit the needs for variances, and you know to make people build houses that comply and on larger lots to save our water in all honesty. And, you know, to me this in my opinion of this whole thing from 1963, it appears to me that the intent of that lot was more for the community. And I further say that having a basin on there that's for the community, just convinces me more than the intent when this whole development was serious, that this piece of property would be for the community. I believe it even indicates it on one of the older maps. Let me just finish my comment first, and then you can go on. Also, the June 6th letter from the Planning Board seems to be unclear as to whether, and maybe you can comment on this, this actual lot or not, or set-off, sort to speak. MRS. ADERESTO: MEMBER DINIZIO: MRS. ADERESTO: second paragraph as to whether this is an whether there's a mistake made issuing this The second paragraph of that letter? The first and second paragraphs. Starting with accordingly? Page ~ ~ Hearing ~J~nscript Regular Meeting of June 7, 1995 Southold Town Board of Appeals MEMBER DINIZIO: Yes. MRS. ADERESTO: It just says there is no filed map with the County Clerk bearing Health Department approval. In 1981 when the set-off was approved, the Planning Board did not require that the applicant obtain Health Department approval prior to granting approval, and therefore cannot require it retroactively in 1995. The Planning Board does not plan to take any further steps in regard to the (coughing into microphone) ...as it is no longer within its jurisdiction. I think from reading the entire letter it is very clear that they feel no further steps need to be taken and then I had another copy of a memo that was sent to the Board of Appeals to the Planning Board with a notation by Melissa on the bottom: "As per Dick Ward no additional steps are being required by the Planning Board regarding this lot." BOARD SECRETARY: Yes, we have that. MRS. ANERESTO: So I feel that the Planning Board, and there's also an additional letter of the Planning Board that I think the Board has in their file. From May, that also deals with the issue of th~. buildability of this lot and their own action that they took in 1981. CHAIRMAN: I just have some questions of this attorney after you answer his question. Then I want to go back to Mr. Wood after that, and then we'll - MRS. ANERESTO: Certainly, whoever you would like. We're both here. Page ..~.~' ~ Hearing script Regular Meeting of June 7, 1995 Southold Town Board of Appeals Regarding this lot being utilized by the association and for the association use and not a buildable lot, the association did not even have a legal easement until 1989. That's when the easement - and I have a copy of that here from Fidelity National Title, recorded in the County Clerk's. That's when the easement was given. BOARD SECRETARY: But they owned it (Paradise Point Association) at ~ome period in time, right? MRS. ANERESTO: There's a different entity it was no the association. It was in a corporation that was just basicaily the owners that now own it, owned it in a different entity. The association as you know it now is Paradise Point Association never did own this, and don't now. They have an easement over it only. This is owned by - we have preser~ted the deeds - four owners, and we're under contract to buy the entire parcel subject to the easement, and it was never intended, and I think by the 1981 coming to this (Town) and getting a C.O. as a buildable lot (sic), shows the owner's intent to aiways keep this as a buildable lot. At that time, the use was already used for parking in 1965. MEMBER VILLA: It didn't come to this Board. MRS. ANERESTO: To the Planning Board. MEMBER VILLA: How do you address the fact that Article VI of the Sanitary Code, County Center goes into effect in 1980 and said, "No lot shall be subdivided without health department approvai"? MRS. ADERESTO: We have already applied for health department approval on this lot. They have accepted our application, and we will go to the Board of Review on this because of the salt-water Page ~ r Hearing ~i~Ymcript Regular Meeting of June 7, 1995 Southold Town Board of Appeals problem in the area. They had not asked us for a subdivision. They recognized this as a separate lot, and we do have an application already filed. MEMBER TORTORA: In your contract of sale, Item #27, it says "purchaser understands and agrees that the ground water available at the premises does not and cannot meet the standards as established and administered by the Suffolk County Department of Health Services for domestic use." MRS. ADERESTO: That's correct. We knew when we signed this contract - my client knew that they would have to put a reverse-osmosis system in because this whole point has had to go through this and the various houses have had to go through this, and we have done numerous tests to see if we could find any available water, but it is - it's salt water there. So we have to install a reverse-osmosis system to get fresh water, and we have to go to the Suffolk County Health Department Board of Review for approval of that system. MEMBER TORTORA: And you referred to this property being a CO I believe in 19817 MRS. ADERESTO: Yes. MEMBER TORTORA: And as Bob Villa said the Article VI went in in 19807 MRS. ADERESTO: Yes. But we have applied to the Health Department for this structure and they have accepted our application and accepted this as a separate lot. And they have not asked us to subdivide. Page ~ ~ Hearing ~anscript Regular Meeting of June 7, 1995 Southold Town Board of Appeals MEMBER TORTORA: I'd like to see the original covenants and restrictions that went with this parcel? And previously you had said that you implied that somehow the Planning Board's action in 1981 would preempt any other agreement or covenants and restrictions that went with this parcel. Are you saying tha~ this parcel was not and never has been set aside as a park and playground area in the subdivision? MRS. ADERESTO: No, it has not to my knowledge. In 1989 we gave them an easement for parking. The boat basin is part of the Association. Yes. That's a separate tax lot, that's 84,000 square feet. MEMBER TORTORA: But this parcel has never been a reserved area at any time? MRS. ADERESTO: Not to my knowledge, but with us here tonight and he will speak is John Sinning who is one of the owners, and certainly he knows a lot morse about the history of that point than I could ever hope to learn in these few months that I have been involved in this. And I'll defer to him on anything. I have the title report here. From Fidelity National Title. And a review of that shows the easement that spoke of in 1989, and we do have here the filed map in 1963 which you asked about, and there are covenants if you would like to see that. Would you like to see that? MEMBER TORTORA: Would you give us a copy of that for our records please? CHAIRMAN: Well, let her look at it now and then we'll get a copy. MRS. ADERESTO: If you like to, I can get another copy of that. Page $.~ .- Hearing ~'F~nscript Regular Meeting of June 7, 1995 Southold Town Board of Appeals CHAIRMAN: Are you going to continue with this (to Member Villa). Ok. I just want to finish with Mr. Wood (meaning Mr. Weber), and then we'li go back with you, ok. Does anybody have any other questions of this real estate person? (None) Mr. Wood, I do remember you coming before us. You did a fine presentation tonight. I have only one request from you. Could you just supply us with your resume or your background? It doesn't have to be tonight. Just drop it -- MR. WEBER: I have it with me. CHAIRMAN: Oh, that's great. I appreciate that. MR. WEBER: I was in the process of answering the question. CHAIRMAN: Yes, surely. Let's finish that. MR. WEBER: We were talking about coverage and the size of the residence, and I wanted to point out that on your survey, your survey that was presented to you this evening, the coverage considering both the home and the pool is 7%, approximately seven percent of the lot area. CHAIRMAN: Are you saying "seven" percent? MR. WEBER: Yes, seven percent. While your ordinance, and I'm referring to the R-40 Zoning in the zoning manual indicates a permitted coverage although we're not asking for, coverage of this extent, permits coverage of 20 percent. So the actual coverage of this particular case is actually one-third, approximate]y, of what is permitted in R-80. Now, we realize the sensitivity of the location but we would ask that Board to consider this is a very special location as well for, providing a residence on this property which Page ~{t ~ Hearing script Regular Meeting of June 7, 1995 Southold Town Board of Appeals will give it justice, but I do understand the Board's concern about the size of the dwelling and the potential impact on the environment. Well we are submitting that it is less - MEMBER VILLA: Well we grant that but there's nothing to say that would be a 4500 sq. ft. house that you can't go three stories high, or go in height rather than closer to the bay. Right? MR. WEBER: That's right. The applicant is asking. One-story, it's not two stories. CHAIRMAN: Ok, thank you, Mr. Weber. And you'll supply us with that. Thank you. Let's go back to Miss or Mrs -- MRS. ADERESTO: Miss. CHAIRMAN: Does anybody have any questions of the attorney? MEMBER DINIZIO: Yes. In the Planning Board letter and all throughout this whole file, this lot entitled, "clubhouse" it says in the first paragraph of the Planning Board letter, they did go back to even one of the original maps, there a lot there entitled, "clubhouse". MRS. ADERESTO: Yes, I can - do you want me to point it out to you ? MEMBER DINIZIO: No, you don't have'to because it's the lot we're talking about, I'm assuming. MRS. ADERESTO: No, it's not. That's think that'll clear things up for you too. the point. MEMBER DINIZIO: Ok. MRS. ADERESTO: That's a' triangular shaped lot. the lot on the point. I It's over here. That's Page ~l~ ~ .Hearing ~/~['nscript Regular Meeting of June 7, 1995 Southold Town Board of Appeals MEMBER DINIZIO: MRS. ADERESTO: CHAIRMAN: Ok. MEMBER DINIZIO: Just a second. the PB address that? BOARD SECRETARY TO MEMBER minor subdivision, these four lots. Ok. Ok, thank you. You're welcome. Any questions from you, you want me to continue? (to Board Secretary: Why did DINIZIO: Because this was their Bob at this point? Do later developed. MEMBER VILLA: right? MRS. ADERESTO: MRS. ADERESTO: It was described property. That's why. It wasn't part of the map, not because they -- and Mr. 'Sinning is here who can tell you also from his own knowledge and they're the owners and they now what they did and how they proceeded with it, but the way it was explained to me was it was just not part of the filed map. It was never intended for public use. It was intended to be But it was all part of the original parcel though, Yes. BOARD SECRETARY: And also part of the marina? CHAIRMAN: Can I just have you come up here for one second? Bob, would you come over. about in the first one was unnumbered. they leave it unnumbered in that time. that time because it wasn't a building lot. The question is why did They left it unnumbered at MEMBER VILLA: I'm following Jim's line of thinking, I know where he's coming from, I think. And the 1.7 acre lot that they're talking Page _~_~ - Hearing ~i~script Regular Meeting of June 7, 1995 Southold Town Board of Appeals CHAIRMAN: This is a copy of the old Tax Map from the old fiche card in Suffolk County. MRS. ADERESTO: Yes. CHAIRMAN: Now, the most recent date on this map, I'm going to show it to my board members in a second, is 1985, all right. It shows the basin and this lot as one piece as 5.7 acres, and then subsequent to that, all right, we have what we have now today which is a lot which was created over in this area here, ok, and then the tax map reappeared where the number one is, and we now have what is before us today. Let me just show it to them. So, what you're saying to us in 1981 which existed - based upon the letters from the Planning Board and so on and so forth, is correct. That they recognized something there. But something subsequent to 1981 and in the area of present day is different based upon this map because we're talking about a lot that's 78,000 sq. ft. less than two acres, ok. We were showing 5.7 acres here. But what you are telling me is that these people that owned this property owned the 5.7 acres at that time, in this corporation name? MRS. ADERESTO: Yes. What the Planning Board doesn't refer to when you read one of their letters - let me read the exact letter to you. They identify the subject parcel as the lot they gave the C.O. on, and let me get that letter out because I think it's very important. (Pause) Ok. This is the May 9th memo from the Planning Board, and they do identify this particular lot as the subject of that C.O., and they - and it says, on "June l, 1981 the Planning Board approved the map dated May 11, 1981 for Paradise Page ~Z 7 Hearing ~nscript Regular Meeting of June 7, 1995 Southold Town Board of Appeals Point Corporation. The approval set-off a 2-3/4 acre lot entitled, 'Clubhouse' and a 1.7 acre unnumbered lot on Southold Bay directly to the east of Inlet Basin. The 1.7-acre lot is now known as Suffolk County Tax Map Map No. 1000-81-1-16.7. The Planning Board records do not show that the map or set-off was endorsed or recorded in the Suffolk County Clerk's Office .... " MEMBER VILLA: That's the point really. CHAIRMAN: That's the point we're bringing up. MEMBER VILLA: People can do anything by deed, but if it's not done legally it has no validity as far as the Town goes. MRS. ADERESTO: Weli what happened was before they did it by deed they came to the Planning Board in 1981. And they established this lot, a 1.7-acre lot as a buildable lot. They didn't just "do" it. BOARD SECRETARY: But it's a marina, correct? MEMBER VILLA: That's not what's on the County Tax Map of 1985. MRS. ADERESTO: No, it's not the marina. The 1.7-acre lot is our subject premises. BOARD SECRETARY: There's a parking lot there, and the dockage, right? And that's all part of this 1985 lot. This is what they're saying. It's all one piece. Yes? MRS. ADERESTO: This 1.7-acre lot existed in 1981. MEMBER VILLA: Only by deed. MRS. ADERESTO: It existed by Planning Board also. They approved the set-off. Page .~' r Hearing ~nscript Regular Meeting of June 7, 1995 Southold Town Board of Appeals BOARD SECRETARY: We 'have a problem with your single and separate search because it's say that. It doesn't show the conveyances from 1981 on the search. There's something missing on here. MRS. ADERESTO: You want to know where it came from in 19817 BOARD SECRETARY: No, we need to have a search that shows all the conveyances since 1981. MEMBER VILLA: You see, the Planning Board can do a lot of things in writing, but if it's not followed through, and it's not filed with · the proper agencies, in effect it has not happened. MRS. ADERESTO: Well, what Planning said was they didn't require it to be filed. That they cannot retroactively require it because it because in 1981 they did not require it to be filed with the Health Department or in the County Clerk's Office, and that they don't require it now because they can't do that retroactively. That's how-- MEMBER VILLA: But the County Clerk and the County Health are the legal entities that have bearing on this. MRS. ADERESTO: I have a single and separate search here that shows Paradise Point Corporation conveyed to J. Lane Curry 37% interest, Gilman Hollenbeck 32%. Gary Sinning 29%. And John Chute 2%. That deed was dated October 29, 1981 recorded October 29, 1981 for the subject premises. Did you want to know who it came from prior to that? We have that here in the single and separate. BOARD SECRETARY: They don't show who the owners of 16.4 were in 1985. MRS. ADERESTO: 16.77 Page ~ - Hearing script Regular Meeting of June 7, 1995 Southold Town Board of Appeals BOARD SECRETARY: No. 16.4. 16.7 was part of 16.4. If you want to come back and look at this map again we -- CHAIRMAN: We can give you a copy of it. BOARD SECRETARY: Yes. MRS. ADERESTO: Well the reason the single and separate search does not show that is they don't show it as adjoining. They just show it Basin Road, Southold' Bay, if you show me where it is-- CHAIRMAN: It emanated out of 16.4. BOARD SECRETARY: It has emanated showing the parcel that it has come from. out a parcel and it's not Take a look (referring to copy of partial search in file received when application was filed). MRS. ADERESTO: I just need to know where 16.4 is. That's 16.8. BOARD SECRETARY: No. MRS. ADERESTO: In here. Ma'am. 16.4, that's the Basin and the top piece that you're talking about. It's all one parcel of land and it's not showing up on your search. CHAIRMAN: You see, the question is, how was 16.8 created which is the piece that's landward of the basin. And that would then tell us how 16.4 was created. MRS. ADERESTO: Well, how it was created, I believe, is in 1989 there's in my title report, you'll see, there's a deed wherein these four owners for the corporation of Paradise Inc. deeded over into the Association the roadways and an easement, and the boat basin, and that's how it was recreated as a separate tax lot. BOARD SECRETARY: Can you have that corrected to show the 16.47 MRS. ADERESTO: Well the tax map that I have shows it at 16.8. Page ~7- Hearing ~seript Regular Meeting of 3une 7, 1995 $outhold Town Board of Appeals BOARD SECRETARY: CHAIRMAN: Your .talking about today. We're talking about 16.8 is the separate lot down here. MRS. ADERESTO: The single and separate can't show a lot that doesn't exist anymore. CHAIRMAN: 16.8 still exists. CHAIRMAN: It's still there, the 16.8. MRS. ADERESTO: Yes, but she was requesting 16.4. 16.4 is now 16.8 and 16.7. BOARD SECRETARY: No, it isn't. It's now 16.7 and 16.10. CHAIRMAN: 16.7 and 16.10. It's all three of those. MRS. ADERESTO: Oh, you're talking about the lot on the other side. MEMBER DINIZIO: The basin. CHAIRMAN: Yes. MRS. ADERESTO: The underwater land, I think, is 16.18. CHAIRMAN: 16.10. The lot west of it is 16.18. MRS. ADERESTO: (Pause) Yes. It is 16.10. BOARD SECRETARY: It's not showing up on the search. MRS. ADERESTO: I have it here as variance south and west 16.10 on the single and separate search. BOARD SECRETARY: That's not the one you have us. (Pause to check). No, you didn't give us that one. MRS. ADERESTO: Do you want a copy of this? CHAIRMAN: Yes. BOARD SECRETARY: We were wondering why it wasn't -- . Page ~- Hearing script Regular Meeting of June 7, 1995 Southold Town Board of Appeals CHAIRMAN: I apologize for all the people who are waiting for the last hearing, but we will have to take a short recess here for a couple of minutes. MEMBER DINIZIO: Why don't we make a copy of that because I would like to look that over and -- BOARD SECRETARY: Yes, this is a different search than what was given to us. CHAIRMAN: We'll take a break. Four or five minutes and we'll be right back to everybody. I need a motion gentlemen and lady. MEMBER DINIZIO moved to take a short break for five minutes, seconded by Chairman Goehringer, and duly carried. 8:55 p.m. 9:00 p.m. Hearing reconvened on motion by Chairman Goehringer, seconded by Member Dinizio, and duly carried. CHAIRMAN: Is there anything else you have to add to the record? MRS. ADERESTO: No, unless the Board has any further questions. CHAIRMAN: We are still disseminating information. And that's the problem that we have. We might have to reconvene this, I'm not really sure. MRS. ADERESTO: We also have, we have some people who want to speak in favor of this, one of the owners that may help you with a great deal of the information you need. CHAIRMAN: Ok, thank you. Ok, for those persons who would like to speak in favor? Page .~' , Hearing ~nscript Regular Meeting of June 7, 1995 Southold Town Board of Appeals PETER COOPER (Attorney): My name is Peter Cooper. I llve in the area and I'm a member of the association, member of the board, and I represent the association and I am here to support the application for a variance. The Board of Association had a 29th of May and voted to support the application. the Association we feel are accommodated by the easement and we feel that the development of the consistent for the purposes of the association. in any further ownership or activity on the would like to see it developed. Let me just ask a question. You are a member of the CHAIRMAN: association? MR. COOPER: meeting on the The interest of presence of the point would be We have no interest lot itself, and so we Right. CHAIRMAN: And the easement that exists over this piece of property will be a continuous easement, but are you actually saying that none of the property owners have an interest in gaining access to the basin? MR. COOPER: No, no. We have - the association has an easement on the property along the perimeter of the Basin, on out to the channel to the point. And that's for the general purposes of the association. CHAIRMAN: Ok. MR. COOPER: And we make use of that easement at the moment to get access to the dock that leads out into the Basin where the floats are and for the boats. Page ~ ', Hearing i~nscript Regular Meeting of June 7, ]995 Southold Town Board of Appeals CHAIRMAN: And as long as that easement is held in perpetuity, everything else is ok. MR. COOPER: Right. We have -- our interests are totally accommodated as far as we are concerned. CHAIRMAN: Thank you, sir. Oh, wait. We have a question. MEMBER VILLA: Are you allowed to drive over that easement all the way or just walk it, or what? MR. COOPER: Right now there's an extension of the road. The association owns the road which -- and the road extends on into the lot, and we can drive down there and the shoulder of the road, or we park, we get on down the path onto the dock into the basin. And since we do have the easement, the new owner of the lot wouldn't be able to affect that. We would continue to use the easement. MEMBER VILLA: You have the right - the right to the easement altows you to drive and everything else over it or just access through it? MR. COOPER: No, drive if you wish. MEMBER VILLA: Ok. And park? BOARD SECRETARY: Is there a parking lot in the easement, or is there a parking lot elsewhere? MR. COOPER: Well there's no parking lot in the sense that there's a parking lot behind this building. BOARD SECRETARY: Parking area. MR. COOPER: The shoulder is wide in that area and .cars could park there. There's also a dirt road that goes down and around - shoots Page ~ - Hearing script Regular Meeting of June 7, 1995 Southold Town Board of Appeals around by where the well is, and we can parking our cars down there then. We've only got. a dozen boats. And so it's really only on 'heavy duty weekends like the 4th of July that you'll see more than two or three cars down there. BOARD SECRETARY: Would they parking along the water where the easement is? MR. COOPER: No. Down along the road as you see on the map at the end of the lot. CHAIRMAN: Thank you, sir. Who else would like to speak? ED CURCURU: This is not "for." CHAIRMAN: That's fine. Be carefu! of .the wire there, sir. MR. CURCURU: Yes, I see it. Good evening, Mr. Chairman, the Board. My name is Ed Curcuru and I apologize for not having a prepared memo, but I came from Florida in the summertime and they can have Florida in the summertime as far as I'm concerned. To make a long story short I have been a resident of Paradise Point since 1966. I've been the Treasurer, Secretary and Vice-President, and last year did not take the Presidency becauee of illness. That's beside the point. I think I have history as much as anyone has. I'm an adjacent neighbor - hopefully to Mr. Miller. I met him. He's a fine gentleman. I have seen the house. It is a big house. It's a very one. One-story. I have no objections at 51 feet. I've already talked with John Sinning about that and with one of the members. ( ) As far as the map itself, I have a concern, I have not had a clear answer from anyone about the jetty that we own at Page ~ - Hearing script Regular Meeting of June 7, 1995 Southold Town Board of Appeals the end of that easement. basin are. We will not be able to drive around the totaily. We can only drive up to as far as where the boats The rest will be some kind of an access path for walking. So it will not be as we have now, a clear cut path right to the jetty for vehicles, which is a concern for some of us. The concern I have is that jetty. I understood from some (asociation) board members, and I was not at the meeting because I was in Florida, that that square footage of that jetty was calculated in the total square footage of what they call Lot 1. I presume that Paradise Point owns that. I know the Bay is owned by the Town. But we put the stay, we put all the stuff in way back in 1972 roughly. We paid $16,000 for it. We funded bonds which were paid by the Association, so presumption is that we own it. I've heard that basically speaking that a title company were to make a mistake and include that, and the map shows it, as possibly one piece of land to the ( ) plus this would be incorrect. So that's one thing I think we need to do some research one. And I think we need research - I have not had a chance to talk to an attorney about it. Because I just talked to Peter this morning and it's first chance I really had to get at it. CHAIRMAN: ! have not the most current map but I have the 1985 map from the Suffolk County Real Property Tax Service. It does not show the spit. MR. CURCURU: It does not show the spit. CHAIRMAN: Does not show the spit. Page ~'- Hearing ~nscript Regular Meeting of June 7, 1995 Southold Town Board of Appeals MR. CURCURU: But the one that you have, I believe, that was given to us by the attorney for the seller. It .does show one complete area here of the jetty and, my only objection is I don't want that jetty going to the ownership of the new owner. Now some can say basically, well, that's not happening - that's not so. But I heard from two sources on the (association) board yesterday, it was calculated. So I ask that further research be done on that particular issue. I don't know the answer and I'd like to have time to get an attorney to study that, to present it to the association at our meeting on July 4, 1995. I think we have to talk about this. There are other issues, I think, that we see maybe differently than the attorney for the buyer. And therefore I'm asking you to postponement it until we get things clarified. There are other people, I think, that would like to speak. CHAIRMAN: Thank you, sir. We will certainly take it under advisement. RICK ALBERI: My name is RickAlberi. I Hve on Paradise Point and our concern is, to park facilities there for the boat basin on the easement right now only permits about four or five cars, and we feel it should be a lot more. We also - they're only about a dozen boat slips and they're at least 24 members or thereabouts in the membership. And we feel that eventually many more people will want boat slips and we'll have to provide for those. So we need more parking facilities and we would like to delay the decision on the variance until these questions are settled. CHAIRMAN: Sure. Thank you, sir. Page ~ ~ Hearing ~nscript Regular Meeting of June 7, 1995 Southold Town Board of Appeals HELEN ALBERI: I'm Helen Alberi and I reside at 4345 Paradise Point Road, of course I'm on the Paradise Point myself. I have been an owner of my property for the past 30 years. We have used the Basin Road which goes down to our Boat Basin and the turnaround I have myself for approximately 30 years. The turnaround is being cut off, and as a result we have no access plan to turn around in the future. Even the light pole has been taken down. We must have the ability to use the boat basin and to be able to turn our cars around, sir, and we must have a postponement of this variance in order to look into the further - into it further with the Association Members. CHAIRMAN: Can I ask you, Mrs. Alberi, will you be getting counsel to do so - someone to represent you? MRS. ALBERI: I think we're going to have to. I think the Association might have to, yes. CHAIRMAN: I would appreciate it if when you come-- I appreciate your here and mentioning it, but you're raising issues that are issues that are countermount to the case and therefore it's important that you be represented by someone. MEMBER DINIZIO: Can I ask a question, Jerry? CHAIRMAN: To whom? MEMBER DINIZIO: I don't know who to ask this question. I guess I can ask you. Are you Mr. Sinning? JOHN SINNING: My name is John Sinning. Regular Meeting of June 7, 1995 Southold Town Board of Appeals MEMBER DINIZIO: Can I just ask you a question before you even - the lady just commented about the easement. I'm assuming that the association met and agreed to this easement, is that'- and someone signed this agreement? MR. SINNING: The association Board of Directors and their informal attorney has reviewed the easement. They feel that it more than adequately serves the members of the association. MEMBER DINIZIO: Has it been signed? Is it the actual easement now? MR. SINNING: The easement has been in place since 1985. MEMBER DINIZIO: 1989. MR. SINNING: 1989, I'm sorry. MEMBER DINIZIO: And it is an easement voted on by constituted body of associat-- MR. SINNING: Right in the deed. MEMBER DINIZIO: Ok. MR. SINNING: Peter Cooper is the one that reviewed it. Several other people have reviewed it and they feel the deeds 'are in order. BOARD SECRETARY: Are there minutes of the meeting, to show the PETER COOPER: I'm not sure what the question is. The easement itself is contained in a deed in 1989 which you have a copy of and it was filed in the County Clerk, and that's now a matter of record. The association has accepted the easement, I guess, as the transferee, but there's no meeting that I'm aware of on the easement Page ~ ~ Hearing '..~nscriPt'l Regular Meeting of June 7, 1995 Southold Town Board of Appeals itself. The meeting that was held was the Board of Directors back last Fall and in October, excuse me, November and another meeting that we had on May 29th where we took a position on the variance - first we took a position in October of whether we were in favor of having the point developed, the lot development, and again we took it on the 29th of May on the actual variance. I have minutes of the meeting of May 29th if it would be of any help. MEMBER DINIZIO: I just wanted to know if I needed to invest time to find out if we have a legal easement here. I just wanted someone to state to me that the easement is legal. MR. COOPER: I have a copy here - MEMBER DINIZIO: That's ok. No, no. If it's in the paper, I'll find it. I just wanted someone to answer that question for me. MRS. ADEI~ESTO: It's with the title report I gave you. MR. COOPER: I might point out that the reason that was done by easement rather than deed back in 1989 was we couldn't afford to reduce the square footage of that lot. The owners of the lot continue to pay taxes on the entire thing so it's pretty clear that they weren't intending to give away the lot. It would make no sense. CHAIRMAN: Ok. JOHN SINNING: As I said my name is John Sinning, and I've lived on Paradise Point since 1949. I built the first docks that went in there when I was 18 years old. I have a pretty good idea of the Page ~'~7 r Heaving script Regular Meeting of June 7, 1995 Southold Town Board of Appeals history of the place. I served in various positions on the Paradise Point Association including service as President for, I believe, 10 years. I am here to hopefully answer any questions that anybody may have. I should come in.with a prepared speech. I didn't realize it Was going to be this complicated. CHAIRMAN: I think we're a little overwhelmed, Mr. Sinning, I think at this point, and we'd like to understand all the data that's here. So I'm not taking anything away from you in not asking you a question at this point. When we reconvene, I'm sure we'll have many questions, and you know, some maybe you can answer, some someone else can answer, so. Why don't we reserve you for that particular time. MR. SINNING: I also have the facts that I got today from the other adjoining neighbor of the Boat Basin, the Maynards, and I only have one copy of it, but you can read it. CHAIRMAN: Thank you. Appreciate it. MR. SINNING: I also, if I may, point out that I own a very small share of that lot. MRS. : Mr. Maynard is leaving. He had home up for sale I just want you to know that sir. CHAIRMAN: Did you want to ask a question of Mr. Sinning? MEMBER TORTORA: I just wanted to know if you know the answer to this gentleman's question if the jetty was calculated in the total? MR. SINNING: As far as I know, it was. Yes. MEMBER TORTORA: It was. MR. SINNING: Yes. Page ~/~ - Hearing script Regular Me'eting of June 7, 1995 Southold Town Board of Appeals CHAIRMAN: We thank you very much, sir. MR. SINNING: Ok. If there is anything else I can help you with-- CHAIRMAN: Would you like to wrap it up, Mrs. Aderesto? Thank you, Mr. Sinning. We're going to recess and take the information in, and we will reconvene and that's it at this point. If we have any specific questions that we need of you, we'll fax it to you by letter rather than send it through the mail, and we'll-- MRS. ADERESTO: Do you have any idea when your next meeting - would it beyond the next meeting? CHAIRMAN: Oh definitely. If we have a meeting before that, we'll attempt to put you on that one. Ok? MRS. ADERESTO: Mr. Miller has been in this process (buying a long time. Renting houses out here is a little costly. home) for a Thank you. CHAIRMAN: Hearing no further comment, I'll make a motion recessing this until the next regularly scheduled meeting. BOARD SECRETARY: Would you add the date of July 12th? CHAIRMAN: That meeting is July 12, 1995 and for any reason if we attempt to have a meeting prior to July 12th, and we can put you on we would certainly put you on. Thank you very much for your courtesy everyone. MEMBER VILLA: Seconded. The meeting was recessed for a continuation on July 12, 1995. Vote of the Board: Ayes: All. \ " VICTOR J. ZUPA ATTORNEY AT LAW 4565 PARADISE POINT ROAD SOUTHOLD, NEW YORK 11971 vzupa~concentric.net TRL'RPHONE (631) 765-6112 FACSIMILE (631) 765-6119 July 29, 2002 Artie Foster, Trustee Board of Town Trustees Town of Southold Southold, NY 11971 Re: 1000-81-1-16.7 Site Plan Dear Mr. Foster: This is in response to your request at last Wednesday's hearing for a legal opinion on the following question: Does the Paradise Point Association have the right to relocate its easement from the specific metes and bounds easement area granted to it, as shown on the Ingegno survey, to other unencumbered property of Mary Zupa, because the easement area has eroded into the Canal? The legal opinion rendered herein is based on an examination of New York case law secondary New York sources and treatises on the law of easements and water boundaries. I am an attorney duly admitted to pra~ice law in the State of New York. will provide the sources on which I have relied upon request. My le,qal opinion is that the Association has no d,qht to take adjacent property of the fee owner, Mary Zupa to "make up" its easement. Furthermore, the easement has terminated insofar as land over which the Association had an easement has eroded into the Canal and is owned by the State of New York in trust for the public. The legal analysis is as follows: 1. A portion of the metes and bounds easement as shown on the Ingegno survey dated January 2, 2002, has eroded into the Canal and is owned by the State of New York in trust for the public. Mary Zupa's deed only conveys to her title to the '~ie lines" and high water marks, as shown on the Ingegno survey, and her title is only insured to those water boundaries. · Insofar as land has eroded into the Basin, it is owned by the Town of Southold in trust for the public pursuant to the Andros patent, This has already been demonstrated by a title search performed by Fidelity Title, and by letter with supporting documentation from the State of New York, (copies attached) 2 2. Neither the easement holder, nor the owner of the land, has the right to change the location of an easement---particularly a metes and bounds easement. 3. The law of New York provides that where access to an area is possible by water, no easement of necessity exists over contiguous lands. Since you have raised this issue a number of times in the past three months, I am enclosing an excerpt from Warren Weed New York Real Property. 4. While it would not be essential to show this in reaching the legal opinion that the Association's easement has terminated, it should be noted that New York law provides that the easement holder has the obligation to maintain the easement. For years the Association has failed to preserve the shoreline. (Indeed, it has taken affirmative steps which resulted in erosion of its easement area by constructing illegal structures and by digging trenches along the shoreline and in the wetlands.) Cleady, there is no interest that the Association can lawfully assert over any part of Mary Zupa's property that is outside the metes and bounds easement area. If there was, it would have. And, as I have stated repeatedly at the trustee hearings, it should, take its legal claims to a court of law. Instead, and what really is happening here, is that this is a continuation of a strategy to raise at Town hearings whatever unsupported "legal claims" appear to work to tie up the permit process in order to prevent the development of this property in accordance with the Town Code. This has bee, n done so the Association would not have to spend any money to buy the property. ~" I believe the time has come for Town officials to put an end to this, by allowing the development of this property in accordance with the Town Code. Cc: Trustees File Sincerely, · This strategy is evidenced by a plan recently presented to Mary Zupa. The President of the Association said that if Mary Zupa were to give to the Association title to a block of land contiguous to its docks and consent to their expansion, it would not oppose her building a home (although it would apparently still want to drive trucks across her property), Unfortunately, Mary Zupa's willingness to spend her time and money to maintain the neglected shoreline and bulkheads, which is the Assoc'ation s responsibility, is not enough for them. :; i · OARDMEMBERS P. Goehringer, Chairman Serge Voy¢., Jr. .lames Di~zio, Jr. Robea A. ~lla kydia A. Toaora BOARD OF APPEALS TOWN OF SOUTHOLD ACTION OF THE BOARD OF APPEALS Southold Town Ha~t 53095 Main Road/ RO. Box 1179 ! Southolcl. (qew York 14971 Fax (516) 765-182~ Telephone (516) 765- 1109 Apple No. 4314. Upon Application of JAMES AND BARBARA MII.LI~R~ Contract Vendees (Owner: Paradise of Seuthoid, Inc. and Others). This application is based upon the March 29, 1995 Notice of Disapproval issued by the Building Inspector, wherein applicants are requesting a building permit to locate a new single-family dwelling, disappreved on the following grounds; "1. This parcel of 1.79 acres is not shown on the Map of Paradise Point, Section One, as a building lot; Section 100-281A-7. Single and separate search required back to 1957. 2. Approval required by Board of Appeals to build single-family dwelling as a second use on this 1.79-acre parcel. R-80 Zone requires 80,000 sq. ft. of land area per use (or 160~000 sq. ft-), ref. Article III, Section 100-30A. 3. Approval is required from Board of Appeals under Article XXIII, .Section 100-239.4B for location of dwelling with decks at less then 75 feet from the existing bulkhead; 4. Approval z'equired to amend Fried Map as approved by the Planning Board for Paradise Point, Section One, pertainL~g to 'Future Extension' of Basin Road and use of this parcel as a builchha§ lot. Ch. I00 and Ch. 108... ~ Location of Property: 580 Basin Road, Southold, Section One, Filed Map No. 3761 filed April 11, 1963; 1000-81-1-16.7 (formerly part of 16.4). Paradise Point also known as ~HEREAS, pubHc hearings were held on June 7, 1995, July 12, 1995 and August 9, 1995, at which times a~ persoas who desired to be heard were heard and extensive testimony lo. corded (pro and con); and IgHEREAS, the Board has carefully considered all testimony and documentation submitted concerning this application; Ma'~t'er of J~ME$ ANDi~kRBARA MILLER Decision Rendered Au~l~st 9, 199S WHEREAs, Board Members have familiar with the premises in question, surrounding areas; ~md personally viewed and axe Its present zoning, and the WHEREAS, the Board made the following findings of fact: 1- BASIS OF APPEAL. The Building Inspector's Notice of Disapproval, upon which this variance application is based, is dated ~4arch 29, 1995. On March 1 0, 1995 the Building Inspector received a building permit appH.cation to construct a single-family dwelling with decks, accessory swimming;pool, and retaining the use of the existing boat basin (private marina) use for lot owners in the Paradise Point Association, Inc. The m~rlnn is "as btflit' with docks, boBrheads, parking areas, an existing improved access extension; easements for access to the jetty by lot owners and others using the private marina, as well as open accessibility to and arOUnd the perimeter of this 1.79+- lot. 2. CODE REQUIREMENTS. The grounds for disapproval are aa follows: ... 1. This parcel of 1.79 acres is not shown on the Map of Paradise Point, Section One, as a building lot; Section 100-281A-7. Single and separate search required back to 1957. 2. Approval is required ... to building single-family dwelling as a second use on this 1.79-acre parcel. R-80 zone requires 80,000 square feet per use. Article III, Section 100-30A. 3. Approval is required ... under ARticle XXIII, Section 100-239.4-B for location of dwelling with decks at less thaz~ 75 feet from the ex~sting bulkhead. (Note: Paragraph numbers 4 and 5 relate to other department approval requirements), ... 3. PROPERTY DATA. The premises in question is located along Basin Road at Paradise Point identified on the County Tax Maps as District 1000, Section 81, Block 1, Lot 16.7 containing a total area of 1.79 acres (inclusive of low wetland area and inclusive of a strip of land referred to as a "jetty" - whose ownership has not be ascertnined through title insurance or through search of deeds). After removal of the jetty upland area from the total area-~of this property, the lot area is 74,595+- square feet. The areas subject to flooding and unusuable for parking and residential-type uses appears to be 5,000+- sq. ft., leaving a total upland area of approximately 70,000 sq. ft. for two uses: (a) the existing private marina use and (b) a proposed single-family residential dwelliog with accessory uses. Contiguous to the east is Basin Road, which is Matter of JAMES AND RBARA MILLER 'Decision Rendered Au 9, 1995 shown on the map of Paradise Point to extend beyond, onto the subject property. Upon information received, no formal amendments to the 1963 Subdivision Map of Paradise Point were filed w/th the Suffolk County Clerk since its original filing as Map No. 3761. 4. PROPOSED VARIANCE. The applicant herein is contract vendee for the purchase of the subject property with proposals to alter the present improvements (base of road extending from Basin Road to the westerly waterway section), for construction of a new d-welling and accessory .swimming-pool. 5. AMOUNT OF RELIEF REQUESTED. The proposed dwelling is shown to be 76'4" at its longest side (along the east measurement) and 76 feet wide at its point closest to the bulkhead along Southold Bay (Town Harbor). The setback of the house was originally proposed at 51 feet at its westerly corner point, and during the August 9, 1995 hearing, applicants offered an alternative setback increase from 51 feet to 60 feet at its closest poinls, and increase from 58 feet at its easterly corner to 65 feet. The setback shown from the easterly neighbor is 60 feet, and the setback from other deeded lot lines was shown at 75 feet or more- The amount of actual house area which is rquested under the variance is approximately 1175 square feet (ground area). The reduction by the requested variance is 15 feet and 10 feet, respectively, which is 20% and 14%, respectively, less than the code requirement of 75 feet. 6. CIIARACTER OF SURROUNDING AREA. The neighborhood consists of many lots improved with single-family residences in a residential commuhity with waterfront accessibility. Th~ neighbors also have used the southerly portion of this property as a private marina for private boating purposes. To the south is approximately 80,0000 'sq. ft. of land, mostly underwater, which together with the canal or inlet, is understood to be owned and privately used by Paradise Point Association, Inc- and its lot owners. Directly to the east fronting along Basin Road are two subdivision lots improved for residential use. 7. PRIOR APPEALS. The subject property has not been the subject of prior appeal applications. There are records which were reviewed pertaining to a May 11, 1981 map for a minor subdivision - apparently reviewed and acted upon by the Town Planning Board for approval. That minor subdivision map is different in some respects to the 1963 filed Major Subdivision map of Paradise Point per~alnlng to the Extension of Basin Road and possible t~rnaround area, however, a formal map filing for the amendments were not found through the County Clerk's records. The maps are unclear as to whether the existing access used as an Extension of Basin Road, and by lot owners and their families, was to be intentionally abandoned. The map also shows the jetty to be separate from the subject Mafter of JAMES AN~BARBARA MILLER Decision Rendered ~h~st 9, 1995 property in May 1981, and information in the hearing records indicates that the jetty was built .by joint efforts o£ the residents mud lot owners (and/or Association Members) from tho. Paradise Point 8. EFFECTS OF RELIEF REQUESTED HEREIN. position of the Board that: It is the (a) an undesirable change will be produced by the grant of the relief requested for two principal uses on tkis 74,595+. square foot; ' (b) the grant of the variances requested would create "mixed uses" for both a private marina use and a private residence for which 160,000 square feet of land area is required in this R-80 Residential Zone District; (e) is substantial; as noted in paragraph 5 above, the relief requested (d) the difficulties claimed are personal in nature to the contract vendee, who has indicated he has a "signed contractn with the owner and that the architectural design, layout and size of the house that they have chosen is not "changeable" and was one of the reasons for wanting to build; (e) applicant has indicated no desire to alter the size or layout of the house in order to comply with the zoning reguIations, including limited area for residential use in order to adequately provide parking and fire access to the marina areas around tho property; (f) the relief, as requested, is not the minimum necessary, and does not adequately preserve and protect the character of the neighborhood and the health, safety and welfare of the immediate community areas; (g) in light of ail the above, there are alternatives for appetlant to pursue to better plan for the existing lnarina uses or for a principal residential building which will fit within aR appropriate upland area with greater setback~s [~rem the water and wetland areas, with less reduction in selbaeks and les~ relief. Accordingly, on motion by Member Villa, seconded by Dec/sion Rander~d A~st 9, 1995 Member Dinizio, it was RESOLVED, to DENY the var/ances ~equested and as noted above. Vote of the Boa~-d: Ayes: Messrs. Doyen, Goehvinger, Dinizio, Villa, and Tortora. This l'esolution was duly adopted by UnanlmollS vote of the board members. G A D P. GOEHli'iNGER, CHAIRMAN'~ RECEIVED AND FILED BY To~ ~erk, To~ o[ Sou~old Z '%¸ SO UT~IO£D (TOFN HARBOR) WETLAND BOUNDARY FOLLOWS ~ 88'54'02" E TeE FACE OF BULKNFAD 1.54..02' N 8.2'07 .2,9 E 6.'5.92 P<::~L BA6K.~SH ~'DIA X gf D~=P ~; P I:;N~YPIEI 1 F(~JND o ~ o 'd BULKHEAD eeo< Fu't~O~uE~,LLiN,e. -% doseph A. Ingegno Land Surveyor le SUrveys -- Subdivisions -- Site Plans -- Construction Layout ~[ (651)727-2090 Fax (631)727-1727 ~ LOCATED AT MAILING ADDRESS T UNAUTHORIZED ALTERATION OR ADDITION TO THIS SURVEY is A VIOLATION OF ~CT/ON 7209 OF THE NEW YORK STATE ~DUCATION LAW. COPIES OF THIS SURVEY MAP NOT I~EARING THE LAND SURVEYOR'S INKED SEN_ OR EMBOSSED SEAL S~ NOT BE CONSIDERED TO BE A VAUD ~R~JE COPY. CERT~CA~ONS INkeD HEREON SHALL RUN ONLY TO THE PERSON FOR WHOM THE SURVEY IS PREPARED, ANO ON HiS ~r. HALF TO THE T111.£ COMPANY, GOVERNMENTAL AGENCY AND LENDING IN~-i-yTIJ~ LI~IbU HEREON. AND TO THE ASSIGNEES OF THE LENDING INSTI- TUTION, CERTIRCATIONS ARE NOT I~ANSFERABLE. FCA~ND D~ -- ~- ~ ~c ____... _ _ OAD NO rES: ~ ~, I. ELEVATIONS ARE REFERENCED TO N.G.V.D. 1929 DATUM, EXISTING ELEVATIONS ARE SHOWN THUS:aa EXISTING CONTOUR LINES ARE SHOWN THUS: ..... 5 e~ - eorro~ or 2. FLOOD ZONE INFORMATION TAKEN FROM: FLOOD INSURANCE RATE MAP No. 36105C0167 G ZONE AR: BASE FLOOD ELEVATIONS DETERMINED 1 TANK; B' LONG, 4'-5" WIDE, 6'-7" DEEP 4.MINIMUM LEACHING SYSTEM FOR A 1 TO 4 BEDROOM HOUSE IS $00 sq ff SIDEWALL AREA. 2 POOLS; 6' DEEP, 8' diD,  PROPOSED EXPANSION POOL Q PROPOSED LEACHING POOL ~7~/~PROPOSED SEPTIC TANK 42'04" .$2' S 89'25'08" 21.65' P~ W~ (TEST HOLE TEST 0 E No. (TESt HOLE OUG O~ t~y L 2002) TEST HOLE No. 2 (TEST HOLE DUG ON JULY 22, 2002) EL SURVEY OF PROPERTY SITUA TED A T BAYVIEW TOWN OF SOUTHOLD SUFFOLK COUNTY, NEW YORK S.C. TAX No. 1000-81-01-16.7 SCALE 1"=,50' JANUARY 7, 2002 JANUARY 29, 2002 REVISED LOT AREA NOTATION FEBRUARY 14, 2002 REVISED DRIVEWAY LABELS MAY 15, 2002, LOCATED WETLANDS & ADDED TOPOGRAPHICAL SURVEY JUNE 1, 2002 ADDED SITE PLAN AUGUST 5, 2002 REVISED WETLANDS LINE, SITE PLAN & ADDED TEST HOLE AUGUST 26, 2002 ADDED PROPOSED SEPTIC SYSTEM JANUARY 2.5, 200.5 ADDED DRYWELLS & HAY BALES No. 2 LOT AREA INCLUDING THE BULKHEAD AREA AT THE NORTHWEST PORTION OF = 75,687.36 sq. ff. THE LOT PROJECTING INTO SOUTHOLD BAY (TO BULKHEADS & TIE LINES) 1138 ac. LOT AREA EXCLUBING THE BULKHEAD AREA AT THE NORTHWEST PORTION OF = 72,747.53 sq. ff. THE LOT PROJECTING INTO SOUTHOLD BAY (TO BULKHEABS & TIE LINES) 1.670 CERTIFIED TO: CHICAGO TITLE INSURANCE COMPANY MARY S. ZUPA SO UTHOLD (TOWN HARBOR) WETLAND BOUNDARY FOLLOWS ALONG 88'54'02" E THE FACE OF BULKHFAD~,~ 1.34.02' / ~ToT29" E 63.92' ~1 / TS FOUND S 89'25'08" 21.63' Z E TEST HOLES DATA TEST HOLE No. 1 (TE~T HO~ OUO ON MAY 1, 2002) TEST HOLE No 2 (TEST HOLE OUG ON ,}UL¥ 22. 2002) EXCAVATION INSF~CllON REQUIR~!~D FO?. SANITARY SYS I--~ J MAY AUGUST 5, SURVEY OF PROPERTY SZTUA TED A T BAYVIEW TOWN OF SOUTHOLD SUFFOLK COUNTY, NEW YORK S.C. TAX No. 1000-81-01-16.7 ' 30' SCALE 1 = JANUARY 7, 2002 JANUARY 29, 2002 REVISED LOT AREA NOTATION FEBRUARY 14, 2002 REVISED DRIVEWAY LABELS 15, 2002 LOCATED WETLANDS & ADDED TOPOGRAPHICAL SURVEY - JUNE 1, 2002 ADDED SITE PLAN 2002 REVISED WETLANDS LINE, SITE PLAN & ADDED TEST HOLE No. AUGUST 26, 2002 ADDED PROPOSED SEPTIC SYSTEM JANUARY 25, 2003 ADDED DRYWELLS & HAY BALES 2 LOT AREA INCLUDING THE BULKHEAD AREA AT THE NORTHWEST PORTION OF = 75,687.36 sq. ft. THE LOT PROJECTING INTO SOUTHOLD BAY (TO BULKHEADS & TIE LINES) 1.738 ac. LOT AREA EXCLUDING THE BULKNEAB AREA AT THE NORTHWEST PORTION OF = 72,747.53 sq. fi. THE LOT PROJECTING INTO SOUTHOLD BAY (TO BULKHEABS & TIE LINES) 1.670 ac. COMPANY WP J_ (TOWW ~¢AnSO~) 88'54'02" E N :F~gPCSi~ ,POOL 134.02' T HASIN SUFFOLK COLT~ DEPARTMENT OF F~ALTFI SERVICES PBI~ FOR ~!~OVAL OF CON~U~ON FOR A Joseph A. Ingegno J "Z9" E N CERTIFIED TO: CHICAGO TITLE INSURANCE MARY S. ZUPA Land Surveyor Fax (631)727-I727 PHONE (631)727-2090 PIPE 1. ELEVATIONS ARE REFERENCED TO N.G.V.D. 1929 DATUM. EXISTING ELEVATIONS ARE SHOWN THUS: 5o EXISTING CONTOUR LINES ARE SHOWN THUS: - -- 5 ..... 2. FLOOD ZONE INFORMATION TAKEN FROM: FLOOD INSURANCE RATE MAP No. $6105C0167 G ZONE AR. BASE FLOOD ELEVATIONS DETERMINED ZONE X": AREAS OF 5gO-YEAR FLOOD; AREAS OF 100 YEAR FLOOD WITH AVERAGE DEPTH OF LESS THAN I FOOT OR WJ~H DRAINAGE AREAS LESS THAN 1 SQUARE MILF, AND ARRAS PROTECTED BY LB¢EES FROM IO0--YEAR FLOOD. ZONE X: AREAS DETERMINED TO BE OUTSIDE 500--YEAR FLOODPLAIN. 3. MINIMUM SEPTIC TANK CAPACITIES FOR A 1 TO 4 BEDROOM HOUSE IS 1,000 GALLONS. 1 TANK; 8' LONG, 4'-5" WIDE, S'-7" DEEP 4. MINIMUM LEACHING SYSTEM FOR A 1 TO 4 BEDROOM HOUSE IS SO0 sq ff SIDEWALL AREA. 2 POOLS; B' DEEP, 8' dim (~PROPOSED EXPANSION POOL O PROPOSED L/ACHING POOL [~PEOPOBED SEPTIC TANK 5. THE LOCATION OF WELLS AND CESSPOOLS SHOWN HEREON ARE FROM FIELD OBSERVATIONS AND/OR DATA OBTAINED FROM OTHERS. 6. THE STAKED NAY BALES & SILT RETENTION FENCE SHALL BE FLACED BEFORE THE START OF ANY CONSTRUCTION. 21-61~ APPEALS BOARD MEMBERS Gerard R Goehringer, Chairman Serge Doyen, Jr. James Didizio, Jr. Robes A. Villa Lydia A. Tortora BOARD OF APPEALS TOWN OF SOUTHOLD ACTION OF THE BOARD OF APPEALS Sou[hold Town Hall 53095 Main Road RO. Box ! 179 Southolc. New York 1197] Fax (516) 765-1823 Telephone (516'~ 765-I809 Appl. No. 4314. Upon Application of JAMES AND BARBARA MILLER: Contract Vendees (Owner: Paradise of Southald, Inc. end Others). This application is based upon the March 29, 1995 Notice of Disapproval issued by the Building Inspector, whel~hl applicants are l~questin~ a bui]din~ permit to locate a new single-family dwelling, disappl'oved on the following grounds: "1. This parcal of 1.79 acres is not shown on the Map of Paradise Point, Section One, a~ a btti]ding lot; Section 100-281A-7. Single and aslmrate sea, ch required back to 1957. 2. Approval ~equired by Board of Appeals to build singis-f,mliy dwelling as a second use on ~ 1.79-aera parcel. R-80 Zon~ requirea 80,000 sq. ft. of land ax~a per use (or 160,000 ft.), reg. Article III, Section 100-30A. 3. Approval is required from Boal-d of Appeals under Ax'ticle XXIII, Section 100-239.4B for location of dwelling with decks at less than 75 feet from the existin~ bl~llrho2d; 4. Approval rgquix~d to amend Filed Map as approved by the plsnni~ Bcal'd for Paradise Point, Section One, pe~t.~inlng to 'Future Extension' of Basin. Ro~d and use of this pa.veel as a bull6ing lot. Ch. 100 end Ch. 108 .... ~ Location of Property: 580 Basin Road, Southold, Paradise Point Section One, Filed Map No. 3761 fried AprU 11, 1963; also known as 1000-81-1-16.7 (formerly l~art of 16.4). WHEREAS, public he,wings were held on June 7, 1995, July 12, 1995 and August 9, 1995, a~ which times all per'sons who desil~d to be heard were h~rd and extensive testimony recorded (pro and con); and WHEREAS, the Board has carefuUy considered all tes[hnon¥ and documentation submitted concerning this application; Page 2 - Appl. No. 4,~x4 Matter of JAMES AND BARBARA MILLER Decision Rendered August 9, 1995 WHEREAS, Board Members have personally viewed o~ud a~e faml]i~p wiLh the premises in question, its present zoning, and the WHEREAS, the Board made the following f'mdings of fact: 1. BASIS OF APPEAL. The Building Inspector's Notice of Disapproval, upon winch this vatdance application is based, is dated March 29, 1995. On March1 0, 1995 the Building Inspector received a building petit appll~mt[on to ~nstruct a SilL~e-fmm{ly dwelHm~ e~tl~ b(~t ~ (p~ivate mo_~) use for lot owltars l~l the Paradise Point Association, inc. The n~ is "as builtw wdth ext~iksloll; easemellts for access to the ~ett~ by lot owners and others us~ the pl-i~te mal~, as well as opell accessibility to and around the peldmetsx, of this 1.79+- lot. 2. CODE REQD-iREMENTS. The ~ounds for disapprovsi ~ as follows: ... 1. This parcel of 1.79 acres is not shown on the Map of Parod~e Point, Section One, as a building lot; Section 100-281A-7. Single and separar~ search requJ~ed back to 1957. 2- Approval is required ... to building single-family dwellino~ as a second use on this 1.79-ac~e lm~Cel. R-80 zone requires 80,000 square feet per use. Article LLI, Section 100-30A. 3. App~o~ is required ... under ~Rticle XXIII, ~ection 100-239.4-B for location of dwelii~ with decks at less than 75 feet from ~ e~t~ b,~l~rh~d. (Note: Par~pb numbers 4 and 5 relate to other department approval requirements).... 3. PROPERTY DATA. The premises in question is located along Basin Road at Paradise Point identified on the County Tax Maps as Distr~ct 1000, Section 81, Block l, Lot 16.7 containing a total area of 1.79 acres (inclusive of low wetland area and inclusive of a strip of land ~eferred to as a "jetty" - whose ownersinp has not be ascertained through title insurance or through search of deeds). ~ftsr removal of the jotter upland area from the total area Of this property, the lot area is 74,595+- square feet. The areas subject to flooding aud tLUnsuable for paridng and residentisi-ty-pe uses appe~-s to be 5,000+- sq. ft., loavilag a total upland area of appro>dmntaly 70,000 sq. ft. ~or two uses: (a) the existing private ~mrilm use and (b) a proposed single-family residential dwelling with accessory uses. Contiguous to the east is Basin Road, winch is Page 3 - Appl. No; 43~4 Matter of JAM~$ AND BARBAi~A MILL~]~ Decision Rendered August 9, 1995 subject property. Upon infom~ation received, no formal amendments to the 1963 Subdivision Map of paradise Point were filed with the Su.ffolk County Clerk ainco its o~/ginal filing as Map No. 3761. 4. PROPOSED VARIANCE. The applicant herein is contract vendee for the purchase of the subject property with prepcosis to alter the presel~t imprevemellts (base of road extending from Basin dwelling ~nd accessol~.s~mmin~ol. 5. AMOUNT OF RELIEF REQUESTED. The pz-opcoed sho~ to ~ 76'4~ at i~ lo~t ~de (~o~ ~e ~t ~ummnt) ad 76 f~t ~de at i~ ~t c~st ~ ~ b,~lkh~d ~ Sou~old Bay (T~ H~r). The set~ ~ ~e ho~e ~ o~n~lly p~pos~ at 51 f~t at i~ westerly ~ ~t, ~d d~g Aunt 9, 1995 h~g, app~t s offe~ ~ ~te~ ~c~ f~m 51 f~t ~ 60 f~ at i~ ~os~t p~, f~m 58 f~t at its ~terly ~er to 65 f~t. The ~t~ s~ ~m ~e ~teriy n~bor ~ 60 f~t, ~ ~e ~tba~ f~m o~e~ ~ lot ~s m sho~ at 75 f~t o~ ~. The ~t of h~e ~ w~ch ~ ~u~ted ~d~ ~e ~ ~ appositely 11~ sq~ f~t (~d ~). The ~duc~on by ~e ~q~tod ~n~ ~ 15 ~t ~d 10 feet, ~vely, w~ ~ 2~ ~d 14~, ~sp~vely, less than ~e ~e ~q~nt of 75 6. CHARACTER OF SURROUNDING AREA. The neighborhood consists of many lots improved with singis-f~mily residences in a residential community with water{lout accessibility. T~ neighbors also have used the southerly portion of this property as a private marina for private boatin~ pua'pcoes. TO th~ south is approximately 80,0000 sq. ft. of laud, mostly underwater, which together with the e~n~! or inlet, is understood to be owned and privately used by Paradise Point Association, Inc, and its lot ovraers. Directly to the east fronting along Basin Road are two subdivision lots improved for residential use. 7. PRIOR APPEALS. The subject property has net been the subject of prior appel applications. There are rscovds which were reviewed pe~-~sinlng to a May 11, 1981 map for a minor subdivision - apparently reviewed and acted upon by the Town Plannin~ Board for appreval. That minor subdivision map is diffe~ent in some respects to the 1963 filed Major Subdivision map of Palmdlse Point pert, lnlng to the Extension of Basin Road and possible turnarothnd area, howeveP, a formal ~p filing fo~ the amendmen~ were not found through the County Clerk's records. The maps are unclear as go whether the existlll~ access used as an Extel/sion of Basin Road, and by lot owners and their families, was to be intentionally abandoned. The map also shows the jetty to be sepal-a~e from the subject Page 4 - Appl- No. Matter of JAMES AND BARBARA ~IILLER Decision Rendered Aug-dst 9, 1995 property ~n May 1981, and information in the hearing records indicates that the jetty was built by joint efforts of the residents and lot owners (and/or Association Mamb~rs) from the Paradise Point 8. EFFECTS OF I~KI,IEF REQUESTED HEREIN. It is the position of the Board that: (a) an undesil~ble change will be produced by the I~rant of the l~.b~f l'eques~ed for two principal uses on ~ ~4~595+- square foot; (b} the ~ant of the variances requested would e~eate nmixed uses~ for both a private real-ina use and a private l~sidgnce for which 150,0~ scltlal'e feet of ]and ~ is reqtlil~d in this R-80 Residential Zone District; (e) as noted hi para~l~ph 5 above, th~ t~lief requested is substantial; (d) the di~ficultiss ~l~imed al~ personal in nature to the contract vendee, who bas indicated he has a nsifpled contract~ with the ovm~r end that the al~hiteetural design, layout and size of the house that they have chose~ is not ~¢h~n~o~ables a~d was one of the ~easons for wa~tln~ to build; (e) applicant bas indicated no desire to layout (If the house ill o~ler to comply with the zon~ re~datiolls~ illcl~r]in~ limited ~ fo~ l~sidential use in olxier to ad~cluately p~o~ride park~ end fil~ access to the marina areas around the (f) the relief, as requested, is not the minimum necesaal~ and does not adequately preserve and protect the cbal~eter of th~ n~i~hho~hood and the health~ safety mid welfare of the immediate community (~) in light of all the above, there ar~ alternatives for appellant to pursue to better plan for the exist~ mai-ina uses or for a principal residential building which will fit within an appropriate up]and ~ with ~i~eater 5etbacks from the water and wetis~d areas, with lass reduction in setbacks and less relief. Accordln~ly~ on motion by Member Villa, seconded by Pa~e 5 - Appl. No. ,<~,4 Matter of JAN[ES AHD BARBARA Decision Rendered August 9, 1995 R~OLVED, ~o DI~N~f the var/antes requested and as noted above. Vote of the Board: Ayes: Messrs. Doyen, Goeh~xL~er, Dinizio, Villa, ~nd Tortora. This resolution was duly adopted by ,,n~i~ous vote of the board members. ' GERARD p. GOIi2TR/NGER, C~%IRM;~ RECEIVED AND FILED BY ~ SOUTHOLD TOWN CLEP/( DATE~/D3/~-~ HOUR 935 E-lW~IL VICTOR J. ZUPA ATTOI~JEY AT LAW 4565 PARADISE POINT ROAD SOUTHOLD, NEW YORK 11971 vzu pa~,concentric, net TELEPHONE (631) 765-6112 FACSIMILE (631) 765-6119 HAND DELIVERY March 28, 2003 Members, Southold Zoning Board of Appeals 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 RECEIVED MAR 2 8 2OO3 ZONING BOAR9 ~)F APPEALS Re: Application of Mary S. Zupa 580 Basin Road (SCTM 1000.81.1.16.7) Dear Member: As per your request, attached are the following filed pleadings in the two cases now pending in New York State Supreme Court: 1. Amended Complaint in Paradise Point Association vs Mary S. Zupa, 02-22401 (JC); and 2. Complaint and Answer in Victor J. Zupa, et al vs Paradise Point Association, 02-25843 (JC). Please do not hesitate to call Eric Bressler, our attorney in this matter, or myself if you have any questions. Very Truly Yours, DISTRIBUTION: Lydia Tortora, Chairperson Gerard Goehringer Ruth Oliva George Horning Vincent Orlando ZBA office file Cc wo/encl: Eric Bressler, Esq. Catherine Mesiano SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK PARADISE POINT ASSOCIATION, INC. SUMMONS MARY S. ZUPA Defendant. TO THE ABOVE NAMED DEFENDANTS: FILED AUG 2 0 2002 EDWARD P. ROMAINE COUNTY ¢I.EP, K YOU ARE HEREBY SUMMONED to answer the Verified Complaint in this action and to serve a dopy of your Answer, or if the 'Complaint is not served with this Summons, to serve a Notice of Appearance on thc Plaintiff's attorneys within twenty (20) days after the service of this Summons, exclusive of the day of service (or within thirty (30) days after the service is complete if this Summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Verified Complaint. Plaintiffs designate Suffolk County as thc place of trial. Venue is based up~)n the County in which the Plaintiff's reside. Dated: August 7~0 , 2002 Address of Defendants: Mary S. Zupa 4565 Paradise Point Road Southold, N.Y. 11971 McNULTY-SPIESS Attorneys .for Plaintiff 633 East Main Street P. O. Box 757 Riverhead, New York 11901 (631) 727-8200 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK PARADISE POINT ASSOCIATION, INC. -against- MARY S. ZUPA Plaintiff, Defendant. AMENDED VERIFIED COMPLAINT INDEX NO. 02-22401 The Plaintiff, by its attorneys, McNulty-Spiess, P.C. in complaining of the Defendant, alleges as follows: FIRST: At all times hereinafter mentioned, Plaintiff was and still is a domestic corporation duly organized and existing under the laws of the State of New York. SECOND: Upon information and belief, at all times hereinafter mentioned, the Defendant was and still is a resident of the County of Suffolk and State of New York. THIRD: At ail times hereinafter mentioned, the Plaintiff was and still is a Not For Profit corporation which was organized as a homeowners association to provide for the care and maintenance of the common areas of the subdivision known as "Paradise Point" located at Bayview, Southold, New York. AS AND FOR A FIRST CAUSE OF ACTION FOURTH: This action is brought pursuant to Article 15 of the Real Property Actions and Proceedings Law of the State of New York to compel the determination of claims to real property situate, lying and being in the Town of Southold, County of Suffolk, and State of New York known as 580 Basin Road, Southold, N.Y., identified by Suffolk County Tax Map No. 1000-81-1-16.7, (hereinafter referred to as the "burdened premises") which are more particularly described as follows: ALL THAT CERTAIN PLOT, PIECE OR PARCEL OF LAND, SITUATE, LYING AND BEING AT BAYVIEW IN THE TOWN OF SOUTHOLD, COUNTY OF SUFFOLK AND STATE OF NEW YORK, BEING BOUNDED AND DESCRIBED AS FOLLOWS: BEGINNING AT A PIPE SET IN THE NORTHERLY SIDE OF BASIN ROAD WHERE THE WESTERLY LINE OF LOT 4 AS SHOWN ON A CERTAIN MAP ENTITLED, 'MAP OF SECTION ONE, PARADISE POINT OF BAYVIEW~ MAP NO. 3761 FILED 4/11/1963 ALONG THE NORTHERLY SIDE OF BASIN ROAD; RUNNING THENCE SOUTH 30 DEGREES 08 MINUTES 40 SECONDS WEST ALONG THE WESTERLY TERMINUS OF BASIN ROAD 51.65 FEET TO A MONUMENT SET ON THE SOUTHERLY SIDE OF BASIN ROAD; THENCE SOUTH 15 DEGREES 35 MINUTES 40 SECONDS WEST ALONG THE WESTERLY LINE OF LOT 5 AS SHOWN ON THE ABOVE MENTIONED MAP 26.91 FEET TO A WOOD BULK[lEAD ALONG BOAT BASIN; THENCE WESTERLY, NORTHWESTERLY AND NORTHERLY ALONG THE HIGH WATER MARK OF BOAT BASIN THE FOLLOWING 18 COURSES AND DISTANCES: 1. NORTH 74 DEGREES 32 MINUTES 46 SECONDS WEST A DISTANCE OF 9.78 FEET; 2. NORTH 68 DEGREES 38 MINUTES 26 SECONDS WEST A DISTANCE OF 49.97 FEET; 3. SOUTH 50 DEGREES 15 MINUTES 00 SECONDS WEST A DISTANCE OF 1.35 FEET; ' \ 4. NORTH 70 DEGREES 52 MINUTES'34 SECONDS WEST A DISTANCE OF 8.13 FEET; 5. SOUTH 67 DEGREES 33 MINUTES 43 SECONDS WEST A DISTANCE OF 69.40 FEET; 6. SOUTH 77 DEGREES 18 MINUTES 19 SECONDS WEST A DISTANCE OF 43.78 FEET; 7. NORTH 52 DEGREES 15 MINUTES 31 SECONDS WEST A DISTANCE OF 47.66 FEET; 8. NORTH 81 DEGREES 28 MINUTES 12 SECONDS WEST A DISTANCE OF 17.54 FEET; 9. NORTH 48 DEGREES 11 MINUTES 12 SECONDS WEST A DISTANCE OF 26.99 FEET; 10. NORTH 34 DEGREES 53 MINUTES 24 SECONDS WEST A DISTANCE OF 20.16 FEET; 11. NORTH 16 DEGREES 56 MINUTES 39 SECONDS WEST A DISTANCE OF 16.86 FEET; 12. NORTH 45 DEGREES 07 MINUTES 28 SECONDS WEST A DISTANCE OF 18.16 FEET; 13. NORTH 76 DEGREES 59 MINUTES 32 SECONDS WEST A DISTANCE OF 14.38 FEET; 14. NORTH 49 DEGREES 45 MINUTES 56 SECONDS WEST A DISTANCE OF 21.39 FEET; 15. SOUTH 83 DEGREES 32 MINUTES 11 SECONDS WEST A DISTANCE OF 32.21 FEET; 16. NORTH 34 DEGREES 33 MINUTES 41 SECONDS WEST A DISTANCE OF 23.99 FEET; 17. NORTH 06 DEGREES 48 MINUTES 47 SECONDS WEST A DISTANCE OF 87.11 FEET; 18. NORTH 07 DEGREES 17 MINUTES 14 SECONDS EAST A DISTANCE OF 64.53 FEET TO THE HIGH WATER MARK OF SOUTHOLD BAY; THENCE EASTERLY ALONG THE HIGH WATER MARK OF SOUTHOLD BAY THE FOLLOWING 5 COURSES AND DISTANCES: 1. SOUTH 86 DEGREES 42 MINUTES 04 SECONDS WEST A DISTANCE OF 1.32 FEET; 2. NORTH 68 DEGREES 43 MINUTES 04 SECONDS EAST A DISTANCE OF 22.25 FEET; 3. SOUTH 72 DEGREES 05 MINUTES 40 SECONDS EAST A DISTANCE OF 112.17 FEET; 4. NORTH 88 DEGREES 54 MINUTES 02 SECONDS EAST A DISTANCE OF 134.02 FEET; 5. NORTH 82 DEGREES 07 MINUTES 29 SECONDS EAST A DISTANCE OF 63.92 FEET TO THE WESTERLY SIDE OF LAND NOW OR FORMERLY EDMOND H. CURCURU AND PATRICIAN. CURCURU; THENCE 04 DEGREES 15 MINUTES 20 SECONDS WEST ALONG LAST MENTIONED LANDS 159.37 FEET TO A PIPE; THENCE SOUTH 74 DEGREES 24 MINUTES 20 SECONDS EAST A DISTANCE OF 76.49 FEET TO A PIPE SET AT THE POINT OR' PLACE OF BEGINNING. FIFTH: Upon information and belief, the Defendant is the owner of the burdened premises. SIXTH: Upon information and belief, the Defendant acquired fee title to the burdened premises by deed dated April 5, 2002 from Chancy D. Curry (as Successor in interest to J. Lane Curry), Garret Sinning, a/k/a Gary Sinning, Paradise of Southold, Inc., and Gilman J. Hallenbeck, individually and as Administrator of the Estate of Gilbert Hallenbeck a/k/a Gilman H. Hallenbeck, deceased, and as Successor Trustee of the Gilman Hallenbeck Restatement of Trust Agreement dated as of April 16, 1999, (hereinafter collectively referred to as the "Defendant's predecessors~) which deed was recorded in the office of the Clerk of the County of Suffolk on April 23, 2002. A copy of the Defendant's deed is attached as Exhibit A. SEVENTH: Prior to the conveyance of the burdened premises to the Defendant, and by deed dated February 23, 1989, the Defendant's predecessors conveyed to the Plaintiff an easement over and across the burdened premises for free and unobstructed access to the boat basin and canal shown on a certain map entitled" Map of Section One, Paradise Point at Bayview," filed in the office of the Clerk of the County of Suffolk on April 11, 1963 as map no. 3761, which deed was recorded in the Suffolk County Clerk's Office on February 24, 1989 in liber 10804 at page 555. A copy of the Plaintiff's deed is attached as Exhibit B, and a copy of the filed map is attached as Exhibit C. EIGHTH: The aforementioned easement was for the construction and maintenance of bulkheads, cribs, jetties, docks, etc. and for other purposes as are consistent with the constitution of the Plaintiff including, but not being limited to, providing for the care and maintenance of the beaches, waters, bulkheads, roads, clubhouses, buildings or other structures, and other recreational facilities; supervising recreation, sports, boating, bathing, etc.; perpetuating the standard and tone of the community; promoting health, welfare, morals, pleasures, recreation, indoor and outdoor games, etc.; and promoting sociability and good fellowship for the members of the corporation. Attached as Exhibit D is a copy of a survey of the burdened premises dated January 7, 2002 made by Joseph A. Ingegno, Land 4 Surveyor, which depicts the Plaintiff's deeded easement area along the boat basin andc~al. NINTH: On or about February 23, 1989, the Defendant's predecessors conveyed to the Plaintiff, in addition to the easement as aforesaid, title to ail lands lying under the high water mark of Town Harbor, a/k/a Southold Bay including any and ail jetties protruding into Town Harbor, a/k/a Southold Bay. TENTH: By virtue of the deed referred to in paragraph SEVENTH above, Plaintiff claims and is entitled to an easement over and across the burdened premises owned by the Defendant. ELEVENTH: Upon infom~ation and belief, the Defendant claims that the aforesaid easement of the Plaintiff has te~ minated, and is extinguished, invalid, and of no further force and effect, which claim is adverse to the Plaintiff's interest. Specifically, the Defendant has made application to the Town of Southold to improve the burdened premises and has alleged, in connection with said application, that the Plaintiffs deeded easement has terminated. TWELFTH: There are no Defendants known or unknown who have an interest in this proceeding other than as named in this complaint, and upon info,mation and belief, none of the Defendants is an infant, mentally retarded, mentally ill or an aicohol abuser. THIRTEENTH: Any judgment granted herein will not affect any person or persons not in being or ascertained at the commencement of this action, who by any contingency contained in a devise or grant or otherwise, could afterward become entitled to a beneficiai estate or interest in the aforesaid premises, and that every person in being who would have been entitled to such estate or interest, if such event 5 had happened immediately before the commencement of the action, is named as a party hereto. FOURTEENTH: No personal claim is made against any Defendant herein except such Defendants as may defend this action. FIFTEENTH: Plaintiff has no adequate remedy at law. AS AND FOR A SECOND CAUSE OF ACTION SIXTEENTH: Plaintiff re-alleges and reiterates paragraphs FIRST through FIFTEENTH as if each were set forth in full below. SEVENTEENTH: Plaintiff is the owner of premises located in the Town of Southold, State of New York, known as Basin Road on a certain map entitled 'Map of Section One, Paradise Point at Bayview~, ( a copy of which is attached as Exhibit C) which map was filed in the office of the Clerk of Suffolk County on April 11, 1963 as map no. 3761, identified by Suffolk County Tax Map No. 1000-81~3-29. EIGHTEENTH: At all times hereinafter mentioned, there was and still is a private roadway located on the burdened premises running from the western tealxinus of Basin Road, in a general northwesterly direction to the Plaintiffs deeded easement area and to a jetty which was constructed by the Plaintiff adjacent to the burdened premises and which protrudes into Southold Bay. Said private roadway is located and depicted as both an 'asphalt driveway" and a ~dirt driveway" on the survey of the burdened premises dated January 7, 2002, a copy of which is attached as Exhibit D. NINETEENTH: Since in or about 1961, the Plaintiff through its members has used the aforementioned private roadway for ingress and egress across the burdened premises to the PlaintiWs deeded easement area and to the jetty protruding into Southold Bay. TWENTIETH: That the use of the aforementioned private roadway has been open, notorious, a~verse, uninterrupted, and continuous for a period of more than ten years. TWENTY-FIRST: In view of the foregoing, Plaintiff claims and is entitled to an easement by prescription over and across said private roadway. TWENTY-SECOND: In or about June, 2002, the Defendant caused a fence to be constructed across said private roadway, thereby obstructing and interfering with the Plaintiffs ability to pass over said roadway. TWENTY-THIRD: Upon information and belief, the Defendant claims an interest in the burdened premises which is adverse to the Plaintiff's interest, in that the Defendant disputes the Plaintiffs prescriptive easement and the right of the Plaintiff to pass over and across the aforementioned private roadway. AS AND FOR A THIRD CAUSE OF ACTION TWENTY-FOURTH: Plaintiff re-alleges and reiterates paragraphs First through Third as if each were set forth in full below. TWENTY-FIFTH: This is an action pursuant to Article 15 of the Real Property Actions and Proceedings Law of the State of New York to compel the determination of claims to real property situated in the Town of Southold, County of Suffolk and State of New York known as a jetty'on the east side of a canal as depicted on a certain map entitled "Map of Section One, Paradise Point at Bayview" (a copy of which is attached as Exhibit C) filed in the office of the clerk of the County of Suffolk on April 11, 1963 as map no. 3761, more particularly described below. TWENTY-SIXTH: In or about 1972, the Plaintiff, pursuant to its Constitution and By-laws, caused a jetty to be constructed on each side of the canal depicted on the filed map entitled ~ Map of Section One, Paradise Point at Bayview~ 7 identified by map no. 3761, which jetties protrude in a northerly direction into Town Harbor a/k/a Southoid Bay. TWENTY-SEVENTH: At the time the aforesaid jetties were constructed, the lands on either side of the aforementioned canal were owned by the Paradise Point Corporation. TWENTY-EIGHTH: Since in or about 1972, the aforesaid jetties have been maintained and repaired by the Plaintiff. TWENTY-NINTH: In or about 1981 to 1985, the Paradise Point Corporation conveyed the lands on either side of the canal, to the Defendant's predecessors. THIRTIETH: On or about February 23, 1989, the Defendant's predecessors conveyed to the Plaintiff, in addition to an easement over the burdened premises located on the east side of the canal, fee title to the lands located on the west side of the canal and the jetties located on both sides of the canal. THIRTY-FIRST: The jetty which was constructed on the east side of the canal is depicted on the survey of the burdened premises dated January 7, 2002 made by Joseph A. Ingegno, Land Surveyor, a copy of which is attached as Exhibit D, and runs from the northern temfinus of the Plaintiff's deeded easement area over the burdened premises, northward into Town Harbor a/k/a/ Southold Bay, and is more particularly described as follows: BEGINNING at a point located 4.08 feet north 72° 05' 40" west from the intersection of the easterly boundary line of a described easement with the bulkhead serving as the northerly boundary of property identified by Suffolk County Tax Map No. 1000-81-01-16.7 as surveyed by Joseph A. Ingegno on January 7, 2002, revised January 29, 2002 and February 14, 2002; RUNNING THENCE North 02* 17' 07" West 129.44 feet to a point; THENCE North 89* 23' 08" West 21.63 feet to a point; THENCE South 01° 58,' 26' West 137.80 feet to a point; THENCE North 86° 42' 04' East 1.32 feet to a point; THENCE along a tie line as shown on the aforementioned survey North 68° 43' 04' East 22.25 feet to the point of BEGINNING. THIRTY-SECOND: Upon information and belief, the Defendant claims an interest in the jetty located on the east side of the canal as described, which is adverse to the Plaintiffs interest. Specifically, the Defendant has made application to the Town of Southold to improve the subject jetty and has alleged, in connection with said application, that the subject jetty is owned by the Defendant by virtue of her deed dated April 5, 2002, a copy of which is attached as Exhibit A. THIRTY-THIRD: There are no Defendants known or unknown who have an interest in this proceeding other than as named in this complaint, and upon information and belief, none of the Defendants is an infant, mentally retarded, mentally ill or and alcohol abuser. THIRTY-FOURTH: Any judgment granted herein will not affect any person or persons not in being or ascertained at the commencement of this action, who by any contingency contained in a devise or grant or otherwise, could afterward become entitled to a beneficial estate or interest in the aforesaid premises, and that every person in being who would have been entitled to such estate or interest, if such event had happened immediately before the commencement of the action, is named as a party hereto. THIRTY-FIFTH: No personal claim is made against any Defendant herein except such Defendants as may defend this action. THIRTY-SIXTH: Plaintiff has no adequate remedy at law. 9 WHEREFORE, Plaintiff demands judgment as follows: 1. Declaring that the Plaintiff has a valid and existing easement over and across the burdened premises owned by the Defendant as described in the Plaintiff's deed dated February 23, 1989 and recorded in the office of the Suffolk County Clerk on February 24, 1989 in liber 10804 at page 555; 2. Declaring that the Plaintiff has a valid and existing easement by prescription over and across the private roadway on the burdened premises owned by the Defendant, running from the western terminus of Basin Road in a general northwesterly direction to the Plaintiff's deeded easement area and to the jetty which was constructed by the Plaintiff adjacent to the burdened premises and which protrudes into Southold Bay, as shown on the survey attached hereto as Exhibit D, and directing the Defendant to remove the fence installed across such roadway; 3. That the Defendant, and every person claiming under her be barred from all claim to an estate or interest in the jetty located on the east side of the canal as described in the amended complaint, and that sole title and the right of exclusive possession of said jetty be awarded to Plaintiff; 4. That the Defendant, her agents, servants, and employees be enjoined from interfering with Plaintiff's deeded easement and prescriptive easement over and upon the burdened premises, as well as with the Plaintiffs possession of the jetty located adjacent to the Plaintiff's deeded easement area on the east side of the canal as described in the amended complaint; and 5. Awarding the Plaintiff such other and further relief as this Court 10 deems just and proper, together with the costs and disbursements of this action. SS IESS, P.C. eys for Plaintiff 633 East Main Street P. O. Box 757 Riverhead, New York 11901 (631) 727-8200 II STATE OF NEW YORK ) :SS COUNTY OF SUFFOLK) ATTORNEY'S VERIFICATION The undersigned, an attorney duly admitted to practice in the courts of the State of New York, shows: That deponent is a member of the firm of McNULTY - SPIESS, P.C. the attorneys of record for the Plaintiff in the within action; That deponent has read the foregoing Amended Verified Complaint and knows the contents thereof; That the same is true to deponent's own knowledge, except as to matters therein stated to be alleged upon information and belief and that as to those matters deponent believes it to be true; Deponent further states that the reason this verification is made by deponent and not by the Plaintiff is because Plaintiff is currently not within the County wherein your deponent has his office and that the foregoing infox'xxxation is based upon interviews with the Plaintiff and infmmation and records in our file. Sworn to before me this RY PUBLIC ///~ ES SPIESS CpnSULT .YO:OR ~SlGt( wr SHOULD BE USrn BY LAWYER~ ONLY ~x~hold. NY 11871 and GILMAN J. ~/ M GI~ FL~LLENBECK '.. i/I;/l (MLJ4AN H. I.~ i I=NI~CK. d~,,tlgklbtg iIt 3~21 ~3,,~ ROad 6oMh, Like, .,,~,.=..i,. FTo~i3848},~. · put. ant to Anclll~/LaUe~ M A~,~Uo. O.T.A. under File No. ~7 p 2002 M Ute ~n~(e'~ Cou~ ~oA Co~l~y. datecT as of ~ 16 1999 UM~ 6093 M page 01, pandise ~ 6o~, Ir, c. -,, to ,, 21~ Intem~ by deed dMed Alxl112, 1985 and as to a 32% Intem~ by __~_ _ dated 5eptemMr 29. 1~1 ead mco~led I. fM Seffolk Coe./y Clerk~ Oflice on Octotser 20, 1961 in UbM 9093 M Pioe 01. mhd (3atilt Skudno Is to 1 20% intMMt bY deed d~ed 6e1~ 29, 1661 end reco(ded k the 6uffoik Gowdy CWk's Office on OCtO~M 29. 1961 In taw 9083 If ~go01. ell the estie afld fights o(the psty of the fllst pelt In and to said IxemMs; TO I'~VE ~ TO ~ ~ is a tram fund to be ip~4bd Jkst fo~ the ~jxf'~--- M p~ 1he coM M the k~xovemeM end vAI ~ ~ mrd fk~ to b~e p~ymeflt o~ tho ~oM of the W bMoFe usJflO aflY pad of the total M ~ ~ ~ aey other rlXa~__ _. The we~l 'party' M be comtmed as I[ it mad :pMUeS' when ever the smwe M ~ Trustee of the Gi~ Balle~k l~.stat~,t of Trust Agreement (late~ as Of April 16, 1999 TO BE USeD C)HLY WHEN 'tHE ACKNOWL.EDGMENT IS MADE otr1'sIoE NEW yORK 8TATF Gl~e (o( Dl~k~ d,~4dumb~ Te~r/. ~ FoNig~ Counily) d NEW JE~S~f, COUNTY OF Jc~l S$,fll ~, is: I1~ by hIM~'~4k .lgnduN($) on the indnm~4, Ihe Indvldud(s)~ m' the pe~on q~t bahS' ~ v/ntch be Indvld~ii,) K~I, SECTION BLOCK LOT COUNTY OR TOWN 8'[REET ADORES8 tonwealth H4=~ FN ROSENBUJM, Esq. Rlv~. NY 11~01 CHICAGO TITLE INSURANCE COMPANY I ;GAL DESCRIPllON TIUeNumb~': 3802-00159 THAT CJf~TAZN PLOT, PIECI~, OR PARCEL OF LAND, SITUATE, LYING, AND BE~ ~ ~ ~I~ ~ ~WS: ~ OF ~ 4 ~ ~O~ ~ A C~KT~ ~ ~Z~, "~ OF SE~ION ~, ~ OF ~ ~ NO. 3761 FI~.~ 4/11/1963 ~N~ ~ NOR~Y SIDE OF ~ THENC~ BOu'z'~ 30 DEGREES 08 MI~rz'~s~ 40 SECONDS WEST ALONG Tins WESTERLY ~'r,y./4I~.~u,~ OF ~tSIN ROAD 51.65 FEET TO A MONUMENT SET 0~q 'z'm~ SOu'I'ur.,RLY SIDE OF ~ SO~T~ 15 DEGREES 35 MIN~z'~ 40 SECONDS WEST ALONG THE WESTERLY LINE OF LOT 5 AS SHOMN ON THE'ABOVE MENTI0~ED MAP'26.91 FEET TO A WOOD BULru{~AD ALONG BOAT BASIN; THBNC~ WJ[~&-J~KLY, NORTH~E~-z'~J~Y AND NOR'jiHK~LY ~T~ONG 'z'J~t~ HIGH WA'ru~ MARK OF BOAT BASIN TH~ PO[J~OWING 18 COURSES AND DISTANCES: 1. NORTH 74 DEGREES 32 MINUTES 46 SECONDS WEST A DISTANCE OF 9.78 FEET; 2. NORTH 68 I~GE~S 38 MINUTES 26 SECONDS W~ST'A DISTANCE OF 49.27 FEET; 3. EO~JTH 50 D~REKS 15 MINUTES 00 SECONDS MBSTA DISTANCE OF 1.35 FEET; 4. NORTH T'0 DEGKE~8 52 MIHUTES 34 SBCOHDS'~'TA DISTANCE OF 8.13 FEET; S. ~ 67 ~ 33 MINUTES 43 SECONDS WEST A DISTANCE OF 69.40 FEET; g. Sf,,arz'= 77 DEGREES 18 I4/NUTES 19 ~C~"~g WEST A DZBTANCB OF 43.78 FB~T; N0~TH 52 D.~GH~ES 15 M.TNUTP~ 31 ~B--Og~v~~- W~STA DZSTANCE OF 47.66 FEET; S. NO~TH 81 I~ 28 MINUTES 12 S~C~,NESTA DISTANCE OF 1~-.54 10. 11. 12. 13. 14. 15. NORT~ 48 ~ 11 MINUTES 12 EEC0~D~ W~STA DISTANCE OF 26.99 FEET; NORTH34 DE(HU~S 53MINU~ 24 EBC0tiDSWESTA DISTANCE OF 20.16 FEET; NORTH 16 DEGREES 56 MINUTES 39 SECONDS WEST A DISTANCE OF 16.86 FEET; NORTH45 DEGREES 07 M/~£1f~ 28 SECONDS, WESTA DISTANCE OF 18.16 FEET; NORTH 76 DEGREES 59 MI~w£~S 32 SECONDS WEST A DISTANCE OF '14.38 FEET; NORTH 49 DEGREES 45 MINUTES 56 SEC0~q~S WEST A DISTANCE OF 21.39 F~K~TH 83 D]~I~S 32 MI~UTmS 11 SECONDS WEST A DISTANCE OF 32.21 FEET; -~MENDED LEGAL DESCRIPTION- 04/04/02 CHICAGO'TITLE INSURANCE COMPANY LEGAL DESCRIPTION (Continued) TilieNumber: 3802-00159 16. NOETH 34 DBGR~SS 33 MINUTES 41 SECONDS WEST A DISTANC~ OF 23.99 FEET; 17. ~ 06 D~(~R~ 48 ~ 47 SF~ ~ A DZ~ OF 87.11 ~; 1. ~ 86 ~ 42 M~ 04 SE~ ~ A DIST~ OF 1.32 ~; 2. ~R~. 68 D~ 43 ~z'~ 04 SE~ ~ A DI~ OF 22.25 ~; 4. ~R~ 88 D~ 54 M~ 02 SE~ ~ A DI~ OF 134.02 ~; S. ~ 82 ~ 0~ M~S 29 S~S ~T A DIST~ OF 63.92 ~ ~ ~ ~ ~4 ~ 24 M~va'~ 20 SS~ ~T A DI~ OF 76.49 ~ PIPB S~ AT ~ ~ OR P~ OF Exhibit B i000 SEC~ · BLOCK LOTS Street, Greenwich, Connecticut, 068301 and GII24AN HALLENBECK, ae to a 32% interest; residing at Cove East, 115 Lake Shore Drive, N. Palm Beach, Florida, 33408l and G~Y S;~ as ~o a 2~ ~n~eres~, s~d~ng a~ 200 Na~ch~g Dr~ve, Hav~horne, N~ 3e=se~, 07506l and PA~ISE OF SO~HO~, INC., as to a ~ interest, a d~esti~ ~rpora- tion having its principal .office at (no S} Robinson Road, P. O. Box 724, Southold,. New York, 119711 as tenants in ~on and as their interests ~d~oi~d.a~ PAR~ISE POint ASSOCIATION, INC., a domestic ~ype A, Not-for-Profit Corporation, having its principal office at (no Robinson Road, P. O. Box 243, Southold, New York, ~ S.-~ .... .... ~ ~. [R~'~,IE _ . Ten and no/100 ('~10.00) - - - aw~ ~ o{~ U~ S~.. ' ...... P~C~ I t ' t~ et Ba~iev, near ~uth~l~, in ~e ~o~n of ~ou~old, Co~ty o~ Suffolk a~ ~tate of Ne~ York~ ~o~ a~.deaignated aa Robinson R0~d, Basin Road, Briar Lane, Ca,al, Basin,' and Drain located tveen lo~ n~red i2..~ 13,..as shown ~ a ~ein map Office of the Clerk of 'the'cO~ty of $ulfolk on April il, Map No. 3761~ and l~?ludin9 Robinsog'R°ad to it~ eastern terminus ~ ahb~ on a ~rtai~ sip enti$1e~, ,.~inor.Su~z~isio~ made_~r,. Pafadlse }~int Co--ration, 'Paradzae Point, New York, ~enae~ may 11, 19~1 ~ ~eric~. Va~ Tuy~ '~. ,C.,,. Lf~nsed Land Su~eyors, Gf~enport, N~ Yor~. ... .' · ~O~ ~ith an eas~ent ~er ~and across t~se la~a adjoining t~ westerly side of'Basin Road as sh~ on the aforesaid map entitled, 'Ma~ of Section One~ Paradise Point at Ba~i~," and filed in the Office'of the. Clerk o~ the Coun2y, of Suffolk on April 11 1963 as Hap No..3761,. said easm~nt.~ing'~ore particularly ~unded and descried as foll~vst B~INNINO at a point, which point is the southwesterly ~mer of Lot No. 4 as sh0vn on the aforemention~ filed mapl R~NI~ THENCE South 30 degrees 08 ~inutes 40 seconds ~est along the vest~ly side of Basin Road~ 51.65 feet, to land or for~rl~ of Ha~ardl THENCE along said lmd nos or formerly of South He,nard 15 d~r~s 35 ~inutes 40 Se~nds West, 30 feet, ~re o~ less, .to .~e Basin a~ Canal aslant.on ~e aforemen}ione~ ~iled mapl-T~'in i vesterly~ nor~esterly and nor~eriy d!rectzo along ~e shore of said Basin a~ Canal ~ it vends and turns, 600 feet~ ~re or less, to ~e ordina~ high vat~ mark of Town Hater (also ~o~ as Southold ~ay)I '~INC~ in' an .easterly di~ction along the ordina~ high '~ater marR ~ 'T~'Har~r (also ~o~ 'as Southold Bay) as 'it winds'and 2~s~ 25'feet, more or'less, to a.pofnt mark- ~ ~ the vest~lY ~nd of 'a bul~eadl 'THENCE South 6 degrees 00 'min- utes W~st, '75,00 'feeti T~NCE South 6'degrees 00 minutes East, 85.00 feetl T~NCE South 65 degrees 00 minutes East~ 200.00 feetl THENCE North 59 degrees '30 ~inu~, East~ 123.00 feet ~ land now or fo~er- 1y of Cur~rul ~ENCE'along said land n~ o~ fo~erly of Cur~ru South 74 d~rees 24 ~inutis '20 Sec,,nds East~ 76.49 feet to ~e point or ~lace of B~INNING~ 'and as su~ easement is shown on a ~rtain ~ap entitled, "Hap of Pro~rty at Paradise Point, 'Southold, N. Y.," R~ised August 9, 1988 by R~eriek'Van.~uyl,':P.' C. ,' Licensed Land Surveyors, Greenport, New YOrt' sal~ easement to ~ us~ by the 1080.t PC556 Basin and Canal as shown on the aforesaid filed m~pJ. for the con- struction end maintenance ofbulkheads, crib~,-J~tties, ~o~ks, ' etc.~ as may be deemed appropriate by the party of the second part1 for the installation and maintenance of a fresh'water well .or wellsl and for such other purpose or purposes as are..p0neist~nt with the constitution of the party of the' second part ~n~udin~f bg~ not limited tot providing for the care and main~'of %h~ Beaches, Waters, BUlk~.ead~'aoad$, Club Houses, Buildi~g~r~ther structures, and other Recreation Facilities1 supervising recr~ation, sports, boating, bathing, etc.! perpetuating the standard and tone of the commun~yl promoting health, welfare, mor~ls~ pleasures, recreation, indoor and outdoor games, etc. j and promoting sociability and good fellowship for the~members Of t~e. Corporation. first p~rt in and to lands lying under the high water mark of Town Harbor (also ~nown as Southold Say) including any end all Jetties protruding into said TO~n Harbor (also ~nown as SouthoLd Oa¥). ALL that certain plot, piece or p~rcel of ~and with the b~ild~ngs and improvements thereon erected, situate, lying and being at Bay- view, ~ea~ Southold, in the Town of Southold& County of Suffolk and State of New' York, being ~re particularly ~unde~ and descrih~d es followW~ BEGINNING at e point, which point is the northerly corner of Lot NO. 12 as shown on a certain map entitled, "Map of Section On~ Paradise point at Sayvlew," end filed in the Office of the Clerk of th~ County of Suffolk on Apri~ t~, 1963 as Map No. 37611 RUNNING THENCE North 38 degrees.31, minutes 40 seconds West along la~ now or formerly of Oriffo, 100'.00 feet to: land now or formerly of C~rryj THENCE along, said 1'and now or formerly of Curry~ North 4 degrees 30 minutes East~ 610 feet~ more or less, to the ordinary high wa~er mark of Town Harbo=~ (also known as Southold Bay)j THENCE in an east- ~rly direction along the ordiDa~Y high water mark of Town Barbor (als~ know~ as Southold ~ay)~'as ~ winds ~Dd turns~ 75 feet,.more or less, to a Certain Canal es'showD on the:afo~ementibned filed map1 THENC~ ~n a southeasterly d~rection along 'the Canal' a~ it wiDds and turns~ 350 feet, mor~ or l~ss, to ~h~ horsefly lln~ of ~ot I~o. 17 ss ehown on a certain map entitled~ "Minor Subdivision made for Paradise Point corP°ration~ paradise Point~ New Yo~k," Amended Hay 1~ lg81 by Roderick Yen Toy1,. P. C.! THENCE along ea~d Lot No. 17 the following three'courses and distances~ 1) North 85 degrees 30 minu~es West, 90.00 feet~ 2) South 4 degrees 30 minutes West, 325.00 feetj 3) South. 38 degrees 31 minutes 40'seconds East~ 82.98 feet to Brier Lane as ehcn~n on the aforementioned filed ~p! THENCE along eaid Brier Lane South-14 degrees §6 minutes 30 seconds West, ~8.67 feet to the point or place of BEGINNING... T(X~R~q{~R with all the right~ title and interest of th9 party of the first part in and to lands lying' under.the h~gh water mark of Town Hater (also kno~l as SouthoLd Bay), inc/ud~ng eny and all ~ettles protr~ding into said Town Hater (also known as Southold Say). THIS CONVEYANCE is made in the usual and regular course of business actually conducted by the party of the f~rst part, PARADISE OF SOUTHOLD, INC. : : I15.:. the ab4~ve descrlb~J prmJlses to thc center fines thcrcof, TO.ETHEl( ~th the &p~urt~nc~ lad iii the estiLe End rJght~ of the Party of the first part iff m3d to said pr~ise~ TO HAYE .'MqD TO HOLD the premises ~ g~mted unto the party o! the ~econd part, the heirs or successors lad Issigu~ of the party of the seccmd part forever. STATE O~IB~a~IK COU'NW OF PALM 8~CH SSs Oa~e 14th d~yo! February, 19 89 , bef~ce me pcrsomdly c~ac GIL~IAN ~h~I~ENBECK he ~ ~ ~. STATE OP Oathe ~% ~yof~t~ 19J% .~fore~ ~y ~ Chan~ Curr~ ,~ me ~o~ ~ ~ the ~raon de8crib- ~ a~ ap~int~ atto~ey in fact in a~ ~ a ~rtain ~er of attorney exe~t~ ~ ~. ~E ~Y, dat~ Hay ~9, 198~, to ~ re~rded in ~e Oi- ii~ Suffolk ai~ltaneously vi~ ~e fore- 'going instr~ent and ac~ovledg~ ~ that she ~d ~e~ted the forego- ing inst~ent as ~. '~ ~RY. ,.CT,O. :: 0el,3bb .. ~toc~ 01.00 O050000w 014.000w tOT 015.000, p/o 016.000 Cout~rrvo~TowN 1000 IElYdARD JOHN BOlD ESQ V, 5465~ NAIN ROAD, P.-O. BOX 1468 .SURVE'~F PROPERTY · $1TUAT£D AT, . BAYVIEW TOWN OF SOUTHOLD SUFFOLK COUNTY, NEW YORK S,C. TAX No. 1000-81-01-t6.7 $OUTHOLD BAY BOAT BASIN SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK VICTOR J. ZUPA, MARY S. ZUPA and JAMES MILLER, Plaintiffs, - against - PARADISE POINT ASSOCIATION, INC., IndexNo. ~,)~/~--'l_._f-~4~ Plaintiffs designate Suffolk County as the place of trial. The basis of venue is Plaintiffs' residences are in Suffolk County Defendant. To the above named Defendant: -X SUMMONS Plaintiffs' residences are 580 and 365 Basin Road Paradise Point Southold, New York 11971 and 1610 Paradise Point Road Southold, New York 11971 YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the Plaintiffs Attorney(s) within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated: October 2, 2002 Mattituck, NY Defendant's Address: No # Robinson Road P.O. Box 243 Southold, New York 11971 j-summons2 Wickham, Wickham & Bressler, P.C. By Eri Attor6eys for Plaintiffs 10315 Main Road - P.O. Box 1424 Mattituck, New York 11952 FILEt) OCT03 ~ Eow~RO P. ROM~? cOUI, tT'I' GL~IllR SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK VICTOR J. ZUPA, MARY S. ZUPA And JAMES MILLER, against - Plaintiff(s), COMPLAINT PARADISE POINT ASSOCIATION, INC., Defendant(s). Plaintiffs by their attorney, Wickham, Wiekham & Bressler, P.C., complaining of the above named Defendant, allege: THE PARTIES 1. Upon information and belief, Defendant is a not-for-profit corporation organized under the laws of the State of New York, with principal place of business in Suffolk County, New York. Defendant is comprised of owners of properties in and around a geographical known as "Paradise Point" in Southold, New York. DEFENDANT'S USE 2. Plaintiffs, Victor J. Zupa, Mary S. Zupa and James Miller, are resident taxpayers of the Town of Southold. 3. Plaintiff, Mary S. Zupa, individually, owns property known as 580 Basin Road, Paradise Point, Southold, New York (hereinafter the "580 Basin Property"). 4. Plaintiffs, Victor J. Zupa and Mary S. Zupa, jointly own property known as 365 Basin Road, Paradise Point, Southold, New York (hereinafter the "365 Basin Property") which adjoins both a navigable and tidal inlet known as the Basin and the 580 Basin Property, and on which they maintain a home and residence. 5. Plaintiff, Jhmes Miller owns jointly with his wife, and resides at, property known as 1610 Paradise Point Road, Southold, New York (hereinafter the "Miller Property") (the Marina is located approximately one-half mile from the shoreline of the Miller Property). 6. Upon information and belief, Defendant operates what it calls a "private marina" located in Paradise Point, Town of Southold, County of Suffolk, State of New York, for its members and guests (hereinafter the "Marina") who pay fees for dock space. The Marina use commenced after 1957. 7. The Marina consists of three docks with finger extensions located on the "Basin" which extend from 580 Basin Road, together with various structures to support the Marina. 8. Defendant's docks at any one time have on average between 8 and 16 boats tied to them, and one of its three docks is more than 100 feet in length, extending parallel to and across the entire shoreline of the 365 Basin Property; Defendant has announced its intention to expand the Marina. 9. The Basin is tidal and navigable waters, the bottom of which is owned by the Town of Southold and/or the State of New York, and connects with Peconic Bay. 10. Defendant has no property interest in the Basin or 580 Basin Road except for a right of way of access granted by deed in 1989 across the 580 Basin Property to the Basin. THE ZONING ORDINANCE 11. On the 9t~ day of April 1957, the Town Board of the Town of Southold, Suffolk County, New York, duly enacted a zoning ordinance to regulate among other things the use of buildings, structures and lands for trade, industry, residential and other purposes, and divided the Town into districts known as "A" residential and agricultural district, "M" multiple residence district, "B" Business district and "C" industrial which said districts were shown on a map entitled Zoning Map of the Town of Southold, filed in the office of the Clerk of the Town of Southold, which said map together with all boundary lines and designations thereon, was made a part of said ordinance; the said ordinance, as amended, is hereinafter referred to as the "Ordinance." 12. The Ordinance provided that no building shall be erected, altered or used, and no premises shall be used for any other than a purpose permitted in the zone in which such building or premises is located. 13. The Ordinance states that the only docking facilities permitted with respect to a residential lot is "docking or mooring facilities for no more than two (2) boats other than those owned or used by the owner of the premises for his personal use," and that "boats at such docking facilities shall not be used for overnight sleeping purposes." 14. The Ordinance defines a "marina" as any premises containing one or more docks which is used or intended to be used primarily for the docking or accommodation of boats. 15. The Ordinance at all times mentioned herein was and now is in full force and effect. 16. The Ordinance does not permit a "marina" as a lawful use of property in a residential and agricultural district in the Town of Southold. 17. The Marina has been classified by Defendant, and with Defendant's urging, certain agencies of the Town of Southold as a "marina" in order to prevent the development of the 580 Basin Property as a residence through a determination that the property would then be illegally subject to two primary uses. 1 g. By resolution in 1981, the Southold Town Planning Board approved the 580 Basin Property as a legal residential lot, which approval under §100-24 of the Ordinance requires recognition by the Town of Southold. 19. No permit, site plan, special exception, variance or other approval has ever been obtained from any governmental agency for the Marina or for its docks and supporting structures. 20. The Basin, the 365 and 580 Basin Properties, the Miller Property and all surrounding properties are in the residential and agricultural district of the Town of Southold as shown on its Zoning Map. 21. Plaintiffs have purchased their respective properties after the enactment of, and relied on, the Ordinance. 22. Plaintiffs, Victor J. Zupa and Mary S. Zupa have suffered the following special damage as a result of the maintenance of the Marina adjoining their home on the 365 Basin Property: The development of the 580 Basin Property as a residence has been prevented which has resulted in that property being used by trespassers for all night parties, for the deposit of refuse, and for other offensive activities causing (i) risk to property and personal safety and (ii) interference with the peaceful use and enjoyment of their home; Noise, smoke, glaring light, overnight Marina use and other disturbances at all hours of the night from the Marina's activities which affect the peaceful use and enjoyment of their home; c. Limitations on the use of their property including their shoreline, their boat and private dock; and d. Deterioration and erosion of the shoreline, bulkheads, and the bed and surface waters of the Basin which adjoins their home. 23. Plaintiff, Mary S. Zupa has suffered the following special damage as a result of the maintenance of the Marina adjoining her 580 Basin Property: a. The Marina is being used by Defendant in order to cause agencies of the Town of Southold to deny building and environmental permits for the development of a residence based on the rationale described in paragraph 17 above; and b. An unreasonable risk of liability to third parties is imposed on Plaintiff, Mary S. Zupa, as landowner, for injury to person and damage to property caused by operation of the Marina. c. Limitations on the use of her property including her shoreline. 24. Plaintiff, James Miller has suffered the following special damages as a result of the maintenance of the Marina: a. The Marina was used by Defendant to prevent the acquisition of a building permit for a residence on the 580 Basin Property in 1995 atter he had relied on Defendant's agreement that a residence could be constructed; and b. Increased noise, traffic, and pollution interfering with the property use and enjoyment of his home on the Miller Property. 25. As a result of the operation of the Marina and as a result of the special damages suffered by Plaintiffs as alleged in paragraphs 22 through 24 above, their respective properties have diminished in value. 26. On August 6, 2002, Plaintiffs, Victor J. Zupa and Mary S. Zupa filed written requests with the President of the Board of Trustees of the Town of Southold, the Principal Building Inspector of the Town of Southold, and the Director of Code Enforcement of the Town of Southold requesting that they order Defendant to comply with the Ordinance. 27. The Town of Southold has not taken any action with respect to the requests made in paragraph 26 above. AS AND FOR A FIRST, SEPARATE AND COMPLETE CAUSE OF ACTION FOR ALL PLAINTIFFS 28. Plaintiffs repeat and reallege each and every fact contained in paragraphs 1 through 27 with the same force and effects as if fully set forth herein. 29. Defendants are conducting an illegal use of, and maintaining illegal structures on, the Basin and the 580 Basin Property. 30. Plaintiffs suffer irreparable harm and have no adequate remedy of law. AS AND FOR A SECOND, SEPARATE AND COMPLETE CAUSE OF ACTION FOR ALL PLAINTIFFS 31. Plaintiffs repeat and reallege each and every fact contained in paragraphs 1 through 27 with the same force and effect as if fully set forth herein. 32. The Ordinance provides in pertinent part: § 100-241. Nonconforming uses. Except as provided hereinafter, nonconforming use of buildings or open land existing on the effective date of this chapter or authorized by a building permit issued prior thereto, regardless of change of title, possession or occupancy or right thereof, may be continued indefinitely, except that such building or use: A. Shall hot be enlarged, altered, extended, reconstructed or restored or placed on h different portion of the lot or parcel of land occupied by such use on the effective date of this chapter, nor shall any external evidence of such use be increased by any means whatsoever. F. Shall not be repaired or rebuilt unless the use is changed to a conforming use if the nonconforming use is damaged by fire or other causes to the extent of fifty percent (50%) of its fair value. 33. Subsequent to the adoption of the Ordinance, Defendant has increased the slmctures in its Marina by adding new docks, floats, stairs, pilings, poles, lights, electrical equipment and other structures in wetlands and areas adjacent thereto. 34. Subsequent to the adoption of the Ordinance Defendant has enlarged, expanded and increased the intensity of its use. 35. Subsequent to the adoption of the Ordinance Defendant has repaired and/or rebuilt docks and other structures by more than 50%. 36. Defendant's acts of enlarging, expanding and increasing the volume and intensity of the use of the Marina, adding new structures and/or repairing or rebuilding more than 50%, constitutes a continuing violation of the Ordinance. 37. Plaintiffs suffer irreparable harm and have no adequate remedy at law. AS AND FOR A THIRD, SEPARATE, AND COMPLETE CAUSE OF ACTION FOR ALL PLAINTIFFS 38. Plaintiffs repeat and reallege each and every fact contained in paragraphs 1 through 27 with the same force and effect as if fully set forth herein. 39. The Ordinance provides in pertinent part: § 100-237. Prohibited uses in all districts. A. Any use which is noxious, offensive or objectionable by reason of the emission of smoke, dust, gas, odor or other form of air pollution or by reason of the deposit, discharge or dispersal of liquid or solid wastes i~ any form in such manner or amount as to cause permanent damage to the soil and steams or to adversely affect the surrounding area or by reason of the creation of noise, vibrationl electromagnetic or other disturbance or by reason of illumination by artificial light or light reflection beyond the limits of the lot on or from which such light or light reflection emanates; or which involves any dangerous fire, explosive, radioactive or other hazard; or which causes injury, annoyance or disturbance to any of the surrounding properties or to their owners and occupants; and any other process or use which is unwholesome and noisome and may be dangerous or prejudicial to health, safety or general welfare, except where such activity is licensed or regulated by other governmental agencies. B. Artificial lighting facilities of any kind which create glare beyond lot lines. 40. The Marina results in smoke, noise, and pollution which have affected the peaceful use and enjoyment of Plaintiffs' homes. 41. Plaintiffs suffer irreparable harm and have no adequate remedy at law. AS AND FOR A FOURTH, SEPARATE, AND COMPLETE CAUSE OF ACTION FOR PLAINTIFFS VICTOR J. ZUPA AND MARY S. ZUPA 42. Plaintiffs, Victor J. Zupa and Mary S. Zupa repeat and reallege each and every fact contained in paragraphs 1 through 27 with the same force and effect as if fully set forth herein. 43. Defendant's electric installations supporting its Marina have been determined to be non-compliant with the Town Code by a member of the New York Board of Fire Underwriters electrical inspector, who according to the Town Code, is considered the Town's electrical inspector. 44. The non-compliant electrical installati.ons create a danger of fire and personal safety to Plaintiffs, Victor J. Zupa and Mary S. Zupa as residents of the 365 Basin Property. The non-compliant electrical installations are a continuing violation of the 45. Ordinance. 46. Plaintiffs, Victor J. Zupa and Mary S. Zupa suffer irreparable harm and have no adequate remedy at law. ASAND FOR A FIFTH, SEPARATE AND COMPLETE CAUSE OF ACTION FOR PLAINTIFFS VICTOR J. ZUPA AND MARY S. ZUPA 47. Plaintiffs, Victor J. Zupa and Mary S. Zupa repeat and reallege each and every fact contained in paragraphs 1 through 27 with the same force and effect as if fully set forth herein. 48. The Ordinance provides in pertinent part: § 100-239.5. Lighting restrictions. This section is adopted pursuant to the town's police power. This section prohibits excessive light and glare by any use, restricts lighting in the middle of the night and sets a maximum height for lights to minimize the potential for glare. A. All outdoor lighting shall be shielded so that the light source is not visible from adjacent properties and roadways. Lighting fixtures shall focus and direct the light in such a manner as to contain the light and glare within property boundaries. B. It is a general principle of the town that parking lot lights should be turned off or reduced in intensity between 11:30 p.m. and 4:00 a.m. C. All freestanding outdoor lighting fixtures shall be limited to a height of no more than fourteen (14) feet above ground level. The fixture shall focus and direct the light as specified in Subsection A above. D. Recreational lighting may exceed the above height limit but is subject to the following standards: (1) All intensive recreational lighting shall be so located on the property with reference to surrounding properties that it shall be reasonably screened from view and compatible with the existing or potential use of neighboring properties. (2) No outdoor recreational facility, public or private, shall be illuminated after 11:00 p.m. except to conclude a recreational or sporting event or any other similar activity conducted at or in the facility which was in progress under such illumination prior to 11:00 p.m. 49. Subsequent to the adoption of the Ordinance, Defendant has installed parking lights. 50. Plaintiffs', Victor J. Zupa and Mary S. Zupa suffer irreparable harm have no adequate remedy at law. WHEREFORE, Plaintiffs demand judgment of Defendant as follows: 1. For ail Plaintiffs, upon the first and third cause of action for judgment ' permanently enjoining, restraining and prohibiting Defendant from using the Basin and the 580 Basin Property for the conduct or operation of the Marina; for judgment permanently enjoining, restraining, and prohibiting Defendant from maintaining, operating and using its docks and supporting structures in the Basin and on the 580 Basin Property; and for judgment that Defendant be compelled to remove said docks and supporting structures. 2. Alternatively, for ail Plaintiffs, upon the second cause of action for judgment permanently enjoining, restraining, and prohibiting Defendant from enlarging, expanding, extending or increasing the volume and intensity of its Marina beyond the condition as of April 9, 1957; and for judgment ordering Defendants to return its Marina in every respect to its size, volume, intensity, and condition as of April 9, 1957. 3. For Plaintiffs, Victor J. Zupa and Mary S. Zupa, upon the fourth cause of action for judgment permanently enjoining Defendant from, maintaining, operating and using its lights in the Basin and on the 580 Basin property; and for judgment that Defendant be compelled to remove said lights; 4. For Plaintiffs, Victor J. Zupa and Mary S. Zupa, upon the fifth cause of action for judgment permanently enjoining Defendant from maintaining, operating and using its electrical instailations in the Basin and on the 580 Basin Property; and for judgment that Defendant be compelled to remove said electrical installations. For such Other and further relief as the court may seem just and proper, together with the cost and disbursements, including attorneys' fees, of this action. Dated: Melville, New York September 26, 2002 Yours, etc., WICKHAM, WICKHAM & BRESSLER, P.C. By: Eric 275 Broad Hollov~Road - Suite 111 Melville, New York 11747 (631) 249-9480 TO: PARADISE POINT ASSOCIATION, INC. (No #) Robinson Road P.O. Box 243 Southold, New York 11971 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK VICTOR J. ZUPA, MARY S. ZUPA And JAMES MILLER, Plaintiff(s), against - PARADISE POINT ASSOCIATION, INC., Defendant(s). STATE OF NEW YORK ) ) SS.: COUNTY OF SUFFOLK ) Inaex No.: -' VERIFICATION VICTOR J. ZUPA, being duly sworn, deposes and says: I am one of the Plaintiffs in the within action; I have read the foregoing Complaint and know the contents thereof; the same is true to my own knowledge, except as to the matters therein stated to be alleged on information and belief; and as to those matters I believe it to be true. S.w~m to before me this 7-?'day ofO~r, 2~002 Notary Public lit ~lml~ IMIM3 FIJmJC. S~e of new vm t~.~MSIt, Sg, Suf~k County A.u~ust ]8. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK VICTORJ. ZUP^, MARY $. ZUPA and JAMES MILLER, Index No. 02-25843 Plaintiffs, -against- PARADISE POINT ASSOCIATION, INC., VERIFIED ANSM/ER Defendant. Defendant, by its attorneys, Esseks, Hefter & Angel, answering plaintiffs' complaint, states: 1. Denies knowledge or information sufficient to form a belief as to each and every allegation contained in paragraphs of'plaintiffs' complaint numbered 2, 4, 5, 9, 18, 21, 26, 27, 35, 43, 45, and 49. 2. Denies each and every allegation contained in paragraph of plaintiffs' complaint numbered 6, except admits operating docks and other improvements for the mooring of boats in an area referred to as the mboat basin," which operation was described by the Board of Appeals of the Town o.f Southold as a Uprivate marina.~ 3. Denies each and every allegation contained in paragraph of plaintiffs' complaint numbered 7, except admits the improvements referred to in paragraph 2 above, and refers the court to the actual improvements. 4. Denies each and every allegation contained in paragraph of plaintiffs' complaint numbered 8, admits the improvements referred to in paragraph 2 above, and refers to said improvements for their lengths, their location and their relationship to the shoreline; defendant's intention is irrelevant. 5. Denies each and every allegation contained in paragraphs of plaintiffs' complaint numbered 10, 19, 22, 23, 24, 25, 29, 30, 34, 36, 37, 40, 41, 44, 46, and 50. 6. Without admitting the characterizations regarding the zoning ordinance of the Town of $outhold contained in paragraphs of plaintiffs' complaint numbered 11, 12, 13, 14, 15 and 16, refers the court to said ordinance for the appropriate provisions thereof. 7. Denies each and every allegation contained in paragraphs of plaintiffs' complaint numbered 17, but asserts defendant's right to maintain the improvements described in paragraph 2 above. $. In connection with the allegations contained in paragraph of plaintiffs' complaint numbered 20, refers the court to the appropriate zoning map or maps. 9. Denies each and every allegation contained in paragraphs of plaintiffs' complaint numbered 33, except admits the improvements referred to in paragraph 2 above, and that the improvements have been altered, added to, and improved over the years. -2- AS AND FOR A FIRST AFFIRMA~/E DEFENSE 10. Plaintiffs, either jointly or individually, lack standing to assert the claims contained in their complaint. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 11. The operation referred to in paragraph 2 above was determined to be lawful by a quasi-judicial agency of the Town of So'uthold with jurisdiction to make such a determination and, upon information and belief, possible other agencies. AS AND FOR A THIRD AFFIRMAblE DEFENSE 12. Defendants repeat and reallege each and every allegation contained in paragraph of this verified answer numbered 11 as if fully set forth herein. 13. The relief requested by plaintiffs, in their complaint, is barred under the doctrine of res judicata. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 14. Defendants repeat and reallege each and every allegation contained in paragraph of this verified answer numbered H as if fully set forth herein. ~5. The relief requested by plaintiffs, in their complaint, is barred under the doctrine of collateral estoppel. AS AND FOR A FilCH AFFIRMATIVE DEFENSE ~6. Defendants repeat and reailege each and every allegation contained in paragraph of this verified answer numbered ~ 1 as if fully set forth herein. -3- 17. The relief requested by plaintiffs, in their complaint, is barfed as a result of plaintiffs' failure to exhaust their administrative remedies. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 18. Upon information and belief, plaintiffs, and or their predecessors, were aWare of the improvements referred to in paragraph 2, above, when they purchased their properties. 19. Upon information and belief, plaintiffs, and or their predecessors, were aWare that defendant expended funds to maintain the improvements referred to in paragraph :2 above. 20. The relief requested by plaintiffs, in their complaint, is barred under the doctrine of estoppel. AS AND FOR A SEVENTH AFFIRMA~/E DEFENSE 21. Defendants repeat and reallege each and every allegation contained in paragraphs of this verified answer numbered 18 and 19 as if fully set forth herein. 22. The relief requested by plaintiffs, in their complaint, is barred under the doctrine of waiver. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 23. Defendants repeat and reallege each and every allegation contained in paragraphs of this verified answer numbered 18 and 19 as if, fully set forth herein. 24. Plaintiffs are guilty of laches. STATE OF NEW YORK) COUNTY OF SUFFOLK) SS.: STEPHEN R. ANGEL, being duly sworn, deposes and says: 1. That he is a member of the firm of Esseks, Hefter & Angel, Esqs., with an office located at 108 East Main Street, Riverhead, New York, and that he is the attorney for defendant in this action. 2. That he has read the foregoing Verified Answer and knows the contents thereof, and that the same is true to deponent's own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters deponent believes them to be true. 3. Deponent further states that the reason this verification is made by deponent and not by defendant is that the president of said defendant presently is not in the County of Suffolk where your deponent has his office. 4. The grounds of deponent's belief as to all matters not stated upon deponent's knowledge are investigations which deponent has caused to be made concerning the subject matter of this Verified Answer, and information acquired by deponent in the course of his duties as attorney for said defendant, and from communications with said defendant. Sworn to before me this 8~ day of November, 2002. Nota;y I~bhc Public, State cd New Yo~ No. 01814691045 Qualified in Suffolk County CommJ~io;1 Expires May 31, SUPREME COURT OF NEW YORK, APPELLATE DMSION, TH1RDDEPARTMENT 192 A.D.2d 839; 596 N.Y.S.2d 490; 1993 N.Y. App. Div. LEXIS3725 Page 11 April 15, 1993, Decided April 15, 1993, Entered PRIOR HISTORY: [***1] Appeal (transferred to this Court by order of the Appellate Division, Second Departmea0 from a judgment of the Supreme Court (Cowhey, J.), entered October 11, 1991 in Orange County, which dismissed pefitianar's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Village of Warwick Zoning Board of Appeals denying petitioner's application for an area variance. CASE SUMMARY PROCEDURAL POSTURE: Petitioner land owner sought review of a judgment from the Supreme Court in Orange County (New York) which dismissed his application for review of a determination by respondent zoning board of appeals denying the land owner's application for an area variance. The action was transferred by order of the Appellate Division, Second Department. OVERVIEW: The land owner sought an area variance so that he could raze buildings on his property and construct a larger building. The zoning board of appeals denied the land owner's application. The trial coua dismissed the land owneds N.Y.C.P.L.1L art. 78 proceeding challenging the zoning board of appeals' determination. The land owner reapplied for the same area variance and it was again denied. The trial court dismissed the land owner's second N.Y.C.P.L.R. art. 78 proceeding challenging the zoning board of appeals' determination and alleging that the area coverage limit was unconstitutional on its face and as applied. The court affirmed the trial court's judgment. First, the entire proceeding was barred by res judicata because the parties, property, issues, facts, and rebel sought were the same in both proceeAings. The application of res jodicata was not affected by the introduction of mere evidence duringthe second zoulngboard of appeals hearing. Second, the facial challenge could not be lnaintalned under the guise of an N.Y.C.P.L.IL art. 78 proceeding. However, the trial court could have addressed the merits of the claim by converting it into a deelamtory judgment action. OUTCOME: The court affirmed the trial court's judgment dismissing the land owner's application for review of a determination by the zoning board of appeals denying the land ownerls second application for an area variance. CORE CONCEPTS - Civil Procedure: Preclusion & Effect of Judgments: Res Judicata Real & Personal Property Law: Zoning & Land Use: Zoning Genarally The doctrine of res judicata applies to the quasi- judicial determinations of administrative agencies, including municipal zoning tribnnMs, as well as to orders and judgments ofjodidal trib, n01s and precludes the re-presentation of claima which previously were litigated on the merits or might have been litigated at the time. Civil Procedure: Preclusion & Effect of Judgments: Res ludicata Real & Personal Property Law: Zoning & Land Use: Zoning Generally The commencement of a subsequent proceeding simply to cure defects in the proof and to improve the quality thereof is not a distinction which precludes the application of res jodicata. Civil Procedure: Preclusion & Effect of Judgments: Res Judicata Res judicatu operates not only to bar those claims actually litigated but also those which share such a measure of identity that a different judgment in the 192 A.D.2d 839, *; 596 N.Y.S.2d 490, **; 1993 N.Y. App. Div. LEXIS 3725, *** Page 12 second would destroy or impair rights or interests established by the first. Civil Procedure: Remedies: Declaratory Relief A facial challenge cannot be maintained under guise of a N.Y.C.P.L.R. art. 78 proceeding. COUNSEL: Law Offices of Michael H. Sussman (Ivlichael H. Sussman of colmsel), Goshen, for appellant. Monte J. Rosenstein (Bernard I. Kunert, Florida, of counsel), Middietowa, for respondents. JUDGES: Weiss, P. J., Yesawich Jr., Levine and Crew III, JJ., concur. OPINIONBY: Mahoney, J. OPINION: [*839] [*'491] Mahoney, J. Petitioner is the owncr of a one-acre parcel of land located in a "general commercial district" in the Village of Warwick, Orange County, which is improved with three commercial buildings. When the square footage of these structures (i.e., a 1,600 square-foot office building, a 2,200 square-foot motel and a 1,000 square-foot rental dwelling) is added to the square footage of the parking lot and welkways, the total development coverage is approximately 80%[***21 of the square footage of the parcel itself. In 1989, petitioner sought to raze both the office building and the motel (3,800 square fse0 and replace these structures with one 11,550 square-foot commercial building to house retail stores, thus raising the total development coverage to approximately 86.5%. While retail stores are a permitted use in a general commercial district, because a 1988 amendment to the local zoning ordinance limits the total development coverage on parcels in that district (including structures, internal roadways, walkways, parking and any macadam area) to 40% of the total square footage of the parcel, an area variance was required. While petitioner made such application (hereinafter the 1989 variance request), it was denied by respondent Village of Warwick Zoning Board ofAppeals (hereinal~er respundenO. Petitioner's subsequent CPLR article 78 petition challenging respondent's determination on grounds that it was athitravd and capricious was dismissed. Four months after dismissal of his CPLR article 78 proceeding, petitioner reapplied for the same area variance, this time [*840] submitting expert testimony regarding thc condition of the buildings, [***3] cost of repair, appraisals, rental projections and other facts supportive of a findtug of practical hardship (hereinafter the 1990 variance request). At the conclusion of several days of hearings respondent again denied the application, concluding that petitioner had not shown any change of facts or circumstances since the prior hearing to establish that compliance with the zoning regulations would cause him practical difficulty or preclude Kim from rq, ali~ing a reasonable return on his investment. Petitioner then brought the instant CPLR article 78 proceeding. [**492] While he again claimed that the denial of his request was arbitraxy and capricious, he also raised constitutional claims, seeking a declaration that the 40% total development coverage limit is unconstitutional on its face and as applied. In its answer respondent raised the defense of res judicata. Supreme Court found adequate support for the determination both as to its substance and the lack of changes in circumstance, rejected the as-applied constitutional challenge and refused to consider the facial chellange because it was not properly presented in a CPLR article 78 proceeding. Petitioner appeals. In[***4] our view the entire proceeding is baned by res judicata. It is well established that the doctrine of res judicatu applies to the quasi-judicial dell,~rminatious of administrative agencies, including municipal zoning tfibnnals (see, Ryan v New York Tel. Co., 62 NY2d 494; Matter of Kennedy v Zoning Bd. of Appeals, 145 AD2d 490, 491; Jenson v Zoning Bd. of Appeals, I30 AD2d 549, 550, lv denied 70 NY2d 611; Jones v Young, 257 App Div 563, 566), as well as to orders and judgments of judicial Wibnnals and precludes the re-presentation of elaim~ which previously were litigated on the raerits or might have been litigated at the time (see, e.g., Matter of Hodes v Axelrod, 70 NY2d 364, 372; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307). A review of the record in this case reveals that the parties, property, issues, facts and relief sought in the 1989 variance request are essentially identical to those present in the 1990 variance request. Indeed, petitioner concedes as much in his brief, arguing only that the quality of proof submitted was different. However, it is beyond cavil that the commencement of a subsequent procsedmg simply[***5] to cure defects in the proof and to improve the quality thereof is not a distinction which precludes the application of res judicata (cf., Jensen v Zoning Bd. of Appeals, supra). Wlftle, concededly, the constitutional claim~ Were not raised in the prior proceeding, it is well [*841]established that res judicata operates not only to bar those claims actually litigated but also those which share "such a raeasure of identity that a different judgment in the second would destroy or 192 A.D.2d 839, *; 596 N.Y.S.2d 490, **' 1993 N.Y. App. Div. LEXIS 3725, *** Page 13 impair rights or interests established by the first" ( Schuylkill Fuel Corp. v Nieberg Realty Corp., supra, at 307; see, Matter ofReilly v Reid, 45 NY2d 24, 28). Such is the case here. The as-applied challenge is based upon respondent's alleged selective application of the ordinance. While not specifically d~nominatexl as ail equal protection violation in petitianefs original CPLR article 78 petition, a review thereof reveals that selective application/disparate standards was one of the underlying bases upon which annulment of respendent's denial of petitiuner's 1989 variance request was sought and thus already has been impliedly adjudicated (cf., Matter of Kennedy v Zoning Bd. of Appeals, [***6J supra). As regards the facial challenge, while obviously such could not be maJl, ained under guise of a CPLR article 78 proceeding (see, e.g., Matter ofKovarsky v Housing & Dev. Admin., 31 NY2d 184, 191), inasmuch as the Village of Wanvick was a named party respondent in the prior article 78 proceeding, there would have been no impediment to converting that portion of the petition into a declaratoxy judgment action and addressing the merits thereof in that context (c~, Jensen v l~llage of Old Westbury, 160 AD2d 768). While petitioner thus technically was precluded from litigating the 1990 area variance request, respondent nonetheless permitted petitioner to remake his argument. Supreme Court also reconsidered and, in our view, properly reaffirmed the denial of petitioner's "new" application on the merits. While petitioner's exper testimony established that the motel aad office [**493] building were in disrepair, it was also established that neither was in threat of structural failure. This, enmbined withpetitionefs failureto submit "dollars and cents" evidence regarding what he paid f~r the property or the present income he d~rives therefrom so as to establish[***7] his inability to realize a reasonable return fi'om it, belies uny argument that respondent's determination was arhih-aty or capricious. Finally, petitioner has submitted nothing but the barest, conchisery allegations which are patently insufficient to support either of his coustimtioaal claims. * [*842] Weiss, P. J., Yesawich Jr., Levine and Crew l]l, JJ., concur. * h is to be noted that even if petitioners 1990 variance request is labeled as one for rehearing of the oriEinal apphcation and even as~min~ arguendo, that a village zoning board, like a town zoning board, has authority to entennin an application for rehearing when new facts are presented changing aspects of the case (compare, Village Law ~ 7-712, with Town Law ~ 267 [6]; see, Young Israel v Board of Stds. &Appeals, 39 AD 2d 51, 53-54), we agree with Supreme Court that no changes in circ,m~anee were shown here. Ordered that the judgment is affirmed, without[***8] costs. ESSeK$, HEFTER ~ ANGEL COUNSELORS AT LAW P. O. Box 279 RIVERHEAD, N.Y. 11901-0279 (631) 369-1700 May 7, 2003 Zoning Board of Appeals Town of Southold 53095 Main Road Southold, NY 11971 Re: Zupa and Miller v. Paradise Point Association, Inc. Dear Chairman and Members: WATER ~llLL OFFICE MONTAUK HIGHWAY P. O, Box 570 WATER MILL, N.Y. 11976 As you know, we, along with the firm of McNulty-Spiess, represent the Paradise Point Association, Inc. in the above-captioned matter. At the hearing held on March 20, 2003, you asked us to provide you with copies of the papers filed in the various legal proceedings involving Mr. and Mrs. Zupa, on the one hand, and the Paradise Point Association, Inc., on the other. I enclose copies of the following documents: 1. summons and complaint in an action brought by Victor J. Zupa, Mary S. Zupa and James Miller against the Paradise Point Association, Inc. (Index No. 02-25843); and 2. our verified answer in that action. This action concerns the alleged illegality of the use of the boat basin at Paradise Point. There is a prior action brought by Paradise Point Association against Mary Zupa, which is being handled, on the part of Paradise Point, by McNulty-Spiess. Both actions have been assigned to the Honorable James Michael Catterson. I look forward to appearing before you on the next date, i.e., June 5, 2003. SRA:md Enc. CC~ Paradise Point Association, Inc. c/o Steven Kolyer, Esq. Kevin Barr James Spiess, Esq. Eric J. Bressler, Esq. Re~ectfully yours, S~EP~N R. ANG~ SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK VICTOR J. ZUPA, MARY S. ZUPA and JAMES MILLER, Plaintiffs, - against - PARADISE POINT ASSOCIATION, INC., MAY - $ 2003 ZONING BOARD OF APPEAL~ I Index No. Plaintiffs designate Suffolk County as the place of trial. The basis of venue is Plaintiffs' residences ~re in Suffolk County To the above named Defendant: Defendant. SUMMONS Plaintiffs' residences are 580 and 36:5 Basin Road Paradise Point Southold, New York 11971 and 1610 Paradise Point Road Southold, New York 11971 YOU ARE HEREBY SUMMONED to answer thc complaint in this action and to serve a copy of your ~nswer, or, if the complaint is not served with this summons, to ~erve a notice o,f ~ppearanee, on the Plaintiffs Attorney(s) within 20 days after the service of this summons, exelnsive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated: O~tober 2, 2002 Mattituck, NY Defendant's Address: No # Robinson Road P.O. Box 243 Southold, New York 11971 J-summons2 Wickham, Wickham & Bressler, P.C. /: By Eric J~l~ressler, Esq. Atto~eys for Plaintiffs 10315 Main Road - P.O. Box 1424 Mattituck, New York 11952 FILEO' OCT o 3 iUPREME COURT OF THE STATE OF NEW YORK :OUNTY OF SUFFOLK qCTOR J. ZUPA, MARY S. ZUPA md JAMEI; MILLER, against - Plaintiff(s), COMPLAINT 'ARADISE POINT ASSOCIATION, INC., Defendant(s). Plaintiffs by their attomey, Wickham, Wickham ~ Bressler, P.C., complaining of the .bore named Defendant, aile. ge: THE PARTIES !. Upon infommtion and belief, Defendant is a not-for-profit corporation organized _ ~nder the laws of the State of New York, with principal place of business in Suffolk County, :w York. Defendant is comprised of owners of propertias in and around a geographical known "Paradise Point" in Southold, New York. DEFENDANT'S USE 2. Plaintiffs, Victor l. Zupa, Mary S. Zupa and James Miller, are resident taxpayers ,f the Town of Southold. 3. Plaintiff, Mary S. Zupa, individually, owns property known as 580 Basin Road, 'aradise Point, Southold, New York (hereinafter the "550 Basin Property"). 4. Plaintiffs, Victor J. Zupa and Mary S. Zupa, jointly own property known as 365 3asin Road, Paradise Point, Southold, New York (hereinafter the "365 Basin Property") which tdjoins both a navigable and tidal inlet known as the Basin and the 580 Basin Property, and on thich they maintain a home and residence. 5. Plaintiff, James Miller owns jointly with his wife, and resides at, property known ts 1610 Paradise Point Road, Southold, N~w York (hereinafter the "Miller Property") (the vlarina is located approximately one-half mile from the shoreline of the Miller Property). 6. Upon information and belief, Defendant operates what it calls a "private marina" ocated in Paradise Point, Town of Southoid, County of Suffolk, State of New York, for its nembers and guests (hereinafter the "Marina") who pay fees for dock space. The Marina use :ommenced after 1957. 7. The Marina consists of three docki with finger cxtcnsions located on thc "Basin" which extend from 580 Basin Road, together with various structures to support the Marina. Defendant's ~locks at any one time have on average between 8 and 16 boats tied them, and one of its three docks is more than 100 feet in length, extending parallel to and ~cross the entire shoreline of the 365 Basin Property; Defendant has announced its intention to ~xpand the M~ina. ~I 9, The Basin is tidal and navigable waters, the bottom of which is owned by the own of SOuthold and/or the State of New York, and connects with Peconic Bay. ~ 10. Defendant has no property interest in the Basin or 580 Basin Road except for a i · ~ight ofwaY of access granted by deed in 1989 across the 580 Basin Property to the Basin. THE ZONING ORDINANCE i 1. On the 9t~ day of April 1957, the Town Board ofthe Town of Southold, Suffolk Eounty, New York, duly enacted a zoning ordinance to regulate among other things the use of buildings, structures and lands for trade, industry, residential and other purposes, and divided the Town into districts known as "A" residential and agricultural district, "M" r0ultiple residence district, "B" Business district and "C" industrial which said districts were shown on a map ~ntitled Zoning Map of the Town of Southold, filed in the office of the Clerk of the Town of The Ordinance provided that no building shall be erected, altered or used, and no zone in which such building ~outhold, which said map together with all boundary lines and designations thereon, was made a ~t of said ordinance; the ~aid ordinance, as amended, is hereinafter referred to as the t'Ordinance." ~remises sl~ll b~ used for any other than a purpose permitted in the premises is located. 13. Thc Ordinance states that the onl); docking facilities permitted with respect to a esidcntial lot is "docking or mooring facilities for no more than two (2) boats other than thosc ,wried or used by thc owner of the premises for his personal usc," and that "boats at such locking facilities shall not bc used for overnight sleeping purposes." 14. The Ordinance defines a "marina" as any premises containing one or more docks dtich is used or intended to be used primarily for the docking or accommodation of boats. 15. The Ordinance at all times mentioned herein was and now is in full force and 16. The Ordinance does not permit a "marina" as a lawful use of propert7 in a esidcntial and agricultural district in thc Town of Southold. 17. The Marina has been classified by Defendant, and with Defendant's urging, ere~in agencies of thc Town of Southold as a "marina" in order to prevcm thc development of he 580 Basin Property as a residence through a determination that the property would then be llcgally subject to two primary uses. 18. By resolution in 198 I, the Southold Town Planning Board approved the 580 Basin Pro~rty as a legal residential lot, which approval under §100-24 of the Ordinance requires recognition by the Town of Southold. 19. No permit, site plan, special exception, variance or other approval has cvcr been obtained f~om any governmental agency for the Marina or for its docks and supporting stmcturcs. 20. Thc Basin, thc 365 and 580 Basin Properties, thc Miller Pwperty and all surrounding properties are in the residential and'agricultural district of the Town of $outhold as shown on its Zoning Map. relied 22. damage as 21. Plaintiffs have purchased their respective properties after the enactment of, and on, the Ordinance. Plaintiffs, Victor J. Zupa and Mary S. Zupe have suffered the following special a result of the maintenance of the Marina adjoining their home on the 365 Basin Property: The development of the 580 Basin Property as a residence bas b~en preventcd which has resulted in that propcrty bcing used by ~espassers for all night parties, for the deposit of refuse, and for other offensive activities causing (i) risk to property and personal safety and (ii) interference with the peaceful use and enjoyment of their home; Noise, smoke, glaring light, overnight Marina use and other disturbances at all hours of the night from the Marina's activities which affect the peaceful usc and enjoyment of their home; c. Limitations on the use of their property including theirlshoreline, their boat and private dock; and d. Deterioration and erosion of the shoreline, bulkheads, and the bed and surface waters of the Basin which adjoins their home. 23. Plaintiff, Mary S. Zupa has suffered the following special damage as a result of the mainteaanee of the Marina adjoining her ~80 Basin Property: a. The Marina is being used by Defendant in order to eau.se agencies of Ibc Town of Southold to deny' building and envirbnmental permits for the development of a residence based on the rationale described in paragraph 17 above; and b. An unreasonable risk of liability to third parties is imposed on Plaintiff, Mary $. Zupa, as landowner, for injury to person and damage to property caused by operation of the Marina. c. Limitations on the use of her property including her shoreline. 2,1. Plaintiff, James Miller has suffered the following special damages as a result of the maintenan~ of the Marina: a. The Marina was used by Defendant to prevent the acquisition of a building permit for a residence on the 580 Basin Property in 1995 after he had relied on Defendant's agreement that a r~sidence could be constructed; and b. Increased noise, traffic, and pollution interfering with the property use and enjoyment of his home on the Miller Property. 25. As a result of thc operation of the Marina and as a result of the Ispecial damages ;uffered by Plaintiffs as alleged in paragraphs 22 through 24 above, their respective properties ~ave diminished in value. 26. On August 6, 2002, Plaintiffs, Victor J. Zupa and Mary S. Zupa filed written ~xluests with the President of the Board of Trustees of the Town of Southold, the Principal Building Inspector of the Town of Southold, and the Director or.Code Enforcement of the Town of Southold requesting that they order Defendant to comply with the Ordinance. 27. The Town of Southold has not tal~en any action with respect to the requests made in paragraph 26 above. AS AND FOR A FIRST, SEPARATE AND COMPLETE CAUSE OF ACTION FOR ALL PLAINTIFFS 28. Plaintiffs repeat and re, allege each and every fact contained in paragraphs 1 through 27 with the same force and effects as if fully set forth herein. 29. Defendants are conducting an illegal use of, and maintaining illegal structures on, ~he Basin mad the 580 Basin Property. 30. Plaintiffs suffer irreparable harm and have n6 adequate remedy of law. AS AND FOR A SECOND, SEPARATE AND COMPLETE CAUSE OF ACTION FOR ALL PLAINTIFFS 31. ' Plaintiffs repeat and reallege each and every fact contained in paragraphs 1 through 27 with the same force and effect as if fully set forth hSrein. 32, The Ordinance provides in pertinent part: § 100-241. Nonconforming uses. Except as provided hereinafter, nonconforming use of buildings or open land existing on the effective date of this chapter or authorized by a building pemmit issued prior thereto, regardless of change of title, possession or occupancy or right thereof, may be continued indefinitely, except that such building or use: A. Shall not be enlarged, altered, extended, reconstructed or restored or placed on ~ different po~inn of thc lot or parcel of land occupied by such use on thc effective date of this chapter, nor shall any external cvidcncc of such use be increased by any means whatsoever. F. Shall not be repaired or rebuilt unless thc usc is changed to a conforming usc if the nonconforming use is damaged by fire or other causes to the extent offiRy percent (50%) of its fair value~ 33. Subsequent to thc adoption of the Ordinance, Defendant has increased the mctms in its Marina by adding new docks, floats, stairs, pilings, poles, lights, electrical ~quipmcntand other structures in wetlands and ~cas adjacent thereto. 34. Subsequent to the adoption of the Ordinance Defendant has enlarged, expanded and increased the intcusity of its use. 35.: Subsequent to thc adoption of thc Ordinance Defendant has repaired and/or rebuilt dOCks and other structures by more than 50%. 36. Defendant's acts of enlarging, expanding and increasing the volume ~nd intensity of thc use of thc Marina, adding new structures and/or repairing or rebuilding more than 50%, iconsfitutes a continuing violation of thc Ordinance. 37. Plaintiffs suffer irreparable harm and have no adequate remedy at law. AS AND FOR A THIRD, SEPARATE, AND COMPLETE CAUSE OF ACTION FOR ALL PLAINTIFFS Plaintiffs repeat and reallege each and every fact contained in pmagraphs I lluough 27 with the same force and effect as if fully set forth herein. 39. Thc Ordinance provides in pertinent part: § 100-237. Prohibited uses in all districts. A. Any usc which is noxious, offensive or objectionable by rca.son of thc emission of smoke, dust, gas, odor or other form of air pollution or by reason of thc deposit, disohargc or dispersal of liquid or solid wastes in any form in such manner or amount as to cause permanent damage to lhe soil and steams or to adversely affect the surrounding area or by reason of the creation of noise, vibration, electromagnetic or other disturbance or by reason of~illumination by artificial light or light reflection beyond the limits of thc lot on or from which such light or light reflection emanates; or which involves any dangerous fire, explosive, radioactive or other haTard; or which causes injury, annoyance or disturbance to any of the surrounding properties or to their owners and occupants; and any other process or usc which is unwholesome and noisome and may be dangerous or prejudicial to health, safety or general welfare, except where such activity is licensed or regulated by other govcmmcmal agencies. B. Artificial lighting facilities of any kind which create glare beyond lot lincs. 40. Thc Marina results in smoke, noise, and pollution which have affccted the peaceful u,m and enjoyment of Plaintiffs' homes, 41. Plaintiffs suffer irreparable harm and have no adequate remedy at law. AS A.ND FOR A FOURTH, SEPARATE, AND COMPLETE C .AUSE OF ACTION FOR PLAINTIFFS VICTOR J. ZUPA AND MARY S. ZUPA 42, Plaintiffs, Victor J. Zupa and Mary S. Zupa repeat and reallege each and every ~ ~act contained in paragraphs 1 through 27 with the same force and effect as if fully set forth !herein. 43. be non-coinpliant with the Town Code by a member of the New York Board of Fire Underwriters electrical inspector, who according to the Town Code, is considered the Town's clcc~ical inspector. 44.' The non-compliant electrical installations create a danger of fire and personal safety to Plaintiffs, Victor J. Zupa and Mary S. Zupa as residents of thc 365 Basin Property. 45. Ordinance. 46. Defendant's electric installations supporting its Marina have been determined to The non-compliant electrical installations are a continuing violation of the Plaintiffs, Victor J. Zupa and Mary S. Zupa suffer irreparable harm and have no adequate remedy at law. Nil ASAND FOR A FIFTH, SEPARATE AND COMPLETE CAUSE OF ACTION FOR PLAINTIFFS VICTOR $. ZUPA AND MARY S. ZUPA 47. Plaintiffs, Victor J. Zupa and Mary S. Zupa repeat and reallege each and every fact contained in paragraphs I through 27 with the same force and effect as if fully set forth herein. 48. The Ordinance provides in peflinent part: § 100-239.5. Lighting restrictions. This section is adopted pursuant to the town's police power. This section pwhibits excessive light and glare by any use, restricts lighting in the middle of the night and sets a maXimum height for lights to minimize the potential for glare. A. All outdoor lighting shall be shielded so that the light source is not visible from adjaeel~t properties and roadways. Lighting Futtures shall focus and direct the light in such a manner as to contain thc light and glare within property boundalies. B. It is a general principle of the town that parking lot lights should be turned off or reduced in intensity between 11:30 p.m. and 4:00 a.m. C. All freestanding outdoor lighting fixtures shall b~ limited to a height of no more than fourteen (14) feet above ground level. The fixture shall focus and direct'the light as specified in Subsection A above. D. Recreational lighting may exceed the above height limit but is subject to the following standards: (1) All hitensive recreational lighting shall he so located on the properly with reference to surrounding properties that it shall be reasonably screened from view and compatible with the existing or potential use of neighboring properties. (2) No outdoor recreational facility, pul~lie or private, shall he illuminated after 11:00 p.m. except to conclude a recreational or sporting event or any other similar activity conducted at or in the facility which was in progress under such illumination prior to 11:00 p,m. 49. Subsequent to the adoption of the Ordinance, Defendant has installed parking lights. 50. Plaintiffs, Victor J. Zupa and Mary S. Zupa suffer irreparable l~arm have no adequate remedy at law. WHEREFORE, Plaintiffs demand judgment of Defendant as follows: I. For all Plaintiffs, upon the first and third cause of action fo~judgmcnt ~ermanently enjoining, restraining and prohibiting Defendant fi.om using the Basin and the 580 Basin Property for the conduct or operation of the Marina; for judgment permanently enjoinlng, ~straining, and prohibiting Defendant from maintaining, operating and using its docks and ,~lpporting structures in the Basin and on the 580 Basin Property; and for judgment that )efendant be compelled to remove said docks and supporting structures. 2. Alternatively, for all Plaintiffs, upon the second cause of action for judgment ~ennanently enjoining, restraining, and prohibiting Defendant fi'om enlarging, expanding, ~xtending or increasing the volume and intensity of its Marina beyond the condition as of April 9, 1957; and for judgment ordering Defendants to return its Marina in every respect to its size, ~,olume, intensity, and condition as of April 9, 1957. 3. For Plaintiffs, Victor J. Zupa and Mary S. Zupa, upon the fourth cause of action ~for judgment permanently enjoining Defendant from, maintaining, operating and using its lights in the Basin and on the 580 Basin property; and for judgment that Defendant be compelled to remove said lights; 4. For Plaintiffs, Victor J. Zupa and Mary S. Zupa,'upon the fifth cause of action for iudgment permanently enjoining Defendant from maintaining, operating and using its electrical iinstaltatious m the Basrn and on the 580 Basin Property; and for judgment that Defendant be icompelled to remove said electrical installations. For such other and further relief as the court may seem just and proper, together ~ith the cost and disbursements, tneludmg attorneys fees, of this action. Dated: Melville, New York SePtember 26, 2002 Yotlrs, etc., TO: W1CKHAM, WICKHAM & BRESSLER, P.C; By. Eric: 27~ Broad Hollov~Road T?uite 111 Melville, New Ydrk 11747 (631)24%9480 PARADISE POIN~ ASSOCIATION, INC. (No #) Robinson Road P.O. Box 243 Southold, New York 11971 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK X i VICTOR J. ZUPA, MARY S. ZUPA And JAMES MILLER, Plaintiff(s), against - PARADISE POINT ASSOCIATION, INC., Defendant(s). STATE OF NEW YORK ) ) SS.; i COUNTY OF SUFFOLK , ) VERIFICATION VICTOR J. ZUPA, being duly sworn, deposes and says: I am one of the Plaintiffs in the within action; I have read the foregoing Complaint and know the contents thereof; the same is ! txue to my own knowledge, except as to the matters therein stated to be alleged on information !and belief; and as to those matters I believe it to be true. S.w,,gm to beforc mc this {~"" day " 2002 Notary Public lit ClttlU{~ ~.~1450, ~ county A4ffvd 18. t"..~ t.6 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK VICTOR J, ZUPA, MARY S. ZUPA and JAMES MILLER, -against- Plaintiffs, Index No. 02-25843 VERIFIED ANSWER PARADISE POINT ASSOCIATION, INC., Defendant. Defendant, by its attorneys, Esseks, Hefter & Angel, answering plaintiffs' complaint, states: 1. Denies knowledge or information sufficient to form a belief as to each and every allegation contained in paragraphs of plaintiffs' complaint numbered 2, 4, 5, 9, 18, 21, 26, 27, 35, 43, 45, and 49. 2. Denies each and every allegation contained in paragraph of plaintiffs' complaint numbered 6, except admits operating docks and other improvements for the mooring of boats in an area referred to as the "boat basin," which operation was described by the Board of Appeals of the Town of Southold as a "private marina." 3. Denies each and every allegation contained in paragraph of plaintiffs' complaint numbered 7, except admits the improvements referred to in paragraph 2 above, and refers the court to the actual improvements. FILED NOV 1 3 Z00Z ~I)I~RD P. ROM~UNL eOUmY CL~RK 4. Denies each and every allegation contained in paragraph of plaintiffs' complaint numbered 8, admits the improvements referred to in paragraph 2 above, and refers to said improvements for their lengths, their location and their relationship to the shoreline; defendant's intention is irrelevant, S. Denies each and every allegation contained in paragraphs of plaintiffs' complaint numbered 10, 19, 22, 23, 24, 25, 29, 30, 34, 36, 37, 40, 41, 44, 46, and 6. Without admitting the characterizations regarding the zoning ordinance of the Town of Southold contained in paragraphs of plaintiffs' complaint numbered 11, 12, 13, 14, 15 and 16, refers the court to said ordinance for the appropriate provisions thereoL 7. Denies each and every allegation contained in paragraphs of plaintiffs' complaint numbered 17, but asserts defendant's right to maintain the improvements described in paragraph 2 above. 8. In connection with the allegations contained in paragraph of plaintiffs' complaint numbered 20, refers the court to the appropriate zoning map or maps. 9. Denies each and every allegation contained in paragraphs of plaintiffs' complaint numbered 33, except admits the improvements referred to in paragraph 2 above, and that the improvements have been altered, added to, and improved over the yeal's. -2- AS AND FOR A FIRST AFFIRMATIVE DEFENSE ~ 10. Plaintiffs, either jointly or individually, lack standing to assert tile claims contained in their colnplaint. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 11. The operation referred to in paragraph 2 above was determined to be lawful by a quasi-judicial agency of the Town of S0uthold with jurisdiction to make such a determination and, upon information and belief, possible other agencies. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 12. Defendants repeat and reallege each and every allegation contained in paragraph of this verified answer numbered 11 as if fully set forth herein. 13. The relief requested by plaintiffs, in their complaint, is barred under the doctrine of resjudicata. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 14. Defendants repeat and reallege each and every allegation contained in paragraph of this verified answer numbered 11 as if fully set forth herein. 15. Tile relief requested by plaintiffs, in their colnplaint, is barred under the doctrine of collateral estoppel. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 16. Defendants repeat and reallege each and every allegation contained in paragraph of this verified answer numbered 11 as if fully set forth herein. -3- 17. The relief requested by plaiotiffs, in their complaint, is barred as a result of plaintiffs* failure to exhaust their administrative remedies. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 18. Upon information and belief, plaintiffs, and or their predecessors, were aware of the improvements referred to in paragraph 2, above, when they purchased their properties. 19. Upon information and belief, plaintiffs, and or their predecessors, were aware that defendant expended fonds to maintain the improvements referred to in paragraph 2 above. 20. The relief requested by plaintiffs, in their complaint, is barred under tile doctrine of estoppel. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 21. Defendants repeat and reallege each and every allegation contained in paragraphs of this verified answer numbered 18 and 19 as if fully set forth herein. 22. The relief requested by plaintiffs, in their complaint, is barred under the doctrine of waiver. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 23. Defendants repeat and reallege each and every allegation contained in paragraphs of this verified answer numbered 18 and 19 as if fully set forth herein. 24. Plaintiffs are guilty of laches. AS AND FORA NINTH AFFIRMATIVE DEFENSE ~ 25. Defendants repeat and reallege each and every allegation contained in paragraphs of this verified answer numbered 18 and 19 as if fully set forth herein. 26. Upon information aud belief, plaintiffs have brought this action for the purpose of economic gain. 27. Plaintiffs are guilty of unclean hands. WHEREFORE, defendant demands judgment: 1. dismissing plaintiffs' complaint; 2. costs and disbursements of this action; and 3. such other and further relief as may seem just and proper. Dated: Riverhead, New York November 8, 2002 To: By: Wickhmn, Wickham & Bressler, P.C. Attorneys for Plaintiffs 275 Broad Hollow Road, Suite 1 t Melville, NY 11747 Yours, etc. Esseks, Hefter & Angel Attotq~eys for Defendant Ste/~hen~i Angel / 1C~8 East Main Street P.'O. Box 279 Riverhead, NY 11901 369-1700 -5- STATE OF NEW YORK) SS.: COUNTY OF SUFFOLK) STEPHEN R. ANGEL, being duly sworn, deposes and says: 1. That he is a member of the firm of Esseks, Hefter & Angel, Esqs., with an office located at 108 East Main Street, Riverhead, New York, and that he is the attorney for defendant in this action. 2. That he bas read the foregoing Verified Answer and knows tile contents thereof, and that the same is true to deponent's own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters deponent believes them to be true. 3. Depouent further states that the reason tbis verification is made by deponent and not by defendant is tbat the president of said defendant presently is not in the County of Suffolk where your deponent has bis office. 4. The grounds of deponent's belief as to all matters not stated upon deponent's knowledge are investigations which deponent has caused to be made concerning tbe subject matter of this Verified Answer, and information acquired by deponeut in the course of his duties as attorney for said defendant, and from communications with said defeudant. Sworn to before me this day of November, 2002. Notary P~blic MARGARET DeLUCA Notary Public, State of New Yolk No. 01St4691045 Qualified in Suffolk County Commission Expires May 31,20_J.~ SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK VICTORJ. ZUPA, MARY S. ZUPA and JAMES MILLER, Index No. 02-25843 Plaintiffs, -against- AFFIDAVIT OF MAILING PARADISE POINT ASSOCIATION, INC., Defendant. STATE OF NEW YORK) COUNTY OF SUFFOLK) SS.: Margaret DeLuca, being duly sworn, deposes and says: 1. I am not a party to this action, am over 18 years of age, and reside in Ronkonkoma, New York. 2. On November 8, 2002, I served the within VERIFIED ANSWER upon Wickham, Wickham & Bressler, P.C., attorneys for plaintiffs in this action, at 275 Broad Hollow Road, Suite 111, Melville, NY 11747, the address designated for service by said attorneys, by depositing a true copy of same, enclosed in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State of New York. ~DeLuca Sworn to before me this th day of November, 2002. Not~aryPublic JAGQUELINE R. GELESTE NOTARY PUBUC. State of NeW York No. 01NE8029051 Oo~nnlQuallflad In Suffolk County I~lon Explm~ Aug. I),20 ~, Index No. 02-25843 STATE OF NEW YORK SUPREME COURT COUNTY OF SUFFOLK VICTOR J. ZUPA, MARY S. ZUPA and JAMES MILLER, Plaintiffs, -against- PARADISE POINT ASSOCIATION, INC., Defendant. VERIFIED ANSWER ESSEKS, HEFTER & ANGEL Attorneys for Defendant Office and Post Office Address 108 East Main Street P. O. Box 279 Riverhead, New York 11901 (631) 369-1700 Due and personal service of the within is admitted this __ day of 19 Attorney for MCNULTY ~ ATTORNEYS AND Zoning Board of Appeals Town of Southold 53095 Main Road Southold, New York 11971 - SPIESS, P.C. COUNSELORS May 8, 2003 AT LAW -RECEIVED MAY - 9 2003 ONING 802P.~ OF APPEALS Attn: Chairperson Lydia A. Tortora Re: Paradise Point Association, Inc., v. Zupa Supreme Court Index No. 02-22401 Dear Ms. Tortora: My office represents the Paradise Point Association, Inc., the plaintiff in the above captioned action, which was commenced in the Suffolk County Supreme Court in August, 2002. It is my understanding that you have asked for copies of the pleadings which have been filed with the Court, and accordingly, I enclose a copy of the plaintiffs summons and amended verified complaint dated September 23, 2002. The defendant, Mary S. Zupa, has not yet submitted an answer, but she has filed a motion to dismiss the complaint for failure to state a cause of action. You may also wish to know that the plaintiff has filed an application for a preliminary injunction to prevent the Zupas' inter- ference with the private roadway on the subject premises that the Association has used for access to the canal and eastern jetty for the last forty (40) years. If you would like to receive a copy of the motion papers, or any other information, please do not hesitate to contact me. JS:kc Enc. CC: Paradise Point Association, Inc. Stephen Angel, Esq. Very truly yours, 633 EAST MAIN STREET · RIVERHEAD, NEW YORK · 11901 PHONE: (631) 727-8200., FAX: (631) 727-8262 SUPREME COURT OF THE STATE OF NEW YORK INDEX No. 02-22401 COUNTY OF SUFFOLK PARADISE POINT ASSOCIATION, INC. Plaintiff, -against- MARY S. ZUPA Defendant. AMENDED VERIFIED COMPLAINT McNULTY - SPIF2tS, P.C. Attorneys for Plaintiff 633 East Main Street P.O. Box 757 Riverhead, N.Y. 11901 TO: Service of the within is hereby admitted. Dated:. Attorneys for SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK PARADISE POINT ASSOCIATION, INC. Plaintiff, -against- MARY S. ZUPA Defendant. VERIFIED COMPLAINT INDEX NO, 02-22401 The Plaintiff, by its attorneys, McNulty-Spiess, P.C. in complaining of the Defendant, alleges as follows: FIRST: At all times hereinafter mentioned, Plaintiff was and still is a domestic corporation duly organized and existing under the laws of the State of New York. SECOND: Upon information and belief, at all times hereinafter mentioned, the Defendant was and still is a resident of the County of Suffolk and State of New York. THIRD: At all times hereinafter mentioned, the Plaintiff was and still is a Not For Profit corporation which was organized as a homeowners association to provide for the care and maintenance of the common areas of the subdivision known as "Paradise Point" located at Bayview, Southold, New York. AS AND FOR A FIRST CAUSE OF ACTION FOURTH: This action is brought pursuant to Article 15 of the Real Property Actions and Proceedings Law of the State of New York to compel the determination of claims to real property situate, lying and being in the Town of Southold, County of Suffolk, and State of New York known as 580 Basin Road, Southold, N.Y., identified by Suffolk County Tax Map No. 1000-81-1-16.7, (hereinafter referred to as the "burdened premises') which are more particularly described as follows: ALL THAT CERTAIN PLOT, PIECE OR PARCEL OF LAND, SITUATE, LYING AND BEING AT BAYVIEW IN THE TOWN OF SOUTHOLD, COUNTY OF SUFFOLK AND STATE OF NEW YORK, BEING BOUNDED AND DESCRIBED AS FOLLOWS: BEGINNING AT A PIPE SET IN THE NORTHERLY SIDE OF BASIN ROAD WHERE THE WESTERLY LINE OF LOT 4 AS SHOWN ON A CERTAIN MAP ENTITLED, 'MAP OF SECTION ONE, PARADISE POINT OF BAYVIEItF MAP NO. 3761 FILED 4/11/1963 ALONG THE NORTHERLY SIDE OF BASIN ROAD; RUNNING THENCE SOUTH 30 DEGREES 08 MINUTES 40 SECONDS WEST ALONG THE WESTERLY TERMINUS OF BASIN ROAD 51.65 FEET TO A MONUMENT SET ON THE SOUTHERLY SIDE OF BASIN ROAD; THENCE SOUTH 15 DEGREES 35 MINUTES 40 SECONDS WEST ALONG THE WESTERLY LINE OF LOT 5 AS SHOWN ON THE ABOVE MENTIONED MAP 26.91 FEET TO A WOOD BULKHEAD ALONG BOAT BASIN; THENCE WESTERLY, NORTHWESTERLY AND NORTHERLY ALONG THE HIGH WATER MARK OF BOAT BASIN THE FOLLOWING 18 COURSES AND DISTANCES: 1. NORTH 74 DEGREES 32 MINUTES 46 SECONDS WEST A DISTANCE OF 9.78 FEET; 2. NORTH 68 DEGREES 38 MINUTES 26 SECONDS WEST A DISTANCE OF 49.27 FEET; 3. SOUTH 50 DEGREES 15 MINUTES 00 SECONDS WEST A DISTANCE OF 1.35 FEET; 4. NORTH 70 DEGREES 52 MINUTES 34 SECONDS WEST A DISTANCE OF 8.13 FEET; 5. SOUTH 67 DEGREES 33 MINUTES 43 SECONDS WEST A DISTANCE OF 69.40 FEET; 6. SOUTH 77 DEGREES' 18 MINUTES 19 SECONDS WEST A DISTANCE OF 43.78 FEET; 7. NORTH 52 DEGREES 15 MINUTES 31 SECONDS WEST A DISTANCE OF 47.66 FEET; 8. NORTH 81 DEGREES 28 MINUTES 12 SECONDS WEST A DISTANCE OF 17.54 FEET; 9. NORTH 48 DEGREES 11 MINUTES 12 SECONDS WEST A DISTANCE OF 26.99 FEET; 10. NORTH 34 DEGREES 53 MINUTES 24 SECONDS WEST A DISTANCE OF 20.16 FEET; 11. NORTH 16 DEGREES 56 MINUTES 39 SECONDS WEST A DISTANCE OF 16.86 FEET; 12. NORTH 45 DEGREES 07 MINUTES 28 SECONDS WEST A DISTANCE OF 18.16 FEET; 13. NORTH 76 DEGREES 59 MINUTES 32 SECONDS WEST A DISTANCE OF 14.38 FEET; 14. NORTH 49 DEGREES 45 MINUTES 56 SECONDS WEST A DISTANCE OF 21.39 FEET; 15. SOUTH 83 DEGREES 32 MINUTES 11 SECONDS WEST A DISTANCE OF 32.21 FEET; 16. NORTH 34 DEGREES 33 MINUTES 41 SECONDS WEST A DISTANCE OF 23.99 FEET; 17. NORTH 06 DEGREES 48 MINUTES 47 SECONDS WEST A DISTANCE OF 87.11 FEET; 18. NORTH 07 DEGREES 17 MINUTES 14 SECONDS EAST A DISTANCE OF 64.53 FEET TO THE HIGH WATER MARK OF SOUTHOLD BAY; THENCE EASTERLY ALONG THE HIGH WATER MARK OF SOUTHOLD BAY THE FOLLOWING 5 COURSES AND DISTANCES: 1. SOUTH 86 DEGREES 42 MINUTES 04 SECONDS WEST A DISTANCE OF 1.32 FEET; 2. NORTH 68 DEGREES 43 MINUTES 04 SECONDS EAST A DISTANCE OF 22.25 FEET; 3. SOUTH 72 DEGREES 05 MINUTES 40 SECONDS EAST A DISTANCE OF 112.17 FEET; 4. NORTH 88 DEGREES 54 MINUTES 02 SECONDS EAST A DISTANCE OF 134.02 FEET; 5. NORTH 82 DEGREES 07 MINUTES 29 SECONDS EAST A DISTANCE OF 63.92 FEET TO THE WESTERLY SIDE OF LAND NOW OR FORMERLY EDMOND H. CURCURU AND PATRICIA N. CURCURU; THENCE 04 DEGREES 15 MINUTES 20 SECONDS WEST ALONG LAST MENTIONED LANDS 159.37 FEET TO A PIPE; THENCE SOUTH 74 DEGREES 24 MINUTES 20 SECONDS EAST A DISTANCE OF 76.49 FEET TO A PIPE SET AT THE POINT OR PLACE OF BEGINNING. FIFTH: Upon information and belief, the Defendant is the owner of the burdened premises. SIXTH: Upon information and belief, the Defendant acquired fee title to the burdened premises by deed dated April 5, 2002 from Chancy D. Curry (as Successor in interest to J. Lane Curry), Garret Sinning, a/k/a Gary Sinning, Paradise of Southold, Inc., and Gilman J. Hallenbeck, individually and as 3 Administrator of the Estate of Gilbert Hallenbeck a/k/a Gilman H. Hallenbeck, deceased, and as Successor Trustee of the Gilman Hallenbeck Restatement of Trust Agreement dated as of April 16, 1999, (hereinafter collectively referred to as the "Defendant's predecessors"} which deed was recorded in the office of the Clerk of the County of Suffolk on April 23, 2002. Exhibit A. A copy of the Defendant's deed is attached as SEVENTH: Prior to the conveyance of the burdened premises to the Defendant, and by deed dated February 23, 1989, the Defendant's predecessors conveyed to the Plaintiff an easement over and across the burdened premises for free and unobstructed access to the boat basin and canal shown on a certain map entitled" Map of Section One, Paradise Point at Bayview,~ filed in the office of the Clerk of the County of Suffolk on April 11, 1963 as map no. 3761, which deed was recorded in the Suffolk County Clerk's Office on February 24, 1989 in liber 10804 at page 555. A copy of the Plaintiff's deed is attached as Exhibit B, and a copy of the filed map is attached as Exhibit C. EIGHTH: The aforementioned easement was for the construction and maintenance of bulkheads, cribs, jetties, docks, etc. and for other purposes as are consistent with the constitution of the Plaintiff including, but not being limited to, providing for the care and maintenance of the beaches, waters, bulkheads, roads, clubhouses, buildings or other structures, and other recreational facilities; supervising recreation, sports, boating, bathing, etc.; perpetuating the standard and tone of the community;, promoting health, welfare, morals, pleasures, recreation, indoor and outdoor games, etc.; and promoting sociability and good fellowship for the members of the corporation. Attached as Exhibit D is a copy of a survey of the burdened premises dated January 7, 2002 made by Joseph A. Ingegno, Land Surveyor, which depicts the Plaintiff's deeded easement area along the boat basin and canal. NINTH: On or about February 23, 1989, the Defendant's predecessors conveyed to the Plaintiff, in addition to the easement as aforesaid, title to all lands lying under the high water mark of Town Harbor, a/k/a SouthoId Bay including any and all jetties protruding into Town Harbor, a/k/a Southold Bay. TENTH: By virtue of the deed referred to in paragraph SEVENTH above, Plaintiff claims and is entitled to an easement over and across the burdened premises owned by the Defendant. ELEVENTH: Upon information and belief, the Defendant claims that the aforesaid easement of the Plaintiff has terminated, and is extinguished, invalid, and of no further force and effect, which claim is adverse to the Plaintiffs interest. Specifically, the Defendant has made application to the Town of Southold to improve the burdened premises and has alleged, in connection with said application, that the Plaintiffs deeded easement has tex's'xxinated. TWELFTH: There are no Defendants known or unknown who have an interest in this proceeding other than as named in this complaint, and upon info~-i~ation and belief, none of the Defendants is an infant, mentally retarded, mentally ill or an alcohol abuser. THIRTEENTH.: Any judgment granted herein will not affect any person or persons not in being or ascertained at the commencement of this action, who by any contingency contained in a devise or grant or otherwise, could afterward become entitled to a beneficial estate or interest in the aforesaid premises, and that every person in being who would have been entitled to such estate or interest, if such event had happened immediately before the commencement of the action, is named as a~ party hereto. FOURTEENTH: No personal claim is made against any Defendant herein except such Defendants as may defend this action. FIFTEENTH: Plaintiff has no adecl~ate remedy at law. AS AND FOR A SECOND CAUSE OF ACTION SIXTEENTH: Plaintiff re-alleges and reiterates paragraphs FIRST through FIFTEENTH as ff each were set forth in full below. SEVENTEENTH: Plaintiff is the owner of premises located in the Town of Southold, State of New York, known as Basin Road on a certain map entitled "Map of Section One, Paradise Point at Bayview", ( a copy of which is attached as Exhibit C) which map was filed in the office of the Clerk of Suffolk County on April 11, 1963 as map no. 3761, identified by S~olk County Tax Map No. 1000-81-3-29. .EIGHTEENTH: At all times hereinafter mentioned, there was and still is a private roadway located on the burdened premises r~nning from the western terminus of Basin Road, in a general northwesterly direction to the Plaintiff's deeded easement area and to a jetty ,which was constructed by the Plaintiff adjacent to the burdened premises and which protrudes into Southold Bay, Said private roadway is located and depicted as both an "asphalt driveway" and a "dirt driveway" on the survey of the burdened premises dated January 7, 2002, a copy of which is attached as Exhibit D. NINETEENTH: Since in or about 1961, the Plaintiff through its members has used the aforementioned private roadway for ingress and egress across the burdened premises to the Plaintiff's deeded easement area and to the jetty protruding into Southold Bay. TWENTIETH:. That the use of the aforementioned private roadway has been open, notorious, adverse, uninterrupted, and continuous for a period of more than ten years. TWENTY-FIRST: In view of the foregoing, Plaintiff claims a_nd is entitled to an easement by prescription over and across said private roadway. TWENTY-SECOND: In or about June, 2002, the Defendant caused a fence to be constructed across said private roadway, thereby obstructing and interfering with the Plaintiff's ability to pass over said roadway. TWENTY-THIRD: Upon information and belief, the Defendant claims an interest in the burdened premises which is adverse to the Plaintiff's interest, in that the Defendant disputes the Plaintiffs prescriptive easement and the right of the Plaintiff to pass over and across the aforementioned private roadway. AS AND FOR A THIRD CAUSE OF ACTION TWENTY-FOURTH: Plaintiff re-alleges and reiterates paragraphs First through Third as if each were set forth in full below. TWENTY-FIFTH: This is an action pursuant to Article 15 of the Real Property Actions and Proceedings Law of the State of New York to compel the determination of claims to real property situated in the Town of Southold, County of Suffolk and State of New York known as a jetty on the east side of a canal as depicted on a certain map entitled "Map of Section One, Paradise Point at Bayviev~ {a copy of which is attached as Exhibit C} £fled in the office of the clerk of the County of Suffolk on April 11, 1963 as map no. 3761, more particularly described below. TWENTY-SIXTH: In or about 1972, the Plaintiff, pursuant to its Constitution and By-laws, caused a jetty to be constructed on each side of the canal depicted on the filed map entitled" Map of Section One, Paradise Point at Bayview' 7 identified by map no. 3761, which jetties protrude in a northerly direction into Town Harbor a/k/a Southold Bay. TWENTY-SEVENTH: At the time the aforesaid jetties were constructed, the lands on either side of the aforementioned canal were owned by the Paradise Point Corporation. TWENTY-EIGHTH: Since in or about 1972, the aforesaid jetties have been maintained and repaired by the Plaintiff. TWENTY-NINTH: In or about 1981 to 1985, the Paradise Point Corporation conveyed the lands on either side of the canal, to the Defendant's predecessors. THIRTIETH; On or about February 23, 1989, the Defendant's predecessors conveyed to the Plaintiff, in addition to an easement over the burdened premises located on the east side of the canal, fee title to the lands located on the west side of the canal and the jetties located on both sides of the canal. THIRTY-FIRST: The jetty which was constructed on the east side of the canal is depicted on the survey of the burdened premises dated January 7, 2002 made by Joseph A. Ingegno, Land Surveyor, a copy of which is attached as Exhibit D, and runs from the northern terminus of the Plaintiffs deeded easement area over the burdened premises, northward into Town Harbor a/k/a/ Southold Bay, and is more particularly described as follows: BEGINNING at a point located 4.08 feet north 72° 05' 40" west from the intersection of the easterly boundary line of a described easement with the bulkhead serving as the northerly boundary of property identified by Suffolk County Tax Map No. 1000-81-01-16.7 as surveyed by Joseph A. Ingegno on January 7, 2002, revised January 29, 2002 and February 14, 2002; RUNNING THENCE North 02° 17' 07~ West 129.44 feet to a point; THENCE North 89° 23' 08' West 21.63 feet to a point; THENCE South 01° 58' 26" West 137.80 feet to a point; THENCE North 86° 42' 04" East 1.32 feet to a point; THENCE along a tie line as shown on the aforementioned survey North 68° 43' 04" East 22.25 feet to the point of BEGINNING. THIRTY-SECOND: Upon information and belief, the Defendant claims an interest in the jetty located on the east side of the canal as described, which is adverse to the Plaintiffs interest. Specifically, the Defendant has made application to the Town of Southold to improve the subject jetty and has alleged, in connection with said application, that the subject jetty is owned by the Defendant by virtue of her deed dated April 5, 2002, a copy of which is attached as Exhibit A. THIRTY-THIRD: There are no Defendants known or unknown who have an interest in this proceeding other than as named in this complaint, and upon information and belief, none of the Defendants is an infant, mentally retarded, mentally ill or and alcohol abuser. THIRTY-FOURTH: Any judgment granted herein will not affect any person or persons not in being or.ascertained at the commencement of this action, who by any contingency contained in a der/se or grant or otherwise, could afterward become entitled to a beneficial estate or interest in the aforesaid premises, and that every person in being who would have been entitled to such estate or interest, if such event had happened immediately before the commencement of the action, is named as a party hereto. THIRTY-FIFTH: No personal claim is made against any Defendant herein except such Defendants as may defend this action. THIRTY-SIXTH: Plaintiff has no adequate remedy at law. WHEREFORE, Plaintiff demands judgment as follows: 1. Declaring that the Plaintiff has a valid and existing easement over and across the burdened premises owned by the Defendant as described in the Plaintiff's deed dated February 23, 1989 and recorded in the office of the Suffolk County Clerk on February 24, 1989 in liber 10804 at page 555; 2. Declaring that the Plaintiff has a valid and existing easement by prescription over and across the private roadway on the burdened premises owned by the Defendant, running from the western terminus of Basin Road in a general northwesterly direction to the Plaintiff's deeded easement area and to the jetty which was constructed by the Plaintiff adjacent to the burdened premises and which protrudes into Southold Bay, as shown on the survey attached hereto as Exhibit D, and directing the Defendant to remove the fence installed across such roadway; 3. That the Defendant, and every person claiming under her be barred from all claim to an estate or interest in the jetty located on the east side of the canal as described in the amended complaint, and that sole title and the right of exclusive possession of said jetty be awarded to Plaintiff; 4. That the Defendant, her agents, servants, and employees be enjoined from interfering with Plaintiff's deeded easement and prescriptive easement over and upon the burdened premises, as well as with the Plaintiff's possession of the jetty located adjacent to the Plaintiff's deeded easement area on the east side of the canal as described in the amended complaint; and 5. Awarding the Plaintiff such other and further relief as this Court deems just and proper, together with the costs and disbursements of this action. sp Ess M~i~LTY-SPIESS, P.C. ey$ for Plaintiff 633 East Main Street P. O. Box 757 Riverhead, New York 11901 (631) 727-8200 11 STATE OF NEW YORK ) :SS COUNTY OF SUFFOLK) ATTORNEY'S V~RIFICATION The undersigned, an attorney duly admitted to practice in the courts of the State of New York, shows: That deponent is a member of the fim~ of McN'ULTY - SPIESS, P.C. the attorneys of record for the Plaintiff in the within action; That deponent has read the foregoing Amended Verified Complaint and knows the contents thereof; That the same is true to deponent's own knowledge, except as to matters therein stated to be alleged upon information and belief and that as to those matters deponent believes it to be true; Deponent further states that the reason this verification is made by deponent and not by the Plaintiff is because Plaintiff is currently not within the County wherein your deponent has his office and that the foregoing information is based upon intenriews with the Plaintiff and information and records in our file. Sworn to before me this [/ES SPIESS USED ]By I,AMri'~II~ ONLY 8mltlMlM~ NY 11071 8nd GILMAN J. ~ / ixnua~ to ~dla~ i.e#e~ of ,4dml~Mmg~t ~.TA ..derFde NO. 3~7 P 2002 of tire 8m~c~a~e~ Corot, . .cl~:~d_ _~. o~ __A~'? 16 3.999 UA.,vLZUp ' at 710 Weed Stmet, perry O~ glo W~t pllf~ rata ~ ........ '- ~. i~l~ wo~ .pm~/. dudl M, cmulfl~d M If # m~d.'~ whe~ eyre* the #tiM* m mrs To BE USED ONLY WHEN I~E _4~viu~M~IJ(MaENT II MAOE OUTSIDE NEW YORK ITATE il~onwealth HELEN RO~ENBI~UM. Esq. t~?F- Mit 8~Nt MBd, ~ 11~01 CHICAGO.TITLE I U CE COMPANY LEGAl. DE RIPTION TWoNumbon 3802-00~S; - ALL THAT ~.TAIN pLOT, PIF, C~, OR PA~.CBL OF ~, B~, LY~, ~ BE~ ~T ~ OF ~l~" ~ NO. 3~65 FZ~ 4/~/~g63 ~ ~ ~R~Y SZDB OF R~ ~ SO~ 30 D~S 08 H~S 40 SB~ ~ST ~SG ~ ~S~Y '~ ~ 25 ~S 3S ~S 40 GB~S ~ST ~ ~ ~S~Y ~I~ OF TH~NCK ~IS~L¥,' NOR'fllN~S'I~R~Y ]GID BASIN ~ FOLI,O~I~G 18 COURSES AHD 1. NGR'~ 74 DBGR.~B$ 3:2 MINUTES 3. 4. S. 7. 8. 2.0, 2,1. 2.2. 23. 2.4, IS, )JC~TH 52 ~ ~S NO~Y ALON~ THE HIgH WAT~ MA~K OF gOAT DISTANCES: S~S ~ A DIST~ OF 9.78 S~ ~8T'A DXGT~ OF 49.2~ ~S ~T A DIS~ OF 1.3~ SB~S ~T A DZ~ OF 69.40 ~; ~ ~ X DZ~ 0F 43.78 ~; ~ ~ET A DZ~ OF 4~.66 ~; NORTlf 48 D---u~ 11 MIN~TBS 12 SBCOMD8 W~T A DISTANC~ OF 26.99 ~; NORTH 34 D~8 S3 Ml~ 24 flB~ ~ A DZ~ OF 20.16 ~; ~ 16 ~ 56 M~S 39 ~ ~ A DI~ OF 16.86 ~; ~ 4S D~S 0q ~=~'~ 28 fB~' ~ A DIST~ OF 18.16 ~E~ 76 D~ 59 ~S 32 SB~S ~ST A DIS~ OF ~4.38 ~; ~ 49 ~ 45 M~G 56 S~S ~ A DZgT~ OF 21.39 ~ET; ~ 83 D~B 32 ~S 11 SB~S ~ST A DIST~ OF 32.21 ~ET; .M4K]~D~ ~GAL ~S~I~ION- 04/04/02 CHICAGOTITLE INSURANCE COMPANY LEGAL DESCRIPTION (Continued) Tl~eNumben 3802-00~$g NO]t.Tll 34 DB(~B~S 33 MINUTES 4~ SSCC~DSW~S~ ~ DISTANCE O~ 23.~ FF~T; NORTH 0~ D~GH~,S ~ 14.1:~r~'~S'Z4 I~C(~IDB ~,AST~ D~STANCSO~ 64,S3 lIT.ET'TO ~ZG~ ~'Z~Z ~ O~ SOt~O~.~ ~AY; %-~CS ~Y ALO~ TI~ HIGH WATBR MARK OF SOUTHOI, D BAY TH~ FOLLOWIN~ S 1. soUTH 86 ~ 42 MI~tYk~ 04 SF~'O~3S W~b''T A DZ~ OP 1.32 FBi; 2. ~. 68 D~B 43 M~8 04 ~ ~T A DI~ OF 22.25 ~; 3. s~ 72 D~ ~s ~ ~o ~ ~ x D~ OF~ Z~2.~ 4. ~ 88 ~ 54 ~S 02 B~E ~ A DI~ OF 134.02 TH]MB so, mi 74 DS~P~SS 24 )mqu~s 20 sseo~s ~ A ~ZSTA~'~ oF %.4s FRET TO X FOR ~IfFORMAT~ON (:~LY~ DZS'fl~C~ ~000 SBCT~OH 081.00 BIZ)CE 0~.00 LO~ 0~S.00? DESCRIPTION 1000 ~0 'TH IND{',* 23ret d~yo{ ~' · , -m * * Stgeet, Greenwich, Connecticut, - .... · ....... a 32% ln~s~ea~; residing at Cove East. 115 Lake shore Drive, N. Palm BeaCh, FLowide~ 33408! and GARRY S~NNINOp as to a 29% ~nteres~, re- siding at 200 Wa~chung Drawee Hawthorne, New ~e~sey..07506J and ~on hav~ng ~s pF~nc~pa~off~ a~ (no ~) Robinson Road, P, O. Box 7240 Sou~hoLd~~v york, 11971J as ~enan~8 ~n ~on and' as ~he~r ~n~eFea~s appehr~ SE POI~ ASSOCIATIONf INC,~ a domestic ~pe iob~nson Road, P, p~rty of I~ ~cond Smd, . . - Ten and no/X00 ($10.00) - _ - ~ttars, ~.' " ' ' ~d r S~uthqld, in ~e ~n of Sou~ld, Co~Cy 1963 as Hap No, ,376~;. sa~d eas~n~.~ng'more pa~larl~ ~unded and descrL~ as ~o~l~s* B~INNINO at a point, v~ point Is the jOuthvef~rlY co~r o~ Lot No. 4 aS ,h~n on the afor~entioned f~Led mupJ R~NI~ TH~NC~ s~h 30 degrees O0 m~nute8 40 seconds West alo~ t~ westerly s~de or BaSin Road~ 51.65 ~eet, to Land now or fu~r/y o~ Haynardl Tfl~CE along said La~ now or ~orme=Ly of along ~e shore of said_~a _-..-.-- ~iah wate~ ma~ of Town Hater d fir )~ '~ENC~ in' an ,eas~lY di~Ction along utes-Wgsto ,~00 'feett T~NCE Sou~n o ueg~e.n v ..... THENCE fee2l T~NCE Sout~ 65 degrees 00 m~u2eS East, 200,00 f~tl ~o~ 59 degrees'30 ~U~es East, 123.00 feet to land now or former- 1~ of Cur~rUl ~EN~'aLong said land n~ o~ fo~1Y of South 74 degrees 24 ~inuteO'20 8ec,,nds East~ 76.49 feet to the of B~GINNINGs a~ as SU~ easement ~s sh~ on a ~rta[n 10804 ,556 psrty or ths ,o ond psrt for ,;cee eC?,,SS O etc., am ~y ~ d~ed. ~pr~p~latm ~ ~e par~ of t~ me.nd pert{ ~onltitution of ~ party of ~e' second par~.~ng, b~ no~ X~mi~ to~ pr~idXng ~o~ ~1~ ca~e and main~'o~"~' Beaches, Wa~ers~ ~l~ead~ '~ad~ CLUb Houses, Buixdl~'~'~he~ st~c~u~es. a~ o~er Rec=ea~ion Faclll~les~ supe~ie~ng recreation~ ~a~ng, ~h~ e~c. j pe~e~ua~lng the standard' and ~ne co~un~y~ p~o~ing heaL~h~ welfare~ mo=als~ pleasures~ recrea~ion, ~nd~r a~ outdoor games~ etc.{ and promoting sociability and good fell~ship fo= the~ m~rS of .t~e. co,oration. . .. firs~ p~t in and to lands lying under the high v&,r ar~ of To~ Harbor (also ~o~n as Sou~old Bay) ~nclud~ng any and all Jetties pro~=uding into said T~n Hater (also lm~n as Sou~hold ~ay). . PARCEL II t . . . . ALL that certain plo~, piece or parcel of land with the buildings and improvements thereon erooted, situate, lying and being at Bay- view, ~oe~ $o~thold~ ~n ~h8 T~ of So~& Cou~y o~ Suffol~ and of Lot NO. 12 as sh~ on a ~=ta~n map en~tled~ ~ap of SeCtion On~ Paid,se po~n~ a~ B~' ~ f~led in the off~ue of the Clet~ of ~9 C~nty of Suffolk on Ag=L~ 1~; 1963 as Map No. 376~1 fo~Ly of Or~ffo, 100'.00 ~eet ~O: land n~ o= Soberly of Cur~J 30 ~n~ Ealt~ 610 fee~ ~' o~ lese~ ,o _.e ..... ,: high ~ter ~r~ of ~n Har~r= [also ~ as Southold Bay)J ~ENCE in an east- THEN~ ~n a southeasterly di~otion, alon~.'~ C~' a~ it wi~ds and ~u~s~ ~50 feeb~ ~r~ or 1%8e~ to ~he horsily lln~ of Lot NO. 17 as ,h~ ~ a ~rta~n map ~l~d~ -Minor Su~l~$,lon made ~aFadioo Po~n~ Co~6Fat*on~ Paradise' Pointo New Y~k," Am~ded May 1~ ~99~' ~ R~eFick Vnn Tuyl~. P. C.J THreE along said Lot No. ~ follow~ng three.'uourseo and distan~st 1) North 85 d~rees 30 ~nutoo We8~o 90.00 ~eetj 2) s~h 4 ~grees 30 m~nutes Wes~ 325.00 feetl 3) s~th.38 d~oef 31 ~nu~es 40 'secede East; 82.98 fee~ Ha~ (~XIO ~ al Sou~Xd BAy), inoX~i~ I~ And 'aXX ~e~le8 p~c~lng tats .a~d To~ Htr~r (also ~ as Sou~hold Bay), THIS CONVEYANCE is made in the usual and regular oourss of business actually c~nducted by the perry of the first part, PARADISE O~ SOUTHOLD ~ INC. ~ ~ 108O4 PC556 .arty of the .ocond p,r, for fr.e ,nd ..obe:r. .te* ac.--sJ,: B~Jn ~ Canal ae eh~n ~ ~ aforesaid fLle~ ~. ~o~ , etc.~ ne ~y ~ d~ed ~pro~lato by ~e party o~ ~ se~nd par~) Constitution of ~ ar~ of ~e' second part.$~ng, b~ no~ limi~ to~ pr~iding ~or t~ care .n. ~atin , ~th~, otc. s pe~etua~lng ~he standard' and ~ne ~un~y; promotiflg heal~, vel~aref morhle; plea,ures~ recrea~Lon, ~nd~f a~ ou~door games, eto,j and promoting soc~ab~l~ and good felL~ehip far the~rS Off hbo. co~orah~on. ~ vit~..%ll.~yte~.~l,~,tg~d,$~e~s~.'0~· the part~ Of the f~fst p~Ft tn and to lands lying under the high ~a~r ma~ off ~o~ Harbor (also ~n aa Sou~old flay) includi~g any a~d all pro[~uding ~n[o said T~n Ba~r (also ~o~n as Soukho[d aa~). PARCEL T!, . . . , ALL that certain p~o~0 piece or.p~r.ce~ of ~.a~ vith_t.he_hui_l?i.n?.s. end lnp~ovements thereon e~ectad, s~tuate~ view, near Southold, in the ?ova of Southold; County of Suffolk and State o~ Now' York, being more particularly b~unded and deeoribed as fOllOW01 B~INNING St a point, ~hich point ia the northerly corner of Lot NO. 12 al sh~ on a ~r[ain map matt[Led, "Hap of SeCtion On~ ~cB Nor~ 38 degrees.31, mi~eo 40 seconds ~e,~ a:.~ng lanJ nov or fleetly of Oriffo~ IO0'.00 feoh to: land n~ or fo~erly of Cur~J ~ENCE ~ong. 8a~d l'~d n~ or fOmerlY of Cur~ ~r~h 4 degrees 30 ~nu~s East, 610 feet, ~ or less, to ~e ord~na~ high ~ter Mrk Of ~n Har~r~ (also ~ as Southold nay) ~ ~CE in an eas~- ~EN~ in a eoutheaateFl~ dSreo~ion alon~ 't~ C~' ~ it ~ipdo and · ' ' ~., 250 ~,e~, ~r, o~ ~..,.~o ~h,.~,-~.~.~ ~ ,~o. Paradise Point Con, ration, Paradise' Point, New York," Am~ded May 11, 1991' ~ R~erick Van Tuyl,. P. t~ follow~g th~ee.'courseO and distanceet 1) North 85 d~rees 30 minutes Weotp 90.00 ~eetj 2) S~h 4 ~grees 30 m~nutes Wes~ 325.00 feet~ 3) S~th.38 d~foeo 31 m~nu~es 40 'seco~s ~st, 82.98 fee~ to Briar La~ as a~ on ~e afore~nt~oned fil~ ~pl T~NCE al~g said Drear L~e sou~-14 degrees 56 m~nu=eo 30 se~s West, feet ~ ~e ~int ~ pia~ of B~X~XNO, ; . . prodding into said ~o~ HAF~F (a18o ~ ~o Southold Bay~. THIS CONVEYANCE is made in the usual and regular course of business actually conducted by the party of the first part, pAItADISE OF SOUTHOLD, INC. ~ ~ ~ llSx. ~s ibuttl~ t~ i~e ~cfi~ p~i~o ~ ~ ~t. fines ~r~, HAVE ~ ~ HO~ ~ ~m ~n ~t~ ~ ~e ~fly of ~e ~ ~, the heart or 1~ z~: , .. ",~, ~'~ .... , - . / ' .~.: . .. /...~ .., ~jy ~ Chan~ cur~ [,~o me ~o~ to ~ ~e ~rson describ- ed and appointed at:~ey In fact ~d ~ a certain ~r of attorney ~e~ted ~ J. ~E ~Y~ dat~ May :'29~ 1987~ to ~ re~rded in ~e Of- fl~ of t~ Cle=~ o~ the County of S~f~olk s~altaneou~ly with ~e fore- 'going inatr~t ~d ac~owleflged me that she ha~ ~e~ the ULOCX 01.00 0050000~ 0140000, p/' · OT 015.000, p/o 016.000 COUNTV ot TOWN I000 5465~ ~IN ~, P. O. ~ 1468 SO~HOLD~ N~ YORK ~. 1i'971 Exhibit C Exhibit D BAY'VI~W TOWN Or SOUTHOLD SUFFOLK COUNTY. NEW YORK SOUTHOLD ~4 Y BOAT BASIN i M¢~uLTY--$PIE~S ;UPREME COURT OF THE STATE OF NEW YORK ',OUNTY OF SUFFOLK rlCTOR J. ZUPA, MARY S. ZUPA md JAMES MILLER, Plaintiff(s), against - 'ARADISE POINT, ASSOCIATION, [NC,, Defendant(s). COMPLAINT Plaintiffs by their attorney, Wickham, Wickham & Bresslcr, P.C., complaining of thc hove named Defendant, all~.ge: THE PARTIES Upon information and belief, Defendant is a not-for-profit corpor,ation organized ader the laws of the State of New York, with principal place of business in Suffolk Count~, iow York. Defendant is comprised of owners of properties in and around a geographical known s "Paradise Point" in Southold, New York. DEFENDANT'S USE 2. Plaintiffs, Victor J..Zupa, Mary S. Zupa and James Miller, are resident taxpayers the Town of Southold. 3. Plaintiff, Mary S. Zupa, individually, owns property known as 580 Basin Road, ~aradise Point, Southold, New York (hereinafter the "580 Basin Property"). I 4. Plaintiffs, Victor J. Zupa and Mary S. Zupa, jointly own property known as 365 asin Road, Paradise Point, Southold, New York (hereinafter the "365 Basin Property") which' djoins both a navigable and tidal inlet known as the Basin and the 580 Basin Property, and on hich they maintain a home and residence. 5. Plaintiff, James Miller owns jointly with his wife, and resides at, property known cs 1610 Paradise Point Road, Southold, New York (hereinafter the "Miller Property") (the vlarina is located approximately one-half mile from the shoreline of the Miller Property). 6. Upon information and belief, Defendant operates what it calls a "private marina" ocated in Paradise Point, Town of Southold, County of Suffolk, State of New York, for*its nembers and gucst~ (hereinafter the "Marina") who pay fees for dock space. The Marina use :ommenced aRer 1957. 7. The Marina consists of thre~ dock~ with finger extensions located on the"Basin" nhich extend bom 580 Basin Road, together with various structures to support the Marina. 8. Defendant's docks at any one time have on average between 8 and i 6 boats tied ~o them, and one of its three docks is more than 100 feet in length, extending parallel to and lcross the entire shoreline of the 365 Basin Property; Defendant has announced its intention to expand the Marina. 9. The Basin is tidal and navigable waters, the bottom of which is owned by thc own of S0uthold and/or the State of New York, and connects with Peconic Bay. 10. Defendant has no property interest in the Basin or 580 Basin Road except for a ~ight ofway of aeccss granted by deed in 1989 across the 580 Basin Property to the Basin. THE ZONING ORDINANCE 11. On the 9m day of April 1957, the Town Board ofthe Town of Southold, Suffolk ICoUnty, New York, duly enacted a zoning ordinance to regulate among other things the use of buildings, structures and lands for trade, industry, residential and other proposes, and divided the Town into districts known as "A" residential and agricultural district, "M" m_ultiple r~sidence district, "B" Business district and "C" industrial which said districts were shown on a map ~ntitled Zoning Map of the Town of Southold, filed in the office of the Clerk oftbe Town of ~outhold, which said map together with all boundary lines and designations thereon, was made a lart ofsaid ordinance; the said ordinance, as amended, is hereinafter referred to as the t'Ordinance." 12. The Ordinance provided that no building shall be erected, altered or used$, and no ,remises slsail be urged for any other than a purpose permilled in the zone in which such building premises is located. 13. The Ordinance states that the onl); docking facilities permitted with respect to a ~sidential !el is "docking or mooring facilities for no more than two (2) boats other than those ,wried or used by the owner of the premises for his personal use," and that "boats at such rocking facilities shall not be used for overnight sleeping purposes." 14. The Ordinance defines a "marina" as any premises containing one or moro docks ghich is used or intended to be used primarily for the docking or accommodation of boats. 15. The Ordinance at all times mentioned herein was and now is in f~ll force and 4;fleet. [ 16. The Ordinance does not permit a "manna" as a lawful use of property in a esidcntial and agricultural district in thc Town of Southold. 17. Tho Marina has been classified by Defendant, and with Defendant's urging, 'm',aln agencies of thc Town of $outhold as a "marina" in order to prevent the development of he 580 BaSin Property as a residence through a determination that the property would then be Ilagally subject to two primary uses. I g. By resolution in 1981, the Southold Town Planning Board approved the 580 Basin Property as a legal residential lot, which approval under § 100-24 of the Ordinance requires recognition by the Town of Southold. 19. No permit, site plan, special exception, variance or other approval has ever been obtained from any governmental agency for the Marina or for its docks and supporting' stI'~ctu~'es. '~ 20, The Basin, the 365 and 580 Basin Properties, the Miller Property and ali nmtounding properties are in the residential and'agricultural district of the Town of Southoid as shown on its Zoning Map. 21 ~ Plaintiffs have purchased their respective properties after the enactment of, and relied on, ~he Ordinance. 22. Plaintiffs, Victor J. Zupa and Mary S. Zupa have suffered the following special damage asa result of the maintenance of the Marina adjoining their home on the 365 Basin bo The devclopmant of thc 580 Basin Property as a residence has been prevented which has rcsultcd in that property being used by trespassers for all night parties, for thc deposit of refuse, and for other offensive activities causing (i) risk to property and personal safety and (ii) interference with thc peaceful usc and enjoyment of their home; Noise, smoke, glaring light, overnight Marina use and other disturbances at all hours of thc night from thc Marina's activities which affect the peaceful usc and enjoyment of their home; Property: OCT--16--02 23. RCNULTY--$P % E$$ c. Limitations on the use of their property including their shoreline, their boat and private dock; and d. Deterioration and erosion of the shoreline, bulkheads, and thc bed and surface waters of thc Basin which adjoins their home. Plaintiff, May/S. Zupa has suffered the following special damage as a result of the mainteoanc~ ot~tbe Marina adjoining her eS0 Basin Property: a. Thc Marina is being used by Defendant in order 1o cause agencies of the Town of Southold to deny' building and cnvir0nmcntal permits for thc development of a residence based on thc rationale described in paragraph 17 above; and b. An unreasonable risk of liability to third parties is imposed on Plaintiff, Mary S. Zupa, as landowner, for injury to person and damage to property caused by operation of thc Marina. c. Limitations on thc usc of her property including her shoreline. 24.' Plaintiff, James Miller has suffered the following special damages as a n:sult of thc maintcnanc,~ of thc Marina: a, Thc Marina was used by Defendant to prevent the acquisition of a building permit for a residence on the 580 Basin Property in 1995 after he had relied on Defendant's agreement that arb, sidence could be coustmeted; and b. Increased noise, traffic, and pollution interfering with the property usc and enjoyment of his home on the Miller Property. 25, As a result of the Operation of the Marina and as a result of the special damages ~uffcrcd by Plaintiffs as alleged in paragraphs 22 through 24 above, their respective properties ave diminished in value. 26. On August 6, 2002, Plaintiffs, Victor J. Zupa and Mary S. Zupa filed written requests with the President of the Board of Trustees of the Town of Southold, thc Pririci'pal Building Inspector~of the Town of Southold, and the Director of Code Enforcement of the Town of Southold requesting that they order Dcfcndant to comply with thc Ordinance. 27. The Town of Southold has not fallen any action with respect to thc requests made in paragraph 26 above. AS AND FOR A FIRST, SEPARATE AND COMPLETE CAUSE OF ACTION FOR ALL PLAINTIFFS 28. through 27 29. Plaintiffs repeat and reallegc each and every fact contained in paragraphs 1 with thc same force and effects as if fully set forth herein. Defendants are conducting an illegal usc of, and maintaining illegal structures on, thc Basin aad the 580 Basin Property. 30. Plaintiffs suffer irreparable harm and have n6 adequate remedy of law. AS AND FOR A SECOND, SEPARATE AND COMPLETE CAUSE OF ACTION FOR ALL PLAINTIFFS 31. Plaintiffs repeat and reallcgc each and every fact contained in paragraphs 1 through 27 with the same force and effect as if fully set forth herein, 32, Thc Ordinance provides in pertinent part: § 100-241. Nonconforming uses. Except as provided hereinafter, nonconforming usc of buildings or open land existing on thc effective date of this chapter or authorized by a building permit issued prior thereto, regardless of change of title, possession or oc,~upancy or right thereof, may be continued indefinitely, except that such building or use: A. Shall not be enlarged, altered, extended, reconstructed or restored or placed on h different portion of the lot or parcel of land occupied by such use on the effective date of this chapter, nor shall any external evidence of such use be increased by any means whatsoever. F. Shall not be repaired or rebuiR unless the use is changed to a conforming use if the nonconforming use is damaged by fire or other causes to the extent of fifty percent (50%) of its fair value: . . 33. Sub,sequent to the adoption of the Ordinance, Defendant has increased the structures in its Marina by adding new docks, floats, stairs, pilings, poles, lights, electrical ~quipmcnt'and other structures in wetlands and ~eas adjacent thcrcto. 34. Subsequent to the adoption of the Ordinance Defendant has enlarged, expanded and increased the intensity of its use. 35.: Subsequent to the adoption of the Ordinance Defendant has repaired and/or ~built dOCks and other structures by more than 50%. 36. Defendant's acts of enlarging, expanding and increasing thc volume and intensity of the use of the Marina, adding new structures and/or repairing or rebuilding more than 50%, con~itutes a continuing violation of thc Ordinance. 37~ Plaintiffs suffer irreparable harm and have no adequate remedy at law. AS AND FOR A THIRD, SEPARATE, AND COMPLETE CAUSE OF ACTION FOR ALL PLAINTIFFS 381 ~ Plaintiffs repeat and re. allege each and every fact contained in paragraphs I through 27 with the same force and effect as if fully set forth herein. 39. The Ordinance provides in pertinent part; § 100-237. Prohibited uses in all districts. A. Any use which is noxious, offensive or objectionable by reason of the emission of smoke, dust, gas, odor or other form of air pollution or by reason of the deposit, discharge or dispersal of liquid or solid wastes in any form in such manner or amount as to cause permanent damage to thc soil and steams or to adversely affect the surrounding area or by reason of the creation of noise, vibration, electromagnetic or other disturbance or by mason of illumination by artificial light or light reflection beyond the limits of the lot on or from which such light or light reflection emanates; or which involves any dangerous fire, explosive, radioactive or other hazard; or which causes injury, annoyance or disturbance to any of the surrounding properties or to their owners and occupants; and any other process or use which is unwholesome and noisome and may be dangerous or prejudicial to health, safety or general welfare, except where such activity is licensed or regulated by other govenunental agencies. . · B. Ortificiai lighting facilities of any kind which create glare beyond lot lines. 40. The Marina results in smoke, noise, and pollution which have affected the !peaceful use and enjoyment of Plaintiffs' homes, 41. Plaintiffs suffer irreparable harm and have no adequate remedy at law. AS AND FOR A FOURTH, SEPARATE, AND COMPLETE CAUSE OF AC~I'ION FOR PLAINTIFFS VICTOR J. ZUPA AND MARY S. ZUPA 42. Plaintiffs, Victor J. Zupa and Mary S. Zupa repeat and reallege each and every fact contained in paragraphs 1 through 27 with the same forc~ and effect as if fully set forth I . ~ herein. 43~ Defendant's electric installations' supporting its Marina have been determined to bc non-compliant with the Town Codo by a member of the New York Board of Fire Underwriters electrical inspector, who according to thc Town Code, is considered the Town's electrical inspector. 44. ' The non*compliant electrical installations create a danger of fire and personal safety to Plaintiffs, Victor J. Zupa and Mary S. Zupa as residents of thc 365 Basin Property. 45. Ordinance. 46. The non-compliant electrical installations are a continuing violation of the Plaintiffs, Victor J. Zupa and Mary S. Zupe suffer irreparable harm and have no adequate remedy at law. ASAND FOR A FIFTH, SEPARATE AND COMPLETE CAUSE OF ACTION FOR PLAINTIFFS VICTOR J. ZUPA AND MARY S. ZUPA 47. Plaintiffs, Victor J. Zupa and Mary S. Zupa repeat and rcallcgc each and every fact contained in paragraphs I through 27 with thc same force and effect as if fully set forth herein. 48. Th~ Ordinance provides in pertinent par~: § 100-239.5. Lighting restrictions. This section is adopted pursuant to thc town's police power. This section prohibits excessive light and glare by any use, restricts lighting in the middle of the night and sets a maXimum height for lights to minimize the potential for glare. A. All outdoor lighting shall be shielded so that the light source is not visible from adjaceht properties and roadways. Lighting fixtures shall focus and direct the light in such a manner as to contain the light and glare within property boundaries. B. It is a general principle of the town that parking lot lights should be turned off or reduced in intensity between 1 i :30 p.m. and 4:00 a.m. C. All freestanding outdoor lighting fixturcs shall be limited to a height of no more than fou,-teen (14) feet above ground level. Thc fixture shall focus and direct'thc light as specified in Subsection A above. D. Recreational lighting may exceed the above height limit but is subject to the following standards: (1) All iv/tensive recreational lighting shall be so located on the property with reference to surrounding properties that it shall be reasonably screened from view and compatible with thc existing or potential use of neighboring properties. (2) No outdoor recreational facility, public or private, shall be illuminated after 11:00 p.m. except to conclude a recreational or sporting event or any other similar activity conducted at or in the facility which was in prograss under such illumination prior to 11:00 p.m. 49. Subsequent to the adoption of the Ordinance, Defendant has installcd parking , lights. 50. Plaintiffs, Victor J. Zupa and Mary S. Zupa suffer irreparable harm have no Mequate remedy at law. WHEREFORE, Plaintiffs demand judgmen! of Defendant as follows: 1. For all Plaintiffs, upon the first and third cause of action for judgment :~ermanantly enjoining, restraining and prohibiting Defendant from using the Basin and the 580 5asin Property for ~he conduct or operation of the Marina; for judgment ponnanently enjoining, ~straining, and prohibiting Defendant from maintaining, operating and using it~ dock~ and ,~pporting structures in the Basin and on the 580' Basin Property; and for judgment that }cfcndant be compelled to remove said docks and supporting structures. ~ 2. Alternatively, for ail Plaintiffs, upon the second cause of action for judgment '~crmanently enjoining, restraining, and prohibiting Defendant from enlarging, expanding, ~xtending or increasing the volume and intensity of its Marina beyond the condition as of April ~, 1957; and for judgment ordering Defendants to return its Marina in every respect to its size, ~tolume, intensity, and condition as of April 9, 1957. ~ 3. For Plaintiffs, Victor $. Zupa and Mary S. Zupa, upon the fourth cause of action ~or judgment permanently enjoining Defendant from, maintaining, operating and using its lights in thc Basin and on thc 580 Basin property; and for judgmant that Defendant be compelled to !removc said lights; i 4. For Plaintiffs, Victor J. Zupa and Mary S. Zupa,'upon the fifth cause of action for ~udgment permanently enjoining Defendant from maintaining, operating and using its clcctdcai iinstailations in the Basin and on the 580 Basin Property; and for judgment that Defendant be ' :compelled to remove said electrical installations. 11:81 5. For such other and further relief as the court may seem just and proper, together iwith the cost and disbursements, including attorneys' fees, of this action. [Dated: Melville, New York September 26, 2002 You_rs) WICKHAM, WICKHAM & BRESSLER, P.C: By. EricJ.~ or~~.' (631) 249-94g0 c~q~_ qt4~q ~t ~: iTO: PARADISE POINT ASSOCIATION, INC. (No #) Robinson Road P.O. Box 243 Southold, New York 11971 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK VICTOR $. ZUPA, MARY S. ZUPA And JAMES MILLER, Plaintiff(s), against - PARADISE POINT ASSOCIATION, rNC., Defendant(s). ;STATE OF NEW YORK ) ) SSA i COUNTY OF SUFFOLK - ) VERIFICATION VICTOR J. ZUPA, being duly sworn, deposes and says: I am one of the Plaintiffs in the i within action; I have read the foregoing Complaint and know the contents thereof; the same is : me to my own knowledge, except as to the matters therein stated to be alleged on information !and belief; and as to those matters I believe it to be tree. : Notary Public VICTOR J. ZUPA A'I'TORNEY AT LAW 4565 PARADISE POINT ROAD SOUTHOLD, NEW YORK 11971 E-M~L vzu pa~,concentric, net JUN - TELEPHONE (631) 765-6112 FACSIMILE (631) 765-6119 HAND DELIVERY June 2, 2003 Members, Southold Zoning Board of Appeals 53095 Main Road P.O. Box 1179 Southoid, NY 11971-0959 Re: Application of Mary S. Zupa 580 Basin Road (SCTM 1000.81.1.16.7) Dear Member: The question was raised at the March 20, 2003 hearing as to the "ownership of the Basin." It is believed that this is a peripheral issue in this appeal, and that the answer has been provided to you in Exhibits J, L and M and the memo of Wickham Bressler Gordon & Geasa dated May 15, 2003. This constitutes notice to you that the Suffolk County's Real Property Tax Service has, as of May 28, 2003, revised the tax records to show that the Basin is owned by the Town. of Southold. See map revised as of May 28, 2003 attached as EXHIBIT A. You should also know that the County reported that the Basin, previously designated as Lot 14, had always been recognized as owned by Southold Town. A computer copy of the index page from the1973 map is attached as EXHIBIT B. However, in 1982, a request was made to change the Basin to private ownership. EXHIBIT C. This was done on the heels of the 1981 minor subdivision which was approved by the Southold Planning Board, and the Basin was erroneously designated as "residential vacant land" for which an annual tax of $116.44 was ' Even assuming arguendo that the Basin was not tidal waters and was privately owned, the lands under the Basin to its center would then be owned by adjoining property owners who have one of their boundaries as the shoreline of the Basin---not by the Paradise Point Association. This is an elementary principle of real property law in New York as to non tidal waters. In this regard, the deeds of lots 5, 8, 9, 10 and 11 are attached as EXHIBIT F. assessed. EXHIBIT D. This is contrasted with an annual tax levy of $5045.62 for Lot 16.7, 580 Basin Road, which is "residential vacant land." EXHIBIT E. However, the 1981 minor subdivision treated the Basin as public waters and the two adjoining lots (Lots 16.7 and 16. 8) were setoff--- and not subdivided. If the Basin was privately owned then there would have to have been an application for a subdivision among the three lots. In 1981, neitherthe owners northe Planning Board considered this as the situation. Regrettably, it is anticipated that residents in the environs of Paradise Point will attempt a form of filibuster to delay a decision by this Board as they did in 1995. While it is appreciated that the purpose of a public hearing is to allow public comment, this Board should recognize that these residents already have expressed their comments as to this application in seven hearings before the Town Trustees. As you know, our appeal to this Board relates to the erroneous interpretation of Town Code. It is only secondarily that an area variance is requested in a residential neighborhood with lot sizes considerably smaller than this 1.7 acre lot. Almost a year of the two year Trustee permit that was issued to us has expired. For the last two years my wife Mary and I have been addressing the issues of this appeal---as the objectants have been registering their opposition. The objections made have been cumulative of matters already addressed. The comments are all for the same purpose: the objectants want free use of the entire parcel, or, fee title to the easement area and driveway on the property. Aside from being applicants, my wife and I are taxpayers too. Furthermore, we are full time residents of Paradise Point, and pay some $18,000 in annual taxes to live on the Basin. Our present home at 365 Basin Road directly abuts 580 Basin Road, the property subject to this appeal. Our comments should be given greater weight than summer residents who have paid nothing for the use of the easement area, and now want to have the deed to it and the driveway. How outrageous! Finally, as adjoining full time residents, we believe that a residence at this site is not only appropriate, but is compelled. This lot has been a hangout and a garbage dump which affects the use and enjoyment of our present home, and imposes a blight on the whole area. During the 1995 ZBA hearing, Dale and Jo Ann Maynard, the then owners of our present home, expressed this same view. EXHIBIT H. When we purchased our home we were never given notice of any "marina" use--- formal or otherwise. We were told that 580 Basin Road was for sale as a 2 residential lot, and representations were made that our present home was located on a "snug lagoon"---not a marina. EXHIBIT G There is no conclusion for you to reach but that the property is a legal lot under the Town Code. As to the only remaining issue of this appeal, you may decide that the access easement over a defined area does not constitute a principal use of this lot as a "marina." Alternatively, you may decide that a third party's illegal docks on Town owned waters prevents the use of this lot by us as a residence. In this event, your responsibility is to review the decision of the building department and the code enforcer to refuse to remove the illegal docks as they were requested to do (see, e.g. Exhibit I to May 15 submittal). Whatever way you are inclined to decide, the hearing on this matter should be closed this Thursday, June 5, 2003. This letter constitutes a formal demand for a final decision on this appeal. Very truly yours, DISTRIBUTION: Lydia Tortora, Chairperson Gerard Goehringer Ruth Oliva George Homing Vincent Orlando ZBA office file Cc wo/encl: Eric Bressler, Esq. Catherine Mesiano 3 . PROPERTY INFORMATION (/~ 3~) Dletrlct 8~tion Block Lot I ~ooo I °8~°°I o~oo I o~oI Uber I Page Document Code Document Number 005190000 Document Date Regorded Date Ownem Name(a) Last Name / Company First Name % I TOWN OF SO~HO'.O I I o I Physical Address Street # Unit Prs-DIr Street Name Post-DIr Type City or Town Village State Zip Code Page 1 of 1 Vet. 011603 11 -NOV-12 Flied Mape Flied Map # Sect]on Block Lot Name Condo Maps Condo Map # Ph.ase Bldg Unit Name Prevloue District Section Block Lot [ - I °°°°° I oooo I oooooo T New DistrictSection Block Lot I ~ooo r o8~oo j o~oo I o~oo~ I Land use(e) ~nknown I Front ~9 ~Jnknown J Depth ~VAR Owner Code ~Jnknown Owners Codes ] Acre Calculated Acre Deed Item Number Re.~, [ Special Distrtcta Ambulance Fire 28 Lighting 43 Refuse School 5 Water Cantrolda School District East ID000000 ] JUnknown .o.~ J~ooooo Overlap ~--~ TI~ Suffolk County Real Prope~y Tax Service Aguncy docs not in any manner guarantee the completL-nes$ or accu~y of the information contained on this page. ~A,~AFFECTED TAX MAP NUMBERS OWNERS NAME ITEM NO. RPT-102 JUL 1 1~2 ~..': REQUEST FOR -- REMAPPING ] -- INDEX NEW, PARCEL. DESCRIPTION ..... ITEM NO. N , ;~ DATE ~ OFFIC~ LOCATION: 53095 ROUTE 25 SOUTHOLD, ~ 11971-0499 473889 81.-1-16.10 TOWN OF SOUTHO]~ D~CE~)i. ~I~)~LIDATED REAL PROPERT~BILL IF THE WORD 'ARREARS' IS PRINTED HERE SEE COUNTY TREASURER'S NOTICE ~ 610 ON REVERSE SIDE. OFFICE HOURS & PHONE MON-FRI 8:00 AM TO 4:00 PM 631-765-1803 FAX: 631-765-5189 10 9757 PARADISE POINT RD 1.93 295,457,299 126 311 RES VACLAND PO BOX 1468 SOUTHOLD NY 11971 PARADISE POINT ASSOC First Half: 9712 Second Half.' 9712 SOUTHOLD LIBRARY $55.63 12/26/01 12/26/01 TAXABLE ~, 100% OF FULL VALUE 6,522 TOTAL TAX AMOUNT SOUTHOLD TOWN TAX 22.29% 150 2.36% 173.082 6,90% 25.96 NYS REAL PROP TAXI.AW SOUTHOLD FIRE DIST WASTE WATER DISTRICT STHLD SOL. WASTE DIST FIRST HALF TAX 58.22 0.33% 4.83% 0.22% 1.88% 150 'r 2.629 .45.00% 150 ! 37.483 3.30% 150 / 1.706 27,90% 15~ 14 581 85.20% 7.26% SECOND HALF TAX 58.22 0.39 5.62 0.26 2.19 TOTAL TAX LEVY ~, 116.44 8.46 ~ EXHIBIT OFFICE lOCATION: 473889 81.-1-16.7 TOVflW OF SOUTHOLD 610 COUNTY ~REASURER'S NOTICE ON REVERSE SIDE. BILL OFFICE HOUB.8 & PHONE MON-FRI 8:00 AM TO 4:00 PM 6~1-765-1803 FAX: 631-7~5-§189 10 9755 580 BASIN RD 2.1 ~ ~. 295,457,299 1,598,350 RES VAC LAND ZUPA MARY $ 4565 PARADISE POINT RD SOUTHOLD NY 11971-5124 h.ll.,llhh,h,,h,,Ihhl,,,,IM,hl,,hll,,,hI,M,I 12/5/o2 ZUPA MARY 6,500 6,500 TAX&BLE VALUE SC)UT*HOIDUBRARY'~;"i'" i' 2.20% 511.392 8,5~0 7~10% 5.20% 3,324.05 110.87 TOTAL TAX A~OUNT 3,~_~4..92 119.07 119.07 6.90% 1,125,03 WASTE WATER DISTPJCT :' ' ": 0.22% 6,5(30 STHlD SOL WASTE Di~ ,., : ,,: .. 2.629 37~48,3 1.706 -.45.00% 3.30°/0 243.64 27.90% 11.09 85,20% 94.78 2;522.81 5EcOND HALF TAX : 2,522.81 TOTAL TAX LEVY ~' 1.125.03 366.60 5,045o62 THIS TAX MAY BE PAID IN ONE OR '1~/O INSTALLMENTS CONSULT YOUI I,AWYI! IJtOIII SIGNINt THIS IN~TIIUIdlNT,-.THIS INSTIIUIdENT SHOULD Il USiO BY LAWYiU ON'Y~ THIS INDENTURE, m~de ~e ~ ~; a.' ~ ~~ --: ~,~/' ' , nineteen hundred an~ ~_ PA~DIS~. P0~NT CORP0~TI~, a corporation or anlzed ~A~Ang ~ae~ ~ne laws ~f the St~t= ~ ~-.. ~ .... ~ and ~ · office at Main *~ ~ .... ~ ~ ~. "~ xor~ wa~n its princi a ~ · S~ ~ao.n~e~, Sou~nold, New York, P party of thc first part, and HENRY O. EDFERS, residing at 565 Gilford. Avenu~ 0ceanaldo, Nassau County, Now York, pi~'y of t~e second ~ : ~TNI,$$I~H, that ~e 't~rty of ~o ~, ~ constdt~tion o~ Ten ~llars .' ~on~d b ~ o o' ' ' ' ~o~v~ua~c con . ~ f~ . d ,d~shereb t ' ~" na~o~ as lots n b ~ e ed~eight (8) and ni .... · ~ · g entl$1~d "Map of 8outhold, Suffolk Oo~tv. ' ~um~u roxn~ a~ ~a~.x~_~,To~w. 'Of ' - New Y~ . ....... . ~-. ..... , o~.veyec ~cn ~ 1963, by Otto W. Van Tuyl & Son~ Licensed Land Surveyor~ and filed in the Offlcs of the Clerk of Suffolk 0o~2 o~ the llth day of April, 1963, as-.~p No. 3761. SUB~ECT to the covenants and restr!ct[q~,coneainedLu ~ohsd~Lls 'IA" attached hereto and~ade a part hereof..'~,~ · - PA DI3E INT E~TATE~ Covenants and Rast~lotiona No hulld~ng oF structure abel% ba a~ected, altered, placed I to ra~a~n on ~y toe,dentrol bu~l~ lo~ otho~ t~ one ~o tratleru, tents or o~ a~l~ bo po~tod Qn aa~d las ~y t~, · etton t~roo~ .~ ~ve ~rot bo~ curried ~ ~4 t Nm S?ade, c~aft, bu~ne~s, m~aoto~ ~n~mt~, )n o~ o$~ come,sial onto~r~o~ ~ncludL~to~e, ~e~ ~ roo~ ~eo, 8~11 be oo~d~otod on S~P~O~IOI ~.'. ?,. ~ C~Ss~dO PriV~Ole to,Zero o~ watoroloeetg ~ua~ ~b $~rO~ ~d ab~do b tho ~vo~ bo~, · To tho oxton~ that tho coo~ of ~tenenoo of t~ ~v*t ~~w~t~ the a~oreeaXd pr~soa- w~oh are -"~' ..... P e ~lJ ~n~on~oe of ~he Yacht Club ~vored by pament, mdc b' t~i =~{-~'-~? ~e.~ o~on, ~e not ~ .,nu~l pro ra~a, ~ aoco~oo with the aSlOOaod ~porot~on e~ll bo excluded ~o~ P~oooo of o~h o~utat~on and -. ~ rara~.o ~o~nt Oo~o~atton, ~0 o~oeeoors'~d aoa~g or succ~so~ sud assigns of the party of the sccon part forever. ~A~n~D th.e pa~y .of th.e first part covenunt~ that the party of thc first part has not done or suffered .w. nereoy ~ue sasd premises have been encumberedin any way whatever, except as aforesaid. me p~ty of the ~irst part, in compliance with Sect/on 13 of the Lien Law. covenants that the p~ o~ the first pa~.will receive thc consideration for this conveyance and will hold the ~ght to ~eceive sue cons:der~t/on as ~, trust fund to be applied first for the purpose of paying the cost of the improvement and will apply the same first to the payment of the cost of the improvement before using any part of the total o! the same for any other purpose. The.word "pM't~' shall be construed as i~ it read "'parties" whenever the sense of this indenture so reqmrcs. the p~ty of the first part has duly executed this deed the day and year first STATI OF KIW yOlll~ ¢OUl(r'f OF the ~y of pcrso~lly came 19 , T~fo, to me knowl~ to be the individual desc~becL in executed ~e fot~goMg instrument, executed the ~t ~h~e Prosiden~ I o~ Paradise Point Corporation I~t he.wa ~.~ ~ of ~d ~fi~; ~t ~e ~ ,~ I d~M ~ ud who ~t~ ~e ~o~ ~ ~ o~ of ~e ~4of ~o~ of ~d ~m- ] ~te ~e ~e; ~d t~t RECORDEo CONSULT YOUB gAWYSR BEFORE SIGNING THIS SNSTRUMF, NT'-TfllS INSTRUMENT SHOULD BE IJS~D BY LAWYSRS ONLY. ,.. :'"' :~ '- - ~ ~ ~ nineteen hundred and si~2-six TH~ IND~ mad~ thc ~y Of , and exi~ti~ unde~ the ~ws ~ tho grate of New York, with its p~incipal office at ~in ~t~eet (ne n~ber), Southold, S~folk County, New York, ,o[thefirstpart, and HAZEL K. BOYD, residing at 105 Brompton Road, Garden City, New York, ' of the second part, rt in consideration of Ten Dollars and other valuable consideration Wlll~Eml~, that the party, of the .first ~a : . __.s .~, ....... to the natty of thc second ~rt, thc heirs aid b the party of the secona part, Goes nereoy grant oPr succYessors and assigns of the party of the second paxt torever, lying and being ilgXl$ at Bayview, near Count), of Suffolk and State of New York, known grid de~ignatQd as Lot Nu~uber Eleven (ll) on a certain map entitled "Map o~ $o~$ion I, p~radiso Point at Bayview, To~.~n o£ Southold, Suffoqk Coo~ty, Now York," surveyed M~rch 25, 1963, by Otto W, Van Tuyl & ~on, Licensed Land Surve,~yors, Gveonport, N, Y,, and filed in the Office of the clot1: oc ~u£t'ollc county on t~e llth day of April 1963 as Nap No. ~761. PARADISE PO IN? ESTATES Covenants and 2estrlctions l, NO building or structure s~all bs erected. ~tered, placed or I to rema~ on any re01dential building lot other than one (1) f~l~ dwolli~ house ~nd a private garage fo~ f~$12 use, NO g~o O~ ~u~ ~nol~d~g b~ nos l~ed I, o~bu$1~l ~d fonoo~, ah~ll bo ovoo~d ov oon,tvuo~ed ~.~O0~t$o~ ~eO~ I~1~ ~V. fi~t bo0~ ~ubmSttod to and approved ~ ~$1~ ~G~tOO of ~0 Paradise fc~n~ Corporation, its suc- ~0 t~a~ 0Paf~ b~$nooa~ m~facto~, ~ndu~try, co.arcs, op o~P oo~ro~al on~0~prise, including ~o~els, mo~els, ~ a~ shall be conducted on tho premises, ex- ~ ~ a~ll pravon~ the Paradis~ Po~ Op p~l~ 0~rs ~o do so, with or No builds or,GetuPs o~ st~ctu~ea on, above or below ~ho oth~p t~ p~blie utility pipes o~ lines~ s~ll be erected, 9p ~a~t~od wizen ~went~ ~0) feet from the adjoining fOWl~ pO~l~; ~lS op livestock~ o~hor t~ domestic ,~e pP~v~o, ~ollo~a ov wa~0rolose~a a~ll be erected, bo e~eote4 ~d ~a$~$a~ed to t~o ca~ of the sewage a~ oao~ ~0115~ ~d the a~o shall bo of a~h design and ~t~t$O~ a. ~Y bo approved by the agency of 8ovo~ent Sgd~o~on t~roof, ~, Eac~ c~eP of a lot within said premises, except Paradise s~ll Jc~n the Paradise Point Association Inc. ~ ~hePe$~ ~d abide by the ~les ~d regulations of I~o, aa ~ot forth in the charte~ and ~ ~ ~OC~a~ ~d ~o dote~l~od from t~o to time by its ~o tho o~ont that tho oo~ of maintenance of the private O~ ~0 by tho o~ovo of ~ho lots within tho premises, and the of the Yacht Club and other structures lncludinz ~19~te ~gd b~eads ~d beach property, of w~ch all of the o~ ~ava~$ae Po~ Association, Xhc, have use in comes, is not b~ pa~enta ~do by the Paradise Point Association Inc. in any ~eapv each o~er~ of ~ individual lot on the premises pro r~ta, In accordance wit~ the assessed value of such pro- t~ p~ece~l~ yea~ fo~ any deficiency. Provided, however, that any Iota o~ed by Paradise Point e~ll be excluded fey purposes of such co~putatio~ aud it ~ot bO aigooood fo~ ~y pop,ion of ~uch Tho Favadtoo Po~nt Co.oration, ~e o~cceoeo~o r01oago alter, ~o~d ~d a~ul all ~ any cf those Ocvo~anto ~d w$~ the con,est In writing of all p~opQ~t2 ~ OOVENANT~ AND RESTRICTIONS shall ~ wit~ the bo oongt~ued as real covenants ~nd rest~lo~lon~ attached to w~tb the l~d, ....... a~. ~es~,u!cti°ns cf' recsr~ a:~f~ ~c tke Subject ~o co~.=r:a-~s ' ' attached hereto and ~ part ~- cmos a~roe~;er.t. This conueyance nas been m~-~ wFitins of all tbs stockholders the party of the first part. ~(~4,F~3f~R,¢~,~nt .--'.~ ........... ~t~,k~;: ~l,fi,~ ~hi.i~: TOGETHER with the a and all the estate sod rights of the part)' of the first part in and to said premises; TO HAVE AND HOLD the premises herein granted unto tile party of the second part, the heirs or successors and the party of the second part forever. AND tile party of the first part covenants that the party of the first part has not done or suffered ~dlerehv tle s:~ t t~remises have been encumbered in an)' way whatever, except as aforesaid. AND tile parw of' the first part, iu comp ance with Sect on 13 of the Lien Law, c~ venants that the party the first part x~.'ill receive the consideration for this conveyance and will hold the right to receive such on a, a trust fund to ~e applied first for the purpose of paying the cost of the improvement and will e. rati ' ',- -' -' - ~-ment oi the cost of the improwm~ent before us ng any part of the total of the sa. me fo any other purpose, construed as if it read whenever the sense of this indenture so (L L:. -U_C - , STATE OF NEW yORK, COUNTY OF On the day of 19 , before me personalty came , me known to be the individual described in and who executed the foregoing instrument, and acknowledged that STATE OF NEW yORK, COUNTY OF ss: On the (lax' of 19 , before me whom I am personally acquaiutcd, who, being by me dui)' sworn, did depos~ and say that he reslde~ at No. to be the individual described in and who executed the foregoing inst~ment: TO RECORDED AUG 25 1966 i'~ORV,;!,tJ E. KLIPP II~fOl~ $1§NING THIS IN~T#UMsNlr--THiS ffNSTRUMSN~' SHOULD BE USSD BY ~WYERS ONLy. ~D~m~de ~e ~' ~y of A'~2~ ~ , ninetee, h~dr~ ~d sixty~si~ ~ PA;~DiSE POINT CORPO~:ATZO~, a corporation o~canized an~ ex~stir.~ unaer t~ laws of tee State o~"~eu York wi.h its P~incipai o ~ice at Main Stroe~ Southo!d, Sufl'olk County, ~ew Yc~k, party of ~he 6r~ pan, ~ud JOLT !~. A~,EN and P~RL :,']ELLS ~L~,~L, ~'i~ ~!!'e, bcCh ~osldin~ at BaT -- ~ , Avenue, Cutchocue, in the To~.~:: o~ Southold, Suffolk County, New Yo~k, party of the second p~rt, ~ ghat Om parpd of ~¢ fi~t ~, in ~nside~tion of Te ~d by t~ ~ of ~c s~nd m~, d~s ~reh ....... a , n Dollars and other valuable consider ' or iu~r$ ~d ~s of th~u of t~ ~]~n~ release unto the party of the s~nd ~n th~ ~n ~ ~t ~n plog pi~e or ~ of ~d, ~ ~e b i ' · 1~~ at Bayview n~ e .... ~ld~s~d ~prov~cn~t~r~er~ed sit~te , 1~ ~ ~ow~ O~ Sou~.qo~d~ County of $ufl'olk ~d State of New Yo~k,~own and designated as Lot U~ber Ten (10) on a cortain ~p entitled ,,~p of Section PaI'adia~ Point at Bayview~ Town o~' Scu~:.ola, SufI'olk County, lieu Yo~k," surveyed ~ch 25,~1963, by Otto L~censed ~rA S~veyo~s, ~reenD ' ;- . Van Tuyl & Son, o: tho Clor~ ,,~ . ....... ~c~ ~cunt .... . f~ted in one 0zfice ,.~ Lo. 3761. ,. on t.,e lluh day o~ April 1963, as - ,c~,.er uith a rib:it of way for in~ress and egress, in common with others, ovor tP_e roads as shown on said map. Subject to covenants -~ ~ ..ne ~est~ictaons of record and to the covenanta and is attached ~ . ~estrictlons contained in Schedule "A" ~.oro~c and marlo a Pa~t of this a/~roement. PA?.~DISE PO~T ESTATES 1. No building or structure shall be erected, altered, placed or permitted to remain on any residential building lot other than one (1) single family dwelling house and a private garage for family use. 2. No trailers, tents or camping shall be permitted on said premises at any time. 3. No structure or structures, including but not limited to, dwellings, outbuildings and fences, shall be erected or constructed or allowed to remain unless the plans and specifications therefor and the location thereof shall have first been submitted to and approved by the Building Committee of the Paradise roint Corporation, its suc- cessors and assigns, in writing. 4. No trade, craft, business, manufactory, industry, co~m~erce, profession or other commercial enterprise, including hotels, motels, boarding and rooming houses, shall be conducted on the premises, ex- cepting that nothing herein contained shall prevent the Paradise Point Corporation or the Paradise Point Association from erecting, operating and maintaining boat basins, yacht or beach clubs, bath houses and other recreational facilities or permitting others to do so, with or without remuneration. 5. No building, structure or structures on, above or below the surface, other than public utility nines or lines, shall be erected, constructed or maintained within tw~n%y (20) feet from the adjoining property, 6. No fowl, poultry, snimals or livestock, other th~n domestic household pets, shall be kept on the premises. 7. Un outside privies, toilets or uaterclosets shall be erected, permitted or ~aint~lned upon the premises. An adequate septic tank or cesspool shall be erected and maintained to take care of the sewage disposal at each dwelling and the saree shall be of such design and construction as may be approved by the a~ency of government having jurisdiction thereof. 8. Each owner of a lot within said premises, except Paradise Point Corporation, shall join the Paradise Point Association Inc. and maintain membership therein and abide by the rules and regulations of the Paradise Point Association Inc. as set forth in the charter and by-laws of such association end as determined from tine to time by its governing body. To the extent that the cost of maintenance of the private roads within the aforesaid premises, which are subject to a common right of use by the owners of the lots within the premises, nnd the cost of maintenance of the Yacht Club and other structures including docks, floats and bulkheads and beach property, of which all of the members of Paradise Point Association, Inc. have use in common, is not covered by payments made by the Paradise Point Association Inc. in any calendar year, each owners of an individual lot on the premises shall be liable pro rata, in accordance with the assessed value of such pro- perty for the preceding year, for any deficiency. Provided, however, that any lots o~ed by Paradise Point Corporation shall be excluded for purooses of such computation and it shall not be assessed for any portion of such deficiency. 9. The Paradise Point Corpcration, its successors and assigns may release, alter, amend end annul all or any of these covenants and restrmctions with the consent in writing of all property owners in the said premises. 10. THESE COVEN^~TS A~D REST?IC*InHS shall run with the land and shall be construed as real covenants and restrictions attached to and running with the land. TOGETIIER with all r g t t t e and interes i anx of the party of the first part in and tc~ any streets and r )a~ s a ~ tting t e above ( escri md l,:em scs to the c~nter ;ines thercof: TOGETIIER with the appurtenance,; and all the estate and rights of the party of the first part in and to said premises; TO II.\VE AND TO llOLl) the premises herein granted unto the pan3. of the second part, the heirs or ~uccc~sors and a~:igns o~ the party of the second part forever. AND the part,;, of the first part covenants that t e party of the first part lms not done or suffert~ a vthing whereby the s~Jd prc~nlses } ave been encumbered any way whatever exce ' AND t enartv of tie fi ...... rt - ' , ~ . ~ , -' pt as aforesad, ,- . -~, 1,~-., ~n compliance with ~e~on 13 of the Lien ~w, covenants that the l~rtv of the first part will r~eive the conside~tion for this ~nvevance and will hold the right to receive s ch consid- eratlon as a trust fund to he applied first for the put.se ~f paving the cost of the improv~ncnt and will apph' the same first to the l~a3mcnt of the cost of the improv~nent ge~orc using any i~r of the total of the s~xe for any other Purl~se. The word "party" sh: I he construed as if it read "parties" whenever the sense of this indenture so requires. IN.~N~ WH~OF~ the ~rty of the first ~rt has dui). exc<uted this deed the day and year first a~ve written. . ....... tl~e Cbrporation dcscribc-d TO I 'IIIE TI'ILE GUAIIANTEE C~j$1PA~VY RECORDED MAY 2 1066 NORMAN [ KLIPP T~,~FE~ ~ STA'TE QF NSWYQIUC. CQt,tWTYC~ ~ SI~LPI'OI, K mt Q~to dsvel IR ,bela,om :STATE OF #EW YORK. COUNTY OF .c; [~I' X~)Z,K ti: In'JOsWlyab'M 3ohn II. Schut. t.e Ifldioy~ ho~geadOOltIdm (no t) p&r&dile ~tKt. l~Qod, Southold, Hey York 11971 d PAR~DX$~ pOZN~/C'OPPORATZON . ' , th~ (:oqmr~J do~ deocribecl ...... .:,~ OTATIE O~ NIW YOgllC, COU~Qp STATE OF %IEW YORK. COUNTY w~ i o,,,, pd,r,~noav aecl,~,,,,~d, whe, keb,I by aU 4 Mil, dld ck,~o~ of,,o My tbs4 that hi knmm$ USUFE TITLE INSUflAJ~CE .( ,N I UR'~ 2]-Albertson Realty. qwww.ccntury21 ~alberLson.convIislm~s, 65~ } Ai on * .y Southold, NY Country living at it's finest! You can have il all with this four bedroom, three bath, waterfront contemporary located on a snug lagoon. Your private dock at your door with Bay access in two minutes. Add to this your own tennis court overlooked by a studio/office. Work and Play at home!! $575,000. For information e-mail Mar&Aim Fear!ri at mfeavel(.&cent u ry21:Rlbr, r t~oll~, ;$a~OjtLListings t About the NorthJt:9~ I About Our Oftlce I Meet ()ur Sta~ E-mail Inquiries Reauest Brochette I Homg Site designed, built and maintained by Venturi Muttinmdia. 1 ;f:, .~e~ulal' Meeting of June ~995 i~ J~0uthOld Town Boa~l of Appeals ¥' ! Served in various positions 'on the Paradise Association including service as President fo~, I believe, years. I am here to ~pefu~y aa~we~ any ques~ons t~t anybody ~ve, I s~d come ~.~ a P~d speech. I didn'~ ~e~ze w~ g~g to be tht, comp~ted. th~ ~t, ~d we~d ~e to unde~d ~ ~e ~m t~t~s Pm ~t ~-g ~g away f~m you ~ not as~g you a .~u~a at ~ p~t. ~en we ~nvene, Pm su~ we~ ~ve ~, ~d you ~w~ some mybe you ~ answer, some ~ e~e ~ -~we~, so. ~y don~t we ~se~ve you fo~ t~t MB. SINNING; I also have the facts that I got today from the other l~dJoi,~,,,- neighbo~, of the Boat Basin, the Mayna~ds, and I only have one copy of it, but you can read it." CItAIRMAN; Thank you. Appreciate it. ""~.:~.MI[o SINNING: I also, if I' r~_~y, point out that I own a very small of lot. 'MRS. : MI~; Maynard is leaving.. He had home up for sale ' t want you to know that ai~. ~[RMAN. Did you want to ask a question of Mr. Sinning? ' ~'I~.~.ER TORTORA: I just wanted to know if you know the answer ~i:""i .~. gellt~'s question if the jetty was calculated in the total? a:~,SINNING: AS far as I k~ow, it Was. Yes. ~Elt TORTOItA: ~IRNING; Yes. It was. PLANNING BOARD MEMBERS BENNETT ORLOWSKI, JR. Chairman RICHARD CAGGIANO WILLIAM J. CREMERS KENNETH L. EDWARDS MARTIN SIDOR ~ P.O. Box 1179 Town Hall, 53095 State Route 25 Southold, New York 11971-0959 Telephone (631) 765-1938 Fax (631) 765-3136 PLANNING BOARD OFFICE TOWN OF SOUTHOLD MEMORANDUM To: Mike Verity, Principal Building Inspector Damon Rallis, Building Permits Examiner~/ From: Planning Board ~ Re: Paradise Point Lot # 1000-81-1-16.7 Date: October 29, 2002 The Planning Board reviewed your request to determine whether the referenced lot is a buildable lot. The history of subject lot is as follows: 1 The lot was created as residual open space/access of the Paradise Point Subdivision filed with the Suffolk County Clerk on April 11, 1963. The file contains a Covenant and Restriction dated February 11, 1963. It is unknown if the Covenant and Restriction was filed with the Suffolk County Clerk. If filed, applicable clauses include: No Structure or structures, including but not limited to, dwellings, outbuildings, and fences, shall be erected or constructed or allowed to remain unless the plans and specifications thereof and the location thereof shall have first been submitted to and approved by the Building Committee of the Paradise Point Corporation, its successors and assigns, in writing. Thc Paradise Point Corporation its successors and assigns may release, alter, amend and annul all or any of these covenants and restrictions with the consent in writing of all property owners in the said premises. 3. The April 11, 1963, subdivision approval granted by the Planning Board was subject to two conditions: a. Approval of the Suffolk County Board of Health b. Expanding the turn-around at the end of Basin Road to 100 x 100 feet. The tm-around and easement on the recorded 1963 Paradise Point Subdivision Map is not shown on the most recent plat submitted. The fate of the turn-around should be determined. 4. On June 14, 1981 the Planning Board approved a set off as indicated on the Paradise Point Corporation, lots titled Club House 2.75 acres and a unnumbered lot on Southold Bay 1.7 acres directly east of the inlet basin. This action was a result of a request from the applicant's agent in a letter dated May 22, 1981. The agent requested the set-offpursuant to Section 106-13A of the code of the Town of Southold. It is the general consensus that this action was taken in order to allow the remaining subdivided lands to be subdivided as a minor subdivision. On March 8 and March.29, 1990 two letters from Ms. Valerie Scopaz stated that the set-off action did not guarantee buildability of the lots and due to the fact that there is no filed map; recommended to the applicant at the time, to apply for subdivision approval. In a May 9, 1995 letter Ms. Melissa Spiro reiterated that the map for the set-off was not endorsed or recorded in the Suffolk County Clerk Office. In addition, the PB did not guarantee the set-off lots as buildable. To be considered buildable the, proposed buildings must meet all code requirements in addition to receiving Suffolk County Department of Health Approval. In a June 6, 1995 Memo to the Zoning Board of Appeals from Richard Ward, Chairman, Mr. Ward states that the Planning Board does not plan to take any further steps in regard to this set-off, as it is no longer within its jurisdiction. The Planning Board's still maintains the position that the set-off although referenced through a Planning Board resolution dated June 4, 1981 is incomplete in regard to the endorsement and filing provisions of Chapter 106 of the Southold Town Code and New York Town Law. The Planning Board in accordance with Mr. Ward's June 6, 1995 memo, will not take any further steps in regard to this set-off, as it is no longer within its jurisdiction. KENNETHP LAVALLE I ST SENATE DISTRICT THE SENATE STATE QF NEW YQRK July 8, 2003 Mr. Victor J. Zupa 4565 Paradise Point Road Southold, New York 11971 Dear Mr. Zupa: Thank you for your recent letter regarding Paradise Point. During my twenty-seven years of service in the New York State Senate, I have always prided myself on the fact that my office is known for its responsiveness to constituents. In this vein, we have helped any number of people or groups navigate their way through the govermnent system. The case of Paradise Point is no exception. I was contacted by the Paradise Point Association, and asked if I could seek clarification regarding ownership of a property registered as SCTM# 1000-81-1-16.10. The Association holds the deed, however, they informed me that questions had been raised as to ownership. As they have been paying taxes on the parcel for many years, they were interested in a legal opinion from the state. Included in the Association's paperwork was a letter from you to the New York State Department of Environmental Conservation (DEC) thanking them for verifying that the state owned this parcel. When my staff contacted the DEC to ask for clarification in writing on DEC letterhead, we were informed that the DEC has no authority to make such a determination. Additionally, the June 17, 2003 DEC letter which you :eference did not include any opinion. It served only to clarify the agency's role and recommended that I put the Association in contact with the N.Y.S. Office of General Services. On June 25, 2003, I wrote to the Commissioner of the N.Y.S. Office of General Services explaining that I had been contacted by the Paradise Point Association in the Town of Southold and was looking for clarification as to ownership of the above mentioned parcel. This determination is based solely on factual information related to state maintained maps and records. To date, I am awaiting a response. -more- -2- ZUPA July 8, 2003 To address your concerns about calls to the Southold Town Trustees in May 2002, I instructed my staffto call the trustees in regard to a March 8, 2000 letter from the NYS Office of General Services (OGS) sent to me by the Paradise Point Association. Again, the Association was asking for clarification of ownership of the above mentioned parcel. OGS stated in their letter that "limits of the state ownership would run from headland to headland at the mouth of the canal." Since the Town Trustees are charged with monitoring the waters and bay bottoms within the town, my staff discussed what area was the state's responsibility, what area was the town's responsibility and what area was the Association's responsibility. Again, I referred the Association to OGS for further clarification. Residents of Paradise Point including you, Mr. Zupa are all my constituents. My office does not routinely seek to inject itself in a neighborhood dispute, however, if a constituent asks for a service my office is able to provide, I am always happy to oblige. When a matter is not within my authority I refer it to the appropriate agencies as was done in this case. I would have taken the same steps regardless of who made the inquiry. I stand by my offices record of public service. Joann Ingham has served me proudly for seventeen years and she acts as a liaison between my office and other agencies and municipalities. Whether it be Ms. lngham or another member of my staff, we will continue to address any pertinent inquiries from individuals with respect to this issue in a manner consistent with my twenty-seven years of constituent service. ~P. LaValle '~tate Senator cc: Honorable Josh Horton o/*'Lydia Tortora, Chairperson, Southold ZBA Honorable A1 Krupski, President Southold Trustees VICTOR J. ZUPA ATTORNEY AT LAW 4565 PARADISE POINT ROAD SOUTHOLD, NEW YORK 11971 vzupa~,optonline.net / 2503 TELEPHONZ (631) 765-6112 FACSII~T,~ (631) 765-6119 REGISTERED MAIL, RETURN RECEIPT REQUESTED PERSONAL: To Be Opened By Recipient Only June 30, 2003 Hon. Kenneth P. LaValle 325 Middle Country Road, Suite 4 Selden, NY 11784 Dear Senator LaValle: When we met last summer at the Polish Center, your brief discussion with me and my wife Mary appeared congenial. We expressed to you our admiration for the work you have done, and the regard in which you are held by residents of the North Fork. We do not understand, however, why your office is permitted to continue to take sides and act against us in a vituperative property dispute we have with an association of our neighbors in Paradise Point. The neighbors' position is best summarized by the ultimatum they gave to us: "either give us a deed to the shoreline and a driveway on your property, or we will do everything we can to oppose you in building a home." Because we would not give them a deed, they have carried out their threat by preventing Town agencies from granting permits that would otherwise be granted. The enclosed letter from the NY Department of Environmental Conservation to the Paradise Point Association, which copies your office, shows your office's latest efforts in this regard. The letter indicates that the auspices of your office were used in an attempt to influence a State agency to give the association a favorable opinion on a title issue to a body of water adjacent to our present home and the lot on which we wish to build. This is an issue in a pending NY Supreme Court action to quiet title which the neighbors brought against my wife. Despite official State records to the contrary, they seek to continue the fiction that they have greater rights in a public body of water than other Southold residents. This they claim enables them to maintain an illegal and unsafe "marina," to interfere with navigation, and to prevent the construction of a residence by us on our lot. 2 This letter is the latest occurrence in a continuum which started in your office last year. Since May 2002, we have had to overcome the influence your office has exerted on Southold Town officials. Last year, for example, after individual Trustees told me that your office had been making phone calls to them in opposition to us, the Trustees refused to issue a wetlands permit unless certain conditions were met. These conditions had nothing to do with the environment and were directed by the neighbors. This was allowed to occur though seven hearings had been held between April and November during which no environmental objection was ever raised. This necessitated legal action in NY Supreme Court by us which had as a factual predicate improper influence on the Trustees, and sought redress for due process and equal protection violations under the New York and Federal Constitutions. Shortly after filing this proceeding, the Trustees, through their attorney, issued the wetlands permit and removed all the unconstitutional conditions. Since then, and at every step in the Town permit process, I have been told of the involvement of your office in opposition to us. Even now while my wife's application is before the ZBA to overrule what would appear to be a clearly erroneous interpretation of the Town Code by the building department, I am reminded of your office's involvement. At the second hearing before the ZBA on June 5, a member of your office lent imprimatur to the opposition by her conspicuous presence while her father spoke spitefully of us. Aside from who one believes is right in this dispute, or whether in the first instance a senatorial office should even be taking sides in a dispute of this kind, there is the more significant question as to why the power of your office is permitted to be used to further the personal interest of a member of your staff. Ms. Joann Ingham (nee Scalia), is the daughter of Robert Scalia, one of the opposing neighbors, who is the prime mover in the opposition against us. Mr. Scalia's actions against us are totally self motivated, and he stands to personally benefit by his daughter's efforts. It is believed that you should review the role that your office is playing in this matter, and the effect it has had on Town officials in the performance of obligations which are imposed by New York law and the Town Code of Southold. Respectfully, Cc: Josh Horton, Southold Town Supervisor Lydia Tortora, Chairperson, Southold ZBA Al Krupski, President Southold Trustees New York State Department of Environmental Conservation Division of Environmental Permits, Region One Building 40 - SUNY, Stony B, rook, New York 11790-2356 Phone: (631)444-0365 · FAX: (631)444-0360 · Website: www.dec.state.ny,us Edn M. Crotty conr~mssioner Andrea Kolyer Paradise Point Association, Lnc. 24 Gramercy Park South New York. N.Y. 10003 Re: Paradise Point AssoeiationBasin Tow'nofSouthold SCTM ~ 1000-81-1-16.10 Dear Ms. Kolyer: June 17, 2003 Acting Regional Director Tony Cava asked me to respond to your June 1, 2003 letter seeking clarification of the DeparUnent of Environmental Conservation's position on the ownership of the underwater land comprising the Paradise Point Association's boat basin. Please be advised that in response to a telephone inquiry by Victor Zupa, Esq., I did look up the ownership of thc underwater land m question using a set of maps maintained in this regional office. The map on which your property appears is titled "New York State Outer Continental Shelf Study Program - Municipal & Private Jurisdictional Boundaries of Land Underwater Map # 3 Sheet 17 of 29". It provides a navigational chart-scale representation of the coast with different patterns of cross hatching or shading indicating four possible ownership ennditions: municipal ownership, private ownership, New York State ownership, or state owned underwater land which is the subject cfa grant or long term lease. This map shows the underwater land of the Paradise Point boat basin as owned by New York State. However, please note that the Department of Environmental Conservation is not the state agency responsible for making final or definitive determinations of the ownership of underwater land. The New York State Office of General Services is the agency with the responsibility for the management of state owned underwater land. Any final determination on the issue of state ownership of the underwater land in question must con'~ from the Office of General Services. I suggest contacting OOS at the folloW'rog address to resolve this issue: N.Y.S. Office of General Services Real Estate Development = Land Management Coming Tower, 26~ Floor Empire State Plaza Albany, N.Y, 12242-00001 Telephone (518) 474-2195 Fax (518) 474-00 t 1 email: landunderwater(~,,o~s.state.nv.us Please contact me at (631) 444-0371 if you have any questions about DEC's involvement or position on this issue. Thank you for your attention in this matter. Andrea Kolyer June 17,2003 Page 2 cc:VictorZupa, Esq,~'"' Office of General Services JoannIngham- SenatorKermethLaValle'sOffice Tony Cava Sincerely, GeorgeW. Hammarth DeputyRegional Permit Adr~nistrator APPEALS BOARD MEMBERS Lydia A. Tortora, Chairwoman Gerard P. Goehringer George Horning Ruth D. Oliva Vincent Orlando TOWN MEMO BOARD OF APPEALS TOWN OF SOUTHOLD Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971-0959 ZBA Fax (631) 765-9064 Telephone (631) 765-1809 http://southoldtown.northfork.net TO: FROM: DATE: SUBJECT: Valerie Scopaz, Town Planner and/or Planning Board Lydia Tortora, ZBA Chairwoman /3~.~ ~ June 2, 2003 Prior Planning Board Approved Map (Ref. CTM 1000-81-1-16.7) The Board of Appeals has an application pending concerning property located at the end of Paradise Point, formerly owned by Sinning & Others, and now owned by Mary Zupa. Would you please furnish a copy of the Planning Board approved map or any other information that would clarify lot recognition or creation of 16.7. Thank you. MEMORANDUM FROM RE= DATE File SCTM # 1000-81-1-16.8 Paradise Point Corporation Subdivision Valerie Scopaz, Town Planner Subdivision of "17th" lot. March 19, 1990 The owner of the "17th" lot, Mrs. Deutsch called to find out if there was an approved subdivision map on file in the Planning Board office. Evidently she is unable to obtain a HealthDepartment approval to construct on this lot because the lot does not appear on a filed subdivision map. I researched the files and found that there is no subdivision map on file for this lot. However, the Planning board did set-off this lot along with two other lots. that were in the ownership of the Paradise Point Corporation in 1981. The Board set-off three lots in one resolution on June 1, 1981. It appears that this action was taken so that the remaining property could be subdivided as a minor subdivision. 'The minor subdivision application took other land of Paradise Point Corporation and ad~ed it to four existing lots in that subdivision. Lot "17" appears to ~ave been one of the three remaining lots in this subdivision that were in the ownership of the Corporation. A vacant land Certificate of Occupancy was issued on June 12, 1981, just two weeks after the Planning Board agreed to set it off from other land in the minor subdivision. However, this C.O. does not guarantee the buildability of the lot. Mrs. Deutsch was informed of all of the above in a telephone conversation on Friday, March 16, 1990. She asked for advice on how to proceed. I suggested that she contact Roy Reynolds of the Suffolk County Department of Health to ask what he will require of her before he will issue approvals. I also mentioned that in order for her to obtain a filed map that she may have toapply forsubdivision approval from the Planning Board because of the fact that there is no "filed" map other than that referenced in the June 1, 1981 set-off resolution. Mrs. Deutsch will contact this office after consulting with Mr. Reynolds. cc= Victor Lessard, Principal Building Inspector i~ '") FORM NO, 4 TOWN OF SOU'[HOLD BUILDING DEPARTMENT Town Clerk's Office Southold, N.Y. Certificate Of' Occupancy Z10524 Date .. · .J.u.n.q. 1~? ..................... ,19 8.1. THIS CERTIFIES that the,~q!. .~, ................................................. Location of Property .B.~.~,a.v...~.i~p.e. ~.. ~ .......; ...... Sout:hoLd ~ · N e~ .¥org ........ S~'eet Hemlet County Tax Map No. 1000 Section . · .81 ....... Block ..... 1 ......... Lot ...e/O..1.5 ....... P radise Point Corp.. ...FUsd M,p ......... Lot ........ w$lon ........................... ' ..con£6~s ~ubstantislly to the applicable PrOv. isions C~de of ~he To~m of Southoid. The premises are located in 'the ....... A Reeidential and A~ic. ult,~nl ~ 'D~str[ct and may be used.. for such uses as are preeentlY authorized by the Zoning Code in such. d~str~ct aub3ect to, however, all of the. requirements of the Zoning.. Code. "This is a Single and Separate Lo~ as Approved by ~he Southold Town Planning Board-', June 1, 198~. No Building Permi~ can be issued before ~he Access is Approved in accordance wi~h section 280-a of the Town Law". ' paradiSe Point C. orp Thc certificate is issued to ' - ............... [owner. lessee or ~enant) - · of the afo~es~iid .~.6'1;... Building Inspector FROM :DI~.SEIRT SFII2_~ INUESTMENTS 200~ 12:2~PM P1 ! FROM :DESERT SAGE ZNUESTME3~TS FAX NO. :7605281569 Mar. 20 2005 12:25PM P2 Gilda D. Jensen 112 Putnam Park Greenwich, Connecticut 06830 MARCH 17, 2003 SOUTHOLD TOWN BOARD OF APPEALS TOWN HALL 53095 MAIN ROAD P. 0. BOX 1179 SOUTROLD, N. Y. 11971-0959 RE: MARY ZUPA #5266 APPLICATION FOR BUILDING PERMIT SCHEDULED FOR MARCH 20, 2003 THURSDAY 2:30 P. M. GENTLEMEN: I AM WRITING AS A REPRESENTATIVE FOR CHANCY D. CURRY, MEMBER OF PARADISE POINT ASSOCIATION, SOUTHOLD, N. Y. SINCE I AM UNABLE TO ATTEND THE MEETING OF MARCH 20TH, AT 2:30 P. M. IN REGARD TO THE ABOVE, I WOULD LIKE MM VIEWPOINT KNOWN IN THIS MATTER. I SUPPOR~ THE CONTINUED USA(SE AND ACCESS TO THE PARADISE POINT BOAT DOCKS BY OUR RESIDENTS. IF WE ARE ALLOWED TO CONTINUE TO HAVE THESE DOCKS, AS WE HAVE FOR MANY YEARS, I DO NOT OPPOSE THE ZUPA~S PLAN TO BUILD A HOUSE ON THEIR~ LOT. KEVIN BARR~ 11 DIRE~EN DRIVE WILTON, CT. 06897 Lydia Tortora, Chairwoman Board of Appeals Town of Southold 53095 Main Street P.O. Box 1!79 Southold, NY 11971 Re: Application of Mary S. Zupa Dear Ms. Tortora: As you may recall, I wrote to you and the other board members on July 18, 2003 in support of lot 16.7 being recognized as a residential building lot. I remain firm in my belief that there should be no dual use zoning on that lot and that the 1995 decision was erroneous. I have read a number of letters written by Paradise Point Association members regarding this lot that were submitted to you. They speak of solidarity amongst the PPA regarding this lot. Last summer, the PPA voted to hire James Spiess to represent us in the issue involving the docks. The hiring of Steven Angel and the pursuit of a prescriptive easement on the lot were done at a later date without my prior knowledge or consent. My husband was the vice president of the PPA and a member of the Board of Directors at the time and even he did not have prior knowledge that this was being done. I do not support the Association in their quest for a prescriptive easement on this property. I continue to support the Zupa's plans to build a home. Some of the letters as well as some of the statements made at prior ZBA hearings have portrayed the Zupas in a negative manner. How unfortunate, for they are lovely people. I think the way they are being treated by their neighbors is deplorable. Why must the PPA attack any attempt to build on that lot? They went to Town Hall in 1995 and argued against the Millers. Now they are at it again. Why? Because they want something that does not belong to them. Some of these letters were written by members who have been here for awhile, who feel a right to keep things the way they are. The others are more disconcerting, written by members relatively new to the PPA, (some for only monthsl) They have been fed the line that someone is trying to take something away from them and they have to pay to protect it. My family used to own a percentage of lot 16.7. I wonder how many PPA members are aware that when the survey stakes went up for this lot in 2002, my husband was approached by a member, and lot 16.7 was used as a bargaining chip. It appeared that if we promised not to develop lot 24.3 and give them title to it's beach, the PPA would drop all interest in lot 16.7 and help in getting the dual use decision reversed. Maybe it should be made known how little this "bargaining chip" actually means to the PPA if they were willing to trade it for a bigger fish. Again, I thank you for your time. ELYSE JAM S 5000 Paradise Point Road, Southold, New York 11971 JUL 1 8 2003 july 18, 2003 Members, Zoning Board of Appeals Town of Southold 53095 Main Road P.O. Box 1179 Southold, NY 11971 Dear Board Member: Re: Application of Mary Zupa 580 Basin Road (SCTM 1000.81.1.16.7) My family has owned a home at 5000 Paradise Point Road for more than forty years. My uncle, J. Lane Curry, was one of the founding members of the Paradise Point Corporation, who were the developers of the Point, as well as a founding member of the Paradise Point Association, later formed in 1961. In matters pextalning to the Paradise Point Association, my husband and I are the voting members for my family. I was unable to attend the two previous ZBA hearings, but to keep myself up to date on the proceedjng~ I have obtained copies of the transcripts of both hearings. I am writing to you today in support of Mary and Victor Zupa's plans to build a residence on Lot 16.7 in Paradise Point. Contrary to what Mr. Angel and some members of the Paradise Point Association would have you believe, that lot was always intended to be sold as a residential building lot, along with Lot 16.8, and Lot 24.3, the actual "Point" property. There is much paperwork to attest to that. Lot 16.8 has been sold and a residence is presently being constructed on that tot. It is my belief that the 1995 decision that deemed Lot 16.7 as dual use was an erroneous decision. This is a residential property in a residential development. We are fortunate to have a quiet, sheltered area, known many years ago as the "lagoon", in which to harbor our boats. This little haven is not now, nor has it ever been, a "marina." Until reading the transcript from the March 20, 2003 ZBA hearing, I had never once heard of Lot 16.7 referred to as "the marina lot", and I have been on Paradise Point for almost 43 years. How convenient that those in opposition should all of a sudden assign it that name and thus infer its use as such. It is a separate, residential building lot which happens to be adjacent to a private boat basin. The easement strip granted by the successors of the Paradise Point Corporation'in 1989 gave the Association a guarantee of continued access to the docks and for maintenance purposes of the bulkhead and jetty, thereby protecting their interests in the event of the future sale of the property. In further review of the March 20, 2003 transcript, in reference to Lot 16.7, Mr. Angel states, "the Association is not unalterably opposed to some additional use of the property," and that access over the roadway/turnaround area "are important things for the PPA...the PPA has to protect it." And there, in my opinion is the heart of the matter. Through statements made at the hearings, letters written by various members, and through Mr. Angel, is the Paradise Point Association asserting fights on a piece of property it dearly does not own and other than what is contained in ifs easement, has no rights upon. There were members of the Association who stated at these hearings that there has been vehicular access to the jetty through Lot 16.7. This does not constitute a marina use of the lot. What they failed to mention was that such access was granted by permission only, from the previous owners of the lot. The owners of the lot allowed this to help keep dredging costs down for the Assodalion. Unfortunately, those days might be over and the Association must come to grips with that. Again, I do not agree with the 1995 decision on this lot. I firmly believe it was an incorrect decision and I ask you to please reconsider. Thank you for the enormous amount of time you have devoted to this matter. It is not an easy decision. DISTRIBUTION: Lydia Tortora, Chairwoman Gerard Goehringer Ruth Oliva George Homing Vincent Orlando ZBA office file ~/ Respectfully, VICTOR J. ZUPA ATTORNEY AT lAW 4565 PARADISE POINT ROAD SOUTHOLD, NEW YORK 11971 E-MAIL vzupa~optonline.net TELEPHONE (631) 765-6112 FACSIMILE (631) 765-6119 JUL 2 8 ?003 July 24, 2003 Members, Southold Zoning Board of Appeals 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 Dear Member: Re: Appeal Mary S. Zupa, No. 5266 This is in response to the false and libelous statements made by Mr. Angel in his memorandum to the Board dated July 18, 2003, that I have, among other things, "submitted intentionally false 'proof' of ownership of the Basin to this Board." First, there is nothing "false" about the County Tax Map revised May 28, 2003 that shows the Town of Southold as owner of the Basin. Second, contrary to the misstatements made by Mr. Angel, priorto any submittal of the revised County tax map to the Board by my memo of June 2, a meeting was held with Mr. Scott, the Southold Tax Assessor, at which time he was notified that the County tax map had been changed to show that the Town of Southold owned the Basin. At that meeting he was also shown, and he made copies of, all documents that I received from, and that I provided to, the County Tax Mapping Department. This included a copy of its letter to me dated May 29, 2003 which Mr. Angel accuses me of concealing. This le~er and other County Tax Mapping Department documents were included in Exhibit 9 to the lot recognition memo submitted to the Board on July 18, 2003 in this appeal. Third, both the County Tax Mapping Department and Mr. Scott were told from the outset that this change in the County tax map was sought for the purpose of its use in Southold Town hearings, including hearings before the ZBA, to counter what some believe to be the argument that: Since the Paradise Point Association was able to get a tax bill on the Basin for $116, it must mean it owns it; ownership allows the maintenance of an unpermitted use in a residential district; and an unpermitted use means the destruction of a permitted use on an adjacent lot owned by Mary Zupa. Fourth, the County Tax Mapping Department has a statutory obligation to maintain tax map records reflecting the true ownership of properties. When I asked the County Tax Mapping Department to examine its records as to how the Paradise Point Association receives a tax bill for $116 for the Basin, it discovered that historically the Basin had been shown as owned by the Town of Southold, but that this changed suddenly in 1982 to show ownership in private individuals. Upon further examination, it also was discovered that this change was made solely by dint of its first insertion in a 1981 deed by a corporate owner, as grantor, to its own shareholders, as grantees. This gave rise to the suspicion that public tax map records were being misused to create private ownership in public property. When the County Tax Mapping Department was also provided with the March 2000 letter from the NYS Office of General Services stating that the Basin was owned by the Town of Southold, and showing the Basin as tidal waters on its official maps dating back to 1906, the County Tax Mapping Department conceded that the Basin appeared to be owned by the Town. Thus, the County tax map was revised as of May 28, 2003 to show the Town of Southold as the true owner. However, since it was the Southold Tax Assessor that had requested the change in 1982, the County Tax Mapping Department told me that its records would still reflect a claim of ownership by the Paradise Point Association until a letter was received from the present Tax Assessor agreeing to that change. The June 2, 2003 meeting with Mr. Scott was made precisely for this purpose. After the involvement of Director, Ms. Penny LaValle, to whom the County Tax Mapping Department reports, and others, there was a retreat from the course of action that would have been taken, and the Town of Southold has been removed from the official tax map, revised May 28, 2003. Very Truly Yours, Members Southold Board of Appeals Cc: Robert I. Scott, Jr., Chairman, Tax Assessors Steve Angel, Esq. 2 PETER A. COOPEt~ 4800 PARADISE POINT ROAD, SOUTNOLD, NEW YORK 11971 March 19, 2003 Southold Town Board of Appeals 53095 Main Road Southold, NY 11971 Dear Board of Appeals: I have been a resident of Paradise Point and a member of the Paradise Point Association since 1994. I am opposed to the granting of a variance to Mary Zupa, #5266 Constructing the proposed house would eliminate a road through the lot which has been there for many decades and which I have used regularly to get to the jetty at the entrance to the channel leading to our boat basin. In addition, the development of the lot as proposed would hinder our use of the docks in the basin where I keep my boat and would make it more difficult to park. Please deny the variance. Respectfully, D~WEY BALLANTINE LL 1~01 AVENUE OF THE AMERICAS NEW YORK 10019-6092 TEL 212 259-S000 FAX 212 259-6353 JOHN K. KEITT,$R. 212 259-7990 john.keittOdeweyballantine.eom March 18, 2003 Lydia Tortora, Chairwoman Board of Appeals Town of Southold 53095 Main Street PO Box 1179 Southold, NY 11971 Re: Zupa Matter Dear Ms. Tortora: I am submitting this letter in connection with the above reference matter to express my concerns regarding the range of proposals made by Mary and Victor Zupa, in connection with Lot #1 at Paradise Point. I understand that there will be a hearing on Thursday, March 20, 2003, and while I will be out of town, I felt it important to express my concerns and reservations regarding the proposed building on Lot #1 as I am only one house removed from the proposed building site. My understanding of the issue is that there has already been a decision in 1995 indicating that the building of a residential home on that lot would violate zoning restrictions. In addition, I also have significant concerns regarding the negative environmental impact fbr such a building would cause to that lot and the surrounding areas. As a member of Paradise Point, I am aware that the Association has made a number of good faith efforts to reach a compromise with Mr. & Mrs. Zupa who have not indicated any real willingness to work with the Association in connection with this matter. The Association was not contacted before the Zupa's bought this land and the Zupa's purchased this land with full knowledge and understanding of the restrictions and of the concerns of the Association. As evidence of the Association's good faith, they have even offered to buy the land back from the Zupa's so that they would not suffer any economic harm, even though their purchase of land was made with full knowledge of the impediments of building at the time. NEW YORK WASHINGTON LOS ANGELES LONDON HONG KONG BUDAPEST PRAGUE WAI~' 741424vl As a member of the Association, and as a neighbor of the Zupa's I find it very unfortunate that the situation has come to this stage, requiring the Board of Appeals to act, but unfortunately I am also convinced that there is no offer of compromise, which will cause the Zupa's to cease their continuing efforts to seriously undermine the use by the Association of its property and the easement to protect and maintain the jetty, which is critical for the enjoyment of the basin and marina, which all members have used and enjoyed for decades. Respectfully submitted. cc: Kevin Barr NYI 741424vl 3-19-283 FR~FROHNE March 19, 2003 Lydia Tortor~!Chairwom Board of'Appeab Town of Sour ,~old 53095 Main Street P.O. Box 11791 Southotd, N. y. 11971 Dear Ms. Tort0ra: As residents ofParadise Eoim and members of the Paradise Point Association, we would ask that you consider the tol~Owing when reviewing the application for construction ora hou~ by Mar~ Zupa onl6t 1:6;7. A house on Lot 16.7 woma i~tcrfcre with the Association use that is' as a marina for Paradise Point !Assoomtlo~ members. The docks have been m extstenee smee beibre 1957 and Paradise Point Assoei~ti!in owns the jetties and has rights to ns~ ~d service them including vehi6'Ular acees~ It/:them. It should also be noted that Paradise Point Association is h~ litigatioq toldetermine a prescriptive easement over the property, which may make a h~use logistilally impossible. ':' v~ith the boat : Anything that J~terferes ing and basin life in Paradise Point would ~be detrimental to the comma~ity: and we therefore strongly support tho 1995 ZBA decision that building a residence qn this lot not be permitted. Yours truly, Joan and Fred Frohne ( --:, :: :?' cc: Kevin Bare: President Paroxtise P~int Associ. tti¢3ri P. 2 $2.61~,00 Paid by Paradise Po~Jt)Corp.. reimbursable (per list attached New Suffolk Dock Building Corp. (cost of docks and floats) Southold Patrol - on account Nisc, expenses, labor etc. R~lance, soo comments below Noteef Five membership assessments end three boat rentals are unpaid es of Oct. 23rd. Expenses reimbursable to the Corporation Gan bo deferred in part until su~ficient funds are received. Paymen~ on account Of about $~00 ts suggested at this time. $1,127.71 1,126.7b ?~- 2~0.00 87 6 .68/ dock On the basis of dock rentals for 1~61, tho cost of docks and floats viii be recovered in three years. A balance of $1~0. on the contract ~th Southold Patrol is payable February 1. 1961. If the Association pays for the docks and floats, and repays the Corporation $~00 on account of reimbursable expenses, sufficient funds for incidental expenses will be on hand until 1962 membership assessments are made and paid. Paradise Point Corporation - reimbursable expensess Southold Patrol (June) $2~0,00 Goldsmith & T, R, Okula-labor 88.00 R. Oloria-labor ~2.00 Carroll- plumbing Goldsmith & T. lumber Hoppyls . cleaners 1~,00 Eo Okula-labor &exp. 96.~7 RoGloriaolabor ~0.00 lumber $163.61 -do- 103.98 Carroll-plumber ~.00 EoOkuls-labor 88,00 R.01oria-labor 32.00 Eo0kule-labor,exp. 7~,80 R, Gloria-labor 8.00 Total ~1.127.71 CopSesl P, Zecher, Pres** G, Sinning, P, &bcook, file. .MINUTES of PARADISE POINT ASSOCIATION Meeting Held on March 31~ 1968 · '.,'~:~.=," 'aC the Paradise Point Yacht Club, The followins members of the · '~?~-~': Parade. se Point Association were in attendance: , Messrs. Boyd ,.:. ,: .,.. Elfer8 : .'' .' NeefuS ~ .- .... . .~ ~ ~nn~n- ..... C~ry ,', ,: · . ~ll~beck ,~',~.-,.; · ~onroy ~'"' "'~,.' ' Scalia ., .-.~ -~ ~rnard -.,~'. ',,,~, ~:..,:"~'" ,' Abs~C m~er8 were: ...... ~.. -. ' Alden ..... Alberi .... , .... P~es~d~g Schu~e called ghe ~ee~ng ~o order and read ~he A meeting of the Paradise Point Association was held on Hatch 'for Preston of Greenport to restore the docks and floats, eec,, to their ;:~,~;",' orlslnal condition .by uid April, and Co dredss the mouth of the channel ~.:'..::', by the end of April ac a cost of $1600. lc was pointed ouC chat it was Messrs. Sinning and Elfers reported.chat they had obtained and contracted '"' "necessary Co contract for Chis lmuediaCely in order Co · 'time. A mocionwec made and seconded coapprove the cf---.,lcceets action, · ':.:L"and wa8 carried,' .' ~ ~ --Continued il.':'i?[;~'seconded and carried chat the minutes be accepted aa read, ....,6.. The first order of busine88 was the boac basin and winter damage. ,~/;' !t: was a~ree, d t:hac Hr. Schut:t:e would cent:act: t:he elect:rician and /~'~ ': ~he plier co Cu~ ~ the elec~ic~cy and water and Co check ~o Mke · ~'?~:.'~;. certain ~eryC~ns i8 ~n operating cond~Ci~. (John, hope you were ~o~i~ was ~de~ seconded and carried ~ we con~ ~or ~he ~-'~." '*~ ehu~in~ o~'~he.z~g, shu~in~ o~f,~he Basin ~or a 2~-ho~r per~od, ..,,~, ,', ~lin~ ~he necessary no~ice, e~c ~e ~o~al fee ~or .~,.. ,.,..: ~- . ~,'~,?~,~-. ~Cion was mde, seceded and carried ~o authorize ~ E~ers ~;~'[~"']~i' t:o cont:Eact: with John Peko~ski t:O pat:ch .t:he road and clean bot:h edges J ~,, ,.'., ;' . ~.~'.,':~' :-:, o£ the road. ' ' It: was ~rt:her agreed t:hat: t:he Road C~t:Cee would, at: a later ~.nspecC the 'road t:o get:ermine i£ any act:ion wit:h regard !!:{~.;:i~.'~ . t:lay, we would like 't:o, i£ possible, hold Chis repair ..:' ~,,,' tip at: present:. / /:;-·,;'~: lgit:h re~ard t:o tree spraying for inchworms, mot:ion was ma~e, .. ~ ..: ...., ,;; :~;:.:,./ ~ and have all propert:y sprayed from Nee~uS do~n t:hrough Conroy, plus "';~ ~'"'i:-Alde~. Charge -.$~00. The £olloving £our individuals were t:o pay' ,-.;; ,', . · :,~..';i~i,:;,.!-~.: double: £or ex~ra lo~s. · · . ..: ~-:.., !..~,,'-., . A mot:ion was made, seconded and carried t:hat: t:he annual membersl~Lp ~ ' - pa&e 3 ""' MOtionwas ,,made, seconded and carried that we hire the same aman~orris of Greenport as our co~aUnity trash collector startins "~i~.'~r~th ~nce a week on April 15 until June, t~ice a week during June, ~??~,~'v July and Au~, and ~t a week ~r~ 1968 season 'charaea yarc aec~ as ~ollows: ~...,, ..... .~. approval o£ the Basin Committee before inSCall~Ciono Tenanca with boaCs renting mambers houses ~11 be ~equ~red Co the 8~e' 8~ao~l o~ ~1~-8~8~1 races. .' ~ere ~11 be a c~r~e o~ $3.00 per n~c ~or any b~C us~ Che ' . ::',,,..- seat Co each ~8ociacion member covertns dues and basin charAeo. a motion vas, ,uade, seconded and carried Chat: we should have an ' ~ennUal suoon k~ckoff a ii" p roy for the Association menbers, A suggestion ·/,/,~,:'vae sade ChaC the besc tine v ' - ' ' ,,/~i'~"~" ould be CAe ~aCurday before J y 4 wh~.ch. ,ur, - ld b. ,une 29. '. ' ,. ~.: A ccmctCCee vas chosen consisting of Che B~yds, Cents 8 S ~,/~i!.~, i~L£er8 and Rtmmler8. l~e are qu~ce certain ChaC y~ w~ll h~r more ~, ,~'.~-',. . . :',~ '~ - ' OS '~ J~ ,~. , · ~. ~.~ '~. . . ~:~, . $i~e there vas no further b~iness Co c~ ' ,*'~.,,:.,. t~ · before the meeCXnf. ~ , , and carried co adjourn. .~?~ ~e ~8~er'8 r~orc vas succeed co ~. ~r .... ~,. ~ ~d urr~ed co accepc Che re ore a ~d ~',~*, .,.:,..,, .... , .. Z~* ~"~ ~'~.'~r'~,'.'..' .~ ~ - .... ,~'' . ~. Se ...... 454 PAHAD~E ~~T~ON PAHAD~E PO~T~ ~OD~THOLD. L. L , N. Y. ~ b ~rmer iM Y~ ~ on / ~. The moet~ w~ e&Lled to order I~ Gezzot ~(~-~-~, Those p~oen~ were: John 8ohu~. Abenioo: Po~r Zooher. should drill for water on the propert~ not proven e&rller by stmllow wells, to ~ee ~f we oau% brt~ in fromh water from · lower lov~. It was aazoed that the prtoe o~ dr-!t~_* on Lot. No. ~? bo ~eoured and that ~ w~ll b drtven to I depth neoe~ry to prove the availability of water. If wator t~ found on Lot. No. 17, then anotlMr well viii bo driven on tho north- wooterly omo of th lqoon.to prove the valuo of fresh water on tl~ proporty. ;. Lfm Curt7 oo~_-ed the h, -~ ~ seve~ o~ members. 'Am new ~oe ~b ~lJO & bot. I$ w&~ deeded that tho road to tim las~m be serviced ~0 foot wide, that ~ 10 foet on ~ ~ ~ b oenter llno of b 80 foot ~-of~, ~ wo &ro ~ ~ hy m~b~wn~bm. ~r~ ~ ~8,000 M ~0,000. ~ Ma',Sm~tth's uido for further not to ~ upon it ~ ~ present THE MEETING OF THE PARADLSE POINT CORPORATION,6oS0~4 (oon%.) It w~ dooldod by tho mmubors to fix up tho former Yi~mt; Club BuJldl~ on tho Point. lo repeJr'adl tho ooreeno; to Imlnt tho m~LTe building &nd trim, to aim up b dowutitrs · nd.tho loft,' to m ako lt'avufl~ble'for ~orporst~on use, or for poaolMe reut to · ~ who n~tiM offer $?&O or moo for l ~e&laa, or ~ Lt iYmJhble, 8~ · prloo, for p&z~y uae by ~n~porm~on M~Mrs nd ~bmberm ~ ~e AmmoaJaUoa. Philip L. BdMook Seoret&r~ 4uno 1,106~ ' '325 i~ARADISE POINT ASSOCIATION In accordance with the enclosed Minutes, please fill in your boat do~ir~g requirements covering 1968 o- Association dues - 1968 Inboard Dock ' @ $150.00 ........ Outboard.Dock @ $80.00 ........ Mooring @ $80.00 ........ TOTAL $150.00 F. F. Rimmler0 Secretary Please send check to attention of: Mr. J. Lane Curry 18 North Street Greenwich, Conn. 06880 'From: Deeeehe~ ~, Xldl " '" '' Tbiih8 far your rlIBp'of thl filial year. I Oil thl X&6OOI, Hoary ~lfers hbo ope Bad Ted Bo~G 0~eorBIoo limbo for ~le ~on'$ lip- a&moore%%, Page 1 of 2 Lawyer Locator Search Lawyer Lacator ~1 By Lawyer By Location/A~ea of Practice By Firm By Corporate Law Depodments By US Government By US Law Faculty Join the Legal Network Request a Listing About Lawyer Lacator Legal Articles Dispute Resolution Experts and Services Legal Personnel Legal Careers Professional Resources Customer Services a lawyers.com II Practice Development Center · Counsel to Counsel Forums D corporate.martindale.com a eAttomey ;I LexisNexisTM = LawCommerce.coms~ ;I LawyerLocator. Co. Uk II Anwalt24.de · · ' - . , Quick I Search the Lawyer Locator New Search Search Results Previous Listing Next Listi. John J. Ferguson Partner Bleskiey Platt & Schmidt LLP Sixty-Six Field Point Road Greenwich, Connecticut 06830 (Fairfield Co.) Telephone: 203-66%5222 Telecopier: 203-661-1197 Emaih Send an Email Rating Info Admitted: 1966, New York; 1979, Connecticut Law School: Fordham University, LL.B., 1965. College: College of the Holy Cross, B.S., 1961. Member. Greenwich, Westchester County, Connecticut and New York State (Member, Trusts and Estates Law Section) Bar Associations. Biography: Trustee: St. Thomas Acquinas College, 2001--; College of New Rochelle, 1995-2001; Inner City Foundation Diocese of Bridgeport, 1991-1998; Clare Rose Foundation; Jane & Ralph Pfeiffer Foundation; St. Vincent's Hospital, Rye, New York, 1983-1986; LaSalle Military Academy, 1990-1993. Associate Trustee, College of the Holy Cross, 1975-1981. Chairman of the Board, Catholic Sermons Foundation, 2001- Member, President's Advisory Board, College of New Rochelle, 1980-1994. Director; Patriot National Bank, 2001--; Clemons Productions, Inc.; Bernard C. Harris Publishing Co. Born: New York, N.Y., October 3, 1939. ISLN: 907484660 Web Site: http://www.bpslaw.com Other White Plains, New York (Main Office) TO: CHANCY D'I IJA JOSI PH CORTESE MEMORANDUM DATED: JULY 19, 1996 RE: PROPI TY AT PARADISE POINT, $OIYlItOI NEW YORK On Friday, July 12, 1996, I drove round trip from Greenwich to Sou~hold in order to view the subject property and understand first hand the problems in endeavoring to make Chancy's interest in this property a productive asset. In Southold I met for two (2) hours with. Bob Scalia, a local realtor and son of John Scalia, an original developer of the property and two further hours with Messrs. Boyd and John Sinning. Scalia took me to Paradise Point and showed me the three (3) lots presently owned by five (5) people as tenants-in-common. By coincidence, while there he also introduced me to Mr. Meyers, the current president of the Paradise Point Association. Attached hereto is a map of Paradise Point. Lots 16.7, 16.8 and 24.3, the Point itself, represent the unsold parcels presently owned by Chancy's group. According to Ed Boyd, Esq. all lots are legal building lots. Yet, despite this status, it was necessary when lot 16.7 was under contract to Jim Miller, that planning and zoning approval be granted before he could build due to the property being zoned for dual purposes. At ~he time of Miller's application, Boyd had secured the verbal support of the Association Board.only to be torpedoed at the board meeting bythe attacks of independent property owners who succeeded in defeating the application. Miller, the prospectiye purchaser, lost $17,000 in fees and costs in failing to gain planning and zoning approval. Scalia believes that if a package deal were proposed to the Paradise Point Association which included the following, that Paradise Point would approve and support the project, and result in eliminating the need for any future applications, to wit; 1. In exchange for the active support of the Association's Board.and membership in selling and developing lots 16.7 and 16.8, Chancy's group would agree to donate the Point, Lot 24.3, to the Peconio Land Trust, once lots .16.~ and 16.8 were sold'. The Paradise Point Association would grant an easement to lot 16.8 to drill a well on a gore of property presently owned by it between Lots 16.12 and !. Obviously, the affected lot owners would also have to grant easements. Boydthinks Suffolk County Water will be available in two to three years so he believes we don't need the Association's cooperation in obtaining a well. I disagree because time is loss of money. As far as lot 16.7 is concerned, the problems are more difficult to determine. At the very least, the Association wants a deed to a fifteen (15) foot strip around this lot to its bulkhead. At the time Miller was interested in purchasing the property, he wanted to limit the Association to a three (3) foot walking path easement· According to Scalia, if the Association gets ownership of the 15 foot right of way, it would withdraw any interest to the "turn around" and road into this lot. It would also assist in getting the Town to eliminate the "dual zoning" presently existent on this lot. If this occurs, there no longer would be a need for Planning & 'Zoning approval. Giving the Association a deed to the 15' strip would reduce the size of lot and correspondingly may also reduce its value. Then again, avoiding the necessity of requiring a potential buyer to go to planning and zoning might add value and certainly hasten its sale. The wild card to the sale and development of lot 16.7 is the next door neighbor who obviously likes the "status quo" and Helen Albero, another property owner who thir~ks she has rights which clearly she doesn't. Scalia is also reputed to be the power behind the throne, ala a local "Machiavelli". Having said all of the above, what are our options in breaking this logjam? Regrettably, they are not many and all are fraught with problems of different sorts. First, during my meeting with Boyd and Sinning, the possibility arose that Jim Miller, the former potential buyer of lot 16.7, should be approached to see if he would be interested in purchasing the fractional interests of all concerned· Sinning thought there could be interest by Miller. I doubted this, unless Boyd '& Sinning also sold their interests as anything less than a full fee ownership of all property should be of little interest to Miller. My concern here is that if Miller did come forward, he would offer a low ball price for Chancy's interest and well he should, if he can't get all of the Drooertv. If we were able to sell the full fee interest in all lots to Miller, the price would obviously improve, but I doubt Boyd and Sinning would move without a legal assurance that the Point would be donated to a charity and not developed. Accordingly, I think this option is a "pipe dream". Secondly, '~y proposal was to go to the Paradise ~oint A~sociation with a memorandum of understanding and agreement vls-a- v~s lots 16.7 and 16.8 to secure board and membership resolution supporting what needs to be accomplished to secure the sale of 10ts 16.7 and 16.8 and their agreement to assist in eliminating the dual zoning of lot 16.8. These approvals and sales would be a "condition precedent" to our donating the land to the Peconic Land Trust. Boyd thinks he had this already, but in fact he didn't. I would add a caveat to the proposed agreement with Paradise Point to the effect that if a future proposal for the sale of either lot was defeated and/or the Town did not remove the dual zoning on lot 16.8, that we would sell the Point for development. Boyd and Sinning have a complete dislike and distrust of Scalia. Without asking Scalia, I'm sure the feeling is mutual. Boyd, however, is not someone people would ever feel "neutral" about. He is an uncompromising sort. He observed that if Scalia had the listings on these properties, they would probably sell. As you may recall, I went to grammar school with Bob Scalia. As kids, we were neighbors and friends. However, until last Friday, I I don't carry the hadn't seen him in 43 years. As an outsider, ...... baggage and animosity of the curre~ ~ro~a~nis~s ?n~l~ne_r. ~1~l ~ .... ~1,, we shouldn't lose slg~ o~ ~ne ~ac~ ~nau ~u~ u.~ objective here is to maximize the value of Chancy's interest. As a result, if option i never ~aterializes (and I don't think it will), I'm in favor of endeavoring to create a memorandum of understanding with Paradise Point and relisting the lots with Scalia. In my view, Boyd and Sinning have only one objective here and that is to preserve the Point. Their material interests are too small to care for anything else. Clearly, Boyd and Sinning would object to listing the property with Scalia and Marion King would be disappointed. However, we need to be realists if we hope to accomplish anything within a short time span. My wild card in this scenario which I wish Chancy and the family to consider is to adopt the position that if all else fails, she would sell the Point. If Chancy joined forces and endeavored to sell it, Boyd and Sinning would probably refuse to sell. Chancy would then have to sue for partition. In my view, the mere institution of an action for partition would force the Paradise Point Association to endeavor to purchase the property for its own protection. I realize this may sound harsh, but the real truth is that no one cares about Chancy's problem and no one is going to be willing to do anything to solve it unless she and Hallenbeck take affirmative action. Chancy could also sell her interests to her niece and nephew or a third-party at a discounted price and take an ordinary income tax loss. However, any sale within the family would be. closely scrutinized by the IRS, hence the need for an appraisal in case of any sale which delineates the unsalability of these lots. Boyd mused ~hat these lots may be worthless. If it were my property, I'd try to sell the Point first, sue for partition if necessary and take my money and go home. This would not make Chancy popular, but I believe it would get her paid for her 3S% interest. I suggest we meet to discuss how you want me to proceed. Please advise. 4 APPEALS BOARD MEMBERS Lydia A. Tortora, Chairwoman Gerard P. Goehringer George Horning Ruth D. Oliva Vincent Orlando BOARD OF APPEALS TOWN OF SOUTHOLD September 30, 2003 Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971-0959 ZBA Fax (631) 765-9064 Telephone (631) 765-1809 http://southoldtown.northfork.net Fax 765-6119 Mr. Victor Zupa Fax 878-~951 Mrs. Catherine Mesiano Re: Appl. No. 5266- Zupa Appeal Application Dear Mr. Zupa and Mrs. Mesiano: Enclosed please find a copy of the findings and determination rendered at Zoning Board of Appeals Meeting held September 25, 2003. Thank you. Very truly yours, L. inoa I.'xowals KI Secretary, Board of Appeals Enclosure Copy of Decision to: Building Department MARY S. ZUPA 365 BASIN ROAD P.O. Box 1543 $OUTHOLD, NY 11971 631 807-6317 March 21,2003 Southold Zoning Boa~ of Appeals 53095 Main Road P.O. Box1179 Southold, NY 11971-0959 Re: 580 Basin Road (SCTM 1000.81.1.16.7) Dear Members of the Southold Zoning Board of Appeals: On July 14, 2002, the president of the Paradise Point Association asked me to deed the easement to the Association. In exchange, the Association would not oppose me in my application to build a home on my property. My answer was: "no," am attaching a letter I wrote to him after the Association voted to oppose me. Respectfully, August10,2002 MARY S. ZUPA 4565 Paradise Point Road Southold, NY 11971 Kevin Barr President, Paradise Point Association Basin Road Southold, NY 11971 Phone 631 76S-.6112 Dear Kevin: I understand from three directors of the Association that you never fully reported our conversation during the 3 ½ hour meeting you had with my husband and me on Sunday night July 14, 2002. Of particular concern, is your failure to report to them that I not only said that I did not oppose the Association docks, but that I would affirmatively support the Association in obtaining permits from the NY DEC and the Southold Board of Trustees in order for the Association to rebuild the large dock. The only issue being the smaller dock since that appears to be the only location for my dock. All I wanted was to be able to build a home, and restore the shoreline of the Basin. My husband even said he would draft the agreement and asked that you get back to him, which you never did. At that Sunday meeting you asked me to explain over and over why I would not "give" the Association a piece of my property at the entrance to the docks. I believe that after all the repeated explanations I provided (in addition to the irrationality of giving away one's property) as to the Association' failure to maintain the Basin to date, more efficient use of existing dock space, and the congestion that will exist in the Basin when two additional homeowners place their docks, you should at least report this to other~. Instead, you and those you represent, have chosen the course of seeking to prevent my building a home on the basis that you maintain a "private marina," which according to you, and your attorneys, prevents my building a home. You have chosen to endorse residents who appear at Trustee hearings and hire law firms (two that I know of) to oppose in writing my building a home on this property based on the fact that you maintain a "private marina." You and those you represent have also chosen t~ deceive residents into believing that I am just "attacking the docks as illegal," without reporting that this is in response to your lawyers' letters to the Town, that I cannot build a house because of the "private marina." I thought you would have told residents; finding out to the contrary is disappointing. I am now telling those who ask about this predicament, the truth. Cc Association Directors Sincerely, ~bert ~I. Krupski, President James King, Vice-President At*tie Foster Ken Poliwoda Peggy A. Dickerson Town Hall 53095 Route 25 P.O. Box 1179 Southold, New York 11971-0959 Telephone (631) 765-1892 Fax (631) 765-1366 Janua~ 22, 2003 BOARD OF TOWN TRUSTEES TOWN OF SOUTHOLD Ms. Catherine Mesiano Catherine Mesiano, Inc. 12 Mill Pond Lane East Mofiches, NY 11940-1222 MARY S. ZUPA 580 BASIN ROAD, SOUTHOLD SCTM#81-1-16.7 Dear Ms. Mesiano: The Board of Town Trustees took the following action during its regular meeting held on Wednesday, September 25, 2002 regarding the above matter: WHEREAS, Catherine Mesiano, Inc. on behalf of MARY S. ZUPA applied to the Southold Town Trustees for a permit under the provisions of Chapter 97 of the Southold Town Code, the Wetland Ordinance of the Town of Southold, application dated July 3, 2002, and, WHEREAS, said application was referred to the Southold Town Conservation Advisory Council for their findings and recommendations, and, WHEREAS, a Public Hearing was held by the Town Trustees with respect to said application on September 25, 2002, at which time all interested per.sons were given an opportunity to be heard, and, WHEREAS, the Board members have personally viewed and are familiar with the premises in question and the surrounding area, and, WHEREAS, the Board has considered all the testimony and documentation submitted concerning this application, and, WHEREAS, the structure complies with the standards set forth in Chapter 97 of the Southold Town Code, WHEREAS, the Board l~as determined that the project as proposed will not affect the health, safety and general welfare of the people of the town, NOW THEREFORE BE IT, ' RESOLVED, that the Board of Trustees approve the application of MARY S. ZUPA to construct a single-family dwelling, porch and patio, on-site sewage disposal system, free form in- ground (gunite) pool (approx. 16'X 32') and pervious driveway, replacement of a 495' bulkhead and install approx. 52' of low-sill bulkhead for erosion control, and install 4' wide steps to the bay. Re-vegetate approx. 640 sq.ft, landward of the new low-profile wall with spartina altemiflora 18" on center, re-vegetate section of buffer area, and removal of the existing asphalt driveway, with the following conditions: Drywells and gutters to the house, drywell for the backwash of the pool, haybales at the buffer area prior to construction and during construction, a work plan describing how the work will be conducted, and as depicted on the approved plan last revised January 24, 2003 and survey last revised January 23, 2003. BE IT FURTHER RESOLVED that this determination should not be considered a determination made for any other Department or Agency, which may also have an application pending for the same or similar project. Permit to construct and complete project will expire two years from the date the permit is signed. Inspections are required at a fee of $5.00 per inspection. (See attached schedule.) Fees: $10.00 Vepj truly yours, Albert J. Krupski, Jr. President, Board of Trustees AJK/lms Board Of $outhold Town Trustees SOUTHOLD, NEW YORK PERMIT NO....~b,.~ DATE: ISSUED TO MARY S. ZUPA Aul'horizalion Pursuant to the provisions of Chapter 615 of the Laws of the State of New York, 1893; and Chapter ~0~ of the Laws of the State of New York 1952; and the Southold ToWn Ordinance en- titled ."REGULATING AND THE PLACING OF OBSTRUCTIONS IN AND ON TOWN WATERS AND PUBLIC LANDS end the REMOVAL OF SAND, GRAVEL OR OTHER MATERIALS FROM LANDS UNDER TOWN WATERSj~ and in accordance with the Resolution of The Board adopted at a meeting held on ..~.~q~..~...~.~.-~. 2Q~.~...., and in consideration of the sum of $._~.~.,...0.g ..... paid by .. Ma~Tz...S.~. ~-i?~- , ............ ......... of .............. ~?].~: ................. ; .................. N. Y. and s-biect to the Ter~s and Conditions hsted on the reverse side hereof, of Southold Town Trustees authorizes ~nd permlts the following: (SEE ATTACHED) 580 Basin Rd., Southold SCTM#81-1-16.7 all' in accordance with the detalted specifications as presented in the originating application. IN WITNESS WHEREOF, The seld Board of Trustees ~re- by cause~ its Comorate Seal to be affixed, and these pres?nfs to be s-~bscribed b¥'a majority of the sa;d Board as of .this det~. Trustees TERMS ,,nd C. ONDmONS The permi~ee Mary S. Zupa · re~di~g ~c 4565 Paradise Point Rd., Southold the coasidemioa for the i~,~"~ of ~e P'""'~i~ does uademand sad p~scn'be to the [~ol- i. Th~ d~e ~d ~ of l'ru~__~__ sad the Town ~ Somh.o. ld L,e relesr~d.~u, ~ ~ 24 2. Thc this Pe_,mlt b' valid lot a perlod of mos. wl~:h b comidesed to be dm estimated time' m:lUlm:! to cample~ cbc woflc iavol~d, ~t'~ ~ ~ ~ for ~on ~ ~de to ~ ~ at a ~ ~ ~. ~t ~{s P~t ~d ~ ~ ~Y, or ~ 1~ ~ ~ ~ ~~ m ~.{~ ~ ~e or pmj~ ~volv~ to p~ ~ to ~ ~ ~ ~' 4. ~t ~e wo~ ~lv~ ~ ~ ~j~ to ~ ~ ~ tpp~ d ~ ~ m 5. ~at ~ w~ ~ no ~le ~t~f~ ~ ~ ~ a ~*k ~ ~ ~ ~~H~~th° ~t ~ ~ ~ ~ ~ ~ ~ ~ 8. ~ ~e~dBoard~ ~i~t~ ~o~ ~1~~ ~ o~ pl~en~ to &is ~t w~ ~y ~ ~j~ to ~o~ u~ ~ m ~ ~ .Albert J. Krupski, President James King, Vice-President Artie Foster Ken Poliwoda Peggy A. Dickerson Town Hall 53095 Route 25 P.O. Box 1179 Southold, New York 11971-0959 Telephone (631) 765-1892 Fax (631) 765-1366 BOARD OF TOWN TRUSTEES TOWN OF SOUTHOLD MARY S. ZUPA 580 BASIN ROAD, SOUTHOLD SCTM#81-1-16.7 Wetland Permit #5636 to construct a single-family dwelling, porch and patio, on-site sewage disposal system, free form in-ground (gunite) pool (approx. 16'X 32') and pervious driveway, replacement of a 495' bulkhead and install approx. 52' of low-sill bulkhead for erosion control, and install 4' wide steps to the bay. Re-vegetate approx. 640 sq.ft, landward of the new low- profile wall with spartina altemiflora 18" on center, re-vegetate section of buffer area, and removal of the existing asphalt driveway, with the following conditions: Drywells and gutters to the house, drywell for the backwash of the pool, haybales at the buffer area prior to construction and during construction, a work plan describing how the work will be conducted, and as depicted on the approved plan last revised January 24, 2003 and survey last revised January 23, 2003. Alber~ J. Krupski, Presiden~ James King, Vice-President Artie Foster Ken PoLiwoda Peggy A. Dickerson Town Hall 53095 Route 25 P.O. Box 1179 Southold, New York 11971-0959 Telephone (631) 765-1892 Fax (631) 765-1366 BOARD OF TOWN TRUSTEES TOWN OF sOUTHOLD U*"E REQUIRED TO CO.TACT T,E OmCE OF T,E BO~.D OF TRUSTEES ~O 72 HOURS PRIOR TO C~5~,~N INSPECTION. F~LURE TO DO SO ENT FOR A ~POINTM ........ "~ ' ~'~ ~ ON ~D POSSIBLE REVOCATION OF THE SH~L BE CUN~U=~=u ~ ~,~TI PERMIT. MARY ZUPA INSPECTION SCHEDULE xx Pre-construction, hay bale line day of construction % constructed xx Project complete, compliance inspection. FROM :C MESIANO INC. FAX NO. :631-878-8~51 24 20EL.~ 10:08AM P2 RE: WETLAND PERMT MARY ZUPA 580 BASIN ROAD, SOUTHOLD It is the intention of the applicant to undertake all restorative and stebilizati, activity as soon as practical, subsequent to a favorable decision by the Southo~ Board of Zoning Appeals (the "ZBA') regarding an application which is currenti' pending. The application was filed in November, but no date for a hearing been set by the ZBA. Assuming a favorable dec.~sion after a hearing in mi~ March, and that the marine contractor identified for the restorative am stabilization operations has not been pre-empted by other work, the plan is for the bulkhead replacement, installation of the stairway and installation of the I°w sill bulkhead to commence in April, with the shoreline stabilization plantings ar~I, buffer plantings to commence thereafter. It is anticipated that these operation~ will be completed within approximately 45 to 60 days from commencement. Assuming this schedule, groundbrealdng for the residential site improvemen't~ should commence in the May-June time frame. This work will be preceded by installation of a row of staked hay bales placed a minimum distance of 50' fro~ the landward edge of the tidal wetland boundary or bulkhead. All work on this site will be done in accordance with best practices and which is normally done with similar sites under similar conditions to protect the wetlands. It is anticipated that the project will take approximately one year to complete. ~EA LEVEL ' vlAPPING 5h~E I Of I N Southold Bay Plan View PLANTIN® SCHEOULE by o~h~rs '"Low 5i11" E, ulkhead ~P ~p E~S ~ALE; iI'= I0' ;ross Section -- Cop --(~) ~" x ~" HmiE oF ~ ~//~/////.~ ~trlnger5 deoc~ men ~ 14' C-Loc ~neo~hln9 Detail (top view) e' oc.. 9 ..... SOUTHOLD T.RUSTEES THIS NOTICE MUST BE DISPLAYED DURING CONSTRUCTION TOWN TRUSTEES OFFICE,TOWN OF SOUTHC}LD SOUTHOLD. N.Y. 11971 TEL.: 765-1892 New York State Department of Environmental Conservation Division of Environmental Permits Rm 121, Building 40-SUNY . Stony Brook, New York 11790 2356 Telepho. ne (631)444-0365 Facsimile (631) 444-0360 Erin M. Crotty Commissioner November 14, 2002 Mary Zupa 4565 Paradise Point Road Southold NY 11971 RE: Permit # 1-4738-03029/00003 Dear Permittee: ~In conformance with the requirements of the State Uniform Procedures Act (Article 70, ECL) and its implementing regulations (6 NYCRR, Part 621) we are enclosing your permit. Please read all conditions carefully. If you are unable to comply with any conditions, please contact us at the above address. Also enclosed is a permit sign which is to be conspicuously posted at the project site and protected from the weather. Very lruly yours, Matthew R. Penski Encon Program Aide MRP Enclosure Z 89'23'08" TEST HOLES DATA .TEST HOLE No, ! {TEST HOLE O~JG ON MAY 1, 2002,) TEST HOLE No, 2 MAY 15, AUGUST SURVEY OF PROPERTY SITUA TED A T BAYVIEW TOWN OF SOUTHOL~' SUFFOLK COUNTY, NEW YORK S.C. TAX No. I000-81-0'1-16.7 SCALE 1"=30' JANUARY 7, 2002 JANUARY 29, 2002 REVISED LOT AREA NOTATION FEBRUARY 14, 2002 REVISED DRIVEWAY LABELS 2002 LOCATED WETLANDS & ADDED TOPOGRAPHICAL SURVEY JUNE ~, 2002 ADDED SITE PLAN 5, 2002 REVISED WETLANDS LINE, SITE PLAN & ADDED TEST HOLE No AUGUST 26, 2002 ADDED PROPOSED SEPTIC SYSTEM 2 LOT AREA INCLUDING THE BULKHEAD AREA AT THE NORTHWEST PORTION OF = 75,687.56 sq. ff. THE LOT PROJECTING INTO SOUTHOLD BAY (TO BULKHEADS & TIE LINES) 1.738 ac. LOT AREA EXCLUDING THE BULKHEAD AREA AT THE NORTHWEST PORTION OF = 72,747.53 sq. ff. THE LOT PROJECTING INTO SOUTHOLD BAY (TO BULKHEADS & TIE LINES) 1.670 oc. SO UTHOLD (TO~N HARBOR) N 88"54'02" E T~ FACE 0r BUL-¢:~D ~ 134.02' '2<.- CERTIFIED TO. CHICAGO TITLE INSURANCE MARY S. ZUPA E ~ OAT t~A SIN ,YS Lm No 49668 Land Surveyor PHONE (661}727-1069 Fax (631)727-1727 COMPANY PIp£ r £ ~ ~o% / 1. ELEVATIONS ARE REFERENCED TO N,G.V.D, 1929 DATUM EXISTING ELEVATIONS ARE SHOWN THUS:~ EXISTING CONTOUR LINES ARE SHOWN THUS: 2. FLOOD ZONE ,,,FORMATION TAKEN FRO~: FLOOD INSURANCB RATE MAP No. ~6105C0167 G MINIMUM SEPTIC TANK CAPACITIES FOR A 1 TO 4 BEDROOM HOUSE IS 1,000 GALLONS. 1 TANK; 8' LONG, 4'-3" WIDE, 6'-7" DEEP 4. MINIMUM LEACHING SYSTEM FOR A 1 TO 4 BEDROOM HOUSE IS 300 sq ff SIDEWALL AREA 2 POOLS; 6' DEgP. 8' dim ~PROPOSED EXPANSIO~ POOL 5, THE LOCATION OF WELLS AND CESSPOOLS SHOWN HEREON ARE FROM FIELD OBSERVATIONS AND/OR pATA OBTAINED FROM OTHERS. DEC PERMIT NUMBER 1-4738-03029/00003 FACILITY/PROGRAM NUMBER(S), DEPARTMENT OF ENVIRONMENTAL EFFECTIVE DATE November 14, 2002 EXPIRATION DATE(S) November 13, 2007 I TYPE OF pERMIT [] Article 15, Title 5: Pro- tection of Waters [] Article 15, Title 15: Water Supply 0 Article 15, Title 15: Water Transport [] Article 15, Title 15: Long Island Wells [] Article 15, Title 27: Wild, Scenic and Recreational Rivers · New [] Renewal [] Modification [] Permit to Construct [] Permit to Operate · 6NYCRR 608: Water Quality Certification [] Article 17, Titles 7, 8: SPDBS [] Article 19: Air Pollution Control [] Article 23, Title 27: Mined Land Reclama- tion [] Article 24: Freshwater Wetlands · Article 25: Tidal Wetlands [] Article 27, Title 7; 6NYCRR 360: Solid Waste Management [] Article 27, Title 9; 6NYCRR 373: Hazard- ous Waste Management [] Article 34: Coastal Ero- sion Management [] Article 36: Floodplain Management [] Articles 1, 3, 17, 19, 27, 37; 6NYCRR 380: Radiation Control PERMIT ISSUED TO Mar~ Zu~a ADDRESS OF PERMITTEE 4565 Paradise Point Road, Southold NY 11971 TELEPHONE NUMBER (631) 765-6112 CONTACT PERSON FOR PERMITTED WORK Catherine Mesiano, Inc., 12 Mill Pond LaneI East Moriches NY 11940 NAME AND ADDRESS OF PROJECT/FACILITY Zu~a Pro~ert~ 580 Basin RoadI Southold NY LOCATION OF PROJECT/FACILITY SCTM #1000-81-1-16.7 Suffolk Southold Southold Bay Description of Authorized Activity TELEPHONE NUMBER (631) 878-8951 NYTM COORDINATES Construct a single family dwelling, garage, sanitary system, swir~ming pool, deck, gravel driveway, public water service, 4-foot wide access path, and 4-foot by 4-foot steps to the beach. Install 52 linear feet of new low-sill bulkhead, remove and replace in the same location approximately 500 linear feet of bulkhead, and conduct plantings. Ail work shall be performed in accordance with the attached plans stamped NYSDEC approved on 11/13/02. By acceptance of this permit, the permittee agrees that the permit is contingent upon strict compliance with the ECL, all .cable regulations, the General Conditions specified (see page 2 & 8) and any Bpee~al Co~ons as part of this permit. PERMIT ADDRESS Bldg. #40, SUNY, Stony Brook, NY 11790-2356 SIGNATURE DATE Page 1 of 5 November 2002 NE-~RK STATE DEPARTMENT OF ENVIRONMENTAL CON~^.TION NO"~J~CATION OF OTHER PERMITTEE OBLIG~'TIONS Item A: Permittee Accepts Legal Responsibility and Agrees to Indemnification The permittee expressly agrees to indemnify and hold harmless the Department of Environmental Conservation of the State of New York, its representatives, employees, and agents ('DEC") for all claims, suits, actions, and damages, to the extent attributable to the permittee's acts or omissions in connection with the permittee's undertaking of activities in connection with, or operation and maintenance of, the facility or facilities authorized by the permit whether in compliance or not in compliance with the terms and conditions of the permit. This indemnification does not extend to any claims, suits, actions, or damages to the extent attributable to DEC's own negligent or intentional acts or omissions, or to any claims, suits, or actions naming the DEC and arising under article 78 of the New York Civil Practice Laws and Rules or any citizen suit or civil rights provision under federal or state laws. Item B: Permlttee's Contractors to Comply with Permit The permittee is responsible for informing its independent contractors, employees, agents and assigns of their responsibility to comply with this permit, including all special conditions while acting as the permittee's agent with respect to the permitted activities, and such persons shall be subject to the same sanctions for violations of the Environmental Conservation Law as those prescribed for the permittee. Item C: Permlttee Responsible for Obtaining Other Required Permits The permittee is responsible for obtaining any other permits, approvals, lands, easements and rights-of-way that may be required to carry out the activities that are authorized by this permit. Item D: No Right to Trespass or Interfere with Riparian Rights · This permit does not convey to the permittee any right to trespass upon the lands or intedere with the riparian rights of others in order to perform the permitted work nor does it authorize the impairment of any rights, title, or interest in real or personal property held or vested in a person not a party to the permit. GENERAL CONDITIONS General Condition 1: Facility Inspection by the Department The permitted site or facility, including relevant records, is subject to inspection at reasonable hours and intervals by an authorized representative of the Department of Environmental Conservation (the Department) to determine whether the permittee is complying with this permit and the ECL. Such representative may order the work suspended pursuant to ECL 71-0301 and SAPA 401 (3). The permittee shall provide a person to accompany the Department's representative during an inspection to the permit area when requested by the Department. A copy of this permit, including all referenced maps, drawings and special conditions, must be available for inspection by the Department at all times at the project site or facility. Failure to produce a copy of the permit upon request by a Department representative is a violation of this permit. General Condition 2: Relationship of this Permit to Other Department Orders and Determinations Unless expressly provided for by the Department, issuance of this permit does not modify, supersede or rescind any order or determination previously issued by the Department or any of the terms, conditions or requirements contained in such order or determination. General Condition 3: Applications for Permit Renewals or Modifications The permittee must submit a separate written application to the Department for renewal, modification or transfer of this 3ermit. Such application must include any forms or supplemental information the Department requires. Any renewal, modification or transfer granted by the Department must be in writing· The permittee must submit a renewal application at least: a) 180 days before expiration of permits for State Pollutant Discharge Elimination System (SPDES), Hazardous Waste Management Facilities (HWMF), major Air 'Pollution Control (APC) and Solid Waste Management Facilities (SWMF); and b) 30 days before expiration of all other permit types. Submission of applications for permit renewal or modification are to be submitted to: NYSDEC Regional Permit Administrator, Region < > <street>, <city>, <state> <zip>, telephone: < > General Condition 4: Permit Modifications, Suspensions and Revocations by the Department The Department reserves the right to modify, suspend or revoke this permit in accordance with 6 NYCRR Part 621. The grounds for modification, suspension or revocation include: a) materially false or inaccurate statements in the permit application or supporting papers; b) failure by the permittee to comply with any terms or conditions of the permit; c) exceeding the scope of the project as described in the permit application; d) newly discovered material information or a material change in environmental conditions, relevant technology or applicable law or regulations since the issuance of the existing permit; e) noncompliance with previously issued permit conditions, orders of the commissioner, any provisions of the Environmental Conservation Law or regulations of the Department related to the permitted activity. DEC PERMIT NUMBER I IPAGE 2 OF 5 1-4738-03029/00003 ~ N.~ORK STATE DEPARTMENT OF ENVIRONMENTAL CO h~.VATION ADDITIONAL GENERAL CONDITIONS FOR ARTICLES 15 (TITLE 5), 24, 25, 34 AND 6NYCRR PART 608 ( TIDAL WETLANDS ) If future operations by the State of New York require an alteration in the position of the structure or work herein authorized, or if, in the opinion of the Department of Environmental Conservation it shall cause unreasonable obstruction to the free navigation of said waters or flood flows or endanger the health, safety or welfare of the people of the State, or cause loss or destruction of the natural resources of the State, the owner may be ordered by the Department to remove or alter the structural work, obstructions, or hazards caused thereby without expense to the State, and if, upon the expiration or revocation of this permit, the structure, fill, excavation, or other modification of the watercourse hereby authorized shall not be completed, the owners, shall, without expense to the State, and to such extent and in such time and manner as the Department of Environmental Conservation may require, remove all or any portion of the uncompleted structure or fill and restore to its former condition the navigable and flood capacity of the watercourse. No claim shall be made against the State of New York on account of any such removal or alteration. The State of New York shall in no case be liable for any damage or injury to the structure or work herein authorized which may be caused by or result from future operations undertaken by the State for the conservation or improvement of navigation, or for other purposes, and no claim or right to compensation shall accrue from any such damage. Granting of this permit does not relieve the applicant of the responsibility of obtaining any other permission, consent or approval from the U.S. Army Corps of Engineers, U.S. Coast Guard, New York State Office of General Services or local government which may be required. All necessary precautions shall be taken to preclude contamination of any wetland or waterway by suspended solids, sediments, fuels, solvents, lubricants, epoxy coatings, paints, concrete, leachate or any other environmentally deleterious materials associated with the project. o Any material dredged in the conduct of the work herein permitted shall be removed evenly, without leaving large refuse piles, ridges across the bed of a waterway or floodplain or deep holes that may have a tendency to cause damage to navigable channels or to the banks of a waterway. 6. There shall be no unreasonable interference with navigation by the work herein authorized. If upon the expiration or revocation of this permit, the project hereby authorized has not been completed, the applicant shall, without expense to the State, and to such extent and in such time and manner as the Department of Environmental Conservation may require, remove all or any portion of the uncompleted structure or fill and restore the site to its former condition. No claim shall be made against the State of New York on ac, count of any such removal or alteration. If granted under 6NYCRR Part 608, the NYS Department of Environmental Conservation hereby certifies that the subject project will not contravene effluent limitations or other limitations or standards under Sections 301,302, 303, 306 and 307 of the Clean Water Act of 1977 (PL 95-217) provided that all of the conditions listed herein are met. 9. At least 48 hours prior to commencement of the project, the permittee and contractor shall sign and return the top portion of the enclosed notification form certifying that they are fully aware of and understand all terms and conditions of this permit. Within 30 days of completion of project, the bottom portion of the form must also be signed and returned, along with photographs of the completed work and, if required, a survey. 10. All activities authorized by this permit must be in strict conformance with the approved plans submitted by the applicant or his agent as part of the permit application. Such approved plans were prepared by: Joseph A. Inaeano last revised 8/26/02 {sheet 1 of 2) and Sea Level MaDDino last revised 11/1/02 fsheet 2 of 2). DEC PERMIT NUMBER 1-4738-03029/00003 PAGE..~_ OF 5 SPECIAL CONDITIONS 1. All peripheral berms, cofferdams, rock revetments, seawalls, gabions, bulkheads etc. shall be completed prior to placement of any fill materia~l behind such structures. 2. Prior to any construction or removal of bulkheads and other shoreline stabilization structures all back/ill shall be excavated landward of the bulkhead and retained so as not to enter the waterway, tidal wetland o'r protected buffer area. 3. To protect the values of the tidal wetlands, a permanent vegetated buffer zone shall be established. There shall be no disturbance to the natural vegetation or topography within an area extending 50 linear feet landward of the tidal wetland boundary. 4. A row of staked hay bales or approvable erosion control devices shall be placed at the landward edge of the buffer area or 50 linear feet from the tidal wetland boundary, or as per NYSDEC approved plan, at commencement of regulated activities and remain in place until project is completed and all disturbed areas stabilized with vegetation. 5. The areas designated on the approved plans shall be planted as per the approved plans and the applicant shall ensure a minimum of 85% survival of plantings by the end cf five growing seasons. If this goal is not met, the applicant shall re-evaluate the restoration project in order to determine how to meet the mitigation goal and submit plans to be approved to the Bureau of Marine Habitat Protection, Building 40 SUNY, Stony Brook, NY 11790-2356. 6. This permit authorizes activities within the 50-foot no disturbance buffer zone as described in this permit and approved plans. Disturbance to the buffer zone as a result of the bulkhead replacement must be completely restored to its pre-project condition. Upon completion of the approved project activities, no maintenance, additional plantings, trimming, or other activities shall occur within the buffer zone without prior Department authorization. 7. Sanitary system (bottom of tank and leaching pools) shall be located a minimum of 2' above seasonal high groundwater. 8. Roof runoff must be directed to drywells a minimum of 75 linear feet landward of the most landward edge of the tidal wetland boundary, and must be installed a minimum of 2 feet above seasonal high groundwater. 9. Dry wells for pool filter backwash shall be located a minimum of 75 linear feet landward of the tidal Wetland boundary. 10. There shall be no draining of swimming pool water directly or indirectly into tidal wetlands or protected buffer areas. 11. Driveways and parking areas shall be constructed of pervious material. 12. Roads, driveways, and/or parking areas shall be graded to direct runoff away from tidal wetlands and protected buffer areas. or prior to permit expiration, whichever comes first. The approved methodologies are as follows: a. Stabilized as per specifications identified on the approved plans. 14. There shall be no discharge of runoff or other effluent over or through any bulkhead or shoreline stabilization structure or into any tidal wetland or adjacent area. 15. Equipment operation below apparent high water is strictly prohibited. 16. During construction, concrete or leachate shall not escape or be discharged, nor shall washings from transit mix trucks, mixers, or other devices enter tidal wetlands and or protected buffer areas. 17. Any debris or excess material from construction of this project shall be completely removed from the adjacent area (upland) and removed to an approved upland area for disposal. No debris is permitted in tidal wetlands and or protected buffer areas. DEC PERMIT NUMBER 1-4738-03029/00003 PAGE 4 Of 5 SPECIAL CONDITIONS 18. The permittee shall incorporate the following language as a notice covenant to the deed: "Regulated tidal wetlands associated with Southoid Bay are located at 580 Basin Road, County Tax Map Number: District 1000, Section 81, Block 1, Lot 16.7, otherwise known as the properties of Mary Zupa and her heirs, assigns, or successors. This property is subject to the provisions of New York State Environmental Conservation Law (ECL) Article 25 or its successor, and the conduct of regulated activities may occur only pursuant to ECL Article 25 if prior approval is given by the New York State Department of Environmental Conservation (NYSDEC) or its successor. Regulated activities include, but are not limited to the erection of any structure(s); excavation; dredging grading and filling; clearing of vegetation; and application of chemicals." This deed covenant shall be recorded with the Clerk of Suffolk County within 90 days of the issuance of this permit. A copy of the covenanted deed or other acceptable proof of record, along with the number assigned to this permit, shall be sent within one calendar year of the issuance of this permit to: NYSDEC, Regional Manager, Bureau of Marine Habitat Protection, SUNY Building 40, Stony Brook, New York 11790-2356. DEC PERMIT NUMBER 1-4738-03029/00003 PAGE. 5 OF 5 ;FA LEVEL ~,.APPff;~ 5h~l~ I O~ I PLANTIN® 5C, HEI~ULE "Low 5i11" Dulkhead Croee Section N 5ou~hola Da~ Cross Section ~AL~, I": I0' Doat Dakin N5 Plan View Detail (top view) '~'"' ~ 6-L~ ~athl~ New York State Department of Environmental Conservation NOTICE The Department of Environmental Conservation (DEC) has issued permit(s) pursuant to the Environmental Conservation Law for work being conducted at this site. For further information regarding the nature and extent of work approved and any Departmental conditions on it, contact the Regional Permit Administrator listed below. Please refer to the permit number shown when contacting/the DEC. Regional Permit Administrator JOHN W. PAVACIC NOTE: This notice is NOT a permit RETURN THIS FORM TO: OICE OF COMMENCEMENT OF CONSTRUC'~_ COMPLIANCE Marine Habitat Protection NYSDEC Building 40 - SUNY Stony Brook, NY 11790-2356 FAX TO: (631) 444-0297 PROJECT LOCATION/ADDRESS:' CONTRACTOR NAME: ADDRESS: TELEPHONE: Dear Sir: Pursuant to Supplementary Special Condition D of the referenced permit, you are hereby notified that the authorized activity shall commence on . We certify that we have read the referenced permit and approved plans and fully undemtand the authorized project and all permit conditions. We have inspected the project site and can complete the project as described in the permit and as depicted on the approved plans. We can do so in full compliance with all plan notes and permit conditions. The permit sign, permit and approved plans will be available at the site for inspection in accordanca with general Condition No. 1. (Both signatams required) PERMITEE DATE CONTRACTOR DATE THIS NOTICE MUST BE SENT TO THE ABOVE ADDRESS A T LEAST ~0 DA YS PRIOR TO COMMENCEMENT OF THE PROJECT AND/OR ANY ASSOCIATED REGULATED ACTIVITIES. FAILURE TO RETURN THIS NOTICE, POST THE PERMIT SIGN, OR HA VE THE PERMIT AND APPROVED PLANS AVAILABLE A T THE WORK SITE FOR THE DURA TION OF THE PROJECT MAY SUBJECT THE PERMITTEE AND/OR CONTRACTOR TO APPLICABLE SANCTIONS AND PENAL TIES FOR NON- COMPLIANCE VVTTH PERMIT CONDITIONS. · NOTICE OF COMPLETION OF CONSTRUCTION ~ COMPLIANCE RETURN THIS FORM TO: Marine Habitat Protection NYSDEC Building 40 - SUNY Stony Brook, NY 11790-2356 I OR FAX TO: (63t) 444-0297 PERMIT NUMBER: ISSUED TO: PROJECT LOCATION/ADDRESS: CONTRACTOR NAME: ADDRESS: TELEPHONF' Dear Sir: Pursuant to Supplementary Special Condition D of the referenced permit, you are hereby notified that the authorized activity was completed on We have fully complied with the terms and conditions of the permit and approved plans. (Both signatures required) PERMITEE DATE CONTRACTOR DATE THIS NOTICE, WITH PHOTOGRAPHS OF THE COMPLETED WORK AND/OR A COMPLETED SURVEY, AS APPROPRIATE, MUST BE SENT TO THE ABOVE ADDRESS V~THIN 30 DAYS OF COMPLETION OF THE PROJECT · DEPARq'MENT OF HEALTH SERVICES O~RCE OF W, kSr~'WA"~.R ~ COUNTY OF SUFFOLK ® CLARE B. BRADLEY, M.D.. M.P.H. CO~e~S,.~ONER PERMIT The attached plan, when duly signed by a representative of the Department, constitutes a permit to construct a water supply and/or collection system for the property as depicted. The applicant should take note of any conditions of approval, which may be indicated on the plan or enclosed herein. Cof~stmction must conform with applicable standards including "Standards for Approval of Plans and Construction for Sewage Disposal Systems for Single Family Residences" and ''Standards and Procedures for Private Water Systems." Omissions, errors "or lack of deta/ls on the plan does not release the applicant from the responsibility of having the construction done in conformance with applicable standards. The permit (plan) expires three (3) years after the approval date. Any modifications which may affect the proposed sewage disposal or water supply systems requires submission of a revised plan and additional fees (if applicable) for re. approval prior to construction. No inspeetlon.q will be performed by the Department on expired Permits may be renewed, extended, transferred or revised in accordance with the procedures described in ''Submission Requirements for Approval of Sewage Disposal and Water Supply Facilities for Single Family (Form ww -04i). It is the applicant's responsibility to call the department at 852-2097, in advance, to arrange inspections of the sewage disposal and/or water supply facilities prior to backfilling. These include inspections of the sewage collection and disposal systems, water supply system components and piping, and final grading as shown on the approved plans. In certain cases, inspections of the soil excavation may be required to determine the acceptability of the soils for sewage disposal systems. The Department must be notified at least 24 hours in advance to schedule an inspection and excavation inspections must be confirmed by calling 852-21 O0 prior to 9:30 A.M., the morning of the inspection. FINAL APPROVAL IssUED BY THE DEPARTMENT IS NECESSARY PRIOR TO THE OCCUPANCY OF NEW BUILDINGS, ADDITIONS TO EXISTING BUILDINGS, OR FOR THE USE OF SEWAGE DISPOSAL OR WATER SUPPLY SYSTEMS. WWM-058 (Rev. 7/02) PAGE 1 OF 2 INSTRUCTIONS FOR AL APPROVAL OF CO RUCTED SYSTEMS It is the appliCant's responsibility to call the DeparUnent to arrange inspections of the sewage disposal system and water s~pply facilities prior to backfilling. These include inspections of the soil excavation for the sewage disposal system, when required, and inspections of the water supply well, well lateral, public water supply line, disposal system, piping and final grading. Other inspections may be required. Following satisfactory construction and ~mspections: 1. The applicant must submit 4 prints of an as-built plan (up to and including ll"xl?"), by a licensed design professional, of the subject properly showing the following: a. the lot location and metes/bounds description; b. the lo~ number(s) and the uame of the subdivision, if applicable: c. permanent structures (i.e., buildings, driveways, walkways, swimming pools, decks, retaining walls, e~.); d. the exact location of the private well and lateral, if applicable (give at least 2 dimensions messu~i from the comers of the building to the well); e. the exact location of the public water line, if applicable; o f. the exact location of the septic tank and leaching pool(s), if applicable (give at least 2 dimensions measured from the comers of the building ~o the covers of the septic tank and each leaching pool); g. the exact location of the sewer line from the dwelling to the street; if applicable; and h. have a clear area al le~ 3" x 5" for the Department's api~roval stamp. 2. If a subsurface sewage disposal system has been installed, the applicant must submit a certificate from a licensed sewage disposal installer, attesting that the system has been constructed according to the criteria of the Depamucnt. 3. If a well has been installed as the potable water supply, then the applicant must submit a well water analysis completed within one (1) year by a certified lab, and a well driller's ce~ificate completed by a licensed well driller. If the well or _ wa~r quality does not conform to standards, corrective measures will be required as described in the Department's "Private Wa~er System S~andards." Please note: water treatment units may not be installed without prior approval of the Departmenc 4. If public sewers are o~iliT~l for the dwelling, the applicant must also submit one (1) copy of the sewer line inspection approval from the sewer district. In disUicts operated by Suffolk County, one (1) original of Form S-9, duly executed by the Suffolk County Depamnent of Public Works, and one (1) copy of a Suffolk County Department of Public Works field sketch are required. 5. In public water is utilized, a tap leuer from the appropriate water district indicating that service ha~ been completed to the dwelling will be required. 6. In,certain cases, the applicant will be requh~l to submit a. ce~ification from a licensed design professional, attesting that ~ all components of the sewage disposal system, re~ining wall or sewage collection system have been properly inspected and constructed accordingto the approved plans and permit conditions. Refer to "Cer~ficafion of Cm~ruc~l Works" (Form ?. The applicant must submit a "Cer~icate of Carbon Monoxide Alarm Installation," (Form WWM-0?5). HEALTH DEPARTMENT REFERENCE NUMBER MUST BE ON ALL CORRESPONDENCE OR DOCUMENTS SUBMITTED. SUBMIT ALL NECESSARY FINAL PAPERS AT THE SAME T~IE. PHOTOCOPIES OF DOCUMENTS WILL NOT BE ACCEPTED. · WWM-058 (Rev 7/02) PAGE 2 OF 2 ~ YOP/~TE DkPART~/~ 6F DEC PEI~4IT N~{BER 1-4738-03029/00003 FACILI~/pROGRAM ~K~B~R ( S ) Under ~he ~nvi~=nmental EFFECTIVE DATE November 141 2002 EXPIRATION DATE(S) Novea~oer 13~ 2007 TYPE OF PERMIT · New [] Renewal [] Modification [] Permit to Construct [] Article 15, Title 5: Pro- tection of Waters [] Article 15, Title 15: Water Supply [] Article 15, Title 15: Water Transport D ;trticle 15, Title 15: Long Island Wells [] Article 15, Title 27: Wild, Scenic and Recreational Rivers · 6NYCRR 608: Water Quality Certification D Article 17, Titles 7, 8: SPDES D Article 19: Air Pollution Control [] Article 23, Title 27: Mined Land Reclama- tion [] Article 24: Freshwater Wetlands · Article 25: Tidal wetlands Permit to Operate [] Article 27, Title 7; 6NYCRR 360: Solid Waste Management [] Article 27, Title 9; 6NYCRR 373: Hazard- ous Waste Manage~aent [] Article 34: Coastal Ero- sion Management [] Article 36: Floodplain F~anagement D Articles 1, 3, 17, 19, 27, 37; 6NYCRR 380: Radiation Control PERMIT ISSUED TO Mary Zupa ADDRESS OF PER~fITTEE 4565 Paradise Point Road~ Southold NY 11971 CONTACT pERSON FOR pERF~ITTBD WORK ~-~h-~ine MesianoI Inc.r 12 Mill Pond T.~,,, East Moriches NY 11940 ~ A~D ADDRESS OF PROJECT/FACILITY Zupa Property, 580 ~- ~a: Southold NY LOCATION OF pROJECT/FACILITY SCTM %1000-81-1-16.7 ~otm~Y I TOWN Suffolk Southold De'scription of Authorized Activity WATERCOURSE Southold Bay TELEPHONE NUMBER t631) 765-6112 (631} 878-8951 MYTMCOORDIRATES E:719.4 N:4547.3 Construct a single family dwelling, garage, sanitary system, swimming pool, deck, gravel driveway, public water service, 4-foot wide access path, and 4-foot by 4-foot steps to the beach. Install 52 linear feet of new low-sill bulkhead, remove and replace in the same locati~ approx//nately 500 linear feet of bulkhead, and conduct plantings. All work shall be _~or~ed cordance with the attached plans stamped NYSDEC approved on 11/13/02. c:~: --~_ By acceptance of this permit, the permittee agrees that the permit is contingent compliance with the ECL, ell [cable regulations, the General Conditions specified and any S~ol&l Co~i~ionl as part of this permit. ADDRESS Bldg. #40, SUNY, Stony Brook, NY 11790-2356 DATE Page 1 o~ 5 November 14, 2002 NEON y~,~ TATE DEPARTMENT OF ENVIRONMENTAL CONSERV, B~N NOTIFI~¥1ON OF OTHER PERNtI,'I bE OBLIGA'I~NS Item A: Permlttse Accepts Legal Responsibility and Agrees to Indemnification The permittee expressly agrees to indemnity and hold harmless the Department of Environmental Conservation of the State of New York, its representatives, employees, and agents ('DEC') for all claims, suits, actions, and damages, to the extent attributable to the permittee's acts or omissions in connection with the permittee's undertaking of activities in connection with, or operation and maintenance of, the facility or facilities authorized by the permit whether in compliance or not in compliance with the terms and conditions of the permit. This indemnification does not extend to any claims, suits, actions, or damages to the extent attributable to DEC's own negligent or intentional acts or omissions, or to any claims, suits, or actions naming the DEC and arising under article 78 of the New York Civil Practice Laws and Rules or any citizen suit or civil rights provision under federal or state laws. Item B: Permittse's Contra~tore to Comply with Permit The permittee is responsible for informing its independent contractors, employees, agents and assigns of their responsibility to comply with this permit, including ail special conditions while acting as the permittee's agent with respect to the permitted activities, and such persons shall be subject to the same sanctions for violations of the Environmental Conservation Law as those prescribed for the pormittee. Item C: Permittse Responsible for Obtaining Other Required Permits The permittee is responsible for obtaining any other permits, approvals, lands, easements and rights-of-way that may be required to carry out the activities that are authorized by this permit. Item D: No Right to Trespass or Interfere with Riparian Rights ............... , · Th s permit does not convey to the perm ttee any right to trespass upon the lanos or in;enere wim [ne riparian nynm u, others in order to perform the permitted work nor does it author ze the impairment of any rights, title, or interest in real or personal property held or vested in a person not a party to the permit. GENERAL CONDITIONS General Condition 1: Facility Inspection by the Department The permitted site or facility, including relevant records, is subject to inspection at reasonable hours and intervals by an authorized representative of the Department of Environmental Conservation (the Department) to determine whether the permittee is complying with this permit and the ECL. Such representative may order the work suspended pursuant to ECL 71-0,'.'.'~1 and SAPA 401 (3). The permittae shall provide a person to accompany the Department's representative during an inspection to the permit area when requested by the Department. A copy of this permit, including all referenced maps, drawings and special conditions, must be available for inspection by the Department at all times at the project site or facility. Failure to produce a copy of the permit upon request by a Department representative is a violation of this permit. General Condition 2: Relationship of this Permit to Other Department Orders and Determinations Unless expressly provided for by the Department, issuance of this permit does not modify, supersede or rescind any order or determination previously issued by the Department or any of the terms, conditions or requirements contained in such order or determination. General Condition 3: Applications for Permit Renewals or Modifications The permittee must subm t a separate written applicat on to the Department for renewal, modification or trar~fe.r of this permit. Such application must include any forms or supplemental information the Department requires. Ar~ne~ I, modification or transfer granted by the Department must be in writing. The pormittee must submit a renewal application at least: '~ :~- a) 180 days before expirat on of Parm ts f°r State P°llutant Discharge Eliminati°n system (sPDEs-)~f'~t['~' ar;J°us Waste Management Facilities (HWMF), major fair Pollution Control (APC) and So id Waste ~,'~ge~nt Facilities (SWMF); and .~: b) 30 days before expiration of ali other permit types. '~'~' -'-'-'-'-'-'-'-'-'~ Submission of applications for permit renewal or modification are to be submitted to: NYSDEC Regional Permit Administrator, Region < > <street>, <city>, <state> <zip>, telephone: < > General Condition 4: Permit Modifications, Suspansions and Revocations by the Department The Department reserves the right to modify, suspend or revoke this permit in accordance with 6 NYCRR Part 621. The grounds for modification, suspension or revocation include: a) materially false or inaccurate statements in the permit application °r supporting papers; b) failure by the permittee to comply with any terms or conditions of the permit; c) exceeding the scope of the project as described in the permit application; d) newly diecovered matarial information or a material change in anvir°nmental c°nditi°ns' relevant techn°l°gy °r applicable law or regulations since the issuance of the existing permit; e) noncompliance with previously issued permit conditions, orders of the commissioner, any provisions of the Environmental Conservation Law or regulations of the Department related to the permitted activity. DEC PERMIT NUMBER I IPAGE 2 OF 5 1 NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION .~DITIONAL GENERAL CONDITIONS FOR ARTICLES 15 (TITLE 5), 24, 25, 34 AND 6NYCRR P.I~IT 608 ( TIDAL WETLANDS ) 1. If future operations by the State of New York require an alteration in the position of the structure or work herein authorized, or if, in the opinion of the Department of Environmental Conservation it shall cause unreasonable obstruction to the free navigation of said waters or flood flows or endanger the health, safety or welfare of the people of the State, or cause loss or destruction of the natural resources of the State, the owner may be ordered by the Department to remove or alter the structural work, obstructions, or hazards caused thereby without expanse to the State, and if, upon the expiration or revocation of this permit, the structure, fill, excavation, or other modification of the watercourse hereby authorized shall not be completed, the owners, shall, without expense to the State, and to such extent and in such time and manner as the Department of Environmental Conservation may require, remove all or any portion of the uncompleted structure or fill and restore to its former condition the navigable and flood capacity of the watercourse. No claim shall be made against the State of New York on account of any such removal or alteration. 2. The State of New York shall in no case be liable for any damage or injury to the structure or work herein authorized which may be caused by or result from future operations undertaken by the State for the conservation or improvement of navigation, or for other purposes, and no claim or right to compensation shall accrue from any such damage. 3. Granting of this permit does not relieve the applicant of the responsibility of obtaining any other permission, consent or approval from the U.S. Army Corps of Engineers, U.S. Coast Guard, New York State Office of General Services or local govemmant which may be required. 4. All necessary precautions shall be taken to preclude contamination of any wetland or waterway by suspended solids, sediments, fuels, solvents, lubricants, epoxy coatings, paints, concrete, leachate or any other environmentally deleterious materials associated with the project. 5. Any material dredged in the conduct of the work herein permitted shall be removed evenly, without leaving large refuse piles, ridges across the bed of a waterway or floodplain or deep holes that may have a tendency to cause damage to navigable channels or to the banks of a waterway. 6. There shall be no unreasonable interference with navigation by the work herein authorized. 7. If upon the expiration or revocation of this permit, the project hereby authorized has not been completed, the applicant shall, without expense to the State, and to such extent and in such time and manner as the Department of Environmental Conservation may require, remove all or any portion of the uncompleted structure or fill and restore the site to its former condition. No claim shall be made against the State of New York on account of any such removal or alteration. 8. If granted under 6NYCRR Part 608, the NYS Departmant of Environmental Conservation hereby certifies that the subject project will not contravene effluent limitations or other limitations or standards under Sections 301,302, 303, 306 and 307 of the Clean Water Act of 1977 (PL 95-217) provided that all of the conditions listed herein are met. 9. At least 48 hours prior to commencement of the project, the permittee and contractor shall sign and return the top portion of the enclosed notification form certifying that they are fully aware of and understand all terms and conditions of this permit. Within 30 days of completion of project, the bottom portion of the form must also be signed and returned, along with photographs of the completed work and, if required, a survey. 10. All activities authorized by this permit must be in strict conformance with the approved plans submitted by the applicant or his agent as part of the permit application. Such approved plans were prepared by: Joseoh A. Inaeano last revised 8/26/02 ~sheet 1 of 2) and Sea Level Maooina last revised 11/1/02 ~sheet 2 of 2~. DEC PERMn' NUMBER 1-4738-03029/00003 I PAGE~I OF 5 SPECIAL CONDITIONS 1. All peripheral berms, cofferdams, rock revetments, seawalls, gabions, bulkheads etC. shall be completed prior to placement of any fill material. ~behind such structures. 2. Prior to any construction or removal of bulkheads and other shoreline stabilization structures all backfill shall be excavated landward of the bulkhead and retained so as not to enter the waterway, tidal wetland o'r protected buffer 3. To protect the values of the tidal wetlands, a permanent vegetated buffer zone shall be established. There shall be no disturbance to the natural vegetation or topography within an area extending 50 linear feet landward of the tidal wetland boundary. 4. A row of staked hay bales or approvable erosion control devices shall be placed at the landward edge of the buffer area or 50 linear feet from the tidal wetland boundary, or as per NYSDEC approved plan, at commencement of regulated activitias and remain in place until project is completed and all disturbed areas stabilized with vegetation. 5. The areas designated on the approved plans shall be planted as per the approved plans and the applicant shall ensure a minimum of 85% survival of plantings by the end of five growing seasons. If this goal is not met, the applicant shall re-evaluate the restoration project in order to determine how to meet the mitigation goal and submit plans to be approved to the Bureau of Marine Habitat Protection, Building 40 SUNY, Stony Brook, NY 11790-2356. 6. This permit authorizes activities within the 50-foot no disturbance buffer zone as described in this permit and approved plans. Disturbance to the buffer zone as a result of the bulkhead replacement must be completely restored to its pre-project condition. Upon completion of the approved project activities, no maintenance, additional plantings, trimming, or other activities shall occur within the buffer zone without prior Department authorization. 7. Sanitary system (bottom of tank and leaching pools) shall be located a minimum of 2' above seasonal high groundwater. 8. Roof runoff must be directed to drywells a minimum of 75 linear feet landward of the most landward edge of the tidal wetland boundary, and must be installed a minimum of 2 feet above seasonal high groundwater. 9. Dry wells for pool filter backwash shall be located a minimum of 75 linear feet landward of the tidal wetland boundary. 10. There shall be no draining of swimming pool water directly or indirectly into tidal wetlands or protected buffer areas. 11. Driveways and parking areas shall be constructed of pervious material. 12. Roads, driveways, and/or parking areas shall be graded to direct runoff away from tidal wetlands and protected buffer areas. 13. All areas of soil disturbance resulting from this project sha!l be stabilized immediately following project completion or prior to permit expiration, whichever comes first. The approved methodologies are as follows: a. Stabilized as per specifications identified on the approved plans. 14. There shall be no disCharge of runoff or other effluent over or through any bulkhead or shoreline stabilization structure or into any tidal wetland or adjacent area. 15. Equipment operation below apparent high water is strictly prohibited. 16. During construction, concrete or leachate shall not escape or be discharged, nor shall washings from transit mix trucks, mixers, or other devices enter tidal wetlands and or protected buffer areas. 17. Any debris or excess material from construction of this project shall be completely removed from the adjacent area (upland) and removed to an approved upland area for disposal. No debris is permitted in tidal wetlands and or protected buffer areas. DEC PERMIT NUMBER 1-4738-03029/00003 J PAGE 4__ OF.~._ SPECIAL CONDITIONS 18. The permittee shall inco,r ~porate the following language as a notice covenant to the deed: *Regulated tidal wetlands associated with Southold Bay are located at 580 Basin Road, County Tax Map Number: District 1000, Section 81, Block 1, Lot 16.7, otherwise known as the properties of Mary Zupa and her heirs, assigns, or successors. This property is subject to the provisions of New York State Environmental Conservation Law (ECL) Article 25 or its successor, and the conduct of regulated activities may occur only pursuant to ECL Article 25 if prior approval is given by the New York State Department of Environmental Conservation (NYSDEC) or its successor. Regulated activities include, but are not limited to the erection of any structure(s); excavation; dredging grading and filling; clearing of vegetation; and application of chemicals." This deed covenant shall be recorded with the Clerk of Suffolk County within 90 days of the issuance of this permit. A copy of the covenanted deed or other acceptable proof of record, along with the number assigned to this permit, shall be sent within one calendar year of the issuance of this permit to: NYSDEC, Regional Manager, Bureau of Marine Habitat Protection, SUNY Building 40, Stony Brook, New York 11790-2356. eEC PERMIT NUMBER I PAGE_.5_ OF 5 1-4738-03029/00003 COUNTY OF SUFFOLK DEPARTMENT OF HEALTH SERVICES CARBON MONOXIDE ALARM FACT SHEET AND CERTIFICATE OF INSTALLATION On June 16, 1999, the Board of Health adopted new standards to the Suffolk County Sanitary Code for carbon monoxide (CO) alarms. Effective October 1, 1999, CO alarms are required in all new one-family dwellings, two-family dwellings and multiple dwellings. Carbon monoxide alarms installed to satisfy this code must be certified by a nationally recognized testing laboratory to conform to Underwriters Laboratories Standard UL 2034. The alarms must also be equipped with a digital readout of CO concentration and a button to indicate the maximum CO concentration since the feature was last reset. Carbon monoxide alarms in new residential construction must be directly connected to the lighting circuit with no intervening wall switch. Line cord connected, direct plug-in and battery-powered alarms are not acceptable. Carbon monoxide alarms are required on each level of one-family, two-family and multiple dwellings on which sleeping quarters are located. Installation of CO alarms for new construction shall be certified by an Electrical Inspection Agency or Municipal Official duly authorized or approved by the municipality having jurisdiction over the building construction. Submission of a completed Certificate of Installation (found on the back of this instruction sheet) is required as proof of compliance. The original certificate must be submitted to the SCDHS before final approval to occupy the dwelling will be issued. Each alarm shall be mounted in accordance with the manufacturer's instructions. Alarms shall be mounted in all locations as required by Suffolk County Department of Health Services, Carbon Monoxide Alarm Standards. Carbon monoxide alarms are not mandated for existing one and two family homes, but they are strongly recommended if the home has an attached garage or any type of fuel buming appliances. For more information, call the Office of Pollution Control at (631) 854-2540. For a fact sheet on CO poisoning, call the SCDHS CO Hotline at (631) 853-2911. THE ORIGINAL SIGNED COPY OF THIS FORM must be completed by an Electrical Inspection Agency or in-house Electrical Inspector approved by the town or village of jurisdiction to perform electrical compliance inspections. This Original Certificate must be submitted to the SCDHS before final approval to occupy the dwelling will be issued. SUFFOLK COUNTY DEPARTMENT OF HEALTH SERVICES OFFICE OF WASTEWATER MANAGEMENT R1VERHEAD COUNTY CENTER - ROOM S-238 RIVERHEAD, NY 11901 WWM-075 (Rev. 10/01) SUFFOLK COU ITY DEPARTMENT OF HEALTH SERVICES CERTIFICATE OF CARBON MONOXIDE ALARM INSTALLATION Electrical Inspection Asency / Town Electrical Inspector iB · ~. _ usiness e~ame & Aduress: Name of Inspector: Telephone: Health Department Reference Number: Tax Map Number: I District I Dwelling Location Address: Section Block(s) [ Lot(s) Owner/Agent Printed Name: I CERTIFY THAT ALL OF THE FOLLOWING ARE TRUE: · Carbon Monoxide Alarms have been installed on each level where sleeping quarters are located, AND · All alarms have been installed in accordance with Article 10 of the Suffolk County Sanitary Code and the Carbon Monoxide Alarm Standards, including: o.% All alarms are UL2034 listed (Latest Edition), have a digital display, have a reset button, and have a feature to display the maximum carbon monoxide concentration recorded since the feature was last reset, AND · -'. All alarms have been directly connected to the lighting circuit with no intervening switches, AND °.% All alarms have been tested and found to be operational, AND I am employed by an agency that is currently approved to perform electrical inspections in the Town/Village having jurisdiction. · If this certificate is for a MULTIPLE DWELLING, Carbon Monoxide Alarms have been installed: In all sleeping rooms served by a centralized system supplying air for cooling, heating, or ventilation, AND .:° In each sleeping room containing a fuel fired appliance, AND In all dwelling units and sleeping units shar ng a common wa with, or located d~rectly above or be ow, a room containing a centralized fuel-fired appliance, AND o:. In a con-idor serving dwelling units or sleeping areas within forty (40) feet of all doors to those units and the corridor als~ serves a room containing a fuel-fired appliance. (Signature of Inspector) (Date) (Printed Name) (License Number) l CERTIFY THAT THIS DWELLING IS EXEMPT FROM THE REQUIREMENT TO INSTALL CARBON MONOXIDE ALARMS BECAUSE ALL OF THE FOLLOWING ARE TRUE: · There are no fuel burning appliances installed, AND · There are no garages attached to the dwelling, AND · The dwelling uses an electrical heating system. (Signature of Inspector ) (Date) (Printed Name) (License Number) False statements made herein are punishable as a Class A misdemeanor pursuant to Seetion 210.45 of the New York State Penal Law THE ORIGINAL SIGNED COPY OF THIS FORM MUST BE SUBMITTED TO THE SUFFOLK COUNTY DEPARTMENT OF HEALTH SERVICES IN ORDER TO RECEIVE FINAL APPROVAL WWM~}75 (Rev. 1~01) Paradise Point Association, Inc. Special Meeting of the Membership August 17, 2002 10:00 a.m. - Southold Public Library Members Present: Members by Proxy: Mr. and Mrs. Pinker Mr. and Mrs. Douglas Barnard Mr. and Mrs. Kevin Barr Mr. Edward Boyd Mr. Peter Cooper Mr. and Mrs. Gaston Criblez Mrs. Joanne Cummings Mr. and Mrs. Edmund Curcuru Mr. Fred Frohnne Mr. and Mrs. Roy James Mrs. Jane Kaytis Mrs. Patrice Keitt Mr. Marc Klein Mr. and Mrs. Steven Kolyer Mrs. Donna Mortimer Mr. Steven Perricone Mr. and Mrs. Robert Scalia Mr. and Mrs. John Sinning Judge J.W. Burke Mr. and Mrs. Carlson-Zak Mr. Charles Deluca Mr. Ronald Hermance Mr. James Kaytis Members Vote on Proposed Resolutions: In favor: All Opposed: None PROPOSED RESOLUTION Upon Motion duly made and seconded, the members hereby ag~e that the members and their Association are opposed to any actions by anyone, including without limitation Mary and Victor Zupa, that would deny Or restrict any access or usc by the members of the Association to thc basin, its docks, the jetty and access to the bay, including thc right to maintain such properties. Upon Motion duly made and seconded, the members hereby agree to the establishment of a'property interest preservation committee comprised of members of the Association (i) to'review the issues relating to the access or use by the residents of the Association to the basin, its docks, the jetty and access to the bay, including the right to maintain such properties (ii) to advise the Board of Directom, the members and the Association regarding the facts and circumstances, the effects upon and legal issues relating to efforts by any parties, including without limitation Mary and Victor Zupa, tO take actions which will restrict or deny access to the basin, its docks, the jetty or access to the bay, including the right to maintain such properties (iii) to recommend necessary steps to protect the interests of the members and the Association, including representation at any~hearings, meetings or other gatherings of local, state or federal agencies relating to these matters. Upon Motion duly made and seconded, the members hereby agree to retain counsel to pursue litigation or other administrative action necessary to protect the interests of the members and the Association relating to the basin, its .docks, the jetty and access to the bay and that the Board of Directors and Officers of the Association are NY1 682929vl responsible for regularly reporting to the members the progress of any such litigation or administrative action and resources necessary to support such actions. NY! 682929v I PETER A. COOPER 4800 PARADISE POINT ROAD, SOUTHOLD, NEW YORK '11971 March 19, 2003 Southold Town Board of Appeals 53095 Main Road Southold, NY 11971 Dear Board of Appeals: I have been a resident of Paradise Point and a member of the Paradise Point Association since 1994, I am opposed to the granting of a variance to Mary Zupa, #5266 Constructing the proposed house would eliminate a road through the lot which has been there for many decades and which I have used regularly to get to the jetty at the entrance to the channel leading to our boat basin. In addition, the development of the lot as proposed would hinder our use of the docks in the basin where I keep my boat and would make it more difficult to park. Please deny the variance. Respectfully, ,.% DEWEY BALLANTINE LLP March 18, 2003 Lydia Tortora, Chairwoman Board of Appeals Town of Southold 53095 Main Street PO Box 1179 $outhold, NY 11971 Re: Zupa Matter Dear Ms. Tortora: I am submitting this letter in connection with the above reference matter to e~rtess my concerns regarding the range of proposals made by Mary and Victor Zupa, in connec~on with Lot gl at Paradise Point. I understand that there will be a hearing on Thursday. March 20, 2003, and while I w~ll be out of town, I felt it important to express my concerns and reservations regarding the proposed building on Lot gl as I am only one house removed from the proposed bttilding site. My understandh~g of the issue is that there has already been a decision in 1995 in~cating that the building ora residential home on that lot would violate zoning restrictions. In addition, ! also have significant concerns regarding the negative environmental impact for such a build/nd would cause to that lot and the surrounding area~. As a member of Paradise Point, I am aware that the Association baa made a number of /~ood faith efforts to reach a compromise with Mr. & Mrs. Zupa who have not indicated any real willingness to work with the Association in connection with ttfis matter. The Association was not contacted before the Zupa's bought this land and the Zupa'~ purchased this land with ~ll knowledge and understanding o£the restrictions and of the concerns of the Association. As evidence of the Association's good faith, they have even offered to buy the land back from the Zupa's so that they would not suffer any eeonom/" harm, even though their purchase of land was made w/th fxfll knowledge of the L, nped/ment~ o£ build/nd at the time. MAR-19-2005 P.0~/0~ AS a member of thc Association, and as a neighbor of the Zupa's I find it very unfortunatc that the situatio~l has corec to this stage, requiring the Board of Appeals to act, but unfortunately I am also convinced that there is ~o offer of compromise, which will cause the Zupa's to cease their continuing efforts to sefioasly undermine the use by the Association of its propeWy and thc easement to prote~t and maintain the jetty, which is critical for the enjoyment of the basin and mahna, which all members have used and enjoyed for decades. Respectfully submitted. cc: Kevin Bart NYI 741424¥1 Southold~ NY 1~971 March' i, 2003 Steven T. Kulyer 24 ~ Park South New York, NY 10003 Wc want m flamlt'~i supponyou in your work on belmlf of all of the residents of thc P~ PointAssodatio~ SincelearlinsoftheZupas' planFor c~a house onLotl6.2, we have been eonceined about a whole range of ism=es iacludin~ access to the basin, potential environmental damage and traffic flow. We tbetefme want you to know Iba~ we continue to be' oppe-~ed to any stepi thtu would allow Ma~y a~d VictorZupa the ~isht to b~d a residonc~ on the above-mentioned pawel. We also fully endorse plnns eatt'the Association ~p determined in AuSust for litigation to protect the ~igbts and intet~ts of i~ tesidem~. While we are unable to attond the meeting on Mawb 20; we do want to offer our assistance with your effort Please let us know how we can be helpful Sincerely, Laura IClcin c: Kevin Bm'r, President, Paradis~ Poinl Association, Inc. FROM ~ ..q1636~It308 P. 2 ~elx~vy 2g, 2003 Paradise Point .Associatim Mud:ch 1, 20O:3 Kevin Bart, President Paradise Point AsSOOation, Ina 11 Diaksen Drive Wilton, CT 06897 Dear Kevin: The unfornmam necessity Of defending omc ptope~ interests against the Unwarranted attacks by Mary and Victor Zupa leads me to Write to you. As you Imoxg [ am co-trustee with my sistea; Mary Albeti-Pink~ of the trust under the will of Americo Alberi for joint ownership Of the property at 4345 Paradise Point Road, Southold, NY. I have been closely following out case through the letters and reports you and the Board have seht and flLrongh detailed conversations with 1Vm Kolyer and my sister, who attended the 17 August 2002 meet ing of the Paradise Point Association. I have been informed that there is a move to settle the'suit between the Zupa's and the Paradise Point Association. I am opposed to any settlement excepting only that the Zupa's accept fi~y the position of the Paradise Point Association as delin~ted in our various legal flings and pleading. A descent respect for the opinions of the Board and members of the Aesooation reqm~es me to outline my reasons for this position. · The ProPertY in question, Lot 16.7 (Lot #1) has atways been used in common by the members of the Paradise Point Assodauon and, I believe, was never intended for development as a psivate residence. · The original subdivision map shows Lot #1 with'a road leading to the jetty, which road is still in phce today. · The deed to my property has an attached covenant giving me fights to the access the jetty and boat basin. Considering that the jetty needs pefioclic service and that there xs a road leading directly to the jetty, it seems folly to assert that the road was not placed there to service the jetty and that there is not an implied tight of acces~ The matter of the use of Lot #1 arose in 1995 when my father, Americo Alberi, and others in the Paradise Point Association organized an effort to clarify the use of this lot wath the zoning authotitie~ They obtained a ruling that Lot #1 was not suitable for residential use because of the road and the boat basin. I am at a loss to understand what has now changed. The Board and out legal representatives surely have already presented these arguments more ably than I. However, I believe any possible settlement will require a matter of trust and good will on the part of the Zupa's. Such trust and good will have been sadly lacking in the proceedings so fat: The Zupa's have engaged in perSOnal attacks against my family andm~ They threatened my mother with arrest for trespass on Lot #1, when they well know as lawyers that the matter is under adjudicatiom Tl~eatening an 80-year-old woman with arrest does not give me confidence in the Z ' ' ' ' upa s good will or willingness to abide by any settlement agreement. Therefore, I recommend to the President and Board of the Paradise Point Association that we precede with the stat to ~ts conclusion in a coutt of law. I fi.trther recommend, as this matter conceivably might come to a vote of the Board, that any Board members with a previous ownership stake in Lot #1 be asked to recuse themselves from any such vote because of a conflict of interest. My hope rests with a judgment in the Association's favor that forever puts these matters to rest and leads to the return of comity and reasonability to Paradise Point, a place I have come to love. I further wish to thank you 73 MISSION HILLS COURT HOLMDELg NJ 07733 - 2 - Match 1, 2003 and other board members for the time lnd effort you have spent on this raatte~ I can appreciate how frustmling dealing with an unwatrantt~d legal action can be_ You and other board members have my t~spect and admi*~fion. Fin~l~, please feel free to share this letter in any manner that you feel will be helpful to out James L Albeti i March 19, 2003 i. Lydia Tortora~hairwom Board of AP .P?Is Town of Soutl~ld 53095 Main S~eat P.O. Box 1179; Southold, N. y~ 11971 Dear Ms. Tort°ra: ~in! and members of the Paradise Point Association, we would As residents o: ~Paradise F ask that you cOnSider tbe toll6wing when revi~'wing the application for construction ora home Mm Z w onl t A home on Lo~ 16.7 would imcrfere with the Association use that is as a marina for Paradise Point !Associatio~ member~. The docks have been in existence since before 1957 and Paradise P6int Assoei~ti,~n owns the jetties and has rights to use and sendc! them including vehi,h-ular acces~ t6~hem. It should also be noted that Paradise Point Association is h~ lltlgatio~ to~}determin¢ a prescriptive easement over the property, which may make a ho?ei logistically: .imp°ssible' Anything that ~terferes v~hh the boating and basin life in Paradis~ Point ~vould ~he detrimental to the commu fity and we therefore strongly support the 1995 ZBA decision that building a ~'esidence ~ n this lot not be permitted. Yours truly, Joan and Fred Frohne cc: Kevin Bar~' i President [ i Paradise P~int Associlti6n yau hve dom For the Poredise Point Anoci~on in d~Jins ~d~.h the lepl matters violated and what Mr. Z, up~ is a~to ae~ish will e, ause Jmsparable harm to our eommunity and ~e a devalumton of our homes. We ere still bebi~ the nssocJaiion in this hinter along with the full 100% affirmative vote ofdi present members includin~ the complete Board at the last AuSMt me~b~ Either Ro~ or myaelf will ~ome ba~ ~om Florida for the Match 20 2003 Zi~A he~, lfl eaa be {filmy help let me imow. Robert & Linda Stalin 4550 Paradise Point Road Southold, NY 11971 63 i-765-2441 Mr. ~evun T. Kolycr .4 (.~mtmm:y Park New York, NY IO00.~ l~,ar Sieve: ' I wa~l ti, express my thanks to you, Andrea eM Kevtn Ban' for all of thc (thankless) work yln~ a~'- dning ~n behalf of t~ ~dise Point A~i~ioa. Ha~n8 ~t in ~urs ~d gevin'~ s~al ovgr Ibc i~ast 25 y~am nn Pa~li~ Pt~inl ~ a ~ancn~ wsld~. [ ~ow iht cw~ wanls only ~ - ' Ihii~g~ 1~ ~n. hut when lh~ ~ ~cu~ ~unt~ ~ ~le &~'t wan to gel. it~v,~v,~ amd want ~ne else to haMJe ii fm t~m. At the s~'cial A~tgu.st 2002 mcm~z~ mccttn$, thc call to action was clear. You and Kevi~ rccei'~cxi a Ttland:ltg l~>ln lh~ m~hip to ~ our Jnte~s. ~i~ n~atc was ummim~)us. m~d includ~ ~:~.n ~ m~ (~ of whom a~ al~ D~d mvm~} who ~ld th~. I~'ny to Zupa. ~is ~up al~ ~t~ with t~ ent~ m~r~hip to ~tdbutc up m $5.~ ~ I~mily to fina~ our le~l co~s. ~ was NO ~i~n to this r~l~lion. '[here can be no ctm~promi~e with 7,ula. I le h.u made it clear in his letters to thc A~y ('t,~. Hie 'l ms~cx~. I~ Zoning B~ of Aphis l~t he ~s Md a cl~r plan si~u tim Isle ~'s Io pu~lu,a this pn)~fly, elimi~le ~ ~k~ (which hove ~n Ih~ since t~ I~O's w~n my pi~nt~ ll~l hui~ in S~lhold) and lhcmf~ i~ t~ valu~ ~fhls ~ ~ ~clud~n~ unyon~ ~lso from th~ ha~hl. Ili~ inw~menl In }~ 16.7 would t~ple m q~ple ifhe i~ ~ful in gtnting tim ZBA to ~,'er~ m~d gc~ dd of Iht As~iati~ ~ks. Exclu~vily b~ds hi~ ~1 c~a~c valncs~ about this that we will mak~ a ~ial t~p Nodh for ibc ZBA he,in8 on M~n'h Ib~'ard ~ing you and And~ in ~ulhold. 4345 Paradise Point P. ¢). ]Box ::out hold, ~ 11971 February 28. 2003 Mt.. Steven Koiyer 224 3~amercy Park South l%D/' NY 10003 De. ir ~gtev~. Mr. Alberi and I bouqht our property on Paradi:;e Point in the laL~'. ']960s and we built our hou.~:e in 1984. We have ~id ~annual me~r~h~p dues rcTA~lurlF eve~ yea~ since w~: ])ought . property. In addltlon, wu paid Agsoci~tlon fees for the use of the marina during the years m,f ~:on, J~les Al~ri, kepi. a boat th,~re. The A~{sooiation,~ use of ~ho marina, the turn..around o~ Lot 1. and the ~inte~nc,~ of t:le jetty (which ~lor. g~ to the Ass~iation) have o]w~ys [~en ~mportant for my family. ~'. Alb~ri an.] Mr. Ed ~r~uru worked ve~f hard on-behalf of the Point ~{==oc[ation ia 1995, when a potential b~yer w~nted to build pl.,n~ at ~.etings of the ~{-n~[~ho]d Z~, a~d the ZB~ ~ave a very fi~m ~cision Jn favor of the Aosoci,~tion. I do 'no~ wh-/ that dec{sion must be pun a,iide now. I support the ~soci,'~t[on's decision lis pursue a]] legol me..~ns which will precede our use of the turn-arouse c:~] Lot 1, our us,: o~ the n~r{na, and our access tu our co.on pro~e~y, the je%.ty. Recent]y, ~he Assocfation spent $40,000 =o ~ain~ain our je~ ty Mow, we are not ev,~n allowed access to it. ~ wane to thank you, ~drea, and our ~sociaticn Kevin Ba:-r fo~ all your h{',~d wo~'n on our bekalf, f know h~; hard it ]~ from my husba~]d's exp,3r.[e;~ce in 1995. f hope that the Asa<ocr]at]on w~ll not have to fend off any more proposals to build on Lot 1, which was always intended for con..on use by S ~r~t'e.r ely. H,5:] c~rt'C. Alberi tho P,3~,',d[$e Poillt AGSOCi. at.loll g3.':. R,~;,noke Court Ram.,a.% NJ 07446 Fcl,ruary 2g. 2003 Mt SIcveu K~l),cr 2%: (;~'ultIVl'Cy Park Sotllh N~~ NY 10~)3 i am uplx~scd to an~'sclllm,~:.n.t with thc '/.upas ctmcen6ng their pla~s m buil~ olt l.nl I . A~,,~ at~n nmm~ hu~ t~ fight ~o lidl u~ of tim m~n~ the t~.~tmd, and t~ ~tty, which ~ Ass~iat~ pm~ny. ~m is ul~ u safety issuc which m~cs ~y sctllcment ~t o[ thc quest,9. In ca~ of tim. a fi~-IR~k w,,ukl n~d to ~ tl~ mm-around on Lot I. Th~ wyse kgT clcn~nts tn t~ ~ullR~ld ZUA s mlb~tl t~l';m ~rl~r phm to ~ild in 1~)5. Yet tl~ 7~pa~ bax'u Ibnc~d off this It~m-~tmd. in dis~a~ of tl~ entire con~nity's fig~s and ~f~y. I have ~en i~c~glon~-d to walk on Lot I fur nc~'ly twcnly yc~ ~s is my rig;m But m~w lilt 7~q~X have fenced h ofl'~d have made i~ v~ unple~m for ~s~imion ~m~m lo walk Even ~o. I an1 fim~ili~ emmgh whh l~ol I R~ ~y tirol I dou~ 1l~m is enough h:nd on Lot I lu ~ild 11~- wilful hending cvc~ zlmmg and enviR,nn~nlal ~le on I~ ~x~ks. Lvl I is not u buiklab~ ha. I a~n fully inlbmlcd about th¢c~mrse ol'lc~aJ pnx:ccdings regarding Ihis maUcr. As y~l know. [ utlc~ed ~ A~iation m~ting tm Au~nsl 17. 2~3, ~n thi~ mailer w~ full) dl~l. All ~;~;~'~ pre~nt ug~ unani~mmsly to op~ thc Zulu' building pl~s. l have mgiv~*d nexv~ co~cmmg thc Zu~' c~fls si~e then, I ~alJy ~mciatc t~ cffo~a thul you, Andrc;~ and . Ke~cn B~r am m~.~ing on ~halfoflhc cnlim P;madi~ ~int A~'ialion. Y~ ur g~R~ work will pm~rvc Pamdi~ Point as ~t commumly ol~ will ~olne a ns~l fi)r other communities Sin~'crely. cc. Mr. Kevin Barn P~sidcnl I~gml of Direc~o~ of the Parmlise P*~in~ To whom it may concern: Feb. 27,2003 When I purchased property at paradisc point to build my home, it was with thoUndcrstanding that I would have thc right to dock a boat in the Paradise Point basin. I am opposed to anything that would jeopardize that right. I remain Respectfully, Charles Deluca 3525 Paradisa Pt. Rd. Southold, N.Y. 11'971 Stw¢ Kolyer Paradise Point Association, Inc. Mar~h 2, 2003 De~S~v~ This will oonfirm thai Dor~n and I continue to support the resolutions that we unanimously passed in our August 17, 2002 special me,ting. These rcsolutions ar~ intended to protect our property interests including our docks, jetties, deeded easement and prescriptive easements. We also support the 1995 ZBA decision, which prevents thc building of a home on Lot 1. We believe it is not in the best interest of the Association to have a home built on this lot. Sincerely, Ka~vi.,5~A. Bart DC PHONE./'[ (516) 935- · 11801-1627 PETER A. COOPER 4800 PARAD,$E PO,NT RO*O. SOUTHOLD. NEW YORK 11971 March 2, 2003 Mr. Steven T. Kolyer 4380 Paradise Point Road Southold, NY 11971 Dear Steve: Basin Road in Paradise Point has e~ended all the way to the jetty at the entran~ to the boat basin [or many, many years. Thoro should bo no rosolution of tho Zupa ~so con~min~ this road without a ludi~al dotormination of the rights of tho Paradise In my opinion, the decisions made about this matter at the spe~al meeting of the members of the Association last summer should be fully implemented. Sincerely, ~OM :DESERT SAGE II~STI~S FAX NO. :7C383281569 -. 01 ~ 07:JBPM P1 TWIN FORK SIDING CO. Steve Pentcone, Builder 7470 Rt 48, Sound Ave., Mattituck, N.Y. 11952 (516) 298-5111 - 765-5397 Paradise Pt. Ass. Inc. C/o Peter A. Cooper 4800 Paradise Pt. Rd. Southold, NY 11971 1000-$1-1-16.10 Mary S. and Vi~orJ. Zupa ,719Weed St. New Canaa~ Ct. 06840 1~0-81-1-13.1 Edmund H. and Patricia N. Curcuru 4311 Gulf of Mexico Dr· Longboat Key, Fl. 34228 Apt. 301 0.37 b~IT ID: Postmark Here 'x tier[:' JF1XK0 4.42 03104/03 m Paradise Pt. Assn. Inc. ~ C/o Rain Carlson as Treasurer ['~ P.O. Box 1614· ~ l-~ Southold, NY 11971 Edmund H. and Patri~i~. C~c'=' 4311 Gulf of Mexico Dr. Apt. 301 [ Longboat Key, Fl. 34228 Postage 0 Certified Fee Return Receipt Fee (Endorsement Requirec~ Restricteci Delivery Fee (Endorsement Required) _ Mary S. and Victor ~'9~2upa s 719 Weed St. [-~ New Canaan, Ct. 06840 ,IFlXK0 0310~/03 MARY S. ZUPA 365 BASIN ROAD P.O. Box 1543 SOUTHOLD, NY 11971 631 807-6317 February 15, 2003 Ms. Lydia A. Tortora, Chairperson Southold Zoning Board of Appeals 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 Re: 580 Basin Road (SCTM 1000.81.1.16.7) Dear Chairperson Tortora: I have an application before the Zoning Board of Appeals, which was filed in November, for permission to construct a permanent residence on property my husband and I acquired in April of 2002. This application does not seek, nor do our building plans contemplate, any variance from the setback, use or area requirements established for this residential lot by the Town of Southold. (Although, if the incongruous result is reached that the lot already has a "marina" as a primary use, the application alternatively requests an area variance.) Rather, it is an application for the correct interpretation and application of the Town Code to this property. Thus, there are only two questions before the Board: 1. Does this lot meet the criteria as set forth in the Town Code for a legally recognized lot; and 2. does a described easement over a small portion of this R80 zoned property which provides access to illegal docks constructed over a Town body of water impose a "marina" use on the entire 1.7 acre lot as to prevent its development as a residence? The first question is simply answered by the fact that in 1981 the Planning Board adopted a resolution which setoffthis property as a lot, and, the further fact that it was conveyed as a single and separate lot by deed dated 1981. According to the Town Code, both of these facts require the Town to recognize it as a legal lot. The answer to the second question is grounded in common sense---if not fundamental justice. Assuming the illegal docks on Town owned waters constitute a "marina" in the first place, how can an easement over a small portion of an adjacent residential lot for access to those docks convert that property into a "marina" lot? 2 Secondly, in order to avoid flagrant injustice, how can the Town acquiesce, and indeed refuse to remove, an illegal and unsafe marina on its own waters, to the detriment of the community, and particularly to the detriment of this residential lot, and other residential property owners who adjoin it? One of these adjoining residential lots is a lot my husband and I presently reside on. We certainly never knew, nor had we any reasonable means of discovering, that the Town considered any lot in this area as zoned for a use other than what is designated on the official Town Map. I recognize that the purpose of a public hearing is to allow comments. However, the interpretation of the two questions stated above should not be influenced by self interest groups whose expressions of opposition have as their sole purpose the uncompensated taking of another's private property for their own financial benefit. It would seem that / should be the one giving my comments to the existence of an illegal and unsafe use of Town property adjoining my home, rather than the illegal users giving theirs to mine. For the past several months I have experienced this very thing in obtaining a wetlands permit. The procedure I went through before the Trustees was a denial of due process, which raised both State and Federal concerns, and forced me to commence a legal action against the Trustees in order to receive a wetlands permit. This abuse of process was the result of the improper influence by individuals purportedly acting as a group. In pursuit of taking my property they were given leeway, among other things, to raise issues that properly belong in a court of law. Indeed, they even had the temerity to argue that their illegal and unsafe marina prevented me from developing this residential lot as a residence! Given the time already lost, and since the Board is being asked to act in its interpretive role, I request that the Board reach a decision on both questions at the March 20 hearing. Very Truly Yours, Cc: Gerard P. Goehringer George Horning Ruth D. Oliva Vincent Orlando Joshua Y. Horton, Town Supervisor APPEALS BOARD MEMBERS~ Gerard P. Goehringer, Chairman James Dinizio, Jr. Lydia A. Tortora Lora S. Collins George Homing BOARD OF APPEALS TOWN OF SOUTHOLD October 17, 2001 Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971-0959 ZBA Fax (631) 765-9064 Telephone (631) 765-1809 Victor Zupa, Esq. 4565 Paradise Point Road Southold, NY 11971 Re: Inquiry on Subdivision Status 1000-81-1-16.7 Dear Mr. Zupa: After reviewing your letters with enclosures, I referred you to the Building Department. Your next step is to submit an application with required documents for departmental reviews. When submitting an application to the Building Department, you will need to furnish the information, similar to that enclosed with your letter, that certifies the lot is single and separate. You will also be asked to submit all other documentation, such as determinations from the environmental agencies (Town Trustees and NYS Department of Environmental Conservation) as well as the County Health Department determination regarding proposed cesspool and well locations. The Board of Appeals' jurisdiction is appellate only. The Board is not 'permitted to issue a letter of approval for a subdivision, which appears to be your inquiry. You may of course contact the Planning Board for a subdivision, if to be considered, or if you know the Building Department is saying your lot requires a Lot Waiver, you may apply with the steps required to correct it. Your proposal is not clear because you have not submitted an application to any agency or department that we are aware of. It is recommended that if you would like to file an application to build a house, which would meet all zoning regulations, then your first step would be to make application to the Town Trustees, and Building Department, with all the required documents. The survey should include all information relative to the location of the new house, all proposed landscaping (such as retaining walls, drywells, cesspool locations, etc.) Page 2 - October 17 To: Victor Zupa, Esq. Re: Subdivision Status Inquiry and showing any other area that may be used or occupied (such as proposed or existing driveways, paper streets, marina parking areas, well location, etc.). If you are planning to divide the lot to separate the parking area for the marina, separate from the proposed dwelling, an application would need to be filed with the Planning Board who has jurisdiction under the Subdivision Regulations. We hope that the above will be of assistance to your inquiries. Sincerely~ Chairman cc: Town Attorney Greg Yak~bosk~ Building Department, Attn: M. Verity Planning Board AIJPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman James Dinizio, .Ir. Lydia A. Tortora ! Lora S. Collins George Homing REPLY MEMORANDUM BOARD OF APPEALS TOWN OF SOUTHOLD Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971-0959 ZBA Fax (631) 765-9064 Telephone (631) 765-1809 ~TO: FROM: DATE: SUBJECT: Victor Zupa, Esq. Jerry Goehringer, ZBA Chairman October 12, 2001 Your Letters (September 2001) 1000-81-1-16.7, 16.4 - Subdivision Status/Inquiry, etc. (Paradise Point Area) This will confirm receipt and review of your transmittal with attachments. Our Department has reviewed all of the material submitted. All of the documents have been transmitted to the following Department for review: (x) ( ( ( ( ( ( Building Department Town Engineer Town Trustees Planning Supervisor Town Attorney Other: A representative from the above Department may be contacting you with a response after Departmental reviews. Minutes ACTION OF THE BOARD OF APPEALS Appl. No. 4314. Upon Application of JAMES AND BARBARA MIhLER, Contract Vendees (Owner: Paradise of Southold, Inc. and Others). This application is based upon the March 29, 1995 Notice of Disapproval issued by the Building Inspector, wherein applio~nts a~e r~luesting a building permit to locate a new single-fnmily dwelling, disapproved on the following grou/xds: "1. This parcel of 1.79 acres is 'not shown 'on the Map of Paimdise Point, Section One, as a building lot; Section 100=281A-7. Single and separate search requix~d back to 1957. 2. Approval required by Board of Appeals to build slngle-fstmily dwe11ing as a second use on this 1.79-acre parcel. R-80 Zone requires 80,000 sq. ft. of land area per use (or 160,000 sq. ft.), ~f. Article III, Section 100-30A. 3. Apprsval is required frem Board of Appeals under A~ticle XXIII, Section 100-239.4B for location of dwelling wiLh decks at less than 75 feet from the existing buiklqead; 4. Appl~val required to amend Filed Map as apprsved by the plstnntng Boa?d fo? parsdi~e Point, Section One, pertaining to 'Future Extension' of Bosin Road and use of this parcel as & building lot. Ch. 100 and Ch. 108 .... " Location of Property: 580 Basin Road, $outhold, Section One, Filed Map No. 3761 filed April 11, 1963; 1000-81-1-16.7 (formerly part of 16.4). Paradise Point also known as WHEREAS, public hearings were held on June 7, 1995, July 12, 1995 and August 9, 1995, at which times all pe~ons who desir~d to be heard were heard and extensive testimony recorded (plo and con); and WHEREAS, the Board bas carefully considered all testimony and documentation submitted concerning this application; TELEPHONE (631) 765-6112 FACSIIvIILE (631) 765.6119 E.MAIL vzu pa_~_~CO ncent ric.net VICTOR J, zUPA ATTORNEY AT LAW 4565 pARADISE POINT ROAD SOUTHOLD, NEW YORK 11971 719 WEED STREET NEW cANAAN, CT 06840 TELEPHONE (203) 966-3430 FAcsIMILE (203) 966-1724 September 24, 2001 Gerald P. Goehringer Board 'of Appeals, Town of Southold Southold Town Hall Southold, NY 11971 Re: ~ Dear Mr. Goehringer: Attached is a rough sketch that you asked me to prepare showing the approximate location and size of the residence my wife and I would like to build. All setback requirements would be met. The footprint of the house and garage represents an approximate 4% use of the land area. Obviously, our architect and builder would submit more formal and accurate drawings. Please let me know if there are any other questions. Sincerely, VICTOR J. ZUPA ATTORNEY AT LAW ~ 4565 PARADISE POINT ROAD SOUTHOLD, NEW YORK 11971 TELEPHONE (631) 765-6112 FACSIMILE (631) 765-6119 E-MAIL vzu pa(D. concentric.n et 719 WEED STREET NEW CANAAN, CT 06840 TELEPHONE (203) 966-3430 FACSIMILE (203) 966-1724 Hand Delivery September 19, 2001 Gerald P. Goehringer Board of Appeals, Town of Southold Southold Town Hall Southold, NY 11971 Dear Mr. Goehringer: Re: SCTM 1000.81.1.16.7 Attached is the current tax map for Paradise Point which I forgot to attach to the memo I submitted yesterday. It is Exhibit 8. Please note the parcel is being taxed as a 2.3 acre lot (prior to 1995 the Assessor's maps show it was taxed as a 2.5 acre lot). Sincerely, VICTOR J. ZUPA ATTORNEY AT LAW 4565 PARADISE POINT ROAD SOUTHOLD, NEW YORK 11971 TELEPHONE (631) 765-6112 FACSIMILE (631) 765-6119 oncentric E-~IL vzupa~c Hand Delivery September 18, 2001 719 WEED STREET NEW CANAAN, CT 06840 TELEPHONE (203) 966-3430 FACSIMILE (203) 966-1724 Gerald P. Goehringer Board of Appeals, Town of Southold Southold Town Hall Southold, NY 11971 Re: SCTM 1000.81.1.16.7 Dear Mr. Goehringer: As per our conversation two weeks ago, I am submitting support in the form of a memo and exhibits addressing the issue you raised, i.e. with respect to the question as to whether the above lot was part of a subdivision map that was never filed with the office of the County Clerk. The attached memo and exhibits show that this lot was propedy approved as a setoff under the Town Code, and was not created by subdivision. Therefore the fact that the subdivision map was never filed as required by NY Town Law does not affect the creation of this lot in 1981 as a building lot. As I indicated to you, my wife and I want to apply for a building permit to construct a one-family residence which, unlike the Miller application, would comply with the 75 foot setback requirement. We are not seeking a variance of any kind. After you have had an opportunity to review the attached with Mr. Yakaboski, would you give me a call to discuss this. Sincerely, PARADISE POINT ~- SOUTHOLD, N.Y. L~ SCALE - .. Z'~./II~ ~ ~o ~ooo-~l-I --I~..'I ' BASIN '~ATHERINE M_ESIANO, INC. Licensed Real Estate Broker Real Estate Consultant November 12, 2002 Town of Southold Zoning Board of Appeals Gerard P.Goehringer, Chairman P.O. Box 1179 Southold, NY 11971 RE: Mary S. Zupa 580 Basin Road, Southold, NY SCTM # 1000-81-1-16.7 Dear Mr. Gcehringer: I am the agent for the above referenced applicant. Mrs. Zupa is seeking reversal of the Building Inspector's decision dated October 30, 2002. In the alternative, we are seeking relief from Article II Section 100-24B and Article III Section 100-32 of the Zoning Code for the construction of a single family dwelling at the above referenced site. Enclosed please find the original and six copies of the following: 1. Notice of Disapproval dated October 30, 2002. 2. Application. 3. Owner's consent 4. Z.B.A. Questionnaire. 5. Short EAF. 6. Transactional Disclosure Form. Also enclosed is Mrs. Zupa check # 363 in the amount of $600 for the application fee, seven original surveys, a copy of the 10/29/81 deed Point Corporation transferring title to the subject property, 4/5/02 deed to the subject property conveying title to Mary Zupa, 5/17/98 deed to Victor and Mary Zupa for their residence adjoining the subject property and a copy of the 6/4/81 letter from the Planning Board to the Building Inspector regarding approval of the set-off creating the subject lot. We respectfully request that this matter be scheduled for the earliest available hearing date. Should you require any additional information, please do not hesitate to contact me. Very truly yours, Enclosures 12 Mill Pond Lane · East Moriches, New York 11940 · 631.878.8951 COMPLETE FILE ON FILE IN TOWN CLERK'S OFFICE Town Board Town Attorney ZBA Bldg Dept ORDER TO SHOW CAUSE Mary S. Zupa Vs ZBA & Paradise Point Article 78 Received 12/12/03 ~ 10:57 AM REQUEST FOR JUDICIAL I~ERVENTION ~ ~.~ ~ · ~ Application of MARY S. ZUPA, For a Judgment Pursuant to CPLK Article 78 - aga~tst - ZONING BOARDOFA~PEA~S OF THE TOW~ OF SOUTHOLD and PAAADISE POINT ASSOCIATION, INC., Petitioner(s), DEC ~ 1 ~ Kespondents. t Date issue joined: .... .. ' ..,; ' :.:: ,;.. Bill oflmr6culus serve~ [] Yes []No - NATURE OF JUDICIAL INTERVENT ON (~Ck ONE box only AND e~ter information) FI Rcq~t for prelim/nary conference UI Note of issue aad/o~ certificate of readiness i'... i ' ~ Notice of petidoa (return date ........................ ) [] Notice of motioo (return date '_ . , ) .- ' Relief sought_~_ ................ ' ............................. r.i,ef ,on¢t ........................................................................ LZ;i!Z ." no,. a ......... : ...... ~Order Io show cause (Clerk eutc~ return date ' " :. ..... : .......................................... · '"' o~x~uee-"or---ou~j:a~a :-: e .' [~ Writ ofhabeas corpus [] O~er ex pare applu:afiou (specify ............. g p ~-m~t I-t Other (specify ....... ................................................................................................................ 2::.......) ............................................................................ NATURE OF ACTION OR PROCFFDiNG (check ONE box only) -CM Torts -UM · Malpractice Matrimonial [] Con~sted [] Uncontested Commercial [] Coetraet -CONT [3 Corporate -CORP I'q Insurance (where insurer is a party, except arbitration) -1NS [] UCC (including sales, negotiable instruments) -UCC [] *Other Commerc a OC Real Property ................................................ - [] Ta~ Certiorari ~ [3 Forecloiure [] Condemnation [] Landlord/Tenant El *Other Real Property Othar Matters ......................................................................................................... -OTH -TAX · -FOR -COND -LT ................................................................ -ORP *If asterisk ased please specie further. / ,~ .'-~ 7 ~qtO DEC I 2 2003 outhold Town C~ [] Dental -DM ~] *other Prof~/oeal .................................................................... OPM [] Motor Vehicle -MV [] *Products Liability ............................................................................. -PL [] Env/roamcntal -EN [] Asbestos -ASB I~ Breast Implant -BI [] *Other Negligence ............... . .............. -OTN [] *Other Tort (includin§ inteatJonaD ............................................... Special Proceedings [] Article 75 (Arbi~afion) -ART 75 [] Articlc'77 (Trusts) -ART 77 [~ Art/fie 78 -ART 78 [] Eject/on Law -ELEC [] Guardianship(MI-RAn. 81) -GUARD 81 [3 *Other Mental Hygiene ....................................................... -MHYG [] *Other Special Proceeding ..................................... OSP Check "YES" or "NO'' for each of %~'"~ollowing questions. Is this action/proceeding aOt g~: YES E~ NO Municipality: (specify _~.o~.n.~Bg_._~..o..,a_~_d E} YES gl NO ..0i. Ao~.~.~.~ _.O...C.....c..h._e. To..wn..o..il ...... [~ YES [] NO Donsihisaction/proccedinsseekequitablere{ief? [] YES {~{xNO Does th{s act}on/proreeding~ek recovery fo~personai injury? [] YES {~NO Does th}s actiorffproceeding scek recovery for property damage? P~Note T}me Fr~nns: (~his applies to all ezses except contested malrtmenin{a and tax c~rfioreri cases) Eztima~d time poriod for case to ~be ready for {rial (imm filing of RJI to filing of No{¢ of {~Expeditcd: 0-8 months C] Standard: 9-12 monihs [] Complex: 13-{$ months Contested Msirimoniid Cases Only: (Check end give date) Has summons been served? [] No [] Yes, Date ......................................... Was a Notice of No Necessity fi{cd? [] No [] Yes, Da~ ....................................... Attorney(s) for plaintiff(s): Public Authority: (specify ............ -~ Name Add~ PhoneNo. [] Eric J. Bressler, Esq. 13015 ~ain Road, P.O. Box 142~ 631-298-8353 {ickham~ ~ressler~ Gordon & Geasa ~attituck~ New York 11952 Attorney(s) for defendant(s): Self ~ Address Phone No. Self Represenmd: parties representing themselves, wilhout an a~tomey, should check the "Se] f Rep" box and enler their i~drcss and phone number in the space provided above for attorneys. INSURANCE CARRIERS: }{ONE name, RELATED CASES: (if NONE, wriu~ "NONE" below) ** Title Index # C0ur~ Nalure of mlalionxhin M~rv S, Zuoa ~. ~onin~ Boar~ of 03-25606 Supreme Parties and Issues ppea£s at the.~'own of ~oucho~d and Paradise Point Association, Inc. V'c r J. Z a ~ary S, u a & a es 2-25843 ~upreme Parties and Issues t gr a se l ssoJJ o . ue. I affirm under penalty of p~jury that, to my knowledge, other than as noted above, there sre and have been no related actions or proceedings, nor has a request for judicial interve,ii/~~.n filed in this action or proceeding. Dated: December 8, 2003 ....... . .................................... .. *Paradise Po~n£ Assod~om 02-22401-Index #j.~_~_~..c~_.B..r.e_.s..s_l/~e.i~ ....... Petitioner v. Mary S. Zupa Supreme Court Parties and Issues-Nature of Relationship Attach rider ~heet if necessary m provide required inforrnatio~ Present: At a ~Term, Part-~3',,°' of the Supreme Court of the State of New York, held in and for the County or' Suffolk, at the Courthouse, 235 Gdffing Avenue, Riverhead, 'New York 11901 on the J_.L day of December 2003 Hon. Justice. Application of X MARY S. ZUPA, Petitioner (s), For a Judgment Pursuant to CPLR Article 78 Index No. 03/ ORDER TO SHOW CAUSF -against- ZONING BOARD OF APPEALS OF THE TOWN OF SOUTHOLD and PARADISE POINT ASSOCIATION, INC., Respondent (s). Upon the annexed Veri[ied Petition of Mary S. Zup ,~duly verified on the 8t~ day of December, 2003, and upon the affidavit of Victor J. Zupa/', sworn to on the 8th day of December, 2003 and upon the affidavit of John Sinning/~sworn to September 23, 2003, and all proceedings heretofore had herein, and suff~cient cause appearing therefore, it iS. ORDERED, that Respondents Zoning Board of Appeals of the Town of Southold and Paradise Point Association, Inc., show cause at an lAS Part of this Court at me Court House, 235 Grifflng Avenue, Riverhead, NY on the o day of ,! -Beeember ~ at 9:30 o'clock in the forenoon, or as soon thereafter as counsel can be heard, why a judgment should not be entered herein annulling the determination of the. Respondent, Zoning Board of Appeals dated December 4, 2003 which denied the application of Petitioner to reverse the determination of the building inspector denying her a building permit or in the alternative seeking a vadance and granting the relief sought, all as set forth in the Vedfied Petition, and such other and further relief as to this Court may seem just and proper; and sufficient cause appearing therefore, it is further ORDERED, that service of a copy of this Order together with papers upon which it is based, be served upon the Respondents herein, on or before the / 9 ~' day of December 2003 be deemed sufficient. ENTER'._.. ~ Edward P, Romaine '~ Clerk of Sut~ Coua[¥ ~ Ejblzupa/zba order to show ~ J.S.C. -- Cause RJ (12-05-03) . SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK Application of MARY S. ZUPA, Petitioner(s), For a Judgment Pursuant to CPLR Article 78 ,FEItlF1ED PE II TI O.N - against - ZONING BOARD OF APPEALS OF THE TOWN OF $OUTHOLD and PARADISE POINT ASSOCIATION, INC., Respondent(s). TO: THE ;SIJPR~M~ COURT SUFFOLK COUNTY -X Petitioner, MARY S. ZUPA, by her attorneys, Wickham, Bressler, Gordon & Oeasa, P.C., in her Petition, respectfully alleges: THE PARTIES I. At all times relevant, Mary g. Zupa (the "Petitioner") is and was a resident taxpayer of the County of Suffolk and State of New York residing at 365 Basin Road, Southold, New York. Petitioner is the owner ora vacant residential parcel of real property located at 580 Basin Road, Southold, New York, SCTM No. 1000,81-1-16.7 (the "Property"). 2. Respondent, Zoning Board of Appeals of the Town of South01d (the "ZBA") is and at all times relevant was a duly established zoning board of appeals.for the municipality of the Town of $outhold pursuant to Town Law § 267. 3. Upon information and belief, the Respondent, Paradise Point Association, Inc. (the "Association") is and was at all times relevant a not-for-profit corporation. PROCEDURAL HISTORY 4. On or about October 29, 2002, Petitioner applied for a building permit from the Southold Town Building Department for the construction of a single family resident for the Property. On October 30, 2002, the application for the building permit was denied on the grounds that (a) the Property was not a recognized lot under the Southold Town Zoning Code (the "Code") and (b) a residential use would constitute a second use due to an existing marina use and the size of the Property was insufficient to support the two uses. A copy of the disapproval is annexed hereto and incorporated herein as Exhibit "A" (the "Disapproval"). 5. On November 1, 2002, Petitioner applied to Respondent ZBA to reverse the Disapproval or in the alternative grant a variance for the construction of the proposed single family residence "Application". A copy of the Application to the ZBA is annexed hereto and incorporated herein as Exhibit "B". 6. Public heatings on the Application before the ZBA were held on March 20, 2003, June 5, 2003, and August 21, 2003. On September 30, 2003 the ZBA rendered its determination (the" First Determination") to deny the Application without prejudice with leave to reopen the Application upon determination of two cases currently pending before the Supreme Court, Suffolk County under Index Nos. 02/25843 and 02/25401. A copy of the First Determination is annexed hereto and incorporated herein as Exhibit "C". The First Determination was filed with the Southold Town Clerk on September 30, 2003. Respondent Association appeared at the heatings and objected to the relief sought. 2 7. On October 17, 2003 Petitioner commenced a proceeding pursuant to Article 78 of the Civil Practice Law and Rules challenging the First Determination. On the return date, October 30, 2003, the Court granted the Petition, annulled the First Determination and remanded the matter. 8. On November 14, 2003 the Court signed a judgment granting the petition, annulling the first determination and remanding the matter to Respondent ZBA. A copy of the judgment is annexed hereto and incorporated herein as Exhibit "D". 9. On December 4, 2003 Respondent ZBA rendered its determination again denying Petitioner's application, (the "Second Determination"). A copy of the Second Determination is annexed hereto and incorporated herein as Exhibit "E". The stated basis for the Second Determination was res iudicata and collateral estoppel. 10. Petitioner now brings this Article 78 Proceeding to annul and reverse the Second Determination and grant her a building permit. .FACTUAL BACKGROUND 11. Petitioner is seeking to construct a one family residence on the Property. She has obtained the approval of the Southold Town Trustees, the Suffolk County Health Department, and the Department of Environmental Conservation. Copies of the permits are annexed hereto and incorporated herein as Exhibit "F." 12. The proposed consl~uction does not require an area variance with regard to setbacks or lot coverage. 13. The Property is and always has been zoned residential under the Code. The Property consists of 1.7 acres and was approved as a lot along with two other lots in the area known as Paradise Point by resolution of the Southold Town Planning Board on June 1, 1981. Annexed hereto and incorporated herein as Exhibit "G" is a copy of the Planning Board Resolution. 14. The Property and the surrounding area is shown on the map of minor subdivision of Paradise Point dated May 11, 1981, a copy of which is annexed hereto and incorporated herein as Exhibit "H". 15. The Town of Southold has issued within the last year a building permit on one of the other lots recognized by the Southold Town Planning Board pursuant to Exhibit "H". A copy of the building permit is annexed hereto and incorporated herein as Exhibit 'T'. 16. The identical lot constituting the Property was conveyed by deed dated October 29, 1981, and recorded in the Suffolk County Clerk's Office on October 29, 1981. A copy of the deed is annexed hereto and incorporated herein as Exhibit "J". 17. The Property abuts on a tidal and navigable body of water known as the "Basin." The Basin is subject to regulation by the Town of Southold Trustees, the Department of Environmental Conservation and the Army Corp. of Engineers. 18. The land under water in the Basin is owned by the Town of Southold Trustees, who are in title to same by virtue of the Andros Patent. 19. Commencing in 1961, there was erected on the shore of the Property and in the Basin a series of docks (the "Docks"). There now exist three Docks with docking space for approximately 15 vessels. The three Docks consist of approximately 160 linear feet. Annexed hereto and incorporated herein as Exhibit "K" is a survey showing the current configuration of the docks. The Docks are and have been maintained by the Association, which claims ownership of same. 4 20. Town of Southold was regulated by the Code, as originally enacted and as mended from time to time, since April, 1957. Under the Code the Docks were and are not a permitted use. Copies of the relevant portions of the Code and zoning maps are annexed hereto and incorporated herein as Exhibit "L." 21. Aerial photography establishes that the Docks did not pre-date the Code, but, rather were originally conslructed and subsequently enlarged years alter the inception of the Code. Copies of the aerial photographs demonstrating the dates when the Docks were erected is annexed hereto and incorporated herein as Exhibit "M." 22. The Association charges a fee for the docking of boats at the Docks in the Basin. 23. The books and records of the Association establish that the Docks do not pre-date the Code. Annexed hereto and incorporated herein as Exhibit "N" are the letters, bills, proposals, and other documents evidencing the dates of construction of the Docks. 24. Prior to 1989, the Association maintained and had access to the Docks by permission of the owners of the Property, who also founded and were members of the Association. In 1989 the Association received a deeded easement over a small portion of the Property for, inter alia, access to the Basin. The Association never received a conveyance of the Docks. The Association has no other rights to the Property. A copy of the deed creating such easement is incorporated herein as Exhibit "O". 25. No permit, special exception, or variance has ever been granted for the erection or maintenance of the Docks. 26. The Docks impede navigation in the Basin, extending more than two -thirds across a navigable body of water, cause pollution and noise, and create a risk to person and property. 27. Petitioner has objected to the presence and maintenance of the Docks and the municipal entities charged by law to enforce the prohibition of the Docks, have failed to act. PRIOR APPLICATION 28. In 1995, James and Barbara Miller, as contract vendees applied for a building permit for a single family residence on the Property. The application proposed a residence which was not in accordance with required setbacks under the Code. 29. The Southold Town Building Department denied the application on the grounds that the lot was not shown as a building lot on a filed map with the Suffolk County Clerk's Office, that approval of the ZBA was required for a second use in a residential R-80 dish'ict, that approval of the ZBA was required for a setback variance since the house was closer than 75 feet from the water, that approval was required to amend a filed map, and that approval required from the Town Trustees. A copy of the Building Department denial is annexed hereto and incorporated herein as Exhibit "P". 30. James and Barbara Miller made application to the ZBA (the "Miller Application") for a variance in order to construct a single family residence. A copy of the Miller Application is arme×ed hereto and incorporated herein as Exhibit "Q". Public hearings on the Miller Application were held on June 7, 1995 and August 9, 1995. Copies of the minutes oft_he public hearing are annexed hereto and incorporated herein as Exhibit "R". The ZBA denied the application for a variance on the basis that the 6 applicant would not consider alternate placement for the residence which would minimize the need for a variance. A copy of the ZBA determination is annexed hereto and incorporated herein as Exhibit "S." THE ACTIONS 31. The Association commenced an action against Petitioner seeking, inter alia, a determination that it possessed a prescriptive easement through the center of the Property. This action is pending in Suffolk County, Supreme Court under Index No. 02/22401. 32. Petitioner and others commenced an action agaln~t the Association seeking, inter ~ removal of the Docks maintained by the Association in conjunction with the Property. This action is pending in Suffolk County, Supreme Court under Index No. 02/25843. This action and the action in the preceding paragraph are collectively referred to as the "Actions." THE APPLICABLE LAW 33. The Code provides in Section 100-24 in relevant part as follows: A. A lot created by deed or town approval shall be recognized by the Town if any one of the following standards apply and if the lots have not merged:... (1) The identical lot was created by deed recorded in the Suffolk County Clerk's office on or before June 30, 1983, -' and the lot conformed...] (2) The lots in question is/are approved by the Southold Town Planning Board. B. All lots which are not recognized.by the Town pursuant to the above Section shall not receive any building permits or other entitlements. 7 34. The Code provides in Section 100-31 for permitted uses in residential zoning districts. Permitted uses under Section 100-31(A) do not include membership clubs, marinas or docking facilities. Membership clubs are permitted in residential zoning districts pursuant to Section 100-3 l(B)(7) by special exception on lots of three acres or more. Accessory uses under Section 100-3(C) include: (3) Boat docking facilities for the docking, mooting, accommodation of non-commercial beats, subject to the following requirements: (a) There shall be docking or mooting facilities for no more than two (2) boats other than those owned and used by owner of the premises for his personal use. (b) The Town Trustees shall approve new boat docking facilities. Under the Code as enacted in 1957 and amended in 1958, 1971, and 1989 the Docks were not a permitted use in the zone in which the Property is located (see Exhibit 35. The Code provides in Section 100-32 as follows: No building or premises shall be used and no buildings or part thereof shall be erected or altered in the A-C, R-80, R-120, R-200, and R-400 Districts unless same conforms to the Bulk Schedule and Parking Schedule incorporated into this chapter with the same rome and effect as if such regulations were set forth herein. BASIS FOR RELIEF 36. The Determination is arbitrary, capricious, and abuse of discretion, illegal, and unsupported by substantial evidence in that it: (a) Determined that the Application barred by res judicata and collateral estoppel since: (i) The Application requests, inter alia a reversal where the Miller Application did not; (ii) The Application for a variance is based on different facts from the Miller Application in that no set back variance is requested. (iii) The issue of the existence of and legality of the "marina" use was not litigated in the Miller Application. No determination as to lot recognition was made on the Miller (iv) Application. (v) The Application for a variance is based on different facts from the Miller Application since the deeded easement area is now fenced. Co) Determined that there was no change in facts since the Miller Application. (c) Failed to reverse the Disapproval with respect to the issue of lot recognition. (d) Failed to reverse the Disapproval with respect to the issue of two uses on the Property. (e) Failed to grant a variance as an alternative to reversal of the Disapproval under the balancing test of Town Law. Section 267-B. (f) Determined that the Petitioner's application was virtually identical to the Miller's Application. (g) Determined that the Building Department disapproval of th~ building application by Miller was on essentially identical grounds to that of the Petitioner's application. 9 (h) Determined that Miller sought to constract his residence as a "second principal use" on the Property. 37. The ZBA had before it all of the evidence necessary to make a determination under the balancing test of Town Code Section 267-B. Under this test, the balance favored the Petitioner and the relief should have been granted: (a) Benefit to the Petitioner: the benefit to Petitioner is clear since she will be able to utilize the Property for residential purposes. (b) Detriment to health, safety and welfare of the community: none, since there will be no change except for a residence on a residential lot. By vktue of the reversal or variance per se no change would be worked to the "marina", if such is even a proper concern. (c) Change in the character of neighborhood: none, since Paradise Point is a residential area. (d) Other means of achieving benefit: none, since the residence is proposed within setbacks. (e) Whether area variance substantial: no setbacks variance is needed. The area granted by easement is very small compared to the size of the lot and should not be excluded in area calculations. (f) Physical and environmental conditions: no impact as Trustees permit, Health Department approval and DEC permit have been obtained. (g) Selficreated: difficulty not self-created as lot is residemial. Accordingly, it was arbitrary and capricious to deny relief which was supported on the record. 10 38. The Miller Application was not virtually identical to the instant Application as to a variance since no set-back variance of either 26% or 14% is required. This was a key issue in the Miller case and is not present here. Accordingly, the Determination is arbitrary and capricious. 39. The disapproval by the building department of the Miller proposal was not identical to the Disapproval. The Miller case involved the absence of delineation on a filed subdivision map, while the Disapproval cites an absence of lot recognition. No determination as to lot status was made in Miller. Accordingly, the Determination is arbitrary and capricious. 40. The request by Miller for a residence on the Property was made in connection with three existing Docks. The issue of whether the Dock use was legal or pre-existing was not litigated or determined in the Miller application. Neither res iudicata nor collateral estoppel can be applied. 41. The ratio decedendi of the Miller Application decision was that "in light of all the above, there are alternatives for applicant to pursue to better plan for the existing marina use or for a principal residential building which will fit within an appropriate upland area with greater setbacks from the water and wetland areas, with less reduction in setbacks and less relief". It is the height of hypocrisy for the Respondent ZBA to suggest (and role) that Petitioner's application which has in effect, accepted the ZBA's invitation and eliminated all setback variations, petitioner is now barred from relief by res judicata and collateral estoppel. 42. The attempted avoidance by the ZBA of the issue of removal of the Docks and the illegal marina, while understandable, is impermissible. 11 ,I 43. The record contains substantial evidence to support lot recognition. The lot meets both the text of Planning Board approval as well as conveyance by deed prior to June 30, 1983. Accordingly, it was arbitrary and capricious not to reverse the Disapproval in these grounds. 44. The record contains substantial evidence to support the conclusion that the Docks are a non-conforming non-pre-existing use. As a result the Docks cannot bar the residential use of the Property. Accordingly, it was arbitrary and capricious not to reverse the Disapproval on these grounds. 45. The record contains substantial evidence to support the conclusion that the Docks do not constitute a principal use of the Property as the Property is only to an easement over a small portion thereof. Any legal use accessory to and subordinate to a residential use. Accordingly it was arbitrary and capricious not to reverse the Disapproval on these grounds. 46. No prior application for the relief set forth herein has been made. WHEREFORE, it is respectfully requested that a judgment be issued annulling and reversing the Second Determination and directing the issuance of a building permit as applied for, together with such other and further relief as is just and proper, together with costs and disbursements. Dated: Melville, New York December 8, 2003 Yours, etc. Eric J essler · ~essler Attorneys for Petitioner 275 Broad Hollow Road - Suite 111 Melville, New York 11747 (631) 249-9480 12 lndex No.: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK Application of ............................................ X MARY S. ZUPA, Petitioner(s), For a Judgment Pursuant to CPLR Article 78 against - ZONING BOARD OF APPEALS OF THE TOWN OF SOUTHOLD and PARADISE POINT ASSOCIATION, INC., RECEIVED I)EC 1 2 2003 Respondent(s). X PETITIONER'S MEMORANDUM _OF LAW IN SUPPORT OF PETITION WICKItAM, BRESSLER, GORDON & GEASA, P.C. Attorneys for Petitioner(s) 275 Broad Hollow Road -Suite 111 Melville, New York 11747 (631) 249-9480 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .....................................................................ii STATEMENT OF THE CASE ................................................................... 1 PROCEDURAL HISTORY .......................................................................1 STATEMENT OF FACTS ........................................................................ 1 POINT 1 ..................................................................................... .3 PETITIONER'S APPLICATION TO THE ZBA IS NOT BARRED BY RES JU1)ICATA .............................. 3 POINT I1 ..................................................................................... 6 PETITIONER'S APPLICATION TO THE ZBA IS NOT BARREl) BY COLLATERAL ESTOPPEL ...................... 6 CONCLUSION ...................................................................................... 7 TABLE OF AUTHORITIES Page CASES Gillis v. Zoning Board of Appeals of the Town of Greenburgh, 27 Misc. 2d 1092, 212 N. Y.S.2d 510 (Sup. CL, West Cry, 1961) .............................. 5 Josato v. Wright, 288 A.D.2d 384, 733 N. Y.S.2d 214 (2d Dept, 2001) ....................... 3 Mattituck Product~ Co, LLC v. Town of Southold Zoning Boards of Appeals, Suffolk CounO, Index No. 98/20985 ............................................................... 5 Paradise Point AssociationT Inc. v. Zupa, Index No. 02/25401 ............................... 1 Peccoraro v. Humenick~ 258 A.D.2d 465, 684 N. Y.S.2d (2d Dept, 1999) ....................3 ReillF v. Reid, 45 N. Y.2d 24, 407N. Y.S.2d 645, 379 W.E.2d 172 (1978) .................... 3 Smith v. Kirkpatrick, 305N. Y. 66, 111 N.E.2d 209 (1953) .................................... 4 Zupa, et al. v. Paradise Point AssociationT Inc., Index No. 02/25843 ....................... STATEMENT OF THE CASE PROCEDURAL HISTORY On November 1, 2002, Petitioner applied to the Respondent Zoning Board of' Appeals ("ZBA") for relief from a disapproval of her application for a building permit by the Southold Town Building Department. The remedy sought was reversal of the disapproval, or in the alternative, a variance. Public hearings were held on March 20, 2003, June 5, 2003 and August 21, 2003. On September 30, 2003, almost one year later, the ZBA rendered its determination ("Determination"), to deny the application without prejudice with leave to reopen upon determination of two matters pending before this Court, to wit, Paradise Point Association, Inc. v. Zupa 02/25401 ("Zupa 1") and Zupa, et al. v. Paradise Point Association, Inc. 02/25843 ("Zupa 2"). Petitioner challenged the Determination by way of an Article 78 Proceeding under No. 03/25606. The Court granted the petition and by judgment dated November 14, 2003 annulled the Determination and remanded the matter to the ZBA. On December 4, 2003 the ZBA rendered its determination ("Second Determination") to deny the application on the grounds of res [udicata and collateral estoppel. Petitioner now brings this Article 78 proceeding to challenge the Second Determination. STATEMENT OF THE FACTS In 1995, James and Barbara Miller applied for a building permit to construct a residence on the property in issue which was non-conforming as to setbacks. The building department denied the application in relevant part on the grounds that: (a) the property was not shown as a lot on a subdivision map; (b) the property had insufficient area to support a marina use and a residential use; and (c) the building setbacks were not in compliance with the zoning ordinance. An appeal was taken to the ZBA ("Miller Appeal") for a variance from the denial. The ZBA denied the variance holding that: "there are alternatives for appellant to pursue for the existing marina use or for a principal residential building which will fit within an appropriate upland. area with greater setbacks and less relief..." ("Miller Decision"). In 2002, Petitioner applied for a building permit to consmact a residence on the property in issue which was conforming in all respects as to set backs. The building department denied the application on the grounds that: (a) the property was not a recognized lot and (b) the property had insufficient area to support a marina use and a residential use. Petitioner then sought relief from the ZBA consisting of both a reversal of the determination of the building department or in the alternative a variance. Public heatings were held on March 20, June 5, and August 21, 2003. On September 30, 2003 the ZBA denied the application without prejudice to renew upon the determination of Zupa I and Zupa 2 ("First Determination"). Petitioner challenged the First Determination by the bringing of an Article 78 Proceeding. The Court granted the petition and annulled the First Determination, and remanded the matter to the ZBA by judgment on November 14, 2003. The ZBA, by decision dated December 4, 2003, again denied the Petitioner's application, this time on the grounds of resjudicata and collateral estoppel ("Second Determination"). The Second Determination was based on the Miller Appeal. Petitioner now brings this Article 78 Proceeding to challenge the Second Determination. Failure to 2 overturn the Second Determination will result in the sterilization of an almost two acm parcel of residential real property. This result would be improper and inequitable. ARGUMENT POINT I PETITIONER'S APPLICATION TO THE ZBA IS NOT BARRED BY RES JUDICATA Petitioner submits that the ZBA improperly denied her application based upon res judicata arising out of the prior Miller Decision. The application of res [udicata on the facts was erroneous as a matter of law, arbimu'y and capricious, and without any support on thc record. Accordingly, the Second Determination should bc annulled. Res/udicata, or claim preclusion, applies to bar relitigation of claims finally determined in a prior proceeding. Reill¥ v. Reid, 45 N. Y. 2d 24, 407 N. ES. 2d 645, $ 79 W.E. 2d 172 (1978). In order for claim preclusion to apply, thc requite elements of proof and necessary evidence must be materially thc same. Reid, supra. A comparison of the Miller Appeal and the instant proceeding compels the conclusion that the former is not a legal bar to the latter. There are three principal factors or differences between the Miller Appeal and the instant proceeding which preclude the application of the doctrine ofresjudicata. First, there are material changes in the factual circumstances. The Miller Appeal sought setback variances of 20% and 14%, whereas the instant application seeks no such variances. The instant application proposed a home within ali.applicable setbacks. In the administrative context, different proposals for construction of buildings on property are a material change in circumstances which precludes the application ofresjudicata. Josato v. Wright, 288 A.D. 2d 384, 733 N.Y.S. 2d 214 (2d Dept, 2001). Peccoraro v. Humenick, 3 258 A.D. 2d 465, 684 N. Y.S. 2d 588 (2d Dept, 1999). This is especially so where the ZBA in the Miller Decision denied relief because the applicant there was unwilling to diminish the magnitude of the setback variance sought. In the instant case, Petitioner has not only reduced, but completely eliminated any setback. Moreover, as a factual matter it should be noted that a fence along the easement area has now been erected, which clearly defmes and limits the area of use. This fence was not previously present. Finally, the parties to the applications are different. In the Miller Appeal, the applicant was a contract vendee. In the instant case, petitioner is the owner. Thus, strict privity is not present and makes inequitable the application of res [udicata. ,losato, surpa. Thus, the factual circumstances are materially different. Second, there are new and different claims in the instant proceeding. In the Miller Appeal, the request was only for a variance, not a reversal of the disapproval. Miller attempted to peacefully co-exist with the "marina" by noting its existence, but never characterized it as a "principal" use or conceded its legality. Rather, the entire premise of the application was centered on the setback variance request. The claim to a permit as of right and the issues of the legality of the "marina" and its characterization as either a "principal use" or "use" were never raised or litigated. However, in the instant proceeding there is a clear claim to a permit of right and the issues of the legality of the "marina" and its status as a "principal" are squarely in issue. The elements of proof and necessary evidence to support same are entirely district. Reid, supra. Specifically, the dates of inception of the "marina" use and its status under zoning are critical to the instant claim, but were immaterial to the Miller claim. This situation is exactly analogous to that in Smith v. Kirkpatrick, 305 N. E 66, 111 X E. 2d 209(1953). In Smith, supra, res judicata 4 was held not to apply to a subsequent claim for quantum meruit where the prior claim was for assumpsit. Since the foundation facts and proof differed, resjudicata was inapplicable. In a zoning context, the result is the same. In Gillis v. Zoning Board of Appeals of the Town of Greenburgh, 27 Misc. 2d 1092, 212 N. Y.S. 2d 510 (Sup. Ct., West Cty, 1961) the Court held that res [udicata was inapplicable to bar an application fro a varian6e where an earlier decision denied relief as of right. Here a similar result must obtain. Third, there was no final determination in the Miller Appeal such as to bar the instant claim. The Miller Appeal sought a variance from (not a reversal of) three different purported zoning code requirements. The Miller Decision never finally determined any of the three. First, the Miller Decision failed totally to make any finding or conclusion as to lot status. The Second Determination is similarly silent. Thus, there can be no res [udicata on this ground. Second, the Miller Decision failed to make any determination as to the legality or extent of any "marina" use of the property. As in Gillis, supra, the issue was never before the ZBA. The Second Determination, of course, ducks this issue. Thus, there can be no resjudicata on this ground. Finally, the Miller Decision specifically left open the question of whether setbacks of a different magnitude or nature would trigger the ZBA's variance relief. Thus, there can be no resjudicata on this ground. The authority cited by the ZBA in the Second Determination is not dispositive of the issues before this Court. Mattituck Products Co., LLC.v. Town of Southold Zoning . Board of Appeals, Suffolk County Index No. 98/20985, has no application to the instant case for three masons. First, in the instant case, there is a material factual difference from the Miller application. No such factual difference was identified in Mattituck Products, supra. Second, unlike the instant case, there was apparently a clear decision in the first proceeding. Finally,~ to the extent Mattituck Products, supra, stands for the proposition that varying types of relief with varying factual predicates may be barred by resjudicata, it is wrongly decided and inconsistent with Reid, supra, and Smith, supra, and, therefore, should be rejected. POINT II PETITIONER'S APPLICATION TO TIIE ZBA IS NOT BARRED BY COLLATERAL ESTOPPEL Petitioner submits that the ZBA improperly denied her application based upon collateral estoppel arising out of the prior Miller Decision. The application of collateral estoppel was erroneous as a matter of law, arbitrary and capricious, and without any support on thc record. Accordingly, the Second Determination should be annulled. Collateral estoppel or issue preclusion, applies to bar relitigation of issues finally necessarily decided after a full and fair opportunity to litigate. While the ZBA cites no particular issue with respect to which it is alleged collateral estoppel applies and fails to distinguish in any way the doctrines ofresjudicata and collateral estoppel, it is plain that collateral estoppel cannot be applied to bar the instant proceeding. The only issue before the ZBA in the Miller Application was the request for a variance to permit construction of a residence with setback non-conformities. The decision denied relief on the grounds that other alternative placements of the home were available and required less relief from the ZBA. The Miller Determination not to grant this relief carmot act as a bar to the instant application for three reasons. First, the instant variance application is factually completely different in that is seeks no setback variance, the specific issue upon which the Miller Decision turned. Second, the issue of a permit as Of right was not raised or litigated in the Miller Application, as the relief requested there was limited to a variance; Whether them exists a legal marina use on the property and the extent of that use has yet to be determined. Finally, the issue of lot recognization was never addressed by the Miller Decision. Accordingly, collateral estoppel-is not a bar to a determination of the instant application on its merits. CONCLUSION The ZBA has yet again attempted to duck its obligations to nde on the merits of Petitioner's application. Neither the doctrine of res/udicata nor the docffine of collateral estopped acts to preclude a determination on the merits. Accordingly, the Second Determination should be annulled. Dated: Melville, New York December 10, 2003 Respectfully submitted, WICKHAM, BRESSLER, GORDON & GEASA, P.C. By: ~ '- Erig//~. Bressler Attomeys/lror Petitioner 275 Broad Hollow Road - Suite 111 Melville, New York 11747 (631) 249-9480 7 PLANNING BOARD MEMBERS ~ ~,'~ Richard G. Ward, Chairman George Ritchie Latham, Jr. Bennett Ortowski, Jr. Mai1( S. McDonald Kenneth L. Edwards Town Hall, 53095 Main Road P. O. Box 1179 Southold, NewYork 11971 Fax (516) 765-3136 Telephone (516) 765-1938 PLANNING BOARD OFFICE TOWN OF SOUTHOLD TO: FROM: DATE: Board of Appeals Richard G. Ward, May 9, 1995 Chairman RE: James Miller Project Paradise Point SCTM~ 1000-81-1-16.7 (& 177) Please find the following in regard to your memorandum of April 26, 1995: On April 4. 1963, the Planning Board approved the subdivision map known as Section One. Paradise Point at Bayview, The map was endorsed by Archibald Young, Acting Planning Board Chairman. and was filed in the Suffolk County Clerk's Office on April 11, 1963. The parcels which are the subject of this memo (SCTM# 81-1-16,7 and 17) were not shown on the 1963 Paradise Point map as numbered lots. However. they were shown as one area owned by Paradise Point Corporation with an area designated for a future extension of Basin Road, Please see attached copy of the 1963 map, Apparently, in 1969, Paradise Point Corporation sold 0.34 acres of the area mentioned above to Edmund Curcuru (the owne~' of the adjacent parcel known as SCTM# 1000-81-1-18) without Town approval. The 0.34 acre parcel is designated as SCTM# 1000-81-1-17 ~n the 1995 tax map. The intent was to merge the 0.34 acre area with the existing lot owned by Curcuru; the two lots have been under the same ownership in excess of 25 years and the Curcurus have established their residence on one lot and their garage on the other lot. The Town could require that the 1969 "split" be formalized with a lot line change. However. in light of the fact that the 0.34 acre split occurred more than 25 years ago, and the 0.34 acre area was not included as part of the 1.7 acre lot shown on a subsequent map approved by the Planning Board, the Planninq Board is not requirinq that this be done. On May 14, 1981, William Smith, agent for Paradise Point Corporation, presented an application to the Planning Board for: "Subdividing one lot, #17 of 1 1/2 acres, west of Dryads Basin, Paradise Point Road for one residence. The remaining upland and meadow acreage shown as lots 12A, 13A, 14A, 15A, and 16A is attached to filed map lots 12, 13, 14, 15 and 16." James Miller Project, Paradise Point May 9. 1995 Page 2 I have enclosed a copy of the minor subdivision map for Paradise Point Corporation dated May 11. 1981. showing what Mr, Smith described, It should be noted that the lot #17 Mr. Smith refers to is not the same as the lot shown on the 1995 Suffolk County Tax Map as Lot #17. On May 22. 1981, William Smith sent a letter to the Planning Board regarding the above mentioned map dated May 11, 1981, He requested that the point lot of 2 3/4 acres with the club house on it and the Southold Bay lot of 1.7 acres be designated as setoffs, Again, please see the enclosed map dated May 11. 1981 showing what Mr. Smith described. On June 1. 1981. the Planning Board, at a regularly scheduled meeting. passed two resolutions in regard to Paradise Point Corporation. The first resolution: "Resolved to set-off as indicated of the minor subdivision Paradise Point Corporation lots entitled "Club House" of two and three quarter acres and an unnumbered lot on Southold Bay consisting of 1.7 acres directly east of the inlet basin," The second resolution: "Resolved to entertain an amendment to the resolution with regard to Paradise Point Corporation to include lot #17 as shown on the map of May 11. 1981, I have enclosed copies of the minutes and correspondence in regard to the Board's approval of the set-off as shown on the map dated May 11, 1981, The "unnumbered lot on Southold Bay consisting of 1.7 acres directly east of the inlet basin" is the lot shown on the 1995 tax map as 81-1-16,7 and the lot which is the subject of the James Miller project. There are slight differences in measurements due. I believe, to the change in location of the high water mark, The Planning Board records do not show that the map for the set-off was endorsed, However, the Planning Board approved the map dated May 11. 1981 by the resolutions mentioned above. After approving the set-off, the Planning Board proceeded with review of lots 12A. 13A. 14A. 15A and 16A, I will not go into detail regarding these lots since it is not pertinent to the subject of this memorandum, Please contact me if you require any additional information. encl. cc: Building Department F.O. 28 % -OWN O,~- ,~ou-r/--IOLD SUF'F"OLK COUNTY N~I4/ YORK E~LED 0~ 00 o,S~, 7 /V/ I IV O /'~ ,Lg,&,~,~Ot,5~ ,~OIAIT ' ' '-' / '"'" C, Of.4,-O~. ! ..... ilannlng Board ~ -4- June.l, 1981 spondence from the Suffolk County Department of Health Services re- garding the SEQRA, correspondence to the Suffolk County Planning Commission, copy of the legal notice, metes and bounds description, correspondence from the applicants attorney, sketch plan approval for this subdivision on March 26, 1980, I would assume it is March 1981, also declaration of lead agency status with Southold Town Planning Board, application for approval of plot, short environmental assessment form. This completes the file. This is a tract of prop- erty that's being divided into two. The tract of property consists of fifty-nine and one-half (59%) acres, one plot being thirteen acres to the north, the second plot being fourty-six acres to the south. As is the procedure of public hearings, I will ask is there anyone present this evening who would like to speak in opposition to this proposed minor subdivision of the Henry Jenninqs Estate? Hearing none, is there anyone present this evening who would like to speak in favor of this proposed minor subdivision of the Henry Jennings Estate? Rudolph Bruer: On behalf of the estate, I would just like to re- irradiate what I spoke to you gentlemen earlier on the site plan approval. The purpose, I represent the estate whose selling it subject to the division of the property, we've been advised by the proposed purchaser, a Dr. Damianos, that it would be used for ~grape growing purposes and the purpose of the'splitting of it is that the larger piece is going to be used as a farm. Respectively, we ask the board to allow the division of the property, thank you. Mr. Raynor: Is there anyone else present this evening who would, like to speak in favor of this proposed subdivision? Is there anyone present this evening that has some information that may be neither pro nor con but should come before this board at this time? Hearing none, is there any member of the board that has any questions? Mr. Orlowski, Mr. Latham, Mr. Wall, Mr. Mullen? Ail answered in the negative. Mr. Raynor: There being no further questions we will deem this hearing closed and thank you for coming down this evening. Milton Mehlman minor subdivision. John Strong appeard before the board to discuss with them his request that the right-of-way be changed from 50 feet to 25 feet. The board feels that 50 feet'for the right-of-way is needed if not at this time but for the future. Mr. Strong's request has been denied. On motion made by Mr. Orlowski, seconded by Mr. Latham, it was P~ESOLVED to set-off as indicated of the minor subdivision Paradise Point Corporation lots entitled "Club House" of two and three ,quarter acres and an unnumbered lot on Southold Bay consisting of 1.7 acres directly east of the inlet basin. Vote of the Board: Ayes: Raynor, Wall, Orlowski, Mullen, Latham On motion made by Mr. Orlowski, seconded by Mr. Wall, it was ~g RESOLVED to entertain an amendment to the ard to Paradise Point Corporation to include the map of May 11, 1981~ resolution with re- lot ~17 as shown on Vote of the Board: Ayes: Raynor, Orlowski, Wall, Mullen, Latham On motion made by Mr. Latham, seconded by Mr. Wall, it was RESOLVED to approve a variance in what will amount to thirty- one (31) spaces in the already approved site plan of Mattituck Shop- ~in~ Center for use in the evening for what the applicant has in- dicated as theater number three. Vote of the Board: Ayes: Raynor, Orlowski, Wall, Mullen, Latham David A. Geula minor subdivision. The entire board made inspect%on~ of property and found no particular problems with the layout. On motion made by Mr. Latham, seconded by Mr. Orlowski, it was RESOLVED that the Southold Town Planning Board declare itself .ead agency in regard to the State Environmental Quality Review Act in the matter of the minor subdivision of David A. Geula located at Fishers Island. An initial determination of non-significance has been made. Vote of the Board: Ayes: Raynor, Orlowski, Mullen, Latham Abstain: Wall Mr. Wall abstained from taking action regarding this subdivision ~.s he is the broker of this property. On motion made by Mr. Latham, seconded by Mr. Mullen, it was RESOLVED to approve the sketch map of the minor subdivision of David A. Geula located at Fishers Island. Vote of the Board: Ayes: Raynor, Orlowski, Mullen, Latham Abstain: Wall Mr. Wall abstained from taking action regarding this subdivision as he is the broker of this property. TO HENRY E. RAYNOR, Jn. Chairman JAMES WALL BENNETT ORLOWS~.Jn GEORGE PJTCHIE LATHAM. Jn William F. Mutlen, Jr. Southold, N.Y. 11971 TELEPHONE 765-1938 June 4, 1981 Mr. GeOrge Fisher Senior Building Inspector Town ~all Southold, New York 11971 Dear Mr. Fisher: The following action was taken by the Southold Town Planning Board at a regular meeting held June 1, 1981. APPROVAL to set off as indicated on subject of Paradise Point Corporation, lots titled Club House 2.75 acres and an unnumbered lot on Southold Bay 1.7 acres directly east of the inlet basin. Also an amendment to the resolution to include lot 17 as shown on map of May 11, 1981. This approval is subject to a one year review. Yours truly, HENRY E. RAYNOR, JR. , CHAIRMAN SOUTHOLD TOWN PLANNING BOARD By Linda Kimmins, Secretary PLANNING BOARD MEMBERS Richard G. Ward, Chairman George Ritchie Latham, Jr. Bennett Orlowski, Jr. Mank S. McDonald Kenneth L. Edwards Town Hall, 53095 Main Road P. O. Box 1179 South01d, NewYork 11971 Fax (516) 765-3136 Telephone (516) 765-1938 PLANNING BOARD OFFICE TOWN OF SOUTHOLD May 9, 1995 Christine Nicholl The Brook House 405 South Country Road Brookhaven. NY 11719 RE: James Miller Project Paradise Point SCTMif 1000-81-1-16.7 Dear Ms. Nicholl: Please find the following in regard to your letter of April 17. 1995: On June 1, 1981, the Planning Board approved a map dated May 11, 1981 for Paradise Point Corporation. The approval set-off a two and three quarter acre lot entitled "Club House" and a 1.7 acre unnumbered lot on Southold Bay directly east of the inlet basin. The 1.7 acre lot is now known as SCTM# 1000-81-1-16.7. The Planning Board records do not show that the map for the set-off was endorsed or recorded in the Suffolk County Clerk's Office. The 1981 Planning Board approval does not guarantee that the lots set-off are buildable, To be buildable, the proposed buildingls) must meet all requirements of the Code, in addition to receiving approval from the Health Department, Attached please find a copy of a memorandum that was sent to the Zoning Board of Appeals regarding the above mentioned project. Please contact this office if you have any questions regarding the above, Sincerely, irp Planner encl. cc: Zoning Board of Appeals Building Department MEMBERS Richard G. Ward, Chairman George Ritchie Latham, Jr. Bennett Oflowskl, Jr. Mad( S. McDonald Kenneth L. Edwards Town Hall, 53095 Main Road P. O. Box 1179 Southold, New Yon~ 11971 Fax (516) 765-3136 Telephone (516) 765-1938 PLANNING BOARD OFFICE TOWN OF SOUTHOLD TO: FROM: Gerard P. Goehringer Chairman, Zoning Board of Appeals Richard G. Ward Chairman, Plannin~J B6ard DATE: June 30. 1995 RE: ZBA memorandum dated June 23. 1995 Paradise Point Subdivision Projects SCTM~f 1000-81-1-16.8 Please find the following in response to your June 23. 1995 memorandum (the numbers correspond to the paragraphs in your memo): I have enclosed a copy of the Planning Board's resolution dated June 4, 1981, and the May 11, 1995 map which is referenced in the resolution. The Planning Board's file does not contain a subdivision/survey map similar to that attached to your memorandum. As noted in prior correspondence, the Planning Board, up until approximately five years ago, did not require the recording of set-offs in the Suffolk County Clerk's Office. The Board of Assessors usually notified the County Real Property office of Planning Board approvals. Since the Paradise set-off was not endorsed by the Planning Board, it is assumed that this procedure did not occur. In addition, the Planning Board records do not show that the Paradise Point Corporation filed the set-off in the County Clerk's Office after it was approved by the Planning Board· Therefore, since the set-off was neither recorded by the applicant nor the Town, the set-off is not reflected on the 1985 County Map which is attached to your memorandum. The Planning Board does not have the enforcement authority at this time to retroactively require that the 1981 set-off be recorded in the County Clerk's Office. enc. HENRY E. R^YNOR. Jr,, Chairman ,/AMES WALL BENNETT ORLOWSEI, GEORGE RITCHIE LATHAM. Jr. William F. Mullen, Jr. Southold, N.Y. 11971 TELEPHONE 765-1988 June 4, 1981 Mr. GeOrge Fisher Senior Building Inspector Town ~all Southold, New York 11971 Dear Mr. Fisher: The following action was taken by the Southold Town Planning Board at a regular meeting held June 1, 1981. APPROVAL to.set off as indicated on subject of Paradise Point Corporation, lots titled Club House 2.75 acres and an unnumbered lot on Southold Bay 1.7 acres directly east of ~he inlet basin. Also an amendment to the resolution to include lot 17 as shown on map of May 11, 1981. This approval is subject to a one year review. Yours truly, HENRY E. RAYNOR, JR., CHAIRMAN SOUTHOLD TOWN PLANNING BOARD By Linda Kimmins, Secretary THIS INDENTURE, mad 5~7~ day of ~ 2002 ,/ · CURRY c/o Rov James, 244 Greenwich Avenue, Greenwich, CT~6830, GARRE'I-r BETWEE CHANCY D . _ ,,..,' P E F SO THOLD, INC., P.O. Box 724, ,~_-..~...~,. S .NINe,,%00 Wntchuttg Drive, Hawthorne, NJ 0750~,~.~p~1c~ SO~_TI-I~C ...... =~,-r HAll I=NBECK ' Southoll, NY 11971 and GILMAN J. HA CK, ..... ,, ...,u u HALt~Nac,"v deceased *~r~tsg at,13821 53"~ Road pumuant to Ancillary Letters oT ~.mm~.a.u,, ,.. ................... Suffolk County. dated, as of: ~p~il ].6 ]999 _ u~=¥_~ ?UPA~i~m~l~d~4~/aslllng at 719 Weed Stmat, party of the first part, an. ................. New Canaan, ConnecUcotO6840 pa.v orthe second part, ~ s~a p~ ~.2~p~00__q..._0~0,_ '-' gna o[ erKI Ogler ValUUUit~ WtTNESSETH, that the party of the first part, in consklere ~ consideration pall by the party of the second part. dons hereby grant and release unto the party of the second part, the heirs or successors and assigns of the party of the second part forever, ALL that certain pint. piece or parcel of land, with the buildings and Imlxovements thereon erected, situate, lying and being at Southold. In the Tow~ of Southoll, County of Suffolk and State of New Yak, being more particularly beundnd and described on Schedule 'A' annexed hereto and made a part hereof. ' cc~ti9%~O~S to ~ ~O~;l*tv;~Sc ~,,u..~=a.., ~-. _~!d interest and ti'b~e :[~ ~ dated January 7, 2002, prepared by Josegh Inc3egno, to G~ant _,~'. ~ ~ ~ .......... '~ 'o Chan'~' D'EI a Curry as to a 37% Interest BEING AND NTENDED TO Bl~the same IXem~ == w..o~,~, · -~ 1981 In by deed dated September 2g. 1981 end recorded Iff the Suffolk County Clerk's Office off October 29, Uher 9093 at Page 01, Paradise of Southold, Inc. as to a 2% Interest by deed dated Ap~l 12, 1985 and recorded in the Suffolk County Clerk's Olflco on April 16, 1985 in Llber 9771 at Page $85, Gilman Hsilenbeck es to · 32% Intereat by deed dated September 29. 1981 and recorded In the Suffolk County Clerk's Office on October 29. 1981 In Uber 9093, at Page 0t, end Gantt Singing as to n 29% IfltemSt by deed dated September 29, 1981 end recorded in the Suffolk County Clerk's Office on October 29, 1981 In Uber 9093 at ag. 0,. . · . public hi~y. THIS CONVEYANCE is made In the regular course of business of Paradise of Sontholl. inn. TOGETHER with all dght, title end Interest, if any, of the pady of the first part in and to any streets and mads abutting the above described premises to the cente~'#ltns thereof; TOGETHER with the eppurtenencos end ell the estate end ~hts of the party of the first part in and to said premises; TO HAVE AND TO HOLD the promises herein ~renthd unto the party of the second part, the heirs or successors end ass~ns of the pa~'y of the second part fomve~. AND the party of the first part covenants that the party of the first part has not done or suffered anything whereby the sell premises here been encumbered In any w~y whatever, except as eforesold. ANn the party of the first part. in compillnce with Se~on 15 of the lien Law, covenants that the party of the first part will recolve the consideration for this conveyanco and wi!l hold the right to receive such consllerMIco ~s · bust fund to be uppiied fl~t for the puq~ose of paying the cost of the imProvement end wil! apply the same first to the payment of the cost of the Improvement before using any part of the total of the same 1or any other propose. The word 'party' shell be construed as if it read 'parties' when ever the sense of this indenture so requires. IN WITNESS WHEREOF, the party of the first part has duly executed this deed the ~lay end year first nbeve PRESENCE OF CHANCY D. CURRY ~lL~. HALLENBECK, ~essor ~u~tee of the G.~ .1~. Hallenbeck p~stat~ment of Trust Agreement as of Aprl£ lo, 1999 .,TO BE II;;, ~ .y ,.,~,: ;.,-~; Th, _ACK;JOWLEDGMENT IS MADE II~N YORK STATF · , 8tats of New York, County of 8uffolk ss: 8tuts of New York, County of ss: Onthe,~' deyofMARCH fothayear 2002 Ontha deyof Intheyear before me, the undersigned, personally appeared before me, the undersigned, perseneily appeared JOHN 8INNING pereormlly known to me or proved to rne on the basis of. pm, eanei~y known to ma or proved to me on the bas& of satisflctory evtdam~ to be the individual(s) whcee name(s) is saUstoefery evidence to be the Individual(s) whose name(s) Is (are) subscribed to the within instrument end acknowledged to (are) aubecrlbed to the within Insbument and acknowledged to me that he/~ey executed the'same in hl~hm/thatr me that he/she/they executed the same In hN/ner/their capacity(ice), and that by hls~erAheir eignature(s) on the cepeclty(len), end that by his/her/their signature(s) on the leatmmefff, the Individual(s), or the pamon upon b~half of wNeh ineimment, the individual(s), or the perenn upon behalf of which the Indivldj~l(s) acted, executed the ieatmmenL the IndMdunl(s) acted, executed the Instrument. (llg~dual taldng acknowledgment) (signature and office of individual taking acknowledgment) TO BE USED ONLY WHEN THE ACKNOWLEDGMENT IS iai_nj= OUTSIDE NEW YORK STATF State (or Dlstri_~.o~olumbie' Territory, or Foreign Country) of NEW JERSEY, COUNTY OF ~ SSa/~ ss: On the ,/,~ day of MARCH In the year 2002 before me, the undersigned, personally appeared GARRETT SINNING ps.anally known to me or proved to me on the basis of satistuctop/evidence to be the fodWlduei(s) whose name(s) is (am) subscribed to the within instrument and acknolMedged to me that he/she/they executed the same in his/her/their capacity(les), and that by hi~/ber/their signature(s) on tbe instrument, the Individual(s), or the person upon behalf of which the Individual(s) acted. ex .e~.~e.i. iTefrulnent, sn~hat such ~tduei made such appearance before the undmsigned ia the (k'mert the CiP/o~ c~ther poli~ ~ubdtvta~n) (~md k~ert the 8tmfo or C~'jor;/t~er place the~ledgmer~ ww4 taken) ¢=~es 2/3/2003 // ~ ~_.-~,~ o.~./c<~ BARGAIN AND SALE DEED SECTION BLOCK WITH COVENANT AGAINST GRANTOR'$ ACTS LOT Title Ne, COUNTY OR TOWN STREET ADDRESS nonwealth Recorded at Request of COMMONVVEALTH LAND TITLE INSURANCE COMPANY HELEN ROSENBLUM, Esq. 1287 E. Main Street Rlverhead, NY 11901 CHICAGO TITLE INSURANCE COMPANY LEGAL DESCRIPTION TltJe Number: 3802-00159 ALL THAT CERTAIN PLOT, PIECE, OR PARCEL OF LAND, SITUATE, LYING, AND BEING AT BAYVIEW IN ','n~ TOWN OF SOITfHOLD, COUNTY OF SUFFOLK AND STATE OF NEW YORK, BEING BOUNDED AND DESCRIBED AS FOLLOWS: BEGINNING AT A PIPE SET IN THE NORTHE~LY SIDE OF BASIN ROAD WHERE THE WESTERLY LINE OF LOT 4 AS SHOWN ON A CERTAIN MAP ENTITLED, "MAP OF SECTION ONE, PARADISE POINT OF BAYVIEW" MA~ NO. 3761 FILED 4/11/1963 ALONG THE NORTHERLY SIDE OF BASIN ROAD; RUNNING TW~NCE SOUTH 30 DEGREES 08 MINUTES 40 SECONDS NEST AJ~ONG THE WESTERLY TERMINIUS OF BASIN ROAD 51.65 FEET TO A MONUMENT SET ON THE SOUTHERLY SIDE OF BASIN ROAD; THENCE SOUTH 15 DEGREES 35 MINDTES 40 SECONDS WEST ALONG THE WESTERLY LINE OF LOT 5 AS SHOWN ON THE ABOVE ~TIONED MAP 26.91 FEET TO A WOOD BULKHEAD ALONG BOAT BASIN; THENCE WESTERLY, NORTHWESTERLY AND NORTHERLY ALONG THE HIGH WATER MARK OF BOAT BASIN THE FOLLOWING 18 COURSES AND DISTANCES: 1. NORTH 74 DEGREES 32 MINUTES 46 SECONDS WEST A DISTANCE OF 9.78 FEET; 2. NORTH 68 DEGP~EES 38 MINUTES 26 SECONDS WEST A DISTANCE OF 49.27 FEET; 3. SOUTH 50 DEGREES 15 MINUTES 00 SECONDS WEST A DISTANCE OF 1.35 FEET; 4. NORTH 70 DEGP. EES 52 MINUTES 34 SECONDS WEST A DISTANCE OF 8.13 FEET; S. SOD"TH 67 DEG~EES 33 MINUTES 43 SECONDS WEST A DISTANCE OF 69.40 FEET; 6. SOUTH 77 DEGP~EES 18 MINUTES 19 SECONDS WEST A DISTANCE OF 43.78 FEET; 7. NORTH 52 DBGREBS 15 MINUTES 31 SECONDS WEST A DISTA*~CE OF 47.66 FEET; 8. NORTH 81 DEGREES 28 MINUTES 12 SECONDS WEST A DISTANCE OF 17.54 FEET; 9. NORTH 48 DEGREES 11 MINUTES 12 SECONDS W~ST A DISTANCE OF 26.99 FEET; 10. NORTH 34 DEGREES 53 MINUTES 24 SECONDS NEST A DISTANCE OF 20.16 FEET; 11. NORTH 16 DEGREES 56 MINUTES 39 SECONDS WEST A DISTANCE OF 16.86 FEET; 12. NORTH 45 DEGREES 07 MINUTES 28 SECONDS WEST A DISTANCE OF 18.16 FEET; 13. NORTH 76 DEGREES 59 MINUTES 32 SECONDS WEST A DISTANCE OF 14.38 FEET; 14. NORTH 49 DEGREES 45 MINUTES 56 SECONDS WEST A DISTANCE OF 21.39 FEET; 15. SOUTH 83 DEGREES 32 MINUTES 11 SECONDS WEST A DISTANCE OF 32.21 FEET; -AMENDED LEGAL DESCRIPTION- 04/04/02 CHICAGO TITLE INSURANCE COMPANY LEGAL DESCRIPTION (Continued) Title Number: 3802-00159 16. NORTH 34 DEGREES 33 MINUTES 41 SECONDS W~ST A DISTANCE OF 23.99 FEET; 17. NORTH 06 DEGREE 48 MINUTES 47 SECONDS WEST A DISTANCE OF 87.11 FEET; 18. NORTH 07 DE(~ES 17 MINUTES 14 SECONDS EAST A DISTANCE OF 64.53 FEET TO THE HIgH WATER MARK OF SOUTHOLD BAY; THENCE EASTERLY ALONG THE HIGH WATER MARK OF SOUTHOLD BAY THE FOLLOWING 5 COURSES ~ DISTANCES: 1. SOUTH 86 DEGREES 42 MIi~Tu-TES 04 SECONDS WEST A DISTANCE OF 1.32 FEET; 2. NORTH 68 DEGREES 43 MINUTES 04 SECONDS EAST A DISTANCE OF 22.25 FEET; 3. SOUTH 72 DEGREES 05 MINUTES 40 SECONDS EAST A DISTANCE OF 112.17 FEET; 4. NORTH 88 DEGREES 54 MINUTES 02 SECONDS EAST A DISTANCE OF 134.02 FEET; 5. NORTH 82 DEGREES 07 MINUTES 29 SECONDS EAST A DISTANCE OF 63.92 FEET TO THE WESTERLY SIDE OF LAND NOW OR FORMERLY EDMOND H. CURCURU AND PATRICIAN. CURCURU; THENCE 04, DEGREES 15 MINUTES 20 SECONDS WEST ALONG LAST MENTIONED LANDS 159.37 FEET TO A PIPE; THENCE SOUTH 74 DEGREES 24 MINUTES 20 SECONDS' EAST A DISTANCE OF 76.49 FEET TO A PIPE SET AT THE POINT OR PLACE OF BEGINNING. FOR INFORMATION ONLY: DISTRICT 1000 SECTION 081.00 BLOCK 01.00 LOT 016.007 -LEGAL DESCRIPTION CONTINUED- 2 THIS INDENTURE,~Ie the 1 7 'C h day of J u 1 y , ni,~n hundred and 9 BETWEEN ~ W. MAYNARD and JO ANN L. MAYNARD, his wife, both residing at 6 Peter Cooper Road, New York, New York partyoflhefirst ~rt, and VICTOR J. ZUPA and MARY S. ZUPA, his wife, both residing at 719 Weed Street, New Canaan, Connecticut party o! the second part, WITNESSETH, that the party of the firs part in consideration of len dol ars and other valuable consideration paid by t se party of the second part, does hereby grant and release unto Ifie party of the second part, the heirs or successors and assigns of the party of the second par forever, ALL that certain plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being in the at Bayview, Town of Southold, County of Suffolk and State of New York, known and designated as Lots No. 5 and 6 on a certain map entitled, "Map of Section One" Paradise Point at Bayview, Town of southold, Suffolk County, New York" filed in the office of the Clerk of the County of Suffolk as Map No. 3761, on 4/11/63 more particularly bounded and described as follows: BEGINNING at a point on the northwesterly side of Robinson Road where the same is intersected by the dividing' line between lots 6 and 7 on said map; Running thence North 37 degrees 37 minutes 10 seconds West, 131.11 feet;i Thence south 63 degrees 43 minutes 30 seconds West, 146.88 feet; thence North 66 degrees 33 minutes 40 seconds West, 97 feet to the Basin; Thence North 14 degrees 02 minutes 20 seconds East along the Basin, 103.42 feet; thence North 15 degrees 35 minutes 40 seconds East, 30 feet to the southerly side of Basin Road; Thence easterly and southeasterly along the southerly and southeasterly sides of Basin Road the following five courses and distances: 1. South 74 degrees 24 minutes 20 seconds East, 120 feet; 2. South 85 degrees 44 minutes 40 seconds East, 109.63 feet; 3. North 83 degrees 26 minutes 50 seconds East, 101.16 feet; 4. South 84 degrees 16 minutes 10 seconds East, 85.92 feet; 5, South 37 degrees 08 minutes 00 seconds East, 46.56 feet to the northwesterly side of Robinson Road; thence South 52 degrees 22 minutes 50 seconds West along the northwesterly side of Robinson Road, 216.42 feet to the point or place of beginning. BEING the same premises conveyed to the party of the first part by deed dated January 12, 1988 recorded in the Suffolk County Clerk's office on January 27, 1988 in Liber 10528 cp 170. TOGETHER w th all r ght t t e and interest if any, of the party of Ihe first part in and to any streets and roads abutti.g the above descr bed premises to t ~e center nes thereof TOGETHER wltb the appurtenances and all the es a e and rights of the party of the first part in and to said premises; TO HAVE AND TO HOLD Ihe premises herein granted unto the party of the second part, the heirs or successors and assign.~ of thc party of the second part forever. AND the party of the first part covenants that the party of the first part has not done or suffered anything whereby the said premises have been encumbered in any way whatever, except as aforesaid. AND the party of the first part, in comp lance with $.e~t on 13 of tbe Lien Law covenants th,a,t dsc part)' of ~' wilt ro~qve~l~ ~.~ i~',deratlon for this co xeyance and will hold tbe right to recelxe such consid- f~d' t~ app ec first for the purpose of paying he cost of the improvement and will apply of the cost of the improvement before using any par oft ~e total of t ~e sa ne for The word "party" be construed as i~ it read "parties" whenever the sense of this indentpre so requires. IN WITNESS WHEREOF, Ihe party of the first p~ecuted lids deed the day and year firs~ve O~Ann L. ~aynard ~ STATE OP NEW YOaK, OOUNTY OP $~1'~:0~ K S$~ On the '1 7 day of J U 1 y ~) g 8 , before me t)~rsonally came Dal.e,W. Maynard and Jo, ann. L. Maynard to ale kn(:wn to bt. the indivldnal described in and w~o executed the [orrgning instrumeut, and acknowledged that executed the same. STATE OF NEW YORK, COUNTY OF SS~ On the day o[ 19 , before mc per~m~dly came to me known, wbo, being by me duly sworn, (l~d depose and say that be resides at No. that bc is the o~ , the corporation described in ~nd which executed tbe foregoing inslrument; that he knows the se~l of said corporation; that the seal a~xed to said instrument is such corporate seal; that it was so affixed by order o! the board o! directors' of said corpora- lion, and Ihat he signed h name thereto by llke order. On the day of 19 , before me to me known to be the individual described in a~d who :xecuted the foregoing instrument, end acl~nowledged that executed the same. STATE OF HlW TORn, ¢OU#TY OF SSi On the day o! 19 , before ~ne personal y came the subscribing witness to the foregoing instrument, whh whom ! am personally acc~uainted wbo, being, by me duly sworn, did depose and say that he resides at .No. ; that he'knows to be the individual described in and who executed the foregoing instrument; that he, said subscribing witness, was present and saw execute the s~mc; and that he, said witness, at the same time subscribed h name as witness tberelo. WITH ~O¥~NANT AGAINST GRA. NTOR'S A4~'S TITLE NO. TO · SECTION BLOCK LOT COUNTY OK TOWN ~mded a& ~equm d Z~p Ne, 11/03/28~2 00:25 B31?$Sgl19 VICTCR 2UP~ PA65 ~5 80:25 B317B56119 VIC%OR ZIJPa (t) south 4 deQrae~ l~ ml~uP.~a :~0 lec~ndn ~eat, leo ~ene, mole 11/03/20D2 00:25 B317BSBI1S VICTOR Z~3PA PAGE Sou~bold. N.Y. 11971 Hr. GeOrge Fieher Senior Building Inspector Town Wall Sou~hoLd, NeW York 11971 June 4, 1981 TELEPt~ONE ' Dear Mr, 'Flsherl The following action was taken by the Southold Town Planning Board at a regular meeting held June 1, ~981, APPROV~J~ to.set off as indicated on subjeck of Paradise Point Cor~oration~ lots titled Club House 2,'75 acres and an unnu~oered lot on Southold Bay 1,7 acres directly east of the inlet basin. Also an amendment to the resolution to include lot 17 as shown on map of Hay 11, 1981, This approval is subject to a one year review, Yours truly, HENRY ,~' RA¥1iOR ~ JR., CHAIRMAN SOUT~0LD TOwN PLARNING BOARD By Linda Ktmmtns, Secretary QUESTIONNAIRE FOR FILING WITH YOUR Z.B.A. APPLICATION Is the subject premises listed on the real estate market for sale? IA Yes ~No Are there any proposals to change or alter land contours? ½ Yes '~No 1) Are there any areas that contain wetland grasses? (4~ 2) Are the wetland areas shown on the map submitted xviih this application? Lc ~to 3) Is the property bulkheaded between the wetlands ama and the upland buildinJg area? 4) Ifyonr property contains wetlands or pond areas, have you contacted the offic~the Town Trustees for its determination of jurisdiction? tj ~^ - .~ ~ 0 ~, ~,, ~ Is there a depression or sloping elevation near the area of proposed construction at or below five feet above mean sea level? }~ ! ch (If slope is over 5' el., state "n/a".) Are there any patios, conc~te barriers, bulkheads or fences that exist and are not shown on the survey map that you are submitting? ~ ¢) ~ ~. (If none exist, please state "none".) Do you have any constmction taking place at this time concerning your premises? ~ ~ If yes, please submit a copy of your building permit and map as approved by the Building Department. (If construction is "as built" without a permit, please state when construction was built, and relevant information: Authorized Signature and Date ZBA Forms_QU ESTIONNAIRE.d~c 1002 Do you or any co-owner also own other land close to this parcel? · explain where or submit copies of deeds. ~ .o :.~ ~%'~.-.- ~ If yes, please Please list present use or operati ~o~, s conducted at this parcel ~dpropos~use ~t~ale ~&~'~V ~l~'v~ s~e, or how it is ~os~if diff~ent). 3 JOINT APPLICATION FOR PERMIT New York State United States Army Corps of Engineers I Check p~rmits applied for NYS Depl- of Environmenta~ Cor~servation NYS Office of General Services State Ownec Lands UnOer Waler: US Army Corpsot Engineers US ARMY CORPS OF ENGINEERS MARY ZUPA 631-765-6112 Mailing Address 4565 PARADISE POINT ROAD Post Office State Zip Code SOUTHOLD NY 11971 CATHERINE MESIANO, INC 631-878-8951 Mailing Address 12 MILL POND LANE Post Omce I State I Zip Code EAST MORICHES NY 11940 SUFFOLK SOUTHOLD 1000-81-1-16 7 SOUTHOLD NY 11971 SOUTHOLDBAY&PRIVATE BASIN 8 Name of USGS Quad Map Locatio~ Coordinates SEE ATTACHED 10, Proposed Use 3~2003 16 WillthisProjeclRequireAdditional I~ "~ It ,., SCHD SOUTHOLDWETLANDS BLDG applicant is r~ot the owne~, both must sign the application 11/12/2002 06:17 631765611q_ FROM :C M~I~dO INC. VIw ~u~ 2UPA FAX NO. PAGE 0i ~z~ 12:22PM P2 MARY S. ZUPA 365 Basin $outhold, N-Y 11971 No~ember 12, 2002 To~n ~' Southo~d Z~ing Bo~'d of Gerar~l P.C-,oeh~irt~e~', Chairman P.O. Box 1179 $outhold, NY 11971 RE: 580 B~in Road, South~d, NY 8CTM i1~ 1000-81-1-16,? Dear Mr. Goehring~-: I am the o~er d ~ Basin Road, ~uthold, NY (6CTM # 1000-81-1-~6.7). I aulhorize CATHERINE MESIANO, INC. !o male applicatier,.~ nece~ery for a Zoning Board of Appoale det~minatton regarding the abOVe ref~efl¢~d pml3~ty. $in{3erety, Date: 11/14/02 Transaction(s): )Town Of Southold P.O Box 1179 outhold, NY 11971 * * * RECEIPT * * * 1 Application Fees Receipt~: 363 Subtotal $600.00 Check#: 363 Total Paid: $600.00 Name: Zupa, Mary 4565 Paradise Point Rd Southold, NY 11971 Clerk ID: LYNDAB Internal ID: 64091 VICTOR j. ZUPA ATTORNEY AT LAW 4565 PARADISE POINT ROAD SOUTIIOLD, NEW' YORK 11971 ~-M=w. vzupa~concentric.net March 17, 2003 TELEPHONE (631) 765-6112 FAC~.'~- (631) 765-6119 State of New York Grievance Committee Tenth Judicial District 6900 Jericho Turnpike - Suite 102LL Syosset, NY 11791 Re: Complaint a,qainst Attorney Stephen R. An,qel and the Law Firm of Esseks Hefter & An,qel Dear Sir or Madam: This letter is submitted by me and on behalf of Mary S. Zupa as a result of improper conduct of Stephen R. Angel, and the law firm of Esseks Heifer & Angel (the "Firm") of which he is a member. Mr. Angel and the Firm have undertaken a representation for which they have serious conflicts of interest. The Firm's address is108 East Main Street, P.O. Box 279, Riverhead, NY 11901- 0279. Telephone: 631 369-1700. Mamia Heifer, a member of the Firm, represented four parties who as tenants in common were the sellers (the "Sellers") of a residential lot (the "Lot") in the Paradise Point section of Southold, NY to Mary Zupa in April 2002. Mr. Angel, a member of the Firm, now has undertaken to represent the Paradise Point Association, Inc. (the "Association") in order to oppose Mary Zupa's use of the Lot as a residence. Furthermore, individuals representing three of the four Sellers of the Lot to Mary Zupa are directors and officers of the Association. Of greater significance is the fact that prior to transfer of title to the Lot to Mary Zupa, the Sellers and the Firm had led me and Mary Zupa to believe that the Firm had been retained to defend against the Association's prior efforts to prevent the development of the Lot and other properties in Paradise Point as residences. Specifically, it was represented to me that Bill Esseks, a member of the Firm, was retained as a direct result of the denial of a variance for the Lot in 1995 by the Southold ZBA. The Association had argued during the 1995 hearings before the Southold ZBA that the Lot could not be used for residential purposes because a "marina" existed on the Lot and that the Association had rights in a driveway on the Lot. Accordingly, it was intended that the Firm would continue its defense against any attack by the Association on the residential development of the Lot by representing Mary Zupa. My legal and factual analysis relating to the defense of an attack by the Association, together with other secrets and confidences, were discussed with Ms. Heifer, a member of the Firm. This was done with the belief that the Firm (and the Sellers) was representing interests opposed to the Association, and that the Firm would continue this position as counsel for Mary Zupa. Ms. Heifer identified Mr. Angel as the attorney that would handle the matter, and advised that he had been briefed on it. Ms. Hefter also facilitated the sale of the Lot to Mary Zupa for residential purposes. Affidavits from the Sellers were provided to Mary Zupa and to the title company to insure against any claimed rights by the Association in the driveway. Relying on this, Mary Zupa purchased the property for use as a residence. The Association has renewed its efforts to prevent the use of the Lot as a residence which includes its position that a "marina" exists on the Lot, and that it has rights in the driveway. These issues are part of two lawsuits: Paradise Point Association, Inc. v. Mary S. Zupa, Index No. 02-22401 and Victor J. Zupa, et al. v Paradise Point Association, Inc. Index No. 02-25843 (Justice James M. Catterson, Suffolk County). Mr. Angel and the Firm have appeared as the attorneys of record for the Association in one of the lawsuits, and it is their announced intent to appear before the Southold ZBA on behalf of the Association in opposition to Mary Zupa on March 20, 2003. Our intention to obtain disqualification of Mr. Angel and the Firm in the legal actions has been expressed, and we have asked that they not appear before the Southold ZBA. Since the appearance of Mr. Angel on behalf of the Association before the Southold ZBA is not an issue before the Court, this is being filed directly with the grievance committee. By copy of this letter to the ZBA, it is requested that the ZBA consider the facts described above in assessing Mr. Angel's credibility, and the propriety of his appearance before it as an attorney in opposition to Mary Zupa. Respectfully, Cc: Members, Southold Zoning Board of Appeals 2 TO N OF $OUTHOLD OFFICE OF BUILDING INSPECTOR TOWN I;L&LL SOUTHOLD, N. Y. 1197! '~.,")FP.,L. May 21, 1981 Planning Board Town Hall Ma.in Road · . Southold, New York 11971 Re: Paradise Point Roderick Van Corporation, Minor Subdivision Plot by Tuyl P. C., Revised May 11, 1981 Gentlemen: According to the Assessors and Town Tax Map, the Private Roads and the proposed lot of 1.7 acres by the basin and the lot at the point of ? acres are all under the same ownership. When you have approved these lots as separate lots, I will gladly issue Certificate of Occupancy for each lot as Mr. William Smith, agent for Paradise Point Corp., has applied for. I understand the approximate square area at the Westerly end o£ Basin Road will be part of the road and a turn around area given access also to the Basin. Do any of the roads, Robinson Road, Basin Road or Briar Road, comply to the definition of a street in Chapter 100, Zoning Article 1, 100-13, Page ~0014 of the Code of the Town of Southold? No Building Permit can be issued unless they are improved to the satisfaction of the Planning Board or the Zoning Board of Appeal gives access approval. Sincerely, OHF:jd George H. Fisher Sr. Building Inspector ZONING BOARD OF APPEALS TOWN OF SOUTHOLD:NEW YORK In the Matter of the Application of (Nan~ of AppliCant) AFFIDAVIT OF SIGN POSTING Regarding Posting of Sign upon Applicant's Land Identified as 1000- o°1 I - I(,,,."'/ COUNTY OF SUFFOLK) STATE OF NEW' YORK) X /c'~ ¢S/.~ ,~ o residingat AZ' t/~ ' I I /~o ~-d L~ . , New York, being duly swom, depose and say that: On the "/ day of /7')~,~.A ,2005 I personally placed the Town's official Poster, with the date of hearing md nature of my application noted thereon, securely upon my prol~arty, located ten-(10) feet or closer from the street or right-of-way (driveway entrance) - facing the street or facing each street or right-of-way entrance;* and that I heral:)y confirm that the Postff hes re~gai.n~d, in.pl~z'p)r sev~ . (S nature) Sworn to before me this 3o dayofJv{~ ,200'~ U (l~otary Public) JOYCE M, WlLKINS NOtllry Public, State of New Yod; No. 4952246, Suffolk County Term Expires June 12,.,~.O o *near the entrance or. driveway entrance of my ~operty, as the area most visible to passersby. ZONING BOARD of APPEALS TOWN OF SOUTHOLD: NEW YORK In the Matter of the application of (Name ~ aPt~)_ CTM Parcel#1000 COUNTY OF SUFFOLK) STATE OF NEW YORK AFFIDAVIT OF MAILINGS I, Anne W. Hill residing at P.O. Box 1245 Center Modches, New York, being duly sworn, depose and say that: On the 4th day of March 2003, I personally mailed at the United States Post Office in_.East Moriches York, by CERTIFIED MAIL..RETURN -- , New the attached Legal Noti,,~,; ......RE.CEIPT REQUESTED ~ ,_:-_ . ~ ,- p~epa~a envelr~n~,, ~,~ .......' ° u uu copy ~ shown on the current assessment roJJ -,"'~' ~,-,~, ~..~ec~ [o current owners vedfied~from the of~c/aJ records on fiJe with the ( ) Assessors or ( ) County Real )Property Office _, for eve. fy property wh/ch abuts and is across a public or private street, or vehicular Right-of-way of record, surrounding the apPlican~;,,~,./~roperty. Signature -- Sw~f~-t°~before me this ~.~L ~ '~^~ Please list, on the back of this Affidavit or on a sheet of paper, the Jot numbers next to the owner names and addressed for which notices were mailed. Thank you. N ice of Heari lg A public hearing will be held by the $outhold Town Appeals Board at Town Hall 53095 Main Road, Southold, concerning this property APPLICATION., ZUPA, MARY TAX MAP #.' 8'1-1-16.7 PROJECT: RECOGNIZE NONCONFORMING LOT W/2ND USE FOR DWELLING TIME & DATE: THURS. MAR. 20, 2003 2:30 PM If you have an interest in this project, you are invited to view the Town file(s) which are available for inspection prior to the hearing during normal business days between the hours of 8am and 3pm. ZONING BOARD- TOWN OF SOUTHOLD- 63t-765-'1809 LEGAL NOTICE SOUTHOLD TOWN BOARD OF APPEALS THURSDAY, MARCH 20, 2003 PUBLIC HEARING NOTICE is HEREBY GIVEN, pursuant to Section 267 of the Town Law and Chapter 100 (Zoning), Code of the Town of Southold, the following public hearing will be held by the SOUTHOLD TOWN BOARD OF APPEALS at the Town Hall, 53095 Main Road, P.O. Box 1179, Southold, New York 11971-0959, on Thursday, March 20, 2003, at the time noted below (or as soon thereafter as possible): 2:30 p.m. Matw Zupa #5266 - Applicant requests Variances under Sections 100-24B and 100-32, based on the Building Department's October 30, 2002 Notice of Disapproval for construction of a single family dwelling. The reasons stated in the Notice of Disapproval are: 1) the construction of a single family dwelling on a nonconforming 75,687 sq. ft. parcel in the R-80 District is not permitted; 2) the lot is not recognized, and its use is a marina, and 3) the construction of a single family dwelling would constitute a second use. Location of Property: 580 Basin Road, Southold (Paradise Point); Parcel #1000-81-1-16.7. The Board of Appeals will hear all persons, or their representatives, desiring to be heard at each heating, and/or desiring to submit written statements before the conclusion of each hearing. Each heating will not start earlier than designated above. Files are available for review during regular business hours. If you have questions, please do not hesitate to call (631) 765-1809. Dated: February 25, 2003. Lydia A. Tortora, Chairwoman Board of Appeals (631) 765-1809 OFFICE OF ZONING BOARD OF APPEALS 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 Emails: Linda. Kowalski~Town. Southold.ny. us or Paula. Quintieri(~,Town. Southold.ny. us Jessica. Boger~,,Town. Southold.ny. us fax (631) 765-9064 February 26, 2003 Re: Chapter 58 - Public Notice for Thursday, March 20, 2003 Hearing - ~'z~?,~-,- Dear ~ii~: Please find enclosed a copy of the Legal Noti~ describing your recent application. The Notice will be published in the next issue of the Suffolk Times. 1) Before March 5t~: Please send the enclosed Legal Notice, CERTIFIED MAIL, RETURN RECEIPT REQUESTED, with a cover letter and a copy of your survey (or map filed with this application) showing the new construction area, or map with details of your request to aI. JI owners of land (vacant or improved) surrounding yours, including land across any street or right-of-way that borders your property. Use the current addresses shown on the assessment rolls maintained by the Town Assessors' Office (765-1937) or the County Real Property Office at the County Center, Riverhead. If you know of another address for a neighbor, you may want to send the notice to that address as well. 2) Before March 12th: When picking up the sign, a $30 check, as a returnable deposit, will be requested for each poster with metal stand (or $15 for poster only). Please place the Town official sign poster no later than February 13th or earlier. Securely place the sign on your property facing the street, no more than 10 feet from the front property line bordering the street. (If you border more than one street or roadway, an extra sign is available for the additional front yard.) The sign(s) must remain in place for at least seven (7) days, and should remain posted through the day of the hearing. If you need a replacement poster board, please contact us. 3) Before March 12th, please either mail or deliver to our office your Affidavit of Mailing (form enclosed) with parcel numbers noted for each, and return it with the white receipts postmarked by the Post Office. (Aisc, when the green signature cards are returned to you by the Post Office, please mail or deliver them to us before the scheduled hearing, if possible.) If any signature card is not returned, please advise the Board at the hearing and return it when available. These will be kept in the permanent record as proof of all Notices. 4) Not later than March 19% after the signs have been in place for seven (7) days, please submit your signed Affidavit of Posting to our office. If you do not meet the deadlines stated in this letter, please contact us promptly. Thank you for your cooperation. Very truly yours, Enclosures Zoning Appeals Board and Staff P.S. Please be sure to pick up the poster between Mar. 5~h and Mar. 1t~, between 8-t 1:30, or 2:00-3:30. Thank you. ¢,c.4L /,,J/ . SOUTHOLD TOWN BOARD OF APPEALS TRANSCRIPT OF HEARINGS SPECIAL MEETING HELD JUNE 5, 2003 (Prepared by Jessica Boger) Present were: Chairwoman Lydia A. Tortora Member Vincent Orlando (recused at 7:05 pm) Member Gerard P. Goehringer Member Ruth D. Oliva Clerk Paula Quintieri Absent was: Member George Homing PUBLIC HEARINGS: 6:3~xp.m. Madeline Droege #5186. (continued fi.om 4/17/03) Request for a Variance under~ections 100-33C, 100-30A.4, 100-31C, based on the Building Department's April 26, 2005 Notice of Disapproval statlng that the proposed structure is not a permitted use, and that does not meet the code s height limitation or minimum setback provisions. Applicm ~s an accessory wind turbine structure at less than 50 feet from the front property at a height greater than th.e code limitation of 18 feet, at 885 Petty's Drive, C 'cel 1000-~4.-2-24. Resolution to postpone Appl. No. 5186 Droege to Septeml ;003 at 6.45 p.m. per request of both Daniel C. Ross~ Esq. and Patricia letter 6/5/03. 6:45 for a Lot Waiver 02) Building dwelling. The basi: permitted in the R-80 standards, under: 1) County Clerk's office on or 1 requirements set forth in Bulk Planning Board, or 3) Board prior to 6-30-83, or 4) Appeals prior to 6-30-83. Location 1000-113-07-19.11. Resolution to canceling Appl. No. 5264 - Michael Pis', 64 - MICHAEL PISACANO. The applicant has filed a request ;ection 100-24A based on the November 7, 2002 (amended 11-8- Notice of Disapproval for construction of a single family Notice of Disapproval is that this 73,616 sq. fi. parcel is not because it is not a recognized lot by any of the four code lot shall be created by deed recorded in the Suffolk and the lot conformed to the minimum lot 2) Lot was approved by the Southold Town map approved by the Southold Town ~gnized by formal action of the Board of 1457 Cox Neck Rd., Mattituck; Parcel No. 5361 for July 10~ 2003 and 7:05 p.m. Mary Zupa #5266 - (continued from 3/20/03) Applicant requests Variances under Sections 100-24B and 100-32, based on the Building Department's October 30, 2002 Notice of Disapproval for construction of a single family dwelling. The reasons 2 June 5, 2003 Southold Town Board of Appeals Transcript of Public Hearings stated in the Notice of Disapproval are: 1) the construction of a single family dwelling on a nonconforming 75,687 sq. ft. parcel in the R-80 District is not permitted; 2) the lot is not recognized, and its use is a marina, and 3) the construction of a single family dwelling would constitute a second use. Location of Property: 580 Basin Road, Southold (Paradise Point); Parcel #1000-81-16.7. CHAIRWOMAN: Is someone here who would like to speak on behalf of the application? MEMBER ORLANDO: Also, Madam Chairwoman, I'd like to make a statement before we begin this meeting. Since our last meeting, I've received information showing my father-in-law has joined Mr. Zupa in a lawsuit against Paradise Point (PP). And at this time, I feel it would be best for both parties and the board that I recuse myself at this time in this matter. ERIC BRESSLER. ESQ: We certainly respect your opinion as a matter of law. We don't see the need. But if you feel the need, then we respect your decision. We are, after the last heating, I felt we had pretty much said what needed to be said. We've introduced the documentary evidence that we think supports the application. Unless the board has any questions, or there's anything else that's going to come up on behalf of the objectants, we are willing to stand on the record. CHAIRWOMAN: Member Goehringer? MEMBER GOEHRiNGER: What? CHAIRWOMAN: In response to Mr. Bressler. MEMBER GOEHRINGER: I thought we were going on to opposition, and then we're going to see what develops there. Then if we have any specific questions regarding this heating, we'll go from there. All right? CHAIRWOMAN: Fine. Is there anyone who would like to speak against the application? STEVE ANGEL, ESQ: Stephen R. Angel, Esseks, Hefler, and Angel, 108 East Main Street, Riverhead, NY. I have a few comments to make, and I represent Paradise Point Association (PPA). I have a few comments to make. The first one has to do with an opportunity to respond to a vast amount of documentation that was submitted to the board since the last heating. We came down to, one of the people from my office came down to the file, looked at the file today. And apparently, in addition to what was submitted on March 20th' there was a substantial submission dated May 15, 2003, which included a memorandum from Mr. Bressler, and voluminous exhibits, and also a letter dated July, June 2, 2003, which was received by the board yesterday. In this letter, among other things, there was sort of a demand that you act immediately. Now, I would note that Page 2 of 16 3 June 5, 2003 Southold Town Board of Appeals Transcript of Public Hearings none of these documents were sent to me. The only way I found out about them was to come down and look at the board's file. I had not had an opportunity to really review them carefully. I didn't know that they were being submitted. And as you know our, my appearance in this matter, and the opposition of my client the PPA was well known. I also would like to note that even before these documents were submitted on behalf of Mrs. Zupa, I had made a submission at the board's request of pleadings in the case that I'm involved in which is Zupa, Zupa, and Miller, against PPA. And I transmitted that by letter to the board. And in that letter, I mean, I copied my adversary, and I just assumed that the same courtesy would be afforded me. So to some extent, I've been blind-sighted today. And, as you probably know, better than the people in the audience, the submissions dated May 15 and June 4 are not just one or two pages. They are pretty substantial submissions. I don't think I need to give you a copy of my letter. It's in my file. I have copies here if you'd like them. And it shows the copy to Mr. Bressler. Now, I also, I can't help but comment on a phrase contained in the letter submitted by Mr. Zupa in support of his wife's application dated June 2. And it's on page 2. And in that he makes the argument that since he's a full time resident, and presumably I don't know which ones of the members of the PPA's are summer residents, his comments should be given greater weight by the board in it's deliberations. I wonder whether it would be appropriate for the Town Board to consider some sort of ordinance amendment that would grade people's comments so they could be put on a level of perhaps 10-0, depending on your birthright, or your length of time in the community. Now I think that this should be a relatively simple case, but it's been very, it's been really complicated by a whole bunch of issues that have been presented to you for a determination. I've tried to analyze the legal issues. And I think that I've analyzed essentially three. And one is, is the board precluded from giving relief on this application, on the Zupa application that was submitted? It was our position, that I expressed in the last heating, that because of the dual use you found in your August 1995 determination that this is sort of an inappropriate application because it seeks to amend that prior determination in some fashion. Now, that could be resolved by another application to come in acknowledging the dual use. In other words, you could come in before you, and ask for a variance. And acknowledge that there is this marina, or boat basin use that attaches to the property in question. The next question, is this a residential building lot? Given whatever approvals, or setoffs, or whatever, was done back in 1981 by the Planning Board (PB). I would ask, I looked through the file, and I noticed that you had made a reference to the PB. And the PB is looking to this issue, and the PB has a meeting scheduled for this coming Monday, at which to address it. And I would request that we await the determination of the PB. In my opinion, I looked at this issue again after I read some of the memos and letters that were submitted in the interim this morning, and this afiemoon, and I'm not convinced that when the setoff occurred in 1981 that this lot was created as a residential lot. The definition of subdivision that's contained in all of Mr. Zupa's communications to the board gives an exception to a one residential lot setoff, whereas what happened in 1981 was there were, I think, a 3 lot setoff, and only one was clearly designated as a residential property. At least that's the way it seems to me. And that was lot 17. The other sort of new argument is that pursuant to ordinate section 100-24A, the fact that there was a deed creating this parcel in 1981 exempts this from the requirement ora subdivision. There is Page 3 of 16 4 June 5, 2003 Southold Town Board of Appeals - Transcript of Public Hearings a provision to that in the code, but I don't think there's a single and separate in the record where you could make that determination. And I don't think that determination has, it doesn't appear to have been made. And 1 don't think we have enough information in the record to do that. But that could be solved relatively quickly. Now, those, I think, are the three issues. As I said, the three issues are, you know, is it proper to give relief on the application you currently have before you? Is it a residential lot? Oh, and the third legal issue is a very obvious one. Is a variance appropriate under the 267 standards? But what has happened here is that the case is blown up. And a whole bunch of collateral issues are brought before you for determination that are potentially very damaging to our client. One of them is an attempt to cut off right to traverse the property, or at least go across the property towards the jetty that the client maintains. The second is the attempt to stop the use of the boat basin under some interpretation of the zoning code, or nonconforming uses. And the third is to somehow that prove the town owns the land, and the water, and the boat basin. And not the PPA, which has a deed, and has been pay/ng taxes on it. The cutting off of access to the jetty is an issue that's involved in the lawsuit brought by the PPA against Mrs. Zupa by Mr. Speiss who's sitting here, Jim Speiss. And I'm led to believe that there's going to be both a hearing and an argument on a motion to dismiss the lawsuit next Wednesday, June 11 before Judge Catterson. The issue of stopping the use in the boat basin, the marina, or the boat use in the marina, is to some extent a superfluous issue. But that is a very fundamental issue for my clients. And actually today I went through several iterations of the Southold town ordinance beginning in 1957 and running through to date. And I'm not too sure, I mean it seems to me that the only thing that's become a regulation of this type of marina, a marina that does not charge people money, a club marina, appeared in the code that was adopted at the end of 1971. The '57 code has no prohibition. The amendments in '58 dealt with marinas where people had to pay compensation for boat slips, not clubs. And both the, the '57 code had an exception and allowed residential as part of, in the residential area, actually allowed clubs, beach clubs, that sort of stuff that would contemplate this. Now as far as the legal ownership of the boat basin, I really think that's way beyond the jurisdiction of the board. I think that the appropriate venue for determining jurisdiction, determining ownership of land anywhere whether it's under water or not, is an action in court which has not been brought in this case, believe it or not, at least not yet. And that could either be brought in Supreme court or county court under the real property actions and proceedings law. Not before you. And, also, I should point out that Mrs. Zupa, who's raising the argument of ownership of land under water, I'm not too sure is standing to raise it. I mean her claim is it's either the town's property or Paradise Point's. Her claim is it's town's property. Our claim is it's Paradise Point's property. But there's this concept called standing. You got to have, to have some interest to the issue. And the issue is who owns the property?. I don't think she makes the claim that she's an owner. The only other thing I would like to, well, at this point I think that I would request, based upon what I said before, that you know, it's our opinion that based on the application before you, this application should be denied. But I'm not going to hammer at that. I would like the opportunity to have a copy of these voluminous documents provided to me. Or if they won't be provided to me an opportunity where I can come here with a $100 check, or a $150 check and have copies made. And I can promptly respond. I think I can elucidate the issues from our client's Page 4 of 16 5 June 5, 2003 Southold Town Board of Appeals - Transcript of Public Hearings position. I think this has become a very controversial matter. And certainly to foreclose us from making comments upon voluminous records, under these circumstances, and then claim that it has to proceed very quickly, is not an appropriate position for an applicant to have. Thank you. CHAIRWOMAN: Is there someone else who would like to speak, uh, against the application? ROBERT SCALIA: My name is Robert Scalia. I reside at 4550 Paradise Point Road, Southold. My family and I have been residents of Paradise Point for 49 years. My father was one of the first members of the PPA, and one of the founders of the PP Corporation, which is the original owners of this lot and the other lots in question. As a teenager, I used the boat basin as a swimming hole, fishing hole, and a safe place to keep our boat. My children used the basin for fishing, eeling, and as a place to use our boats. I've kept boats in this basin as small as 16' and as large as 41'. Our family has always participated in and contributed to the maintenance of the basin and the cost of building both the jetties, maintaining the docks, and the dredging of the basin. During the past 49 years I have been there, the PPA members always use the road and pass the traverse, what is now called lot # 1, which is the property involved in this hearing. We use the property for dredging maintenance and for a turnaround. We used it for storage of dredged materials and for bay access. We pay for and maintain the safety light pole on property. We, in short, use that as part or our basin, as part of our community. Fast forward ahead to 1999 and the entrance of the Zupas from NYC and CT. During the last 4 years, they have entered into a campaign of bullying and legally intimidating their neighbors, the PPA, and the Southold Town Trustees. They have obtained an order of protection against a 70- year-old neighbor. They have erected a 6' stockade fence effectively eliminating the winter waterview of an 80-year-old widow. They have had the Southold Town Police department threaten to arrest neighbors who have used the same path and roads they have used for the past 50 years. They have filed a criminal charge against the PPA for trying to solve, in good faith, a runoff problem. They have filed suits against the Southold Trustees. And, I believe, intimated that board into holding up our dredging to the point that boats this years cannot enter or leave the basin at low tide. They have intimidated the Southold Town Trustees by, into issuing some sort of a conditional building permit for the property that this board, the ZBA, has deemed unbuildable given the present usage. Therein lies the row. If the Zupas are successful in bullying, intimidating and threatening the boards into destroying the PP boat basin, which we have had for 50 years or more, they can take this lot that they bought at a distressed price, and then turn it into a real estate bonanza for themselves at the expense of their 23 other neighbors. For 50 years, the residents of PP have had a decent community; paid for our own roads, mn our own boat basin. We haven't asked Southold Town to pick up our garbage, plow our roads, dredge our basin. For 50 years we have built and contributed to our little community. And the four years the Zupas have lived here, they have not paid dues, have attacked their neighbors, and have tried to tear down the community that we have built. This matter is the subject of two lawsuits in the Supreme Court, as Mr. Angel said, at the present time. There are issues of ownership, title, and easements that cannot be judicated Page 5 of 16 6 June 5, 2003 Southold Town Board of Appeals - Transcript of Public Hearings this evening. The judge has proposed compromises that the Zupa's have rejected. I respectfully submit that the ZBA should stick to the 1995 decision regarding this property. Nothing has been changed to induce any change in that properly rendered decision. We believe the Zupa's arguments are laced with nontruths, half truths, conjecture, exaggerations, and shallow and erroneous legal arguments. Please do not be stampeded by a barrage of papers and inaccurate rhetoric. Let the court decide if the parameters have changed. Thank you. CHAIRWOMAN: Is there someone else who would like to speak in opposition? MARY ALBERI-PINKER: My name is Mary Alberi Pinker. My mother is Helen Alberi here. She's the 80-year-old woman whose waterview was blocked by Mr. Zupa's fence. CHAIRWOMAN: Could you state where... MS. PINKER: 4345 Paradise Point Road. I'm just up here to say "I'm not a lawyer". I've been to many of these meetings, and I've heard a lot of legalistic sophistry from Mr. Zupa's lawyer. And I feel that he is abusing the law here. Just as he abused his neighbors by calling the police on them. He uses, has used, the power of the police to enforce the law against us. And now he's using the town regulations, which are designed for the safety of people, for the well being of the community. I'm sure you people don't make rules to damage property owners, to hurt their interest. You want a good functioning community here. And yet these people come in here and they take the rules, they take the regulations, and they twist them. They pervert them. They turn the law into a mockery when it should be an instrument of justice in this world. And I agree with Bob Scalia. I don't think you should be stampeded. I think you should step back from this and take a long hard thoughtful look, and think about it. What kind of community do you want in the future? Do you want a community where people come in and step on their neighbors because they want to cash in on property? I work a half-mile from ground zero. I think about those men. They went up into those towers. And then I come out here, and deal with this? That's all I have to say. I'm sorry. CHAIRWOMAN: Is there anyone else who would like to speak against the application? HELEN ALBERI: I'm Helen Alberi, the 80-year-old lady who bought property on PP in 1964. And we bought it at the time because we hoped to have retirement home up here. CHAIRWOMAN: Mrs. Alberi, whereabouts on PP do you live? MS. ALBERI: I'm at 4345 Paradise Point. CHAIRWOMAN: Do you happen to know 4345, could you tell us what lot number that is please? MS. ALBERI: Bob, can you help me with that? I'm terribly sorry I don't. Page 6 of 16 7 June 5, 2003 Southold Town Board of Appeals - Transcript of Public Heatings CHAIRWOMAN: That's okay we can figure it out. Thank you. MS. ALBERI: We decided to build our home. And we personally built it in 1984. And with the delight of retirement and having a peaceful, joyful, retirement. And in 1995 someone else came along, and decided they wanted this unbuildable lot. So my husband, who is deceased, who is deceased, and Mr. Cucuru, in 1995, we went through this whole faCade. And we went through it, and you gave us a very wonderful judgment that it could not be residential besides a boat basin. Because first place you can't even turn a fire truck around there. And if you have trouble turning a fire truck, you could lose a life in a minute. And you graciously decided that it was the purpose of a boat basin. And that was in 1995 with Mr. Cuddy, we went through it. And, I feel, how many times do we have to go through this? We are doing it again because somebody decides she wants, they have, at this point, they have cut off one-third of PP. That was the 1st thing he did. He came in. And he set up pine trees and 150 fort apache fence. I don't know whether I'm behind a fort apache fence or the Berlin Wall. He has cut that sweet little boat basin. He has destroyed my whole view. And I bought that property with the assumption that I was going have a view of the boat basin. We've had a boat in the basin for 12 years. We have paid our dues. I have never violated anybody up there. I have not violated anyone. I have never stepped out of turn with anyone up there. And I feel that this is a thing that should not happen again. I feel that I really, we all need a little peace up there. And you can't ignore your gracious approval of us in 1995. You still have to remind yourself that we went through this ordeal before. Thank you. CHAIRWOMAN: Is there anyone else in the audience who would like to speak against the application? Is there anyone else in the audience who would like to speak for or against the application? Mr. Bressler. MR. BRESSLER: After Mr. Angel's most erudite presentation, I feel constrained to address the issues he's raised with the board, but at the outset I must note something extremely curious about the proceedings this evening. Mr. Angel invites you, on the one hand, to stick to the issues. I remember inviting a similar invitation at the last session. Yet most of what we've been heating tonight is exactly the opposite. So let's get back to the issues before you. As to the issues before you, let's address them one by one as raised by Mr. Angel. First of all, with respect to the submission there is no doubt that at the last heating everybody was aware that we were going to make a submission, and such as submission was made. To come here the day of the heating, and say "I looked at it a few hours ago" doesn't cut the mustard with me. As to Vic Zupa's letter, the difference between full time and part time, we're not creating different classes of people, although listening to some of the objective comments apparently if you come bom NY or CT, maybe you are in a different class. The only point of that comment is to point out the fact that impacts are different depending upon the nature of your residency. If you are there full time you are obviously going to be impacted a greater percentage of the time. And that's a pretty obvious concept. Now to the legal issues raised by Mr. Angel. He first raises, without identifying it, the issue of res judicata. It seems clear that doesn't apply Page 7 of 16 8 June 5, 2003 Southold Town Board of Appeals Transcript of Public Hearings here. That's a different application before you. There was an application for a variance. There were setback variances required. No such request of you is made in this particular proceeding. It is plain that res judicata doesn't apply here. Reason one, reason two. CHAIRWOMAN: I'm going to stop you right there Mr. Bressler, the board hasn't made that determination yet. I said, the board has not made that determination yet. MR. BRESSLER: No, I'm making the argument to you in responding to Mr. Angel's comment. I would hope you had not, but if you had, that it would be my way. No, I was certainly of the opinion that you were keeping an open mind until the close of all the evidence, and clearly we don't believe res judicata applies here. The nature of the application is different. The factual proof before you is different. The actual issues that are brought up for a full and fair litigation before you are different. I think that's something you should look at. And I think you have to make a determination. As to whether or not it's a residential building lot, I don't think there's any doubt it's a residential building lot. The documents are before you. All of them, all of them are before you. We've all looked at them. And maybe Mr. Angel has the ability to look at those documents and see something about recreation in there. But I can't. There's not a word in there about that. The argument is made up of whole cloth. The documents are what they are. Lot 17 is buildable. Our lot is buildable. They were setoff at the same time, same resolution. I invite you to look at the documents. There they are. What the PB is going to bring to this, I can't imagine. You have the entire file. They've looked at it twice. They want to look at it again. I don't see the purpose. You have the entire file before you. CHAIRWOMAN: I will clarify that right away. We asked them to give us all information that they had on this file. The file is very lengthy. It's very long. As you well know Mr. Bressler, we are under a little short staff at town hall, and we cannot simply dedicate full resources to one application. Not when we have about 100 before us at this time. So it is, rest assured, they are working as fast as they can to get this information. But I would not want them to try to put together something for us that we may or may not have in a rushed situation, and make a decision that is obviously very critical to the welfare of your client as well as to the community, based on inadequate information. So, I do want to see that information. I do want to review it, as the whole board does. That's in fairness to you as well. If it's duplicate information, so be it. MR. BRESSLER: Well, we don't believe there's anything new or different in there, but in the event there is, we'd be pleased to look at it. And we'd be surprised if there'd be anything different in there. We'd certainly like an opportunity to comment on it. As to the last thing that you said, I will get to that in a minute, as in fairness to the neighborhood. Now as to the deed, as to the deed argument, I am not aware that there's any issue as to whether or not that lot met the single and separate requirements. We are pleased to demonstrate that it does. If you think there's an issue. I don't think there's any issue there. I didn't hear any issue raised. Do we meet the 267 standards for a variance? If you reach that issue, I don't think there's any doubt about it. Page 8 of 16 June 5, 2003 Southold Town Board of Appeals Transcript of Public Hearings CHAIRWOMAN: Let me ask you, that's one of the things that's kind of confusing. In the original application you would have either requested lot recognition or in the event that the board found that there were two uses, you had asked for an area variance. Is that request still on the table? MR. BRESSLER: Yes, absolutely it is. CHAIRWOMAN: In other words, it was not part of this submission which, believe it or not, I read every word of it. MR. BRESSLER: I'm sure you did. CHAIRWOMAN: So I just wanted to make it clear that what you are requesting is a reversal of the Building Department's determination that it is, the lot is not recognized pursuant to 10024B or 10024D. And, in the alternative, you are asking for an area variance for the two uses. Is that correct? MR. BRESSLER: Yes, and as to the first part of that when you say the lot is recognized, I take it by that you mean to include the issue that it is not subject to a marina usage as well, which the building inspector also raised. CHAIRWOMAN: He also raised the issue in the notice of disapproval that there was a prior determination that (interrupted). MR. BRESSLER: That's right. CHAIRWOMAN: On a number of other issues, which I think you kind of(unfinished). MR. BRESSLER: I think I addressed them in there. But, you are right. In the alternative, if you don't think an outfight reversal is mandated, we think so plainly on the fact, given the size of the lot which is very close to what would be required, were we to find two uses. The nature of that use were you to find it to be a principal use mandates some sort of relief here. Now, as to the extraneous issues, I welcome Mr. Angel's comments to the effect that they are indeed extraneous. I recall them being raised at the last heating, certainly not by us in the first instance. And we concur that they are extraneous. The issue of the jetty. The issue of whether those docks have a right to be there. They were extraneous in the first instance. And the issue as to whether there is a prescriptive easement across the property is extraneous to you. Those matters are before the Supreme Court. And they will be decided in the Supreme Court. The issues before you, narrowly framed, although I certainly don't agree exactly with the characterization or certainly the outcome urged by Mr. Angel, I do agree that, in general, the issues are as described as laid out in our memo. That's what's before you. As to what's maybe fair, getting back to the point I raised before, as to what may be fair or not fair to the members of the community who claim to have some rights, with respect to a prescriptive easement, Page 9 of 16 I0 June 5, 2003 Southold Town Board of Appeals Transcript of Public Hearings will be decided by the Supreme Court. Whether or not the docks have to go is something that is going to be decided by the Supreme Court. If you decide that Mary Zupa can build a house there, that determination in no way determines whether or not those extraneous issues are going to be resolved one way or the other. CHAIRWOMAN: That's (interrupted). MEMBER GOEHR1NGER: Can I respond to that? MR. BRESSLER: It does not, as a matter of law. I still have to slug that out with Mr. Spiess and Mr. Angel in the Supreme Court. MEMBER GOEHRINGER: Judge Catterson, in an issue that was different than this one, down in Laurel, plotted an entire road from Peconic Bay Boulevard all the way to the DiBartolo property, which was a nature of a decision that we made reopen the heating tonight, okay, some two years ago. How do we know, how do we know, Mr. Bressler, what Judge Catterson is going to do? Very simply there may not be enough property after Judge Catterson's decision to render enough buildable property on this piece of property. MR. BRESSLER: And if that's the case, the Building Department will duly act. What you have before you... MEMBER GOEHR1NGER: The Building Department will give you another Notice of Disapproval. MR. BRESSLER: That's correct. That's correct, but what you have before you, you must act upon. Let me also say that we have no idea where those law suits are going. We never had an idea where those law suits are going. And let me just state for the record that what Mr. Scalia said is just plain wrong about what happened in those proceedings. But I'm not going to go into that because what happened in the Supreme Court happened in the Supreme Court. And I don't think anybody needs to be privy to that. But suffice it to say what's in front of you is in front of you, and you make the determination. And if Judge Catterson rules something else then we'll have to deal with that. But what's before you is before you, and to that extent I agree with Mr. Angel. What is before you is before you, and that's what has to be determined. And as far as the rights of people to maintain something there, that's the subject of a litigation. As to whether or not they get to walk through the middle of the property is the subject of a litigation. What's before you is whether or not a house is appropriate on this rather large waterfront lot. That's what's before you. CHAIRWOMAN: That's one of the things before us. The other thing that is before us is there a dual use on this property; is there a marina use; and that, whether or not this board determines that that determination was made in 1995 and is therefore barred by the doctrine of res judicata. Page 10 of 16 11 June 5, 2003 Southold Town Board of Appeals Transcript of Public Heatings MR. BRESSLER: Well, you have to decide that to get to my application. All I want is a house. And you have to decide whatever you think you have to decide to get there. And if you think you have to deal with the issue of res judicata, then you'll have to deal with it to get there. I suggest you don't. You say you haven't decided it, but you will. CHAIRWOMAN: We are plotting through everything. That was the purpose. MR. BRESSLER: Exactly. CHAIRWOMAN: And I think I made that very clear at the first hearing that we wanted to be able to get all of the information to make that determination. MR. BRESSLER: Absolutely, but ultimately, the issue is do we get to build a house there? Because we are now sitting with the approvals necessary to do that. And we are sitting here before you, last in line, waiting to go back to the Building Department. We have been to the Trustees. I respectfully disagree with any characterization of what happened before the Trustees. But we ended up with a permit. And now we are before you, that's all. CHAIRWOMAN: There are a couple of things that I would like that I did not see in here. There were filed C & R's with the 1963 subdivision. I'd like a copy of those in their entirety. MR. BRESSLER: We have no objection to that. They are not at all relevant to this. But you are certainly welcome to look at them, and decide that for yourself. CHAIRWOMAN: That I would like to see. We do not have that. (Off the record conversation between Mr. Bressler and Mr. Zupa.) MR. BRESSLER: I'm advised that in the June 2nd submission you will find the covenants that were filed with the individual deeds. We're not aware of any C&R's that were filed as such with the subdivision map. CHAIRWOMAN: This is the June 2nd? MR. ZUPA: Yes, and a series of deeds. MR. BRESSLER: Aren't there a series of deeds in there? CHAIRWOMAN: Could you speak up for the record, please? VICTOR ZUPA: Victor Zupa, 4565 Paradise Pt. Road. With my submittal yesterday, I gave you four deeds that directly were from the Paradise Point Corp. (PPC) to owners on Page 11 of 16 12 June 5, 2003 Southold Town Board of Appeals Transcript of Public Hearings the basin. One was to a Mr. Monticello, which covered the lot that my wife and I presently have our home on. That was a 1981 deed. That contains the restrictive covenants, covenants and restrictions. Another is a conveyance in 1966 which is to Henrietta Elfers, Carrie Elfers that contains C&Rs. CHAIRWOMAN: What about the C&R's that were filed with the County of Suffolk? MR. ZUPA: There were no C&R's filed separately with Suffolk County. CHAIRWOMAN: With the subdivision? MR. ZUPA: No there were not. The subdivision was done separately in 1963. And subsequently as the owner, PPC sold off lots, they would include C&R's in the individual conveyances. CHAIRWOMAN: The original subdivision approval was subject to C&R's though. MR. ZUPA: If it was subject to C&R's they were not filed with that subdivision map to our knowledge. I mean, I've checked. I've seen subdivision. I've seen the approval with the county. And I've checked through all the deeds. And, in point fact, not all the deeds in that subdivision, which by the way don't include the other side of the road where Mr. Scalia and some of the people who are objecting live. Those particular properties the C&R's only were applicable to those in which the deeds were included. Mrs. Alberia has C&R's. The Monticellos had C&R's. And the house that we have our home on, we have a separate lot with a tennis court on it, which a variance was granted some time ago. That lot does not contain C&R's. Nor does Mr. Perhcone's lot contain C&R's. Nor does the lot across from us. What I'm trying to say is that there was no uniform filing of C&R's that were applicable to everybody. CHAIRWOMAN: There are no C&R's on this lot then? MR. ZUPA: No, there are none. CHAIRWOMAN: Then why (interrupted). MR. ZUPA: There were conditions of conveyance, when I did the contract negotiations that were that they not contain C&R's. And there is no master filing, as there normally is in a development, such as the one you would think this was, a master set of C&R's, which somebody says is applicable to a particular conveyance. They were done individually. And some people decided they wanted to put a pool in, so they said, "I don't want C&R's on my lot", and they weren't included. MR. BRESSLER: So the answer to your question is no. This lot, to our knowledge, is not subject nor is it a title lot. Page 12 of 16 13 June 5, 2003 Southold Town Board of Appeals - Transcript of Public Hearings CHAIRWOMAN: There were C&R's on this lot before. MR. ZUPA: Absolutely not, not pertaining to the ones PPC raised. There are covenants going back to 1920 dealing with no oyster shells can be stored on the property. I have a title report. And we've done exhaustive search through several title companies and they are absolutely... CHAIRWOMAN: I have a copy of a title report from Mr. Miller's application in 1995. And in that title report it does show a C&R for an electric easement so I, I'm confused. MR. ZUPA: I thought you meant a C&R with respect for the development. There is a C&R with respect to an electric easement. CHAIRWOMAN: And there's also an easement over the property. This is from a prior title. MR. ZUPA: You are absolutely correct there is an electric easement. MR. BRESSLER: I thought you were talking about C&R's. There is an easement. And in fact the PPA has a deeded easement. That's certainly true. MR. ZUPA: As Mr. Curcuru does as well. He has an easement with respect to a driveway. So there are easements on the property. But the C&R's that were used on 80% of the properties within the '63 subdivision are not on this property. That was a condition of my contract. I would not have those covenants. They are not uniformly enforced within the subdivision, and I would not have those in my deed. I have a title policy here that shows 'insured without any C&R's.' MR. BRESSLER: If you were referring to easements, the answer is, yes. If you are referring to the C&R's then Mr. Zupa's answer pertains. So I'm not sure exactly. CHAIRWOMAN: I was referring to the fact that there, in the 1963 there are notes. And as I say that's one of the reasons that we do want to get all of the information from the Planning Board. That they had requested that C&R's be filed with the subdivision as was common practice at the time. MR. BRESSLER: I don't know what happened, but if the Planning Board comes up with something our title company will be most enlightened. Did you have another question? CHAIRWOMAN: No. MR. BRESSLER: Now, a couple other comments. There were certain references made to certain other issues I'd just like to deal with very briefly. There was an issue as to, them was an issue as to dredging. The Trustees moratorium is what it is. The Trustees have that under advisement. It would appear that dredging, in the town of Southold, Page 13 of 16 14 June 5, 2003 Southold Town Board of Appeals - Transcript of Public Hearings except to the extent that there's an application for extension of an existing permit, is not permitted under the Trustee's moratorium. CHAIRWOMAN: Were we given authority on that, by any chance? MR. BRESSLER: No, you weren't. The Town Board (TB) was given some authority. CHAIRWOMAN: On the waiver provisions. MR. BRESSLER: On the waiver provisions, but unfortunately the TB, in it's wisdom, granted waiver provisions only for structures that were in imminent danger of collapse. CHAIRWOMAN: I haven't seen a copy of the local law yet. MR. BRESSLER: But, that's again, an extraneous issue, and it is what it is. And it's for the Trustee's to deal with. As to the various civil and criminal disputes that the parties have had, the record speaks for itself. If protective order was obtained, well a judge must have thought that it was warranted, or he wouldn't have done it. So, I don't want to say anything more about that. It seems to me, that in an effort to get this thing closed, since the board is of a mind, notwithstanding our position on this, to take input from the, further input, from the PB. What I would like to do is get a date from you. Mr. Angel has asked for the opportunity to respond. And given the board's position, with respect to the PB. I'm presuming he will have that opportunity. And, what I'd ask is that you set a date so we can get some finality on this. Giving everybody one last opportunity to comment on whatever's in the record, and close the heating. And at that time, and start, and start the period running. CHAIRWOMAN: Okay, Mr. Bressler, it is common practice, as you know, you've been before this board many, many times, it is common practice that information that's presented to the board is also copied to the other attorney. That is a courtesy that you're well aware of, and, actually, you've been very good at doing in the past. MR. BRESSLER: Well sometimes, it's (unfinished). CHAIRWOMAN: I would have to ask why that wasn't done here. I wasn't, frankly, I wasn't aware that it hadn't been done. MR. BRESSLER: Sometimes, it's a rule that's honored in the breach. We've had opportunities to go through the ZBA files in this case, and we find we've not always been made privy to everything that's been submitted on behalf of the objectant. So if the board wants to issue a direction with respect to both sides we'd be happy to... CHAIRWOMAN: We will do that as we speak MR. BRESSLER: We'd be happy to comply with that. So that nobody is caught short. Page 14 of 16 15 June 5, 2003 Southold Town Board of Appeals - Transcript of Public Hearings CHAIRWOMAN: Well, it would also save our office a lot of time and effort trying to take in something like this and make copies of it at 25 cents a page, quite frankly. Yes, 1 would like you to make a copy of this for Mr. Angel, I would like all submissions copied to both attorneys. Mr. Angel, all of your submissions, all of your memorandums, all submissions, copied. MR. BRESSLER: All of his people's submissions as welt. I mean he's representing a group. I don't want him to say "well, people are submitting things on their own". I think they should go through him so that we have an opportunity to respond to them. CHAIRWOMAN: He can only account for the people that he is directly, you know, representing. As you can only account for the people you are representing. MR. BRESSLER: He's representing PPA. And the members are here making these submissions. And I don't want to be put in an unfair situation here. I think it's only reasonable that if his members are going to put something in, that you know, we'll give him ours if he'll give us his. CHAIRWOMAN: Is that agreeable, Mr. Angel? MR. ANGEL: It's agreeable. But you can swear me in, but those comments that were made today were not past before me. I had no idea what these individuals are going to say. I mean certainly if somebody wants to make a submission, and discusses it with me, and that submission is made, I will give it to Mr. Bressler. But I can't account for an individual, who I don't even know, making a comment here before the board. CHAIRWOMAN: I think you recognize that Mr. Bressler, don't you? This is in the context of a public hearing. So, I think you are fully aware of that. MR. BRESSLER: I think that representing an association though, that the association can take steps to make sure that while we provide things, I don't have to keep running up here. I mean, the PPA is governed by a series of trustees or managers. They have voted or not, as the case may be, to retain these folks. And I think, I think I don't want to have to keep running up here, so. And everybody who's here, maybe that word can be passed down from management, that things could be passed through Mr. Angel. And if something slips through, well, so be it. But at least someone's going to make the effort. CHAIRWOMAN: Are we all on the same plane, on this? MR. ANGEL: I fully expect to submit everything, I mean, I thought that's what we're doing beforehand. If I'm submitting anything, I'll take care of it. I just, as you well know, I mean I can't control anybody who lives in the area. But certainly anything officially from PP is coming through me. And, certainly, Mr. Spiess is here tonight. I heard the stage whisper. And he will certainly comply with the same request. If he Page 15 of 16 16 June 5, 2003 Southold Town Board of Appeals - Transcript of Public Hearings submits something either on his own, or on my behalf, it will copied appropriately to Mr. Bressler. CHAIRWOMAN: Let's set a date for a new hearing and, as a matter of course in this hearing, all submissions, all, everything, must be submitted by 4, no later than 4 pm the Friday prior to the Thursday public hearing. There will be nothing accepted after that date. There will no comments on anything after that date, except at the public hearing. Okay? When is the next date we have? CLERK QU1NTIERI: The special meeting? CHAIRWOMAN: Which would be, on what date? CLERK QUINTIERI: 7-10. CHAIRWOMAN: Okay 6:45, July 10. I'll make a motion to adjourn this to 6:45, July 10th. MR. BRESSLER: Madam Chairwoman, did you say July 107 CHAIRWOMAN: Yes. MR. BRESSLER: I'm going to be out of town that day. If you could possibly accommodate us with something either a week before, or the week after? CHAIRWOMAN: We don't have any meetings then. The next meeting would be July 24th. MR. BRESSLER: Please. CHAIRWOMAN: We're going to have to say about 2:30. I can't give you an exact time, because we do not have the agenda. Everyone will be notified when we set the agenda, when we can set the agenda, but it will be about 2:30 approximately on July 24th. Is that agreeable? I'll make that motion. Motion carded. SEE MINUTES FOR RESOLUTION. S. Sachman and A. Quadrani #5302. (continued from 5/15/03) Based on the Building Department's October 1, 2002 Notice of Disapproval, applicants request a Variance under Sections 100-33C and 100-32 to locate an accessory swimming pool as an accessory structure at less than 50 feet from the front lot line, at 4705 Nassau Point Road, Cutchogue; Parcel 1000-111-9-9. See Minutes for Resolution to consider applicant's May 30~ 2003 request for ad]ournment. Page 16 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 127 Chairwoman, today? look at the exhibit, then we'i1 get back. CHAIRWOMAN TORTORA: I'd like to make a motion to recenvene; all in favor? (Whereupon, all Board Members responded in favor.) CHAIRWOMAN TORTORA: The next hearing is on behalf ef Hary Zupa; is there someone here who would like te speak en behalf of the applicant? Mr. Bressler. MR. BRESSLER: Yes, please, Madam I would like te be brief today. BOARD MEMBER GOEHRINGER: Just MR. BRESSLER: I would like to be brief today in light of all that has transpired. As noted in the published notice, the submissions were made; therefore, I would like te accomplish only two or three things in addition, of course, to persuading you te grant the application, but I'd like to accomplish two or three things today, and that is, Number 1, we've not really had an opportunity to hear from the applicant herself, and I think that given the nature of the application, we'd like to save that until the end of the proceeding. I understand that it's the Board's usual procedure that the applicant gets the last bite, and I think I'd like to ask that Mary Zupa be given that opportunity. Before that time t have a few remarks which I'd like to hold in abeyance and I'd like to ask Vic Zupa to address just one or two matters that came up in the submissions. I note that there were simultaneous submissions of the papers and there was not really an opportunity to respond to the matters that were contained therein. To the extent that any of those issues were raised before you before, we're net going to go into that; to the extent that there were new issues raised that needed to be addressed, and there are only one or two minor points, would ask Mr. Zupa to do that for the sake of completing the record. When he's finished I have a few remarks, and that's basically what we hope to accomplish here today, and then te ask you to COURT REPORTING AND TRANSCRIPTION SERVICE {631) 878-8047 128 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 close the hearing. CHAIRWOMAN TORTORA: We'd like to close the hearing today, we'd like, since there has been a tremendous amount of testimony entered into the record. I appreciate that you would like te be able to respond te any issues that have net been raised prior, I would like te say that both attorneys involved in this, we're net going te go into a skunk fight ever the next two months of you submitting papers and Hr. Angel submitting papers and likewise responding to Mr. Angel's papers and back and forth. End it today. MR. BRESSLER: We don't intend to de that, and we intend to limit our remarks strictly to the one or two items that we felt ran to issues of a factual nature. We're not going te rehash the legal arguments for you, you've got them. They're there and we're not going to burden your record, and also, ask that the Board entertain an application, that that apply -- I know you've asked that it apply to the lawyers, I ask that it apply since both sides have a lot of people here, to the extent that people have said things, they've been said, they're in the record. If there's something new or different, I guess -- CHAIRWOMAN TORTORA: If it's germane to the issue, if it's not, no. MR. BRESSLER: Absolutely germane to the issue. So with that being said I'd like Mr. Zupa te briefly address the one or two items that are of a factual nature that needed some sort of response and move forward from there. MR. ZUPA: Hadam Chairlady, this is Victor Zupa. The first item that I think we need t6 address is in the memorandums made by the association. They raise the argument with respect to the 1958 code, which states that a marina cannot be a permitted use in a residential district. But it really wasn't a marina they had, that it was done en the basis of a not-for-profit corporation and without compensation. That is absolutely not true. We have the association minutes dating from COURT REPORTING AND TRANSCRIPTION SERVICE (631) 878-8047 129 6 7 8 9 10 11 12 13 16 17 18 19 2O 21 22 23 24 2S to present; I didn't include all of 1961, 1961 up them, but I did include the first one, going through to 1978. According to Hr. Angel's memo the cut off point was the 1972 amendment showing that fees were, in fact, paid, compensation was, in fact, paid by people who rented decks in the basin. Se, if I may, I have six copies, one for Mr. Angel as well, see that that's put on the record. CHAIRWOMAN TORTORA: To the fees for association, membership fees or -- MR. ZUPA: The fees I'm talking about were not for association membership. They were solely for people renting the docks. Separately there was a dues that was paid and that is the same today. They charge dues and then if you want dock space, you pay a separate fee for that too. BOARD MEMBER HORNING: Members only dock space? MR. ZUPA: That's quite an interesting question, there are quite a few people who are not members who use the docks, but the people who regularly stay there and rent space are, in fact, members. So, if I may approach and submit this and put this into the record. As you can see from the start, you can quickly look through these papers and see that they are, in fact, association minutes that were maintained by the association, and the first one starts in 1961, and it shows boat dockage rentals as rendered and it has amount there. The second issue, I'd like to address, is something that I think it's important for the Board to know, the Members of the Board to know, and I think this really gives an indication by a third party outsider of what is really going on in this hearing and the opposition by members in the Paradise Point Association. It's a -- I have a memo, a 1996 memo written to Chancy Curry, who is the wife of one of the original developers, Lane Curry. Chancy Curry is recently deceased. It's a memo written to her by her attorney, Mr. John Ferguson, who is a partner in a British law firm, Blakely, Platt and Schlip, and I have his curriculum vitae. After the COURT REPORTING AND TPJ~NSCRIPTION SERVICE (631) 878-8047 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 4 5 1 2 3 130 failed Miller apPlication, Mr. Ferguson was called upon to make Some kind of analysis as to what they could do with respect to the three remaining lots that the group of four -- so called -_ still held on Paradise Point and that was set off by the 1981 resolution, which I've already __ which we have indicated in the papers we already submitted. Mr. Ferguson went to Paradise Point and interviewed Mr. Scalia, Robert Scalia. He interviewed Mr. $oyd and he interviewed Mr. Sonic, and he reports on the contents of these Statements with them and makes, at the end makes a recommendation to Chancy Curry, and by the way, I have only within the last two weeks received permission from both Mr. Ferguson and his client to disclose the contents of this memo. I did call him. I spoke to him on Several occasions in the past two Weeks and confirmed that he wrote this memo and that he gave it to Chancy Curry. So, if I may just briefly quote from this memo with respect to Mr. Ferguson,s trip to Southold to Paradise Point he states: "In Southold I met for two hours with Bob Scalia, a local realtor and son of John Scalia, an original developer of the property. In two further hours with Messers Boyd and John Senic,,, he continues, "according to Ed Boyd, Esq., all lots are legal building lots. At the time of Miller,s application, Boyd had Secured the verbal Support of the association board only to be torpedoed at the board meeting by attacks of independent property OWners who SUCceeded in defeating the application.,, Mr. Ferguson further reports on what has been told by Mr. Scalia. He states, "Scalia believes that if a package deal were proposed, to the Paradise Point Association, that the association would approve and support the project and result in eliminating the need for any future apPlications.,, He goes on, "Mr. Boyd observed that if Scalia had the listings on these properties, they would probably sell. As you may recall, I went to grammar school with Bob Scalia; as kids we Were neighbors and friends. However, until COURT REPORTING AND TRANSCRIPTION SERVICE (631) 878-8047 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 131 last Friday, I haven't seen him in 43 Fears. As an outsider, I don't carry the baggage and animosity of the current protagonists of either side." Then he concludes, "The wild card to the sale and development of lot 16.7" -- that's the lot which is subject to this hearing -- "is the next door neighbor, who obviously likes the status quo and Helen Albieri, another property owner, who thinks she has rights which she clearly does not. Scalia is also reported to be the power behind the thrown, a la a local Machiavelli." CHAIRWOMAN TORTORA: I find a lot of this is very personal. I find it has really nothing to do with the variance request at hand. If you would like to submit it for the record, fine. There's no showing of relevance. I made it very clear to Mr. Bressler, I've made it very clear to the attorney for the opposition, we're not going to carry on a neighborhood dispute of personalities, who said what, who didn't say what, letters from ten years ago. I said he would do this. This is nonsense. This is a quasi-judicial board. We're trying to have hearings we're not trying to have a cat fight among neighbors. Let's cut it right here and now act like adults and run this court as a court. Period. MR. ZUPA: You're preaching to the choir. I agree with it one hundred percent. CHAIRWOMAN TORTORA: I asked at the beginning, I will say it again, next time it will be out of order. MR. ZUPA: Okay. If I may. CHAIRWOMAN TORTORA: Conclude, quickly. give advice. MR. ZUPA: If I can -- he did CHAIRWOMAN TORTORA: Do you want to submit it into the'~record, we will consider it? MR. ZUPA: Okay. Also attached is the curriculum vitae of Mr. Ferguson. CHAIRWOMAN TORTORA: Thank you. Do you have a copy, Mr. Angel? MR. ANGEL: Thank you. COURT REPORTING AND TRANSCRIPTION SERVICE (631) 878-8047 132 2 3 4 5 6 7 8 9 10 11 12 13 ) 14 15 16 17 18 20 21 22 23 24 28 CHAIRWOMAN TORTORA: Would anybody else like to speak in favor or against this application? CHAIRWOHAN TORTORA: Mr. Bressler. HR. BRESSLER: Thank you. Reserving for the end the applicant. I couldn't agree with you more, Madam Chairwoman. This is on its face a relatively simple application. Mary Zupa wants te build a house ena let; that's what this is all about. There's almost 80,000 square feet there. She has a trustee's permit, health department approval, it's in a residential neighborhood. If you've been down there, you know it's a real nice place for a house. Those are the issues before the Beard. Is it appropriate for a house to be down there? The legal issues are: Is it a building let. I think the evidence before you plainly shows that it's a building let. Lot 17 across the way has a house going up created at the same time. Does the fact that the group of four who owned it, out of consideration for the neighbors, gave them an easement to put a dock there, destroy their ability to build a house? I don't think so. He's here before you, he doesn't want -- she does not want a variance from any of the area requirements in the code. She doesn't want anything. It's set back far enough. It meets all the requirements. This place is suitable for a house. Whatever other disputes the parties may have, prescriptive easements er anything either properly or improperly remains to be seen before the courts. What's before you are those narrow issues. That's all I've got to say today. I hope you close the hearing today after hearing from Hary Zupa and render a decision. CHAIRWOMAN TORTORA: Is there anyone who would like to speak against this application? MR.- ANGEL: Briefly. Stephen Angel, Esseks, Hefter and Angel for Paradise Point Association. There was one little aspect that I COURT REPORTING AND TRANSCRIPTION SERVICE (631) 878-8047 133 2 3 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 didn't prepare for, and i'd like to have Hr. Scalia just step up and talk a little bit about the nature of the way the boat basin was operated since that issue has now materialized. It will only take a minute. CHAIRWOMAN TORTORA: Is that the issue of the fees? MR. ANGEL: Fees, right. CHAIRWOMAN TORTORA: And solely the issues of the fees? MR. ANGEL: Right. Effectively I think he's going to -- I mean I haven't prepared him, I was just hoping, I talked to him for a second -- but I believe he'll say that it wasn't a profit-making enterprise, that the fees were established for purposes of defraying costs. Mr. Scalia, then I'll be a minute or two. MR. SCALIA: Robert Scalia, 4550 Paradise Point Road, Southold. Mr. Angel has essentially said it. Over the years we have only charged dues for membership and charged boat fees to offset the cost of dredging, maintaining the docks, maintaining the bulkheads; it's never been a profit-making basis and that's all it's been for. For a period of time we accumulated enough money, we charged ourselves extra so we'd be able to repair the box jetty, which we did about a year ago. But otherwise, the fees are only collected to -- I have no idea what Mr. Zupa's referring to about outsiders having boats at the dock. We don't have outsiders, in fact, he did last year. He had the prior owners' boat at this dock for a year. CHAIRWOMAN TORTORA: Not relevant. MR. SCALIA: That was essentially it. CHAIRWOMAN TORTORA: Mr. Angel? MR. ANGEL: I'll start out with just a minor correction, and in the large submission that was prepared by Mr. Bressler's office, the one with the cover, on Page 8, Part 3, it refers to erroneous statements made by me in an October 29, 2002 memo. I didn't generate an October 29, 2002 memo; that's a COURT REPORTING AND TRANSCRIPTION SERVICE (631) 878-8047 10 11 12 13 15 16 17 18 19 20 21 22 23 24 25 2 3 4 5 6 7 8 9 clear mistake. The memo was generated by Mr. Verity, and that's what was quoted. I was thinking, and looking at it, and I think it refers to Mr. Verity's memo, copies of which are all over the record. Secondly, I think I just want to summarize quickly, and I think basically our argument is set forth in detail in the memorandum that I submitted, and what we have before you is that an application's being made that conflicts with a whole bunch of amenities that have been enjoyed by this community over the years. There is either, however you describe it, whether it's a marina or private marina or boat basin, people have parked their boats in that lagoon next to the property. People from all different lots in Paradise Point. People have parked near to that marina. If you look at aerial photographs, and look at some of the discussion on the planning board file, people have turned around on this lot in some fashion. So they're not stuck in the middle of the subdivision. What we have here is an application that is diametrically opposed to those amenities and it wants to terminate those amenities without consideration, and I think it's inappropriate. I think the current application as it stands doesn't consider these important factors that are well established by the documentation. I want to point out some of the circular -- we get to the other, the legal issues. The issue of the community amenities, does rise to a legal issue in many circumstances, but we get back to that fundamental legal issue that I discussed when I first came here -- the one that, as I said in the minutes, you're probably tired of hearing me say -- the collateral estoppel erasure preclusion issue. There is also a memorandum by Mr. Bressler on that issue, and Mr. Bressler attempts to get around the erasure preclusion question at least in so far as the prior findings of this Board is concerned, concerning the private marina, by saying, well, you know, we don't have a problem with COURT REPORTING AND TRANSCRIPTION SERVICE (631) 878-8047 135 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that because we're disregarding the marina. What I wanted to point out to you is the circularity of that argument. What he's saying to you is that we can get around your prior determination regarding the marina in the 1995 determination by saying the marina shouldn't exist; therefore there's no collateral estoppel erasure preclusion, but it requires you to alter that 1995 determination which says the marina does exist. So the argument saying that you should disregard it, effectively asks you to terminate it. It effects you to rewrite the decision that was made in 1995; which I've said from day one, I don't think you have the authority, I don't think it's appropriate for you to do it. I'd be pleased to answer any questions. I don't want to belabor the record as you have said you have a ton of stuff to look at. If you have any questions, ask me. Thank you. CHAIRWOMAN TORTORA: Anyone else who would like to speak in favor or against the application? Mr. Miller? MR. MILLER: My name's James Miller. I live on Paradise Point Road in Southold, and certainly much of the conversation that's gone on here is about a prior decision that was rendered by this Board earlier on when I filed an application as a contract vendee to purchase and build a home on this site. I was certainly confused as we proceeded through the negotiations we met with members of the Paradise Point Association. We conceded all kinds of arrangements to make parking, to make docking, to acknowledge the fact that the marina use existed, and at the last minute when we came before the Board, we were sandbagged; we were sucker-punched, and a whole bunch of other things took place. And a decision came from this Board that was inconceivable: An adjoining neighbor to Paradise Point Association, who owned nothing, but only had a right of way across the property, would rule an unpermitted existence, they've never gotten permits from the COURT REPORTING AND TRANSCRIPTION SERVICE (631) 878-8047 2 3 4 5 6 7 8 9 10 11 12 13 } 16 57 18 2O 21 22 23 24 25 trustees, from DEC from any regulatory agency. Their existence was there just because they were members of the community and a wink and a blink allowed it. But for them te go en new and steal a piece ef real estate that they never paid for, they never had a right for, it's really bad government. It really hurts this Board te go forward. The Zupas are a nice family, they deserve a building permit. I urge you please, veto in their favor and give them a right to build a beautiful home. CHAIRWOHAN TORTORA: Anyone else who would like to speak in favor or against? HS. KOLZER: Andrea Kelzer. Pat Curcuru, she doesn't like to speak in public, but she wanted te say that she lives in the dead end right where the fence is. She has a circular driveway and all the traffic now has to back up into her driveway. It's very disruptive, unsafe; her and her husband feel like, you know, walking in the driveway can sometimes get chaotic, and the Pod Ex and the recyclable person, and some others now are backing down the road. This is a very, very, quiet and peaceful neighborhood, believe it or not. You can hear a pin drop at any given time, and to have to be worried about letting your kids not walk that road because people are backing down big trucks that could possibly have major blind spots. It's terrible. It's a complete loss of freedom, and we need safety down at the end of that read, and they're very disturbed. I rent subcompact cars, and I can barely turn around. I have te go into her driveway, I'm sorry te say. It's a real problem. The dead end issue, please consider that and deny the application. Thank you. HS. KOWALSKI: Any speakers jot your name. HS. CURCURU: I do have one concern. Excavation needed for the swimming pool and the home, I'm concerned because of the fragile nature of the territory that it might have an effect on the water table and permit incursion of saltwater into the water table and have an adverse effect on my well. COURT REPORTING AND TRANSCRIPTION SERVICE (631) 878-8047 137 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I'm submitting it as a concern. CHAIRWOMAN TORTORA: Thank you very much. Is there anybody else who would like to speak in favor er against the application? Yes, ma'am. HS. ALBERI PINKER: My name's Mary Alberi Pinker, 4345 Paradise Point Read. And as to my rights, our house has covenants and restrictions attached te the deed, and those covenants and restrictions attached te our deed, which I have always understood to he a legally binding document, give us access to the marina, they give us access te Paradise Point, they give us access te the yacht club, although the gang ef four has persistently harassed us every time we have tried te use our rights down on the beach at Paradise Point, and I don't understand this. Quite frankly, I think the scam is if they take this turnaround away, there's another turn around right up en Paradise Point, they have posted signs up there saying no trespassing. My brother was down there just the other night, John Senic's wife came down with his dogs, two big french poodles. We have the right te walk there. I'm sorry if I'm sort of deflecting things here. But these are not imaginary rights. CHAIRWONLAN TORTORA: Yes, those rights are properly before the Supreme Court, they are net before this Board, and unfortunately, er fortunately, this Board cannot at this time entertain these. HS. ALBERI PINKER: I just wanted you to know that we're not trying to pull one over on you. CHAIRWOMAN TORTORA: I understand, but I cut Mr. Zupa elf and -- MS. ALBERI PINKER: That's okay. CHAIRWOMAN TORTORO: Is there anybody else who would like to speak in favor or against the application? MR. KLEIN: Mark Klein from 3595 Paradise Point Road. Just want to address one thing that Mr. Bressler said, which was that both COURT REPORTING AND TRANSCRIPTION SERVICE (631) 878-8047 2 3 4 8 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sides have a lot of people here. Clarify the number of people here on both sides, we actually have people from the Paradise Point Association, and as far as I can tell, there might be a couple of families there. Families and numbers aren't necessarily equal. And I just wanted to say one thing, which is in terms of the turnaround, which is a fairly big deal, when we first bought our property three years ago, we basically bought it with the understanding that we could use the marina and we have two kids. The idea was we could actually go there. Once they actually put in the mail box stands and the fence, I don't feel like it's safe for my kids to go there anymore and it's a real loss. CHAIRWOMAN TORTORA: Thank you. Anyone else like to speak in favor or against the application? Yes, ma'am. MS. BARR: I live at 200 Basin Road. CHAIRWOMAN TORTORA: Your name, please? MS. BARR: Doreen Barr. MS. KOWALSKI: I didn't get your name. Please jot down your name. MS. BARR: Doreen Bart. Anyway, I just want to support the fact that Basin Road has become a little bit more dangerous now since the turnaround is gone at the end of the road for the kids. And I have, you know, a ten year old, because of the trucks that have to back down the length of the road and that has become a real issue this summer. CHAIRWOMAN TORTORA: Someone else, anyone else who would like to speak in favor or against this application? MS. ALBERI: I'm Helen Alberi. 4345 Paradise Point Road. CHAIRWOMAN TORTORA: Alveri? MS. ALBERI: A-L-B-E-R-I. CHAIRWOMAN TORTORA: Thank you. MS. ALBERI: I find as I go through Southold, no matter where you go, if there is a dead end, that regardless of whether it's the dead end of a farm or a meadow or anything like that, you have to have COURT REPORTING AND TRANSCRIPTION SERVICE (631) 878-8047 139 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 a turnaround, and I just don't understand why this is net a fact te all these people in this room; that you cannot close off a turnaround. Is that logical? CHAIRWOHAN TORTORA: As I said before, I believe the issue of the turnaround and the prescriptive easement is before Judge Cattersen at this time. That's all I can say at this time. MS. ALBERI: Se as a result if you had it all over Southeld or where ever else in this world and you have a dead end, you have te have a turn around. Thank you. CHAIRWOMAN TORTORA: Thank you very much, ma'am. Is there anyone else? MR. COLLIER: Hy name is Steve Collier, and I reside also at 4380 Paradise Point Read. I just want to comment again with a reminder, that the posture and position ef the members ef the association throughout this process has been, we believe, a defensive posture; that this entire set ef controversy is not anything that anyone in the association was looking to be involved with, but rather, we have felt throughout the process, and I think I speak for everyone, that we continue feel that we strictly are in a mode of attempting to conserve and preserve rights that have been enjoyed for many decades. And I won't go into anything, I think the record will reflect, it does reflect through the submissions the strength of what we believe to be the legal arguments, in support of these propositions, that we have these rights. As I mentioned in one of the past hearings, we think the courts did the proper juridical bodies to decide ultimately who has the legal rights that we're asserting we have. We think they will come out in our favor. But again, procedurally I just want to remind the members that from the standpoint of the association, apart from emotions that have sometimes developed in expressions of positions, that we believe is that we have been strictly in a position of defensiveness here, that we're not looking for any of these controversies; and that, in fact, we do profoundly believe that there are fundamental COURT REPORTING A_ND TRANSCRIPTION SERVICE (631) 878-8047 ~4 0 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and long term rights that have been threatened here. And I guess I would only cite one of the latest submissions from the applicant, which states I believe quite clearly that the changed circumstances that is pointing to as existing between now, looking back to the '95 proceeding, is the fact that the basin usage for boats -- whether I'm using the terminology of basin use or boat use or what have you - is fundamentally being proposed to be eliminated. And that that elimination entirely based on usage appears to be an expressed cornerstone of what is cited as a new application; and that seems in our mind to very much underscore the position we find ourselves in, which is clearly that we have no choice to preserve these rights than to speak out. Thank you very much. CHAIRWOMAN TORTORA: Is there anyone else, Mrs. Zupa? MRS. ZUPA: Members of the ZBA, I am Mary Zupa, and I am the applicant. I live at 365 Basin Road, Southold. Almost all of the comments that have been made here by members of Paradise Point Association, such as Mr. Scalia, Mrs. Alberi and her daughter, Miss Pinker, are not related to zoning issues. They are personal. They are personal and they're based on fabrication. While comments such as these are not proper before this Board, they have been placed on the record. Therefore, I must respond to them. I have been coming to Southold since 1947. That's 56 years. My parents and other relatives are buried in St. Patrick's Cemetery. When we purchased our home on Basin Road in 1998, we moved from Washington, D.C., not from New York City as Mr. Scalia has stated. We have a home still in New Canaan, Connecticut. In January 2001, we decided to purchase land to build a year round home. It was neither a long range nor sinister plan as Mr. Scatia has stated. The lot we purchased adjacent to our present home was offered to us for sale by the owners since they knew we were actively looking for a home site. COURT REPORTING AND TR~LNSCRIPTION SERVICE (631) 878-8047 141 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 disgrace and now. over. Mr. Scalia told you we never paid our dues. That is not true. Up to 2001, we were members ef the Paradise Point Association. We paid both a dock fee for our own dock and dues. Hy husband was a member of the beard ef directors. Indeed, he was head of the basin and en three ether committees. He's had several responsibilities including that of dredging the basin. He was commended several times for the work he had done. While it did net make sense, we paid a deck fee even though we had just paid to build our own dock and a new bulkhead. We also paid for our own water and our own electricity. The then president, Mr. Curcuru, stated that the association had always collected fees for its docks since 1962. When we discovered our dues and dock fees were being used for legal fees against us, we dropped our membership. Mr. Alberi stated that we have attempted te have Mrs. Alberi, an 80 year old woman arrested. That is net true, when she and her daughter, Miss Pinker tore down signs -- CHAIRWOMAN TORTORA: This hearing is concluded. Mr. Bressler, I warned you. I told you I would allow Mrs. Zupa to give closing arguments because she's the applicant, but to respond te the personal innuendos that have gone on this hearing, this is a disgrace. MRS. ZUPA: May I? CHAIRWOMAN TORTORA: And it is a all the way across, and it stops here I told you before. The hearing is MR. BRESSLER: I think that the applicant, who has not been heard from during any of these proceedings -- CHAIRWOMAN TORTORA: The applicant has and we are simply carrying on name-calling. MR. BRESSLER: There was an allegation made, and there is nothing in the record to address these allegations. She has remained silent for months, and are you going to deny her the opportunity to say, no, it COURT REPORTING ~kND TRANSCRIPTION SERVICE (631) 878-8047 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 didn't happen? BOARD MEMBER HORNING: Accept it in writing. CHAIRWOMAN TORTORA: We will accept it in writing, Mr. Bressler, but we have gene on and eh. I have never witnessed such nonsense. MRS. ZUPA: May I make a comment? MR. BRESSLER: This is the applicant. CHAIRWOMAN TORTORO: This is the applicant and then Mr. So and So is going te say I would like te respond to this. HR. BRESSLER: No. MRS. ZUPA: May I make a comment? CHAIRWOMAN TORTORA: This has nothing to do with the variance. MRS. ZUPA: Ail right. New I will make a comment, please. I've been coming here a long time. I grew up here with a very large family. We have many, many people in the community that are -- that stayed out here, married out here. I don't want, 50 years from now, my grandchildren looking through these files, seeing what these people have said about myself and my husband that are not true. don't want that to be a historical fact, not placed on the record. What they have said, Hrs. Tortora, has gone te the core of my family, which is why I requested that my three sisters and brothers-in-law be with me today. It is so painful and so untrue. If I don't put it on the record, if I am not able to state -- CHAIRWOMAN TORTORA: Can you submit it te us in writing? We will be more than happy to take it in the record. MRS. ZUPA: You will put it exactly in this hearing as I would have stated it? BOARD MEMBER HORNING: Yes. MRS. ZUPA: The way everything Bob S~alia said about me, everything Kevin Barr said about me, even the Colliers? Everything these people have said about me will be printed in the record as my response? CHAIRWOMAN TORTORA: Things have COURT REPORTING AND TRANSCRIPTION SERVICE (631) 878-8047 ]43 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 been said about these people as well. MRS. ZUPA: However, they have had the opportunity and they have answered. CHAIRWOMAN TORTORA: Off the record. (Whereupon, there was an off-the record discussion.) CHAIRWOHAN TORTORA: The Board would like to accept it in writing, and it will be read into the transcript; is that sufficient? HRS. ZUPA: Thank you, Madam Chair. CHAIRWOMAN TORTORO: You have a prepared statement there. Would you like to turn that in now? MRS. ZUPA: Yes. CHAIRWOMPuN TORTORA: Okay, I am going to make a motion to close this hearing and reserve decision. BOARD MEMBER HORNING: Second. CHAIRWONh~N TORTORA: Ail in favor. (Whereupon, all Members of the Beard responded in favor.) CHAIRWOMAN TORTORA: This hearing is closed. The next hearing is on behalf of Caroline and Nicolo DiBartolo. Is someone here who would like te speak en behalf of that application? MR. DIBARTOLO: Yes, ma'am. CHAIRWOMAN TORTOP~A: Just a moment. MS. KOWALSKI: Just like to ask that everybody who speaks, please write your name and residence address on the pad. CHAIRWOMAN TORTORA: Mr. DiBartolo, I would like to make a couple of comments. The Board had requested that we reopen this hearing to be able to clarify the issues that were raised at the public hearing concerning the safety and adequacy of the bridge, and to insure that it was constructed in a manner that would safely accommodate fire trucks. I see that you did provide us with an engineer's report. We should get a copy of the engineer's report certifying that the bridge would carry -- and before I read it, I'm going to, I was just looking for the COURT REPORTING AND TP~ANSCRtPTION SERVICE (631) 878-8047 I am Mary Zupa, and I am the applicant. I live at 365 Basin Road in Southold. Almost all of the comments that have been made here by members of the Paradise Point Association such as Mr. Scalia, Mrs. Alberi and her daughter, Ms. Pinker, are not related to zoning issues. They are personal. They are personal, and based on fabrication. While comments such as these are not proper before this Board they have been placed on the record. Therefore, I must respond with the truth. I have been coming to Southold since 1947; that's 56 years. My parents and other relatives are buried in Saint Patrick's Cemetery. When we purchased our own home on Basin Road in 1998, we moved from Washington D.C. not from New York City as Mr. Scalia has stated. We still have a home in New Canaan, Conn. In January, 2001, we decided to purchase land to build a year round home. It was neither a long range nor a sinister plan as Mr. Scalia has stated. The lot we purchased adjacent to our present home was offered to us for sale by the owners since they knew we were actively looking for a homesite. Mr. Scalia told you we never paid our dues. That is not true. Up to 2001 we were members of the Paradise Point Association. We paid both a dock fee for our own dock, and dues. My husband was a member of the Board of Directors. Indeed he was head of the Basin committee and on 3 other committees. He had several responsibilities including that of dredging the Basin. He was commended several times for the work he had done. While it did not make sense, we paid a dock fee even though we just paid to build our own dock and new buikhead. We also pay for our own water and electricity. The president of the Association, Mr. Curcuru, stated to us that the Association had always collected fees for its docks since 1962. When we discovered our dues and dock fees were being used for legal fees against us, we dropped our membership. Mr. Alberi said we attempted to have Mrs. Alberi, an 80 year old woman, arrested. That is not true. When she and her daughter, Ms. Pinker, tore our signs down on more than one occasion, we called the police to have them speak to the Alberis. Are we supposed to tolerate members tearing down our signs? Are we supposed to tolerate them walking on the non-easement area to show us they have a right to? The Paradise Point Association has an easement to use a small strip of my land to gain access to docks. I have always honored that easement. 1 Since I would not give them a portion of my property, they have come up with a claim of a prescriptive easement across my property. Their own written statements prove the opposite. More importantly, my title insurance company doesn't agree with them. The Association's opposition to my application, and the meritless lawsuit it filed, are artificial. They are designed to intimidate and manipulate us and others into getting what they cannot get legally. From the beginning they told me they were not really interested in the prescriptive easement, the turnaround or the jetty .... they just wanted a deed to half my land. Common sense would dictate that there would be no need for a deeded easement along the lot if the Association has a prescriptive easement. Common sense would dictate that they would not have requested permission from the owners to use the driveway if they had a prescriptive easement. The Association is on record before the ZBA and the Trustees admitting it owns nothing on my property. Mr. and Mrs. Frohn and Mr. and Mrs. Barr, in the letters to you state that there is no room for a home to be built on my property. They give no explanation as to why this 1.7 acre vacant lot has no room. How is it that I meet all setback requirements? How is it I have an approved site plan --- full permits from the Trustees--- full permits from the DEC--- and full permits from the Health Dept? These permits were not obtained by "bullying" as Scalia and Alberi have stated. Again, they give no explanation as to what they mean. We applied for and received the permits without resort to political influence, without resort to leaking stories to the local newspaper, and without resort to intimidation by mob gatherings. The Association's claims of a prescriptive easement and ownership of the Jetty have not prevented us from obtaining the permits. Now I am before you with the complete facts and all the information for you to rule that the Building Department has incorrectly applied the 1995 Miller decision to my application. The Millers sought a setback variance. My application does not. Mr. Keitt and the Kleins wrote of their concern regarding a negative impact to building on my property. I remind you that the DEC and the Trustees, along with Cornell, did a thorough job and feel the work we will be doing, both on the Bay and on the Basin will protect the environment and prevent erosion. The Association has allowed erosion to continue since 1989 when the easement was granted to them. Also, the Town hired an environmental lawyer, Matt Atkinson, who worked on issuing the full trustee permit. It only took 10 days after months of hearings. Mr. Criblez writes to you that his homeowners rights are being violated. I answer that the Association has a deeded easement across the property that we have 2 never interfered with. We have a transcript where Mr. Criblez states that the Association owns no property on Lot 1 ---it just has a deeded easement. I collect no tax money or maintenance charges for the use of the easement. Mr, DeLuca wrote to you that he was told he could put a boat in the Basin when he bought his property. The real estate broker was not informed correctly since it is not in his deed. No one has in their deed a grant of a right to the Basin or my property. The only grant of a right --other than the property their house sits on-- is a right of way over the roads to their home. Covenants and restrictions that exist on an ad hoc basis on properties on the west side (or Basin side) of PP Road --and that were part of the 1963 subdivision map-- impose obligations. They do not grant rights. Any reliance on them for rights to the Basin or my property-- or anything else-- is misplaced. According to the Paradise Point records my lot has been for sale for over 20 years. The owners were close to selling it four times since 1981. Why didn't the PP Association buy it ? The answer is clear--they want to use it free!!! They pay no taxes. They pay no maintenance. The Association never thought anyone would purchase it so the Association didn't have to. In the past, they succeeded in preventing a number of sales through intimidation. Now I own it and put up a temporary fence to mark the easement. The easement on the Basin side is presently marked with a yellow rope. I want no one to cross under the rope as I have seen Mr. Barr and others do. I want no one to trespass as Mr. Alberi, both Kolyers, and even Attorney Steve Angel, have done. I don't want the responsibility of someone being hurt on my property. Yes, part of the easement along the shoreline has eroded. However the erosion has never interfered with access to the boats. When Mr. Keitt, a member, stated in a letter, as Mr. Kolyer has done orally, that we declined the good-faith efforts of the Association to resolve our issues--- I was astonished!!!! Nothing could be further from the truth. 3 In June 2002, we put forth a proposal for maintenance of the docks and the Basin at the Association meeting. That was reiected. In July 2002, we told Mr. Barr, the then president, that we were wiling to enter into a binding agreement to give the Association assurance of our support for the Association docks. That was reiected. In March 2003, after they sued me, my husband wanted to avoid the situation we, and the community, have been forced to endure the last few months. Judge Catterson had made extraordinary efforts over a number of weeks to achieve a settlement. Judge Catterson also had asked that Association members not ~ oppose my application as they have done in this hearing. So, my husband accepted Judge Catterson's proposal to give the Association a piece of my property. Even that was reiected. On March 14 in 2003 the president of the Association Mr. Barr, sent out a letter asking the members what they thought of the settlement proposed. Two days earlier, on March 12, 2003, the Association attorney Mr. Speiss had already told Judge Catterson the Association rejected it! Officers, such as the vice president and secretary of the Association were not even contacted as to their opinions. I know because I have the transcript of the court hearing of March 12 when Spiess rejected Judge Catterson's proposal, and the March 14 letter Mr. Barr sent to the members two days later asking what they thought of it. The PP Association's position is precisely stated in an Alberi letter. This letter was placed in the Board's file. Alberi writes: "1 am opposed to any settlement excepting that the Zupa's accept fully the position of the Paradise Point Association." Mr. Scalia states we ruined "the winter view" of an 80 year old woman. He didn't tell you the whole story. Mrs. Alberi had a row of evergreen trees cut down along our property line. That was the only screening we had for privacy. We replanted new ones. Mrs. Alberi told Bob Jenkins of Doroski's to tell the Zupas she was going to cut them also. We paid an extra $800 to have the trees moved forward so that we could install a $2000 fence to protect the trees. The truth is Mrs. Alberi forced us into protecting what is legally ours. This is exactly the situation we find ourselves in again. The Paradise Point Association wants something they have no right to---they want it free. They will not get it--- not now, not ever. 4 In 1995, the chairman of this ZBA asked Mr. Cooper, is it true that "as long as that easement is held in perpetuity, everything else is ok?" Mr. Cooper stated "our [meaning the Association] interests are totally accommodated as far as we are concerned." Now In 2003, Mr. Cooper writes two letters to you in direct opposite to his 1995 statements. A few other issues that were mentioned in the member statements to you need to be explained. 1. The safety light pole that Mr. Scalia says the Association maintains is not only illegally placed in the wetlands but has also been sited by the electrical inspector as an electrical hazard. 2. The letters that have been written to you say that last August all members of the Association voted to oppose me from building a home. That is not true. The resolution does not say that. The members thought they were voting to protect the docks, and not all members voted. 3. Scalia states that, "...boats this year cannot enter or leave the basin at Iow tide." I have seen Scalia do both last month. We would be here another hour if I were to respond to all the untruthful statements that have been made. We would be here several hours if I were to tell you what has gone on in PP. Long before we lived here arguments among neighbors and disharmony in the community existed. The Association has a reputation. Even now members are not paying the legal fees because they feel they are not being represented for what they thought they voted for. Just ask anybody in this Town about the lack of fellowship in this community that existed for years. This is my land. I plan to build a beautiful home on it. I will leave, the cashing in on property, as Ms. Pinker suggested we were going to do, to those who will be moving out of Paradise Point in the next few years. Mr. Alberi states that 'as lawyers' in reference to me and my husband. I am not an attorney. I am a retired YMCA Director. Mr. Scalia and Ms. Pinker,~ll~ have led the effort to sue me on fictitious claims, and accuse us of misusing the law. Again without explanation. I ask the members of the ZBA: "is making application and receiving permits misusing the law?" Please, you now have all the facts. The law and the facts lead to one conclusion only. Allow me to proceed to the building deptand obtain my building permit. Thank you. 5 R A. COOPER POINT ROAD,, SOUTHOLD, NEW YORK 11971 March 19, 2003 Southold Town Board of Appeals 53095 Main Road Southold, NY 11971 Dear Board of Appeals: I have been a resident of Paradise Point and a member of the Paradise Point Association since 1994. I am opposed to the granting of a variance to Mary Zupa, #5266. Constructing the proposed house would eliminate a road through the lot which has been there for many decades and which I have used regularly to get to the jetty at the entrance to the channel leading to our boat basin. In addition, the development of the lot as proposed would hinder our use of the docks in the basin where I keep my boat and would make it more difficult to park. Please deny the variance. Respectfully, July 22, 2003 Lydia Tortora, Chairwoman Board of Appeals Town of Southold 53095 Main Street P.O. Box 1179 Southold, N. Y. 11971 Re: Zupa Application Dear Ms. Tortora: We reside at 4700 Paradise Point Road in Southold and we continue to vigorously support the actions of the Paradise Point Association to protect our property interest including our docks, jetties, deeded easements and prescriptive easements. Anything that interferes with boating and basin life in Paradise Point would be detrimental to the community. Yours truly, Joan and Fred Frohne cc: Andrea Kolyer President Paradise Point Association -ICTOR J. ZUPA ATTO~tNEY AT LAW 4565 PARADISE POITTI' ROAD SOUTHOLD, NEW YORK 11971 vzupa~optonline.net 'I~'~T.~HONE (631) 765-6112 FACSDVr'Fr,'F- (631) 765-6119 July 18, 2003 Lydia Tortora, Chairperson Southold Zoning Board of Appeals 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 Re: Application of Mary S. Zupa 580 Basin Road (SCTM 1000.81.1.16.7) Dear Chairlady Tortora: Delivered to the Board today are seven counterparts of two memos relating to the issues of lot recognition and res judicata. Please note that I personally delivered to Mr. Angel today a copy of each of above referenced memos. Very Truly Yours, 06/05/05 THU 02:~2 F~ 51~ 705 $outhold Town Accountin~ .... --- .-- . ~' F~raond I-L Curcum Box 771, Paradls~ Point Southold, New York 11971 0~; JUN - 5 2_003 ~?4_j~IG___~_OA~D O~ APPEALS VICTOR J. ZUPA ATTORNEY AT LAW 4565 PARADISE POINT ROAD SOUTHOI~, NEW YORK 11971 vzupa~,concentric, net TELEPHONE (631) 76S.6112 FACSIMILE (631) 765-6119 HAND DELIVERY June 4,2003 Members, Southold Zoning Board of Appeals 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 Re: Application of Mary S. Zupa 580 Basin Road (SCTM 1000.81.1.16.7) Dear Member: Attached is the motion of Mary S. Zupa to dismiss the entire complaint of the Paradise Point Association in its action against her. Very Tr_uly Yours, DISTRIBUTION: Lydia Tortora, Chairperson Gerard Goehringer Ruth Oliva George Homing Vincent Orlando ZBA office file Cc wo/encl: Eric Bressler, Esq. Catherine Mesiano SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK PARADISE POINT ASSOCIATION, INC., Plaintiff, Index No. 02-22401 Hon. James M. Catterson -against- NOTICE OF MOTION TO DISMISS AMENDED COMPLAINT MARY S. ZUPA, Defendant. SIRS: PLEASE TAKE NOTICE that upon the annexed affidavit of Victor Zupa, sworn to March 31, 2003, the affidavit of Mary S. Zupa, sworn to March 31, 2003, and ail of the prior proceedings had herein, the undersigned will move this Court before Hon. James M. Catterson on May 15, 2003 at 9:30 a.m. or as soon thereafter as counsel can be heard at the Courthouse located at 235 GritTing Avenue, Riverbead, New York, 11901 for an Order pursuant to CPLR 3211 dismissing the Complaint on the grounds that the Complaint fails to state a cause of action, that a documentary defense exists, that a necessary party has not been joined and that Plaintiff lacks standing and for such other and further relief as this Court deems just and proper. PLEASE TAKE FURTHER NOTICE, that answering affidavits must be served at least seven (7) days prior to the return date. Dated: Mattituck, New York April 1, 2003 Yours, etc., WICKHAM, BRESSLER, GORDON & GEASA, P.C. 10315 Main Mattituck, New Yoi'k 11952 (631) 298-8353 TO: Clerk Suffolk County Supreme Court 235 Griffmg Avenue Riverhead, New York 11901 James Spiess, Esq. McNulty-Spiess Attomeys for Plaintiff 633 East Main Street P.O. Box 757 Riverhead, New York 119011 (631) 72%8200 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK PARADISE POINT ASSOCIATION, INC., Plaintiff(s), - against- MARY S. ZUPA,. Defendant(s). STATE OF NEW YORK ) ) SS.: COUNTY OF SUFFOLK ) Index No. 02-22401 AFFIDAVIT IN SUPPORT OF MOTION TO DISMISS COMPLAINT OR AL TERNA TIVEL Y FOR SUMMARY JUDGMENT VICTOR J. ZUPA, being duly sworn, deposes and says: 1. I am an attorney at law duly admitted and in good standing to practice law in the State of New York. I am also the defendant's husband. I make this affidavit in support of defendant's motion to dismiss these first, second and third causes of action in the Complaint pursuant to CPLR 321 l(a)(1)(7)(10) and for summary judgment under CPLR 321 l(c). I have knowledge of the facts stated herein by reason of my personal relationship with defendant and my representation of defendant in connection with the subject matter hereof until the institution of this action. PROCEDURAL HISTORY 2. This action was commenced by filing and service of a Summons and Complaint. Defendant moved to dismiss the Complaint and in response thereto, Plaintiff amended its incorporated herein as Exhibit "A". 3. The Amended Complaint asserts three causes of action: (a) two claims under RPAPL, Article 15 for determination of a claim to purported real property and (b) a claim for a prescriptive easement. The Article 15 claims seek determination of rights to (i) a deeded easement across defendant's property and (ii) a certain jetty extending from Defendant's property into Peconic Bay. The prescriptive easement claim seeks undefined rights across defendant's property. 4. Defendant now moves to dismiss the Amended Complaint under CPLR 3211 (a) on the grounds that the pleading fails to state a cause of action, that a documentary defense exists, and that a necessary party has not been joined. In the alternative, defendant moves for summary judgment under CPLR 321 l(c). For the reasons set forth herein and in the accompanying memorandum of law the motion should be granted. THE UNDERLYING FACTS AS TO THE FIRST CAUSE OF ACTION 5. Defendant and I reside at 365 Basin Road, Southold, New York. 365 Basin Road is adjacent to 580 Basin Road, Southold, New York. 580 Basin Road (hereinafter "Property") is owned by defendant and is the property which is the subject matter of this action. 6. Defendant came into title to the Property in April, 2002 by virtue of a deed dated April 5, 2002 (hereinafter "Property Deed"). A copy of the Property Deed is annexed hereto and incorporated herein as Exhibit "B". 7. The Property was surveyed by licensed land surveyor, Joseph A. Ingegno and is shown on a survey dated January 7, 2002 (hereinafter "Ingegno Survey"). A copy of the Ingegno Survey is annexed hereto and incorporated herein as Exhibit "C". 8. The Property is located in a portion of Southold known as Paradise Point, which lies at the southeast comer of the body of land known as the Hog's Neck. The property is shown on the Suffolk County Tax Map as #1000-81-1-16.7. A copy of the Suffolk County Tax Map is annexed hereto and incorporated herein as Exhibit "D". 9. As shown on Exhibit "D", the Property abuts a body of water known as the "Canal", which gives access to Southold Bay, a part of Peconic Bay. The waters of the Canal are tidal and navigable. The land underwater beneath the Canal is purportedly owned by the State of New York or the Trustees of the Town of Southold. 10. Plaintiff is the holder of a deeded easement over a portion of the Property in order to have access to the Canal. The easement is contained in a deed dated July 23, 1989 (hereinafter "Easement Deed"). A copy of the Easement Deed is annexed hereto and incorporated herein as Exhibit "E". 11. The Easement Deed contains a metes and bounds description of the easement. The southerly boundary of the easement is described to run along the shoreline of the Property i.e., the Canal. 12. The southerly boundary of the easement and the Property has changed over time due to erosion caused, in part, by the failure of Plaintiff to maintain bulkheads as provided in the Easement Deed. As a result, portions of the property subject to the easement are no longer extant, having fallen into the Canal. A series of surveys of the Property showing the location of the easement overtime demonstrates the loss of a portion of the property subject to the easement. Specifically, annexed hereto and incorporated herein as Exhibit "F 1-2" are surveys by licensed land surveyor, Roderick Van Tuyl, dated November 27, 1985 and March 3, 1995. A comparison of Exhibit "C" with Exhibit "F 1-2" shows the aforesaid losses and that a former portion of the Property and easement lies below the high water mark. 13. Defendant received by deed only that property described therein and which is shown on Exhibit "C" and no claim is made to any other property, including that which had therefore eroded into the Canal. Plaintiffhas admitted that a portion of the property subject to the Deeded Easement has eroded and no longer exists (See Exhibit J, infra). 14. At no time did Defendant or I claim or assert that Plaintiff's deeded easement over the Property to the extent now extant had terminated. At no time did Defendant or I interfere with the deeded easement over the Property. 15. Title to the land under the Canal is claimed by the State of New York, as appears from a letter from the New York State Land Surveyor, a copy annexed hereto and incorporated herein as Exhibit "G". THE UNDERLYING FACTS AS TO THE SECOND CAUSE OF ACTION 16. Prior to coming into title of the Property, I undertook on behalf of Defendant to obtain title insurance against, inter alia, any claims to prescriptive easements across the Property. 17. As a condition of obtaining such title insurance it was necessary to obtain from the owner of the Property affidavits as to the absence of prescriptive fights. Accordingly, I obtained affidavits from both John Sinning and Ed Boyd, principals of the corporate owner of the Property which negative the existence of any such easement. Copies of the affidavits are annexed hereto and incorporated herein as Exhibit "H". 18. Exhibit "H" reveals that any user of the Property was permissive only and that no prescriptive rights existed. The only access over the Property was via the Easement Deed easement. Messieurs Shnnlng and Boyd, in addition to being principals of the owner of the Property, were also residents of Paradisc Point and members of Plaintiff for more than 30 years. 19. In addition to being members of Plaintiff, Mr. Sinning was a former president and director of the Plaintiff and Mr. Boyd was a former director and attorney for the Plaintiff. Mr. Boyd prepared the Easement Deed. Interestingly Mr. Boyd is now treasurer and a director of Plaintiff. 20. In addition to Exhibit "H", Mr. Sinning also provided me with letters from past presidents of the Plaintiffand their agents asking for permission to pass over the Property. Copies of those letters are annexed hereto and incorporated herein as Exhibit 'T'. 21. Plaintiff has acknowledged before the Southold Board of Trustees. that it has no rights as to prescriptive use and that it needs consent to use Defendant's property other than in the Deeded Easement area. A copy of the minutes of the Trustees meeting held in 2000 in connection with an application to repair the jetty extending from the northwest comer of the Property. In the meeting the president of Plalntiffadmits that in order to obtain access over the claimed prescriptive easement, Plalntiffwould need permission. A copy of the minutes are annexed hereto and incorporated herein as Exhibit "J". The relevant portions of Exhibit "J" are underlined. THE UNDERLYING FACTS AS TO THE THIRD CAUSE OF ACTION 22. There exists a jetty which extends from the northwest comer of the property into the Peconic Bay which bounds one side of the entrance to the Canal and Basin. 23. This jetty was constructed at a time when the Property was owned by Paradise Point Corporation, Defendant's predecessor in title. The land underlying the jetty is, as pleaded in the Amended Complaint, under the water of Southold Bay (Peconic Bay), and is, therefore State lands. 24. No conveyance of State land can be made by virtue of a deed from a private party and the lands upon which tbe jetty is built remain State land. Tbe jetty is by its nature not real property, but rather, is personalty which exists upon State land by sufferance. No permits were even obtained for the eviction of the jetty on State land, except possibly the Army Corp of Engineers. BASIS FOR RELIEF AS TO FIRST CAUSE OF ACTION 25. There is no dispute between the parties as to the rights granted by the Easement Deed. Plaintiff's only conceivable dispute could be with the State of New York or Trustees of the Town of Southold who claims or may have an interest in the bottom oftbe Canal where a portion of the right of way now lies. 26. If Plaintiff seeks a declaration as to the entire easement area it must clearly join all those who may have an interest. This it has not done. 27. The Complaint on its face falls to comply with Article 15 oftbe RPAPL in that it fails to set forth Defendant's adverse interest and the particulars thereof, all as set forth in the accompanying memorandum of law. BA,q[q FOR REI,IEI* AS TO THE SECOND CAUSE OF ACTION 28. Plaintiff is attempting to assert prescriptive rights with respect to the Property "through the actions of its members". No assertion is made that Plaintiff itself adversely utilized the Property or that the individuals were acting on behaif of Plaintiff. As such, Plaintiff is asserting a right in a representative capacity and is not a proper plaintiff. 29. In addition, Plaintiff is conclusively estopped from asserting the second cause of action in that its representatives have admitted that no prescriptive rights exist. The requirement of adversity is conclusively negative, all as set forth in the accompanying memorandum of law. BASIS FOR RELIEF AS TO THE THIRD CAUSE OF ACTION 30. Plaintiff is attempting through the guise of RPAPL Article 15 to determine the title to personalty which rests upon the land of the sovereign by its sufferance. No title to State lands can be acquired by adverse possession. Article 15 is, therefore, an inappropriate remedy. 31. Assuming, arguendo, the existence and propriety of relief under Article 15, the State of New York is plainly a necessary part who has not been joined. CONCLUSION 32. The first, second and third causes of action cannot survive this motion to dismiss. The first cause of action fails to state a cause of action and fails to join necessary parties. The second cause of action fails to state a cause of action, is brought by an improper Plaintiff, and is barred by the documentary evidence. The third cause of action fails to state a cause of action and fails to join necessary parties. As a result, the motion to dismiss should be granted. WHEREFORE, it is respectfully requested that the motion to dismiss be granted. Dated: Mattituck, New York March ~'~, 2003 Sworn to before me this 3 { day of March, 2003 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK PARADISE POINT ASSOCIATION, INC., Plaintiff(s), MARY S. ZUPA, Defendant(s). STATE OF NEW YORK ) ) SS.: COUNTY OF SUFFOLK ) Index No. 02-22401 AFFIDAVIT IN SUPPORT OF MOTION TO DISMISS COMPLAINT OR ALTERNATIVELY FOR SUMMARY JUDGMENT MARY ZUPA, being duly sworn, deposes and says: 1. I am the Defendant herein and make this affidavit in support of the motion to dismiss. I have knowledge of the facts stated herein. 2. I have read the accompanying affidavit of Victor Zupa, my husband, and everything therein is tree to my knowledge. I have never taken any steps to interfere with Plaintiff's deeded easement (to the extent it exists over my property) and I know of no other easement across my property. 3. I purchased the property in reliance upon the representatives of the former owner, and members ofthe Plaintiff that no prescriptive easement existed. I am now astounded that the very same people have the temerity to institute this action. 4. The purpose of the action is plainly to destroy whatever value is in my property and prevent me fxom utilizing same as a building lot. Plaintiffhad ample opportunity to purchase the property but chose not to - rather, it is now attempting without paying the purchase price to have all the benefit and use of the property without the burden of ownership. This the Court should not permit. WHEREFORE, it is respectfully requested that the motion to dismiss be granted. Sw~n~ to before me this ~l''~'r Of March, 2003. AMY M. 8F.~SI. EY Y~ NOTARY PUBUC. Sram ~New No. 01 BE60397 Oualifled In Suff_~k Cmmt~. Commission E~pires F-em'uary,rt,, ~r~r~mm~ ~;OURT OF TI~,E STATE OF BlEW YORK COUNTY OF SUFFOLK SUMMONS MARY 8. ZUPA TO THE ABOVE NAMED DEFENDANTS: FILED AUG 2 0 2002 EDWARD P. ROMAINE YOU ~ HEI~RlrF $[r~fazoi~rF,~ to answer the Verified Complaint in ~)1)§ ~.~/)~)/til/] lO .~t//~OJ~'/~yOtlf Atiswer, or ii'the ~ompla/nt is not served with this Summons, to serve a Notice of Appearance on the Plaintiff's attorneys within twenty {20) days after the service of this Summons, exclusive of the day of service (or within th/try {30) days after the service is complete ff t.h/s Summons is not personally del/vered to you within the State of New York); and in case of your failure to appear or answer, jud/puent w/Il be taken against you by default fo[' the relief demanded in the Verified Complaint. Plaintiffs designate Suffolk County as the place of trial. Venue is based upon the County in wh/ch the PlaintifFs reside. Dated: Au2ust ~, 2002 Address of Defendants. Mary S. Zupa 4565 Paradise Point Road Southold, N.Y. 11971 McNULTY-SPIESS Attorneys for Raintiff 633 East Main Street P. O. Box 757 '. Riverhcad, New York 11901 (531) 727-8200 ·1 SUPREME COURT OF,THE STATE OF NEW YORK COUNTY OF SUFFOLK PARADISE POINT ASSOCIATION, INC. -against- MARY S. ZUPA Plaintiff, Defendant. AMENDED VERIFIED COMPLAINT INDEX NO. 02-22401 The Plaintiff, by its atWrneys, McNulty-Spiess, P.C. in complaining of the Defendant, alleges as follows: FIRST: At all times hereinafter mentioned, Plaintiff was and still is a domestic corporation duly organized and existing under the laws of the State of New York. SECOND: Upon information and belief, at all times hereinafter mentioned, the Defendant was and still is a resident of the County of Suffolk and State of New York. THIRD: At all times hereinafter mentioned, the Plaintiff was and still is a Not For Profit corporation which was organized as a homeowners association to provide for the care and maintenance of the common areas of the subdivision known as "Paradise Point= located at Bayview, Southold, New York. AS AND FOR A FIRST CAUSE OF ACTION FOURTH: This action is brought pursuant to Article 15 of the Real Property Actions and Proceedings Law of the State of New York to compel the dete~ ruination of claims to real property situate, lying and being in the Town of Southold, County of Suffolk, and State of New York known as 580 Basin Road, Southold, N.Y., identified by Suffolk County Tax Map No. 1000-81-1-16.7, (hereinafter referred to as the "burdened premises") which are more particularly described as follows: ALL THAT CERTAIN PLOT, PIECE OR PARCEL OF LAND, SITUATE, LYING AND BEING AT BAYVIEW IN THE TOWN OF SOUTHOLD, COUNTY OF SUFFOLK AND STATE OF NEW YORK, BEING BOUNDED AND DESCRIBED AS FOLLOWS: BEGINNING AT A PIPE SET IN THE NORTHERLY SIDE OF BASIN ROAD WHERE THE WESTERLY LINE OF LOT 4 AS SHOWN ON A CERTAIN MAP ENTITLED, "MAP OF SECTION ONE, PARADISE POINT OF BAYVIEW" MAP NO. 3761 FILED 4/11/1963 ALONG THE NORTHERLY SIDE OF BASIN ROAD; RUNNING THENCE SOUTH 30 DEGREES 08 MINUTES 40 SECONDS WEST ALONG THE WESTERLY TERMINUS OF BASIN ROAD 51.65 FEET TO A MONUMENT SET ON THE SOUTHERLY SIDE OF BASIN ROAD; THENCE SOUTH 15 DEGREES 35 MINUTES 40 SECONDS WEST ALONG THE WESTERLY LINE OF LOT 5 AS SHOWN ON THE ABOVE MENTIONED MAP 26.91 FEET TO A WOOD BULKHEAD ALONG BOAT BASIN; THENCE WESTERLY, NORTHWESTERLY AND NORTHERLY ALONG THE HIGH WATER MARK OF BOAT BASIN THE FOLLOWING 18 COURSES AND DISTANCES: 1. NORTH FEET; 2. NORTH FEET; 3. SOUTH FEET; 4. NORTH FEET; 5. SOUTH FEET; 6. SOUTH FEET; 7. NORTH FEET; 8. NORTH FEET; 9. NORTH FEET; 74 DEGREES 32 MINUTES 46 SECONDS WEST A DISTANCE OF 9.78 68 DEGREES 38 MINUTES 26 SECONDS wEsT A DISTANCE OF 49.27 50 DEGREES 15 MINUTES 00 SECONDS WEST A DISTANCE OF 1.35 70 DEGREES 52 MINUTES 34 SECONDS WEST A DISTANCE OF 8.13 67 DEGREES 33 MINUTES 43 SECONDS WEST A DISTANCE OF 69.40 77 DEGREES 18 MINUTES 19 SECONDS WEST A DISTANCE OF 43.78 52 DEGREES 15 MINUTES 31 SECONDS WEST A DISTANCE OF 47.66 81 DEGREES 28 MINUTES 12 SECONDS WEST A DISTANCE OF 17.54 48 DEGREES 11 MINUTES 12 SECONDS WEST A DISTANCE OF 26.99 10. NORTH 34 DEGREES 53 MINUTES 24 SECONDS WEST A DISTANCE OF 20.16 FEET; 11. NORTH 16 DEGREES 56 MINUTES 39 SECONDS WEST A DISTANCE OF 16.86 FEET; 12. NORTH 45 DEGREES 07 MINUTES 28 SECONDS WEST A DISTANCE OF 18.16 FEET; 13. NORTH 76 DEGREES 59 MINUTES 32 SECONDS WEST A DISTANCE OF 14.38 FEET; 14. NORTH 49 DEGREES 45 MINUTES 56 SECONDS WEST A DISTANCE OF 21.39 FEET; 15. SOUTH 83 DEGREES 32 MINUTES 11 SECONDS WEST A DISTANCE OF 32.21 FEET; 16. NORTH 34 DEGREES 33 MINUTES 41 SECONDS WEST A DISTANCE OF 23.99 FEET; 17. NORTH 06 DEGREES 48 MINUTES 47 SECONDS WEST A DISTANCE OF 87.11 FEET; 18. NORTH 07 DEGREES 17 MINUTES 14 SECONDS EAST A DISTANCE OF 64.53 FEET TO THE HIGH WATER MARK OF SOUTHOLD BAY; THENCE EASTERLY ALONG THE HIGH WATER MARK OF SOUTHOLD BAY THE FOLLOWING 5 COURSES AND DISTANCES: 1. SOUTH 86 DEGREES 42 MINUTES 04 SECONDS WEST A DISTANCE OF 1.32 FEET; 2. NORTH 68 DEGREES 43 MINUTES 04 SECONDS EAST A DISTANCE OF 22.25 FEET; 3. SOUTH 72 DEGREES 05 MINUTES 40 SECONDS EAST A DISTANCE OF 112.17 FEET; 4. NORTH 88 DEGREES 54 MINUTES 02 SECONDS EAST A DISTANCE OF 134.02 FEET; 5. NORTH 82 DEGREES 07 MINUTES 29 SECONDS EAST A DISTANCE OF 63.92 FEET TO THE WESTERLY SIDE OF LAND NOW OR FORMERLY EDMOND H. CURCURU AND PATRICIAN. CURCURU; THENCE 04 DEGREES 15 MINUTES 20 SECONDS WEST ALONG LAST MENTIONED LANDS 159.37 FEET TO A PIPE; THENCE SOUTH 74 DEGREES 24 MINUTES 20 SECONDS EAST A DISTANCE OF 76.49 FEET TO A PIPE SET AT THE POINT OR PLACE OF BEGINNING. FIFTH: Upon infoL mation and belief, the Defendant is the owner of the __ burdened premises. SIXTH: Upon information and belief, the Defendant acquired fee title to the burdened premises by deed dated April 5, 2002 from Chancy D. Curry (as Successor in interest to J. Lane Curry), Garret Sinning, a/k/a Gary Sinning, -- - Paradise of Southold, Inc., and Gilman J. Hallenbeck, individually and as Administrator of the Estate of Gilbert Hallenbeck a/k/a Gilman H. Hallenbeck, deceased, and as Successor Trustee of the Gilman Hallenbeck Restatement of Trust Agreement dated as-of April 16, 1999, (hereinafter collectively referred to as the "Defendant's predecessors") which deed was recorded in the office of the Clerk of the County of Suffolk on April 23, 2002. Exhibit A. A copy of the Defendant's deed is attached as SEVENTH: Prior to the conveyance of the burdened premises to the Defendant, and by deed dated February 23, 1989, the Defendant's predecessors conveyed to the Plaintiff an easement over and across the burdened premises for free and unobstructed a~cess to the boat basin and canal shown on a certain map entitled ~ Map of Section One, Paradise Point at Bayview,~ filed in the office of the Clerk of the County of Suffolk on April 11, 1963 as map no. 3761, which deed was recorded in the Suffolk County Clerk's Office on February 24, 1989 in liber 10804 at page 555. A copy of the Plaintiff's deed is attached as Exhibit B, and a copy of the fried map is attached as Exhibit C. EIGHTH: The aforementioned easement was for the construction and maintenance of bulkheads, cribs, jetties, docks, etc. and for other purposes as are consistent with the constitution of the Plaintiff including, but not being limited to, providing for the care and maintenance of the beaches, waters, bulkheads, roads, clubhouses, buildings or other structures, and other recreational facilities; supervising recreation, sports, boating, bathing, etc.; perpetuating the standard and tone of the community; promoting health, welfare, morals, pleasures, recreation, indoor and outdoor games, etc.; and promotihg sociability and good fellowship for the members of the corporation. Attached as Exhibit D is a copy of a survey of the burdened premises dated January 7, 2002 made by Joseph A. Ingegno, Land Surveyor, which depicts the Plaintiff's deeded easement area along the boat basin NINTH: On or about February 23, 1989, the Defendant's predecessors conveyed to the Plaintiff, in addition to the easement as aforesaid, title to ail lands lying under the high water mark of Town Harbor, a/k/a Southold Bay including any and all jetties protruding into Town Harbor, a/k/a Southold Bay. TENTH: By virtue of the deed referred to in paragraph SEVENTH above, Plaintiff claims and is entitled to an easement over and across the burdened premises owned by the Defendant. .ELEVENTH: Upon info~ mation and belief, the Defendant claims that the aforesaid easement of the Plaintiff has terminated, and is extinguished, invalid, and of no further force and effect, which claim is adverse to the Plaintiffs interest. Specifically, the Defendant has made application to the Town of Southold to improve the burdened premises and has aileged, in connection with said application, tha.t the Plaintiffs deeded easement has tem~inated. TWELFTH: There are no Defendants known or unknown who have an interest in this proceeding other than as named in this complaint, and upon information and belief, none of the Defendants is an infant, mentally retarded, mentally ill or an aicohol abuser. THIRTEENTH: Any judgment granted herein will not affect any person or persons not in being or ascertained at the commencement of this action, who by any contingency contained in a devise or grant or otherwise, could afterward become entitled to a beneficial estate or interest in the aforesaid premises, and that every person in being who would have been entitled to such estate or interest, if such event 5 had happened immediately before the commencement of the action, is named as a party hereto. FOURTEENTH: No personal claim is made against any Defendant herein except such Defendants as may defend this action. FIFTEENTH: Plaintiff has no adequate remedy at law. AS AND FOR A SECOND CAUSE OF ACTION SIXTEENTH: Plaintiff re-alleges and reiterates paragraphs FIRST through FIFTEENTH as ff each were set forth in full below. SEVENTEENTH: Plaintiff is the owner of premises located in the Town of Southold, State of New York, known as Basin Road on a certain map entitled 'Map of Section One, Paradise Point at Bayviev~, ( a copy of which is attached as Exhibit C) which map was filed in the office of the Clerk of Suffolk County on April 11, 1963 as map no. 3761, identified by Suffolk County Tax Map No. 1000-81-3-29. EIGHTEENTH: At all times hereinafter mentioned, there was and still is a private roadway located on the burdened premises running from the western te,s-c~inus of Basin Road, in a general northwesterly direction to the Plaintiff's deeded easement area and to a jetty which was constructed by the Plaintiff adjacent to the burdened premises and which protrudes into Southold Bay. Said private roadway is located and depicted as both an 'asphalt driveway* and a ~dirt driveway* on the survey of the burdened premises dated January 7, 2002, a copy of which is attached as Exhibit D. NINETEENTH: Since in or about 1961, the Plaintiff through its members has used the aforementioned private roadway for ingress and egress across the burdened premises to the Plaintiff's deeded easement area and to the jetty protruding into Southold Bay. 6 TWENTIETH: ,. That the use of the aforementioned private roadway has been open, notorious, adverse, uninterrupted, and continuous for a period of more than ten years. TWENTY-FIRST: In view of the foregoing, Plaintiff claims and is entitled to an easement by prescription over and across said private roadway. TWENTY-SECOND: In or about June, 2002, the Defendant caused a fence to be constructed across said private roadway, thereby obstructing and interfering with the Plaintiff's ability to pass over said roadway. TWENTY-THIRD: .Upon infounation and belief, the Defendant claims an interest in the burdened premises which is adverse to the Plaintiff's interest, in that the Defendant disputes the Plaintiffs prescriptive easement and the right of the Plaintiff to pass over and across the aforementioned private roadway. AS AND FOR A THIRD CAUSE OF ACTION TWENTY-FOURTH: Plaintiff re-alleges and reiterates paragraphs Fir.st through Third as if each were set forth in full below. TWENTY-FIFTH: This is an action pursuant to Article 15 of the Real Property Actions and Proceedings Law of the State of New York to compel the determination of claims to real property situated in the Town of Southold, County of Suffolk and State of New York known as a jetty on the east side of a canal as depicted on a certain map entitled "Map of Section One, Paradise Point at Bayviev/' (a copy of . which is attached as Exhibit C) fried in the office of the clerk of the County of Suffolk on April 11, 1963 as map no. 3761, more particularly described below. TWENTY-SIXTH: In or about 1972, the Plaintiff, pursuant to its Constitution and By-laws, caused a jetty to be constructed on each side of the canal -depicted on the fried map entitled ~ Map of Section One, Paradise Point at Bayviev~' , 7 identified by map no. 3761, which jetties protrude in a northerly direction into Town Harbor a/k/a Southold Bay. TWENTY-sEVENTH: At the time the aforesaid jetties were constructed, the lands on either side of the aforementioned canal were owned by the Paradise Point Corporation. TWENTY-EIGHTH: Since in or about 1972, the aforesaid jetties have been maintained and repaired by the Plaintiff. TWENTY-NINTH: In or about 1981 to 1985, the Paradise Point Corporation conveyed the lands on either side of the canal, to the Defendant's predecessors.. THIRTIETH:. On or about February 23, 1989, the Defendant's predecessors conveyed to the Plaintiff, in addition to an easement over the burdened premises located on the east side of the canal, fee title to the lands located on the west side of the canal and the jetties located on both sides of the canal. THIRTY-FIRST: The jetty which was constructed on the east side of the canal is depicted on the survey of the burdened premises dated January 7, 2002. made by Joseph A. Ingegno, Land Surveyor, a copy of which is attached as Exhibit D, and runs from the northern terminus of the Plaintiff's deeded easement area ove~ the burdened premises, northward into Town Harbor a/k/a/ Southold Bay, and is more particularly described as follows: BEGINNING at a point located 4.08 feet north 72° 05' 40" west from the intersection of the easterly boundary line of a described easement with the bulkhead serving as the northerly boundary of property identified by Suffolk County Tax Map No. 1000-81-'01-16.7 as surveyed by Joseph A. Ingegno on January 7, 2002, revised January 29} 2002 and February 14, 2002; RUNNING THENCE North 02° 17' 07" West 129.44 feet to a point; THENCE North 89° 23' 08' West 21.63 feet. to a point; THENCE South 01° 58' 2~" West 137.80 feet to a point; THENCE North 86° 42' 04" East 1.32 feet to a point; THENCE along a tie line as shown on the aforementioned survey North 68° 43' 04" East 22.25 feet to the point of BEGINNING. THIRTY-SECOND: Upon information and belief, the Defendant claims an interest in the jetty located on the east side of the canal as descr/bed, which is adverse to the Plaintiffs interest. Specifically, the Defendant has made application to the Town of Southold to improve the subject jetty and has alleged, in connection with said application, that the subject jetty is owned by the Defendant by virtue of her deed dated April 5, 2002, a copy of which is attached as Exhibit A. THIRTY-THIRD: There are no Defendants known or unknown who have an interest in this proceeding other than as named in this complaint, and upon information and belief, none of the Defendants is an infant, mentally retarded, mentally ill or and alcohol abuser. THIRTY-FOURTH: Any judgment granted herein will not affect any person or persons not in being or.ascertained at the commencement of this action, who by any contingency con~:Ained in a devise or grant or otherwise, could afterward become entitled to a beneficial estate or interest in the aforesaid premises, and that every person in being who would have been entitled to such estate or interest, if such event had happened hnmediately before the commencement of the action, is named as a party hereto. THIRTY-FIFTH: No personal claim is made against any Defendant herein except such Defendants as may defend this action. THIRTY-SIXTH: Plaintiff has no adequate remedy at law. WHEREFORE, Plaintiff demands judgment as follows: 1. Declaring that the Plaintiff has a valid and existing easement over and across the burdened premises owned by the Defendant as described in the Plaintiff's deed dated February 23, 1989 and recorded in the office of the Suffolk County Clerk on February 24, 1989 in liber 10804 at page 555; 2. Declaring that the Plaintiff has a valid and existing easement by prescription over and across the private roadway on the burdened premises owned by the Defendant, running from the western terminus of Basin Road in a general northwesterly direction to the Plaintiff's deeded easement area and to the jetty which was constructed by the Plaintiff adjacent to the burdened premises and which protrudes into Southold Bay, as shown on the survey attached hereto as Exhibit D, and directing the Defendant to remove the fence installed across such roadway; 3. That the Defendant, and every person claiming under her be barred from all claim to an estate or interest in the jetty located on the east side of the c,anal as described in the amended complaint, and that sole title and the right of exclusive possession of said jetty be awarded to Plaintiff; 4. That the Defendant, her agents, servants, and employees be enjoined from interfering with Plaintiff's deeded easement and prescriptive easement over and upon the burdened premises, as well as with the Plaintiff's possession of the jetty located adjacent to the Plaintiffs deeded easement area on the east side of the canal as described in the amended complaint; and 5. Awarding the Plaintiff such other and further relief as this Court deems just and proper, together with the costs and disbursements of this action. fJM~om~SPIESS -SPIESS, P.C. eys for Plaintiff 633 East Main Street P. O. Box 757 Riverhead, New York 11901 (631) 727-8200 II [EXHIbiT '-~-'~1 lyk~ lnd bM~ M Soub~M, tn the Town of SoL4hoM, Counly d Sulfolc lnd SM(e ot New Y°lk. bsk~ ~ paWcxMdy bounded and descdbed o~ ~:hedule 'A' anMxed hemo and made a Pad hem~' " GelXember 29,1981 rdSl prat MIl rWMVe ~he CommmlU~ I~q u~' .... -.- ......... --- .. ........ -...,~ Ix~xl) .sklg any prat of Ihe to~l m' me ~m"" '~ slme firm to the piymeot M' the co~ m law mv~"v~n"''"* 8bm~ (m' Di~_ .d~d~Jldd~, Te~io~y. or Foilig~ Coudry) d NGW JERSEY, COUNTY OF ,°~ S'S,fl / ~ ~ O,,U,. /..,~Z~ d,,yo~ ~ {,,Umyw20Q2 th~ {my hiM~'w~Ir s~s) on Ihe instn~n4~, Ihe IndlvHul4(s), or the perso~ upon bd~l~ of v/n~ the htdiv~d~Ks) mc(ed, NEW JERSEY ~J.z~ 2/3/2003 SECTION B~G~d ~O S~&E DEED wn~ ~.NN~ AGAINST ORANTOR'8 ACI~ LOT ~TO~ honwealth ~1 KN ~, F. sq. 1287 F_ Mien 8;re~ R~, NY 11901 - T~Je NU~. 3802-00159 LEGAL DESCRIPTION ~ TI~tT C~S~TAZN PLOT, PIECE, OR PARCEL OF I~/~D, SITUATE, LYING, AND BEINa AT BAYVIEW IN THE TOWN OF SOUTHOLD, COUNTY OF SUFFOLK AND STATE OF NEW YORK, BEINa BOUNDED ~ DESCRIBED AS FOI~WE: BEGINNING AT A PIPE SET IN TH~ NOAT'm~t'.y SIDE OF BASIN ROAD WHF2tE TH~ WEST~I~LY ~.I~ OF Z~)T 4 AR SHOWN ON A ~3~KTAIN ~ ~NTITI~ED, "IdAP OF SECTION ONE, PAR~ISE POINT OF BAYVI~W# MAP NO. 3761 FIT.~ 4/11/1963 ALONG THE NORTHERLY SIDE OF BASIN RUNNING Tm~C~ SOUTH 30 DEGREES 08 MiCor,cS 40 SECONDS WEST ALONG THE WESTERLY TERMINIUS OF BASIN ROAD 51.6S ¥~I~ TO A MONUMENT SET ON TH~ SOUTHERLY SIDE OF '~CE SOUT~ 1S DEGREES 35 MINU~S 40 SECONDS WEST ~LONG THE WESteRLY LINE OF LOT S AS SHOWN ON THE ABOVE ~TIONED MAP'26.91 FEET TO A WOOD BULKHEAD ALONG BOAT BASIN; THENCE ~'~sKLY, NOHTHi~E~'~s~LY AND NOHTn~RLY ALONG 'rn~ HIGH WATER MARK OF BOAT BASIN THE FOLLOWING 18 COURSES ~ DISTANCES.' 1. NOHTH 74 DEGREES 32 MI~u'~'~S 46 SECONDS WEST A DISTANCE OF 9.78 FEET; 2. NOR~I~ 68 I~S 38 MI~r&'~S 26 S~B ~'A DIST~ OF 49.2~ 3. B~ 50 D~S 15 ~B 00 SB~S ~ST A DIST~ OF 1.35 4. NOR~ ~*0 ~B 52 M~x'~S 34 SS~S ~ST A DZ~ OF 8.13 5. S~ 67 ~S 33 M~S 43 SE~S ~ST A DIST~ OF 69.40 ~; T. ~ ~2 ~ 15 ~ 31 SE~S ~ST A DI~ OF 47.66 ~ 8. ~ ~1 ~ 28 M~S 12 SE~S,~ST A DIST~CB OF 1~.54 9. N~ ~8 ~ 11 M~S 12 SB~S ~ST A DIST~ OF 26.99 10. ~R~ 34 D~S 53 ~ 24 SS~ ~ A DIST~ OF 20.16 ~; 11. ~R~ 16 DE~S S6 ~S 39 SE~ ~ A DIST~ OF 16.86 12. NOR~ 45 DE~BS 0~ ~S 28 SE~' ~ A DIST~ OF 18.16 ~ 13. ~R~ T6 D~ 59 ~u'~S 32 SS~S ~ A DIST~ OF 14.38 ~T; 14. ~R~ 49 D~S 45 ~ 56 S~S ~ST A DIST~ OF 21.39 LEGAL DESCRIPTION (Continued) · r~e Number; 3802-00159 ': 16. NORTH 34 DEGREES 33 MINUTES 41 SECONDS WEST A DISTANCE OF 23.99 FEET; 17. NOI~TH 06 D~GI~S 48 ~II~S 47 SECONDS WEST A DISTAI~CE OF 87.11 FEET; 18. NORTH 07 DE6~ES 17 MII~S' 14 SECONDS EAST A DISTANCE OF 64.53 FEET TO HZG~ WATER MARX OF 80UTHOLD BAY; u-~K,~CE EA~-~'~aLY ALONG THE HIGH WA'£~ MARK OF SOUTHOLD BAY THE FOLLOWING 5 COURSES AND DISTANCES: 1. SOUTH 86 DEGREES 42 MI~vz'~S 04 SECONDS WEST A DISTANCE OF 1.32 FEET; 2. NORTH. 68 DEGREES 43 MIh=£~-S 04 SECONDS EAST A DISTANCE OF 22.25 FEET; 3. SOUTH 72 D~REES 05 MI~t~z'~$ 40 SECONDS EAST A DISTANCE OF 112.17 FEET; 4. NORTH 88 DEGREES 54 MII~u'~'mS 02 SECONDS EAST A DISTANCE OF 134.02 FEET; 5. NORTH 82 DE(~S 07 MI~T,~; 29 SECONDS EAST A DISTANCE OF 63.92 FEET TO WESTERLY SIDE OF LAND NOW OR FORMERLY EDMOND H. CURCURU AND PATRICIAN. CURCURU; Tm~cE 04 DEGREES 15 MINUTES 20 SECONDS WEST AL0~G LAST MENTIONED LANDS 159.37 F~ET TO A PIPE; Tm~CE SO=&~ 74 DEGg;~-c 24 MINUTES 20 SECONDS EAST A DISTANCE OF 76.49 r~l' TO A PIPE SET AT Tm~ POINT OR PLACE OF BEGINNING. FOR INFORMATION ONLY: DISTRICT 1000 SECTION 081.00 BLOCK 01.00 LOT 016.007 IEXHIBIT SUFFOLK N[W YORK S.C, TAX No. 1000-81-01-16.7 SCALE $OUTHOLD' BAY BOA T BASIN RO,4D Joseph A, In, L~nd Surve IEXHIBIT ~ tlon having tls principal.office at (no #) Robinson Road, P. O. Box ?24, Southold, New York, 1197~ as tenants tn common and aa their interests appear, ~of~efirst~.and PARADISE POINT ASSOCIATION, INC.~ a domestic ?¥pe A~ Not-for-Profit Corporation, haling its principal office at (no #) ~IST. Robinson Road, P. O. Box 243, Southold, New York~ 11971~ 1000 ~-- '"'"[" ..... BLOC. F£D ,~4 ~ ~S~ t~t the ~ of ~e first ~, in ~lide~tl~ of COIj~t'~ ~ Ten and no/lO0 ('$10.00) - ~ ~Wiulmyo~eUdi~dS~tes, . . ' ;' ~ ~s . ' ' · · ' ' ' ate ~Ido I ,,,,,,d",~ at Ba~iew, near S;uth, ld, in ~e Town of Southold, cowry . ~n ~ of Suffolk and ~tate of New York~ ~o~ a~.designa~ as Robinson ~/~ B Re~d, Basin Road, Briar Lane, Ca,al, Basin,. and Dra2n loca2ed --,~ ~ '~M~p ~ S~ct~n '~n~' Paradise Point at ha~iew, . and f~lea ~/~ ~/J Office of the ~Lerk off'the:C0unty of. Suffolk on Aprll 11,_19b~ a~ ~/~ Hap No. 3761, and ihgluding Robinso~ Road to its ~astern ~erm~nuu -- -- ~ .sho~ o~ a certain map e~ti~led, ..~inor. Su~iv~s2o~ made_~r,. . Paradise ~o~nt Corpo~atlon, Paradise ~oin~, New York, ~en~eo ~ay 11~ 1981 by Roderick Va~ Tuylj'~..Ct~. Li~nsed Land Su~eyors, G~eenp~rt~ New Yo~k. ': ' .. ' ~G~R with an easement ~er:and across those lands ~ediately adjoining the wester%y side o~'Basin Road as sh~n on the aforesaid ~-~ map entitled, "Ma~ of Section One~ Paradise Point at Ba~iew," and f~led In the Silica'of the. Cler~ of the'Coun(y, of Suffolk on April 1963 as Map No..3761~ said eas~nt.being'more parti~larly ~unded ~ ~4 ;9~9 and descried as follows~ B~INNING at .a point~ which point is the sou~westerly ~er of Lot No. 4 as sh~n on ~e a~orementioned f~l~ mapl R~NING ~ENCE South 30 degrees 08 m~nutes 40 seconds West along the west~ly side of Basin Road~ 51.65 ~eet, to land now st formerly of Maynard; THENCE along said land now or formerly Ha~nard South 15 degrees 35 mLnutes 40 Seconds West, 30 f~et~ ~re ot Zem.,.~o .~e ~amin a~ Cana~ es'shown.on,he aEo=~m~on~ mapl TH~CE'in a w~ster[y~ nor~westerl~ aM nor~er~y o~rec=~o along ~e shore of said Basin and Canal as it wlnds and turns, 600 feet~ more or less, to ~e ordina~ high wat~ mark of Town Hater {also ~o~ as Southold ~ay)I '~ENCE in' ~n .easterly direction along the or~ina~ high ·water ma~ ~f ~To~ 'Hater (also ~o~ 'as Southold Bay) as'it winds'and ~drnsj 25'feetA more or'less, to a.point mark- ~ ~ the west~ly ~nd of 'a bul~eadJ'THENCE South 6 degrees 00 ·min- utes W~st, ~75~O0'~eetj T~ENCE South 6'degrees O0 minutes Eastj 85.00 feetl THENCE South 65 degrees 00 minutes East, 200.00 feet~ THENCE North 59 degrees'30 minutes East~ 123.00 feet to land now or former- ly of Cur~rul THENCE'along said land now o~ fo~erly of Curcuru South 74 d~rees 24 mfngt~s'20 sec~,nds East~ 7~.49 feet to the point or ~lace of DEGINNINGA and as suni easement is shown on a certain map entitledj "Map of Property at Paradise Pofnt,'Southold~ N. Revfse~ August 9~ 1988 by Ro~erfek'Van.~uyl~':P.' C., Licensed Land Su~eyors~ Greenport~ New Yor~~ said easement to be used by the Basin ~nd canal ~e s~ow~_~m.~,%~eads, cribg,-~j~ttiesj do~ etc0, as ma~ be deemed apprOpriate by the party of the second part; for the instsZ~ation and maintenance of a fresh'water well ,or wel~sj and for such other purpose or purposes as are.,;oneist~nt with t~e Constitution of the party o~ t~e' second part ~ng~udin~ b~t not Limited to~ providing for the care and msin~a~'o~ ~h~'Beaches~ Waters, Bulk~ead~'~oads, CluD Houses~ Buildi~g~'~ther structures, er Recreation Facilities! supervising recreation, sports, a~d otb ..... ~4-- the standard' and tone of the boating~ bathing, etc. J pe~p=v ...... w uommu~%~y! promoting health, welfare, mor~ls, pleasures, recreation~ indoor and outdoor games~ etc.! and promoting soclability and good fellowship for the~memb~rs of ~s. corporation. . -.~ .... .~ . .-~.,,:. ~--:. ~'~"~ ' '' ~f the TOGETHERWit~.a11~ ~te~ ~i~t¥~Ptf~le.and~,~n~rest of the party firs~ p~rt in and to lands lying under the high water mark of Town Harbor (s~so ~nown as Southold ~a¥) including any add all Jetties protruding into said Town Narb~r (also known as $cuthold Bay). . ALL that certain plot~ piece or p~rcel of Land with the buildings and improveme~ts thereon erected, situate, lying and being atBay- viewj Dear Southold, in the Town of Southold& County of Suffolk and State of New' York, being more particularly bounded and described as follOW~ BEGINNING at s point, which point is the northerly c~rner of Lot NO. 12 as show~ on a certain map entitled, "Map of Section On~ Paradise ~oint at Bay~iew~' and filed in the Office of the Clerk of th~ County of Suffolk on Apr!~ t~ 1963 as Map No. 3761J RUNNING ~T4~KCE North 38 degrees.31, minutes 40 secopds West along lan~ now or formerly of Griffo, 100'.00 feet to: land now or formerly of Curryj THENCE along, said l'and now or formerly of Curry~ North 4 degrees 30 minutes East, 610 feet~ more or less~ to the ordinary: high water mark of Town Narbor~ (also known as Southold Bay)~ THENCE in an east- t on alon the ordiDarY high water mark of To~n Harbor ~rly direc i g . r s. ' 5 ~eet,-more or o known as Southold Bay)~ as~winds..~d.~u n.~ ? ...... THENCB in e southeasterly d~reUtign, along.'the C~a~al"~ it wiDds and paradise Point corP°ration~ Paradise Point, New ¥o~," Amended Nay 11~ 1981 by Roderick Van Tuyl~. P. C.! THENCE along said Lot No. 17 the following three 'courses a~d distancest 1) North 85 degrees 30 minutes West~ 90.00 feetJ 2) South 4 degrees 30 minutes West, 325.00 fsetj 3) South 38 degrees 31 minutes 40'seconds East, 82.98 feet to Briar Lane as shown on the aforementioned filed map! THENCE along said Briar Lane South.14 degrees 56 minutes 30 seconds West, ~8.67 fee~ to the point or place of BEGI~Q~ING R with all the right~ title and interest Df th@ party of th TOOETHE ...... ~- ~--;--under.the high water mark of Town actually conducted by the party of the first part, pARADISE OF SOUTHOLD, INC. f~JTABY PU~L~ SF~TE OF FlORi~ STATI OP NM VOlt[ COUNTY OIt SUL~FO~K"~ ~lly o~ John D. 'S~ning ~r~lly ~me Chancy CUrry ~ me k~wfl, Who. ~g b~ me d~ysw0m, 4id de~ a.d ~.~o me ~o~ to ~ the person deacrib- .~t ~r~d:~s~ (no ~) Robinson.~9~d,' ed and appointed at~o~ey in fact in Box 724, Southold, New York, 1~;* ' and by a certain power of attorney ~t ~is ~e Pres~ent 0~ PA~DISE OF SOUTHOLD, INC, exerted by J. ~E C~Y, dated May , ~e ~l]~ d~d ~9, 1987, to ~ recorded in the Of- iu ~d whi& ~ted ~ fo~ing ~r~t; ~t he fi~ of the Clerk of the County of knows ~e ~l o[ ~id ~r~ral;~; that thc ~l a~d Suffolk simultaneously with the fore- ~ ~ i~{ i~ ~ ~e ~; ~ ~ ~ ~ · going instr~ent and ac~owledg~ to ~ b~ e~ o~ ~h= ~'4 ~ d~ ~f ~d ~- ~e that she had ~e~ted the forego- fi~, m~ ~ ~e ~ ~ ~ ~h~e~o b~ l{k~ o~d~n ~ lng instr~nt as t~ act~ the said CURRY, ET Al,, TO PARADISE POINT ASSOCIATION, INC. ~coc~ O1.00 005.000, 014.000, p/ lOT 015.000, p/o 016.000 COUST¥ OK TOWN 1000 54655 MAIN ROAD, P. O. BOX 1468 SOUTHOLD, NEW YORK Zip No. 1i971 £8, 8z I I,Z o]j :).:kB? 'v, · AND fl~ part~ o[ the first pail coven,~nll that the I~Y of,the first l~rt'has not done or luff'crud Inylhlng whereby the sald~D.remIses bye been inc~mbercd in nn ' way. whatever, exc~ut &s azore~as . . ....... AND the party of the frst piti, in compliance with.Se.q~,. ~o~..~l.~ o,f J~:~.'en .L~. Wo.~¥~flan,~s th.at ~e ~rty.o~. the first part will re~.lve the ,.,~,Zder~t[o~ for this ~eveyanee'a6d Will I~M tits right td r~,cdv~ such con:sld- trust fund to b~ applied first for the purpa~e of payln~ ~e mt of the improvement ~n,~ will apl) y the san~'Grs~ to'the 12~yment o! the cost.~ the ~p~t before using any part of the to~al of the same for ony other 12~lrpose, , · - · · - ,, '. ' The wo~d."Flfty'.* dlaJt be construed &J'if'it r~d'"pa~cs# wl~ the'..sens~ of ~is.L~demure s~ reqmres. written. .... , :..~ '.? .~..~..:.~ .~?, ci '"; ' ~'-' - ~ ' ' ' ' · · ....... :~ ~'~-'~.~--, · .; ,~ :',- ~.,~. c~.; .'.' '~', , A~,or.n~:~R':t'ao~ · I ' '1'. IEXHIBIT F ~ ~- ocdt'rrar~. ae~a~ ¢ t' JOSEPH J. SEYMOUR EXECUTIVE DEPARTMENT OFFICE OF GENERAL SERVICES MarCh 8, 2000 EDMOND F. SCHORNO Ms. Made Page Assistant Vice President TPJe Officer Fidelity National Title Insurance Company of New York 24 Commerce Drive Riverhead, New York 11901 Dear Ms. Page: Re: Status of Tax Map Parcel 16.10 Southold, Suffolk County This is in response to your letter to Mr. Louis Gnip regarding the status of the small canal parcel of land off Southold Bay. The records in our office indicate that the lands in question were part of the Andros Patent granted October 31, 1676. The grant included all Rivers, Lakes, Waters, etc. The State of NewYork does claim sovereign ownership of all ungranted lands in the Peconic Bay up to the high water mark. In an area such as the canal in question, the limits of the State ownership would run from headland to headland at the mouth of the canal. A copy of our water grant index map for this area is enclosed for your use. Thank you for your interest in the lands unden~vate~; program, which is administered by the Office of General Services. Please contact me at (518) 486-1479 if you have any further questions. Sincerely, Public Lands Surveyor Examiner Bureau of Land Management Enclosure of t~e SHORE LINEOF SUFFOLK COUNTY. N.Y. showing ~e made by L~ OF O~O~ ~H WATER. 'P~D ~0~ THE ~ISSI.~S OF THE ~D ~ ~ ~ou of H. ~. V~ ~LSTY~E. STATE ~OlpEE~ ~HO SUrVeYOr. ~06. ~u.~ TOWN OF TOWN OF 126 130 93 9b 96 93 LANOS UNDERWATER CLAIMEO BY THE TOWNSHIPS SOUTHOLD; ALL LANOS UNDERWATER SOUTH BOUNDARY OF' TOWN IS THE HIGH7 WATER MARK OF PECONIC ~ G~RDINERS! RAYS. " ALL LAND UNOERWATER IN ANY HARBOR, BAY~ OR CREEK ,SHALL INCLUDE ALL WATERWAYS&L CREEKS CUTTING THE SHORE LIHE OF THE ~ TO~ TO THE AY. H.WM. FROM HEADLANO TOI HEADLAND. ~ BROOKHAVEN ~ ALL LANO$ UNDERWATER ALL LANDS UNOERWATER MOUNT SINAI HARBOR PORT JEFFERSO~ HARBOR, SETAUKET HARBOR, CONSCIENCE BAY. ANDROS PATENT ~ OCT. 31 ~ 1676. TOWN OFSOUTHOLO v.s. PRANCES B. PARKS 4lm~sc. reports, p.456,affirmed 97appellate 'div. 6"',6,offidovid N.Y. 513. $OUTHOLD TOWN ORDINANCE 1949. PATE.NT , MAR. 7, 1666. PATENT , DEC.27,1686. NICOLLS DON~AN ~08 tO2 8i 114 NOTE: JURISOICTIONAL LIMIT OF TOWNSHIPS FOR REGULATION OF VESSELS IS 1500 FT. FROM SHORE.(N.Y.S. TOWN LAW ART. 9 99 SECTION I~ , SUBSECTION I?.) ~ 60 o 7.,, S'rATE OF HEW YORK COUNTY Ol~ SUFFOLK IOHlq SIN~hrlNG. b~ing ~afly sworn, depos~ and says: 1. I resid~ ~t P~lise Point Road, Southold, NrY 11971. 2. I am lhe Pretddcn~ of Paradise of Southo/d, ~ which ow~s a 2% fe~ simpl~ inte~st in the propcrty known bytax lot d~signafion: Dist 1000 S~cl S1 Block 1 Lot 16.7 (thc "Prope~ff); I also own oth~c property in fllc vicinity of tho Property. 3. I submit lids affidavit in colmoction with ~ pumha~ of tho Pr0pon'y bi' Mary ~upa~ a~l in support of the fact tl~at no pre~riptive ~sem~t ~.isls on the driveway ~ra&rouad as shown on a survey of thc Prop~' prepared by Joseph A. ~ge~no and dated J~musr~, 7, 2002. 4. Th~ ally ~ 0fth~ driveway ~ tm-am'o~ld (ouLqid~ of that part of the driveway within tl~ e, asem611t area as shown on the above described survey), by the Paragise Point A,s,soc. ialio~ or [ts memb~"~ was not adv~ or tmde~ color of right indcpendtut from th~ owners, but always under ~nd with tho corls~t of tl~ owners. ~. That shy use oftl~ Prol~'~y by the AMo~ia~on or its m~mb~cs undo' il~cpondent color of right, and not trader or with tho consent of tho owne~, has be~n, and is. limited to xho ar~a con~!~xi within ~h¢ easement de~'ib~d by met~ and bounds in a eked dar~xi F~bmary 23, 1989, recorded in Libor 1080 Page 555, and which oa the shove described survey. ur~ the d~iwway and turnaround. · Sub.~,f~ .M::d and awora tO before ~hl,~: d~y of lVlarch, 2(102. No.fy Public STAT~ Ol= ~ YOmq. ]~DWARD ~OHN BOYD V, b~n8 duly sworn, deposes ~ 2. I ~ a ~c~l~ ~ P~{~ of So~l~ ~. w~ o~ s 2% ~ ~lc ~t~ ~ ~ ~ by ~ lot ~o~ D~I 1~ S~t 81 Bilk 1 ~t 16.7 ,~; I ~ o~ oth~ pwP~Y dlr~fly ~ ~m ~ ~Y. 3. I s~ ~ ~t in ~on ~ ~ P~ of ~ P~ by ~ ~ ~ ~o~ on ~ ~eY of the ~p~ PmP~ by )o~h A. lu$e~ dami ~u~ry 7, 2002. 4. ~ any ur~ of t]uo driv~vay mui turmmuud (ou~de of~ pm of ~ ~v~ay ~ ~ ~t ~ u ~o~ on ~o a~vc d~ ~oy), by t~ p~i~ Po~t ~ ori~ ~ w~ ~t ~v~ or~ color of ~t i~t ~ ~e ~ but ~wa~ ~ ~ wi~ ~e ~t of ~ ~. That ~uy u~c of the Property by ~c Auocls~n o~ its m~s ~ i~t Fob~ 23, 1989. r~r~ ~ Li~ 1080 p~c 555, ~d wMch ~ ~ is ~ ~ .. .~ · 6.~ ~ ~u~M [~ to ~e P~t] lq~lry Public Bi)WARD I01~ BOY]) V ~t SOUTHOLD, NY 11971 Mr. John Sinning paradise Point Road Soutbold, NY 11971 Dear John: Pursuant t~ the Southold Town Trustee's Permit to Dredge issued to the Paradise Point Association, we ask you to renew your permission to continue the past practice of having Latham Sand & Gravel transport the dredging spoil from the dredge site by truck over the existing road on the East side of the canal, together with your waiver of the bond you for your cooperation. 3 Douglaston, NY 11363 December 25, 2000 ~ohn Sinning POB 724 Southold, NY 11971 Re: Southold Town Access Consent Form With this letter I an enclosin~ the Town of Southold Access Consent Form filled out and executed as we discussed at the Trustee meeting. Please execute and return to me at the above eddress. WisMnS you and your family a healthy and hnppy New Year. Yours truly, Gaston I. Criblez President DOCK BUILDING ' JE'I-rlES · FLOATS ' BULKHEADS ' PILINGS P.O. Box 1611, Mattituc, k, NY 11952 631-298-5412 (FAX) 631-298-1814 job. a pmje~ for the Paradise Point Association. I am writing fo you seeking access to the Thank you in advance for your cooperation with this matter. DOCK BUILDING ' JETTIES ' FLOATS ' BULKHEADS ' PILINGS P.O. Box 1611, Mattituck, NY 11952 631-298-5412 (FAX) 631-298-1814 Mm. Maw Zupa 365 Basin Road $outhold, NY 11971 August 22, 2002 Dear Mrs. Zupa, I am currently completing a project for the Paradise Point Association. I am writing to you seeking access to the job site through your property. Thank you in advance for your cooperation with this matter. Stephen Pawlik EXHIBIT 27 TRUSTEB KKUPSKI: Koll the stone down there. TRUSTEE ~G: How ~ ~u ~ to set thc stone ~? C~ BO~: I ha~ ~ ~ ~ my ~n~ ~ ~ I ~ 1~ ~u ~ow We would ~v= to ~ow. ~ is onc of o= ~. (~m~ ~ ~US~ S~: 9o move, ~U~ ~: ~1 ~ ~vor. ~ A~ ~ ~ st~. We haw ~c~ ~fo~ ~ ~ tho ~j~ B s~g ~ ~ . . ~ ~go~ ~l~v~-~ Each drain to consist of Traitic besfin$ ~th one c~tins to grade lo r~c~ve 8"x$" concrete le~hin$ s-u-ucture. .To continue Mainm~,c road water. Connecth~ pipc belweca structures to be 6" PVC Dredseundc~Pcrntit #$t61- Located: Ba.~n Road, SoutholdSCTM#SI-I-16.I TRUSTEE KI~UPSKh Is the~ -,,youe who would llkc to ~ on behalf of pARADIS~ POINT ASSOCIATION, INC. . ,~---sTON CRIB~ .pm I sm (iaston Cribl~z~ I ~n pr_~ja~t of pat~iso po~t. I.. "rP, U~T]~ KP, UPSKI: 'Ia tho~ any o~h~ c,....a~ut on uns . Do you have ~uy other commen~s, do~ aayon~ hsve s commeut on figs. TRUSI'~E SM1TH: How are ~u goin~ ~o aco~s this j~ly out her~ to ~ ~ is ~ Well we would t~ve to GASTON CKIBLEZ: . We would ask for the ~ l,~,~nission to . here what you propo~ J J · (iAI;TON CRIBL~Z: This is like the c~ jetty. . . TK . u et mto tho basin. Youarelosin~alotolu~u ' empeciallywheuyo g .... ~. .... n,.+~,,dvh~adcaudo, p~-tofthe jetty as you see. llmc other pomou Probably when thsl bulkhead was built it was n~ver completed. TRUSTEI~ SIVtlII'I: The bulkhe~! in the interior should b~ done over, bcoauso You dred$e it out but it k~l~S coming b~k cvurything is going into the ~banneL I think thai should be in beoaus~ of that deteriorating bulkhead. OASTON CRIBLEZ: What is coming bto the basin. 77 ~8 TRUSTI~ SMITH: Comin8 into thc basin and coming into thc channcL OASTOlq CRIBI,P.Z: The sand that com~S into the oh*,nnel the bulk of it comcs f~om the ~ont where it is opened. The second portion is where v~ter or high tido and lhe nmihcast storms como ovm: thc jetty t~at is thcrc. Washes otlthc top of it of thriftY. BUt the bulk orth~ s~md comes in ~m~. w?t. w.~ .d° wi.'th the Dr~dge is the mouth of the jetty conung inlo .~.~ onsm. ~ . · ~, . To TRUSTEE KRUPSK. I: We ~ssu~d a permit l~y If of this ysar btsintenanc~ Dredge th~ existing basin. c~osiou in the basi~ Thee ~suc~ oimc a~or~ u~-- . . · is tho se~-don where the __e-_'~j'sting bullcbe~l cods. W° talked ab°ut ~ ~°w sm A low bulkhe~l lh~ can be extruded fi. om lt~z~ towmis the int~dor °f th~ basin' sill bulldu~d · bullch~d can be made out of tho reno vinyt se~ lo~k I~w~ Iow w~ter md high water. They put ii into place, m~wsh would ~tsblish on the upbmd it do~ not keep from tilZinS in. You c~n maintain your basin znd chmnol d~pth s~d stabilize.your upl~md into ~ channel and you do llot havo to ke~p dredging OAb~I'ON CRIBLEZ: 'l'hat is really combining two problems together. ~ jeW/ that you ~ ~efming to would be at th~ end of this C s~fion. I~ ~om fo~ aways a~d th~n wh~ i m~ke the turn it is whe~ it is oP~wed. This w~s nev~ continued wh~l it was built originally. Actually, at .this pagisulaz limo th~ easement that Para&sc Point hss goi~ oot to tho ~etly. We havo an casem~t coming here going out to tho j~tty. Tho other side we havo the llmd that go~ out to the other jetty, coming fro~ parlulise Point Ro~d. So ligs h~e.fl~s~ msem~t ~t ;his point it is ~ot a cl~p ih~ to b~ild it took swbilo to ge~ this tlmmgh for th~ mmtx~ t° approve and get that douc, You are talking about tx~ins doing the whole bulkhead whlch is a mattm' wc are not at mat P°n~ m ~ '~" TR~ IO~UPSK~ I do not think tl~t we are talking about tl~ wholc bulkhead. You btin~ that piotttreuphe~- Wojustlookalattbis lastwcck ~md we looked at in light oftbe pcnnits that You lmve~ Wc looked at about ~g arco here that is where you put thc low sill b~*~head In. Thcn whcn you d~g tl~s basin out here y~u would not lmvo it fallin~ back in it. You would never have to dig this out again. We are not talking about thc whole length. GASTON CRII~B~.* In here? TI~USTEE KRUPSKI: That would bc complotcly stabilized that.. GASTON cP, mt,F~: Actually what is happouin$ in he~ ri~t now. Hac this dctcrioratcd into tl~ basin'/ I cannot say no but that is now wkat is deteriorating but that is not what is doteriorafin8 every sinsle yeer into the wholo basin. That is not what is dcte~iorating tevm'y single year into tho whole bnsin that is what 83/17/2883 VICTOR ZUF'A ?A6E 29 is wash~g in f~om out hcze. I can oDly st~cst to this for fiR~ ~ ~t I ~ ~. ~s go~ ~k ~ ~s wbm ~ ~1~ w~ ~ ~Rt ~ m fo~h I ~ ~t ~w but it is a long ~e ~ me. We ~ ~g ~ ~ ~t h~. You dig s hole ~ ~ m~ isj~ ~ to move into it K~ ~ into iL ~ ~u ~g ~s o~ ~ ~ is ~e ~bl~. ~: At ~t ~ ~g~ o~ ~ m~ ~~t to ~ w~ it ~. ~ o~ to ~ ~ ~jt ~. ' ~US~E ~8~I: But ~ ~ ~ we m ~ot ~t~ s b~ ~ flu ~ eib. We ~ ~ a 1~ ~I1 bu~ ~ a ~h ~ it. We ~ ~ se~ bu~ ~ ~v~ey. m pu~g a O~TON ~: ~ ~u ~vc a ~w siU b~ ~u ~ ic How ~c we ~ ~gm g~ o~ ~mt b~ You m~t to ~ sbte to b~ld ~ the tomb. ~ ~ to p~ heist on ~ ~1~ ~U~ ~: How ~ ~u ~w ~ w~ ~ ~ u~t~ ~- G~TON ~: How ~d ~ ~ ~w.~? At ~s ~im sU I ~ ~Y ~ ~ w~ I ~ tol~ ~ ~ Eyre ~ this ~ he~ ~ ~ ~ 1~ I would ~ O~N ~: p~ofis~mnoz.. . au" O~N ~ ~ ~ ~ ~ly I do not ~w. pto~On da~ ~ w~ ~e ~ o~l~j~- ~ I ~ I ~d I pla~ ~ ~ ~ bMld~g it is ~ a lot of~o ~u~ j~ I w~h it ~. ~lc. je~. G~N C~Z: J~ l~ mc ~ ~u a qu~fion7 You m~n~ ~ ~e ac~ d~ t~ ~ ~c ~t ~e. JOHN: B~us~ it was nc.v~ taken care of (cannot unda31tand) OAS'tON CI~BLE~: But it is not all that it shows the~ TRU~TEB FOSTE~ It is t~oded. If that bullch~i was finished tlmt problem siU core. out ~ic - 't? · .: · · ~ u~ FOS~ ~ ~ ~ · ~ ........ · - - - move ~ ~ ~ ~c ~ ~ wc ~ ~g 0~ ~ ~ ~S u~ --, . . ~ We~p~ ~ POL~ODA: ~o ~ ~ o~s? I ~ ~ o~'s ~s ~~off~ or ~ of~ ~w. O~N ~: ~w~w~ ~ ~j~ ~ ~ w~ ~ ~ ~c l~ ~ ~ ~q~M~ ~e~~of~M~ ~J~ ~ ~t ~ alwa~ ~e ~ do. ~o I wo~d not ~c ~ ~ ~ ~ ~L .. ~p~ ~r ~P~ 31 OASTON CI~BLP-Z: Ther~ is · lot ofwork invo~vcd. First there is · lot of politic~ lot of m~etin~s. TRUSTL~ K2,UPSKI: Well I do not know about the polit/cs, physically a low sill bulkhead, you cae m,~ntain your water depth. Closer and ~ou a~ not going to I~ve that pwblem. · .... It sounds Sood, I do not m~an. OASTOI~I CR.IBLF,2~: It Is a httle blt difficult. TI~USTi~ gJ~UPSKI: We l~vc s~a it l~ppaa. OASTON CItIBLF~: By dola~ that wc ~'~ ce~-~!~17 goit~ to g~t ]_~med up at this p~uticalar poht over bert. Wc will n~ver get this fhln$ throu~ ~t that fast of ~ ~s w~ ar~ doing. I l~l a little bit ofb~ttlo to ~t this K~UP$IG: Weil~t is thc co~fitions of Tour pa~oits. . .. TEUST~B ................. ~ ,~vo u~ thc old ~tt GASTON ~LP~: I wouta iiFJ~li:)~)u wv~v p you ~ doiI~ for ~ and wo ~c continuing to plan on this. This is not tho most -~T~.~_.~T.~:~: Thet is tm~ it cen bc done. it will be ver~ oxpe~sive wo. Id have to do it offofb~rge~. · TI~UST~5 ~OST~: I. ~he chenn¢l sccc~siblo now c~n ~u $~t m md o~t there at thc basi~? OASTON CRIBLEZi Bost wise. TI~USTEE FOST~ Yes G~TON ~Z: Y~ ~u ~ but ~ ~ w~ ~ m on md so fo~. y~ ~ b~k in thc ~ time ~o~matc~ ~U n~ ~e ma~ ~ng ~i~, ~s is not ~mc~g ~at ~ ~g~ go away. ~s ~ l~e ~ ~ ~ it ~ ~w~ ~c. S~ p~f~le ~ I w~ld like to ~ ~ ~ do~ ~ ~ ~uc ~ ~ way d~ m ~. ~ wh~ we ~ is we ~ve a bu~ ~ wc cm fill ~ ~ ~ ~ we do d~ic wc ~ d~Sc ~ we do wt ~c to ~k ~ ~ff o~ we ~dd fill h ~d ~e wall I w~ld ~ ~ ha~c ~c ~ b~k ~ ~ ~vc o~ ~mt b~ ~s is ~ ~ but w~ to ~ ~nt ~ ~ ~ ~e by ~. · itj~t ~t ~do~l~ do ~ som~g ~t it~ ~t ~ doric ~s- ~ ~ Itj~ ~t ~ done. r~ble ~ifi~ Up ~ m ~ ~mY ~. wc~ ....... t~E at ~c t~. B~ ~ ~s wine planar. W~ it out to ~ it done. ~ ~S~R How mmyf~ ofb~ ~ ~u ~ ~? It is not ~l~wa~ ~ ~USTEE ~S~: ~o I do wt ~ it ~ ~t m~h. ~m ~ B0~ i~ · o ~t w~ w~ not wnc~ ~ ~e m~ 1~. Bm oM7~ GAS~ ~L~: But ~ oM~ to ~Mn the ~ ~u ~vc ~ go ~i t~ w~ do~ If we h~ p~ ~m h~e to ~ b~ wc ~d ~t ~ve t~s. We s~l.. 32 TRUSTEB KRUPSKI: But you are gaining, I do not know if wv c~ ~ve you thai land to ~in an easmlent. That is a whol~ othe~ issue. OASTON CRIBLr~: In ano~er plz~, not aski~ for you to sivo us land thai is obvious th~ it is not o~ land. It is ihe land from the lineup that owns the propen'y. That gave us-thc cuem~nt. So part of it is that is our ~semeot, in thc : _ .o that ~s ao q co~:mmt i think wh~t thc question is what you can do with that casemc°~' Thtis it can you walk over it, can you driw ove~ it~ ' ' 'unctur~ GAS~N C~ Arc you sayia~ Imw, et tl~ts J , today I would say sive you · real honcs~ answer. ~,omc .......... whole casement. I think I could honestly' n.y .no. TRUSTfiI~ I~RUPSKI: It also shows two docxs. Acro~ it. And thot'mi~ht bc TON CRIBI.BZ: 'lna~ ts a .m~ ~T]~ KRUPSICI: Tim glvcs you ~d,out a foot. You cut off on 1~. Zup~, you cut fig~t offtherc. GASTON CRIBLF. Z: No dm is not Ivlr. Zupe'$ prope~. TRUSTEB I~RUPSI~I: No, no by bis propaty. GASTOlq CRIBLF. Z: This is B~sin P. oad, it ooracs down he, re. We come into here. ' TRUSTF. B K.RUPSF, I: So you o~c cut off f~om the end of Basin Road, how do ~get to Busin Roaa'? TON CRIBLI~: Well these plan.q are not exactly most accurite sci of drawings. Well anyway okay so you wont to consid~ this TRUSTI~ I(RUPSKI: continued dow~ TRUSTI~ IQtUPSKh We were ell out thc~ .(}ASTON CRIb! l~Z: l~ill it iR- 'Fhcn we will h~ve on ~STON C~.~LF~: I will rephrase it, we will ~,,--;~ a usm2]o easc~cm, we have · ~.~kl,- o.. --.--~,mll~ We woilld like to SOlVe one prooleill at as a useful easemeoL We are i~ot looking for a mgnway, we ~SUS~LrB I~RUPSEI8: But what Henry pointed out. The last pmnit said you had to solve these efoslofts problems before we allow ~ly additions. (]ASTON CRIBLF. Z: I was under thc imprcsslon ttmt we were talking about thc last permit which at that thnc somebody else was Bandlin~. I wsS not president but I an mot ducking ~.e issue that there were concerns nbout this jctty and rightful so. They w~e concerned about n problem on Basin Road. TI~USTBE K..RUPSKi: We do not have, ~d I do not have a problem with letting you do the maintenance dredl~ associated with the projeot lhat you are doinl~ out h~e. __....., .....,~4~o vnu to giv~ ~s time with that to let us. n~l'ON CRIBL~. ~ut, x ~-.~--.~- __.,, .... ,,~,~ Whilo we are movtng co"'~t~ our mainte~nc~ dredllmg as we norm,- · "'t would be in~pons~l¢ for me to say she,d. Iiust would not like to say well ........... ,,, can not I~ fl~rongh th~ whole place prop~ly. That ~s not propmY sc-r~ me ~ha members, we ar~ not il7 fouling anyone. TRUSTI~ $Ml'llt: Is it Davigable now imide? GASTON CRI~I..EZ: Yo~ asking about today, I have not driven n beat in xnd out ma for a co~lc of monthr, .. ofthere ybe ..=' TRUSTEE SMITH: wne~ was mu ~, GA~TON CRIBLF, Z: ~ maybe in Aul~ust. TRUSTEI~ ~ Was it navigable Ihen? yet,, we dt~d~ed it in the sPflng time' My aon c~me in and GASTON CRIBLF-Z: What it is right now, I do not Im°w' From past out during the swnmer time. p~fonnances. This is alliing up aSalr~ ~OHN: That insido piece usually backs up every couple of years, that TKUSTEE SMITH: But ~ permit that slp~d on last l~r to Sci Maintenance was that - thet was it. Until they covld do something with that inside to fix TRUSTEE KRUPSLI: II is posigvg movement and I think thnI we can kind of intmvpt that pmmit to fix the entrance. To dredgo it- TRUSTBE FOSTER: How do you get out there now, you usc the property that belongs to the 4 people. GASTON CR1BLBZ: To get in and out from the dock, TRUS'fBE FOSTER:. How do you get Out to the point to do tho drcdl~ing? GASTOIq CRIBLEZ: To get to thc point we use thc road that goes over thc ~oup of four propertY.is that ~oing to continue to happen. TRUSTF.-Ii FOSTEP~ in thc permit md they can work it out. TRUSTI~E IU~UPSIO: Wo will put TRUSTEE FOSTER: ~ust thinking out loud· First stol fox,host, I would want to have my own means to get out the~e. So ~nrdl~ss of what happen~ that prOl~-rt7 we could continue to ~el out tbe~. TRUSTEB KRUPSKI'. They could acc~s it through that property. They could ceflalnly do this ~ off o£ this barge. · GASTON CRIBLF~: I think ~ would be best for evel7ono is that as time goe~ on. We hyto get this accasa. This easemmi, b~__dh~ and w~t not worked out so that we have the a¢c~s. I think it is time to vote. TRUSTHE Ia~UPSY, h I think we ar~ talked out on ~is. JOHN'- W~at about the issue of the drainage. TRUSTEE IU~UPSKI: We do not havo a problem with that. JOHN: I did not wee the plans, whcre are those going to go. TRUSTI~ FOSTER: Basically fight in th~ middle of the road. At thc low point where the water lies. ~OHN: Do you have the plans showing th~ TRUSTE~ K. RUPSK. I: Sure we ~ som~/.heref GASTON CRIBLF_~: I do not think that utcr~ ts a m'ucauz plan mr ma~ There is not a slructur¢ plan the tmstee,s asked for part of a su~cy a cl'oss scction tyl~ A~ far ~ g~c drah~e on ~he road is concerned would bc thc l$,ookin~ fo~ ~hejctty. The~c would be two of~m- With ~hc ~ch diame~' by 8 foo~ leachin~ pool. b~in corn!nS up oa thc cone shape pipe cover C, ASTON CRIBLI~ This would bc ~twoCn mc u~c n~,,,,, ,~ b~ic~lly not between thc bullkb~l. Somewhe~c betwccn that are~ the fir~ hydrant and the .slopc on the road. . ' ' t. At ~l~er ~OHlq: Would tt be prefctabl¢ to put zt down lower on tl~ e~emcn TRUS1.BE i~OSTER: The~c is no bctt~r pino~ nctually, then st Ibc low p°int. much. The middlo of th~ toad is by far the easiest place to put it without lnvolv,,a with the water main. TRUST~ ICRUPSKI: It would be effective there. TRUSTEE FOSTER: It is thc low point, that is where ~h¢ water lics.. It would be rither than to put in a small c~tch basin ired pip~ it somewhe~ remotely. The~e isj~st too much goin~ on the~e. There is nothin~ ~c~,,~y in the roadv~y itseff, the'water main is off to thc side. Tn~e is no under~mu~ utilities so that basically that would be the ea~icst pl~'e to put it. Right i~ thc to~d it self, fight whc~ the water lays. That way thc water would natungly run fight iato ~hc GASTON CRIBI.F.Z: You ar~ goin~ to wind up rcpavtns that section of the toad the~e. TRUSTEE KRUPSI~ Do I have a motion to close the hearin~ TRUSTEE SMITH: So mowd. TRUSTI~ KRUPSKI: All in f~vor. ALL AYES TRUSTEE SMITH: I will mnke s motion to al~rov¢ the Wcfland Permit for. P'-ARADISE POINT to t~he~h R~ insitle of ~he exlsgns jetty with C-Lo~ 4500 vinyl sheathin~ also replaco 1,, iie rods and place washe~ 3"x6" top clamp and 2" nil two drains at low point of Basin Road to elim~-~*~- potmtlal nm-o~ B~h drain to ~onsist of 8'x8' conct~ le~.hins structuto. Tnflic beari~ wilh one cast~ to sr.ad~ to roceived road water. Cor. neo~ing pil~ bctva~n ~ to be 6"PVC to continue Msinteo-,,,-~ Dred~: under Permit #5161 located Bash~ Rond only ~t th~ area of the repaired jetty- nm concurrent with thc DEC - 10 year l~rmit t-_~y work _~o_,~ is subject to ~ettinpl authorization f~om thc own_er IItUSTEE KING: Seconded. GASTON CRIBLP..Z: I~ that thc same kind of a form that we use for the HouestlY s le~t' from the sppl~csnt would ~ fi~' A ~ is ~ m 1o~ ~ ~u w~ R ouL -. -~ -~ o~ public he~n~ - ~c ~ublic h~ ~ ~o requests a D~ck Blhtd in West C~tC. ACCESS: ~. pE'I~R L. TR,IL~LER moved to de~y application. TRUSTBE I'ublio. TRUSTF,,B ERLTI'Sltl ~'OSTI~ Secoad~ AlL AYES biF, ETING ADJOUNED AT: 11:00 pm Board of Trustees /oke notice that the within is a (ce~fied) /py of a /*'entered in the office of the clerk of the within _~ ' ~ed court on Dat~d, WICKHAM, WICKHAM & BRESSLER, P.C. O~ce and Po~t OJ~ce Address MAIN ROAD, P.O. BOX 1424 MATTITUCK. NE~ YORK 11952 1~- ASE take notice that an order ~fwhic. h the ~thln ~ a ~ copy vail be presented ~' settlement to the Hon. One of the judges of the within named Court, at ~ICKHAM, WlCKHAM & BRE$$LE~, MAIN ROAD, P.O. BOX 1424 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK PARADISE POINT ASSOCIATION, INC., Plaintiff(s), - against - MARY S. ZUPA, De fendant (s) . AFFIDAVIT IN SUPPORT OF MOTION TO DISMISS COMPLAINT OR ALTERNATIVELY FOR SUMMARY JUDGMENT Signature (R~e 13~1.1-~ P~ntnamei~sa~ WICKHAM, WICKHAM & BRE$$LER, P.C. Defendant Od~ce and Post O.~ce Address, Te~p~ MAIN ~OAD. P.O. ~ox ld~ MA~ITUCK, N~ YORK 11952 To Attorney(s) for Service of a copy of the within is hereby admitted. Dated JANB ANN R, KRATZ JOHN ~"~. WAGNER NICA b. STRUNK E$$EKS, HEFTeR & ANGel COUNSELORS AT LAW 108 EAST MA~N STREET P. O. BOX 279 RIVERHEAD, N.Y. 11901~0a79 May 7, 2003 P. O. Box 570 WATI~ MILL. N.Y. 11976 (631) 726-6~33 Zoning Board of Appeals Town of Southold 53095 Main Road Southold, NY 11971 Re: Zupa and Miller v. Paradise Point Association, Inc. JUN-62003 / Dear Chairman and Members: As you know, we, along with the finn of McNulty-Spiess, represent the Paradise Point Association, Inc. in the above-captioned matter. At the hearing held on March 20, 2003, you asked us to provide you with copies of the papers filed in the various legal proceedings involving Mr. and Mrs. Zupa, on the one hand, and the Paradise Point Association, Inc., on the other. I enclose copies of the following documents: 1. summons and complaint in an action brought by Victor J. Zupa, Mary S. Zupa and James Miller against the Paradise Point Association, Inc. (Index No. 02-25843); and 2. our verified answer in that action. This action concerns the alleged illegality of the use of the boat basin at Paradise Point. There is a prior action brought by Paradise Point Association against Mm7 Zupa, which is being handled, on the part of Paradise Point, by McNulty-Spiess. Both actions have been assigned to the Honorable James Michael Catterson. I look forward to appearing before you on the next date, i.e., June 5, 2003. SRA:md Enc. Pm'adise Point Association, Inc. c/o Steven Kolyer, Esq. Kevin Ban' James Spiess, Esq. Eric J. Bressler, Esq. Re~ectfully yours, TRANSMITTAL WITHOUT COVER LETTER DELIVERED 7/ [/2003 TO ZBA OFFICE Page 70 March 20, 2003 Southold Town Board of Appeals Regular Mee~t, ing Public H~aring_ , ¢,, , 3:31-4:10 & 4:25-5:55 p.m. Mary Zupa #5266 - Applicant requests Variances under Sections 100-24B and 100-32, based on the Building Department's October 30, 2002 Notice of Disapproval for construction ora single family dwelling. The reasons stated in the Notice of Disapproval are: l) the construction of a single family dwelling on a nonconfbrming 75,687 sq. ft. parcel in the R-80 District is not permitted; 2) the lot is not recognized, and its use is a marina, and 3) the construction ora single family dwelling would constitute a second use. Location of Property: 580 Basin Road, Southold (Paradise Point); Parcel//1000-81-1-16.7. CHAIRWOMAN: Is someone here who would like to speak on behalf of the application? CATHRINE MESIANO: My name is Catherine Mesiano and I'm appearing on behalf of Mrs. Zupa. We are here today because we have applied to the BD for a permit to construct a single family dwelling on a lot known as 580 Basin Road in Southold. Mrs. Zupa took title to the property approximately 1 year ago. The subject property is a - let me back up - the NOD sets forth certain reasons for the disapproval. The first of which being a single family dwelling is not permitted on a non-conforming pamel on an R80 district. I would like to address these issues one at a time. The subject parcel was created as a result ora setoffthat was approved by the Southold Town Planning Board January 1, 1981. The Paradise Point subdivision is a separate map that was created and filed in 1963. Seems to be some confusion as to the identity of various aspects of this property. The earlier subdivision map of Paradise Point is a map that is comprised of 16 lots along Robinson Road that would be the north and westerly side of Robinson Road and Basin Road. If you have a copy of that subdivision map you'll see there are lots numbered 1-16 and there are certain other areas of the map which are identified but are not lots that were approved under that subdivision. In 1981, the then owners of the remainder of the property that being Paradise Point Corp went before the Southold Town Planning Board with a proposal for a setoff of certain properties together with a subdivision of properties known as the meadowlands. Those meadowlands was property located north of lots 13-16 that was basically a salt marsh or a wetland and the purpose of that subdivision after reviewing the files appear to be to split up that property and attach it to each of the existing lots fronting on Robinson Road that being lot 12- I won't specify 12 or 13 but to be attached to those lots that property was contiguous that portion of lots on the road. At the same time that that application was being entertained there was also discussion in the Planning Board file and minutes to document that and resolutions to coupled with that where certain other lots were recognized as setoff. Those lots were a portion of property at the end of Briar Lane at the basin on the westerly side of the basin a small segment of property with access from Brian Lane alongside of the first lot I mentioned on the westerly side of the canal that was retained by the Paradise Pt. Assoc. the property now owned by Mrs. Zupa and a piece of property at the end of Robinson Rd. which is locally referred to as the clubhouse. It's a portion of property not contiguous to any of these properties and I might add that our subject property is not contiguous to any of the parcels subject to the 1981 action. As a result of the 1981 determination of the Planning Board, a setoff of this parcel was approved. We refer to the Southold Town Code as far as lot recognition is concerned. If we have a lot that exists lot recognition through 100-24 of your code states that a lot created by deed or town approval shall be recognized by the town if any one of the following standards shall apply and if the lots have not merged. The first standard is the identical lot being created by deed recorded in the Clerks Page 70 of 96 Page 71 March 20, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing Office on or before June 30, 1983 and thc lot conformed to the minimum lot requirement set forth in bulk schedule AA sub 2 as of date oflot creation. We believe we meet this standard and I will submit to you documents to that effect and 100-24A2 refers to the lot in question being approved by the PB again we have a resolution which clearly states that this lot is an approved lot in a setoffthat was approved by the PB June l, 1981. CHAIRWOMAN: In discussing the distinction between the setoffand the subdivision of Paradise Point you mentioned you had a lot of documentation in the record. Could you submit to this board a copy of that documentation? MS. MESIANO: These had been submitted to the ZBA and it's very concise. It was submitted to Mr. Goehringer 8-10 months ago. BOARD SECRETARY KOWALSKI: It's not part of this file. We need 6 more sets because this is becoming part of the file now. CHAIRWOMAN: The board absolutely does not have this. MS. MESIANO: Everything I have referred to will be found in that set of papers. MEMBER GOEHR1NGER: You're referring to the June 4, 1984 to George Fisher signed by Henry Raynor Jr. and you're refen'ing to lots titled clubhouse 2.75 acres and un-numbered lot on Southold bay 1.7 acres directly to the east of the inlet basin. Also an amendment to the resolution to include 17 as shown on map on May 11, 1980. This approval is subject to a 1-year review. And you're saying that is the recognition by the Planning Board? MS. MESIANO: The PB records reflect a resolution we have the minute to the PB meeting it's in the package of papers I gave you and the subject property is what is referred to as an un- numbered lot on Southold Bay 1.7 acres directly east of the inlet basin. MEMBER GOEHRINGER: That was referred to at all times by certain members of the community I'm not speaking for those members as the marina parcel is that correct? MS. MESIANO: That may be correct. So we've talked about lot recognition and why we believe this is a legal lot because we have a PB approval, because we have a deed dated pr/or to 1983. Now if we refer to the section of your code dealing with nonconforming lots, section 100- 244 the section is intended to provide minimum standards for granting of a building permit with a principal building of lots which are recognized by the town under 100-24 are nonconforming and have not merged pursuant to 100-25. This sets forth a bulk schedule whereby lots in area between 60,000 and 79,999 are recognized with certain setback and lot coverage requirements all of those requirements we meet in our proposal. I should reiterate the fact that we're not here asking for a variance asking for a structure to be placed too close to a lot line to exceed the lot coverage to exceed heights and so on. What we propose is a development of the site that is completely within the confines of the setbacks and requirements set forth by the code. We talked about merger and we do not believe there is any merger. The nonconforming lot has not merged Page 71 of 96 Page 72 March 20, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing with any adjacent lot. The Zupa's own an adjacent property but the contiguous portion of the lot is less than 50' which is the standard set forth in your code an adjacent lot is one which abuts with the parcel for a common course of 50' or more. We don't abut with the lot for 50'. We are approximately 30'. And it is held in separate title. Mrs. Zupa is the owner of the property. Mr. and Mrs. Zupa are the owners of the neighboring parcel which abuts by 30'. We believe this is a legal lot a recognized lot. It is a nonconforming lot in that it does not meet the 80,000 sq. ft., but because of the other standards we have met, we do have a legally created lot and a lot that should be recognized. The second portion of your disapproval relates to a use issue and it is the contention of the BD that the property currently has a marina use in place and the construction of a single family dwelling would constitute a 2nd use. Bulk schedule requires 80,000 sq. ft. of land area per use and I'll refer back to the nonconfomfing lot section of your code because of the way the lot was created the fact it hasn't merged, etc. we are not held to that. Now I want to talk about the use. Many people have referred to the marina lot the marina and ifI might digress a little bit I'd like you to think about the discussion in the prior hearing where there was a lot of energy describing what constitutes a marina and ! certainly think that if that was accepted as to what constitutes a marina, that is not what exists in this community. What we have is a separate lot and adjacent to that property is a property known as the basin and the basin is an underwater land upon which there is created several structures used for docking of boats. The structures in that basin are accessed by means of a described easement that was granted in 1989 by the Paradise Pt. Corp. the then owner of the subject property to an entity known as the Paradise Pt. Assoc. and I would like to make a clarification and distinction that the Paradise Pt. Assoc. is not what one may assume it to be a homeowners assoc. There is no filing with the Dept. of State. There is no offering plan. There is not a document that constitutes this entity to be anything other than an ad hoc corp. CHAIRWOMAN: Is it a corporation? MS.MESIANO: It is a corporation. We have a copy of a certificate of corporation. It was created in 1961. But it is not a "homeowners assoc." as one would recognize with there being cooperative interest in real estate. CHAIRWOMAN: What is the date of the described easement? MS. MESIANO: 1989. MEMBER GOEHR1NGER: Who has to the bottom of the basin? MS. MESIANO: It is our belief that is Andros land. We have documentation from the state of NY that supports that and that is accepted title this as well. MEMBER GOEHR1NGER: One other quick question the easement that you are referring to that I believe the chairperson just requested is that entire area on the survey of now that you've submitted to us? Page 72 of 96 Page 73 March 20, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing MS. MES[ANO: If you look at the survey if you look in the vicinity of where the property adjoins Basin Road, you're going to see a pipe or monument and there'll be a dotted line that goes in a southwesterly direction and if you'd tike, 1'11 come point it out to you. CHAIRWOMAN: It's very visible on the survey; MEMBER GOEHR1NGER: Is there anyway to get to that easement? MS. MESIANO: Yes. When you are on Basin Road, you are at the area that encompasses the easement. There is no obstruction to that easement area. MEMBER ORLANDO: That's where the fence is? MS. MES1ANO: The fence is on the far side of the easement. The easement at no time has been obstructed and made inaccessible to those who are entitled to gain access to the basin. MEMBER ORLANDO: The one end of the fence is kind of where it says pipe found- MS. MES1ANO: It starts at that point and extends for about 75' along the line of the easement but the area which is the subject of the easement, is and always has been accessible to those who are entitled to use the easement. There's been no obstruction and no contest as to the existence or the right to use that easement. MEMBER GOEHRINGER: Only the issue of what I've seen or heard in these applications of illegal docks are a matter opinion of illegal docks are the fact that an easement exists and is construed to be legal and never been obstructed, but the construction of the docks are an issue that certain people - MS. MESIANO: I'll explain that. It is our strong belief that the existence of an easement across a vacant parcel to structures on an adjacent area doesn't constitute a principal use ora property. How one can contend that this is a marina we don't have racks, we don't have gas tanks, we don't have workers, we don't have winter storage, we don't have any of those things typically associated with a commercial venture. We don't have licensing. This is not a commercial venture. This is something that's sort of grown, morphed if you will. This easement we feel very strongly does not constitute a use much less a principal use of the subject property. The easement is clearly defined, the purpose of the easement is clearly defined and I am not an attorney so I will defer to Mr. Bressler, but I believe there are things in state law that preclude the pemeption of there being a principal use created by the existence of a ROW that would mean that every vacant lot in Southold Town upon which there is an ingress and egress easement to a dock or to a beach has a principal use attached to it and cannot be built upon because it already has a principal use. I think that's an oversimplification, but I think it's accurate. MEMBER GOEHRINGER: Did you appear or represent or at least sit in on the Trustees hearing? Page 73 of 96 Page 74 March 20, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing MS. MES1ANO: Yes. MEMBER GOEHRINGER: So questions we have regarding those hearings, you'll be able to answer. MS. MESIANO: Yes. Let me just add along that vein, we have NYS DEC approval for the project, we have Southold Trustees approval, we have health dept. approval. CHAIRWOMAN: I'd like to see a copy of the Trustee approval, the maps and any C&R's, or any settlements that were made with respect to that. We want a copy of that in our file all written documentation of that. If you could take one of these wonderful maps and just because there are so many details on the maps and perhaps put in red where the easement is. It's easy to see the lines on the west side, it's not so easy- MS. MESIANO: There's a lot of information on that map and it's hard to delete any of the information. You brought up the issue of the docks. We've done extensive research on these docks and we find no permits for any docks. We find no permits for the expansion of the docks, for the construction of the docks which led us to a number of questions, but let me just leave it at that for now and say that the docks are there, under what authority we are not able to ascertain because we see no evidence of there being a site plan approval, a Trustees approval, or DEC approval, nothing mentioned in the BD and there's nothing in your dept. that gives any authorization or approval for those docks to have been constructed or to be increased in size, repaired, replaced, etc. So how can a use that we now believe to be an illegal use pre-empt a legal principle use of a residentially zoned lot in a residentially zoned neighborhood? MEMBER GOEHR1NGER: It's very simple. The issue is when were the Trustees established? We know when zoning was established. Did the basin exist prior to zoning? Did the inlet exist prior to zoning? Did people in the community use the docks? MS. MESIANO: I can answer all of those questions. ERIC BRESSLER, ESQ: Madam Chairman, member of the board before we go forward with this particular presentation, I'd like to clarify one or two things before we go down that road. We are here today on the NOD and there are only 2 issues before the board on the NOD and I was heartened to see in the notice of this meeting that there was a comment that you were going to be limited to the zoning issues properly before the board, very refreshing and we are going to try to limit our discussion to just that point. Cathy Mesiano has gone over most capably the issue of whether or not this is a separate lot. She described to you the fact that it was by deed, she described the fact that it was approved by the PB, and the only thing I would add to that is if you go back and look at the maps it was created by the subdivision map by default, just because it doesn't have a number on it, doesn't mean it's not a lot. If you take a parcel of property owned by a person and you chop it up into little pieces and you number it 1-11 and you don't put a 12 on the last piece, doesn't mean that's not there and I think when you go back to map and look at that, that will strike you. Page 74 of 96 Page 75 March 20, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing MEMBER GOEHRINGER: Mr. Bressler, that's a very interesting point, but this board is now arguing an issue in Mattituck where there is a tax map number and the legality of a lot. MR. BRESSLER: I raise that for what's it's worth, whether it's positive or not it may be or not be, but it's a 3'd argument. You've got 3 bases to find it's a legal lot and that's all I want to say. Moving to the issue that we are going to get into- MEMBER GOEHR1NGER: Let me just explain to you the mason I am so concerned about this issue because the nature of what happened in the prior application of when an applicant came before us and we had many hearings on and I had many meetings with the community in this very room as chairperson prior to those hearings, after those hearings, during the situation that went on and it all seemed to revolve around the issue that's before us and that is this easement that exists and the possibility of getting to the easement, walking along the easement and the use of their boats if they were tied to a tie line so to speak and they were feathered out so to speak into the inlet or basin I should say and the nature of these docks that exist. MR. BRESSLER: Let me address that in terms of narrowing the issue. The issue was that the building permit was denied because it has a marina use in place. The beginning of the particular analysis of course is whether there is a marina use in place with respect to this property at all. And I think Ms. Mesiano touched on that and that is if you look at the property and you ask is there a marina use well there is an easement and people walk to and from docks and we will concede that the docks do touch the property. You have to get from the land out to the water without getting your feet wet I guess, but except to that extent, there's no marina on this property so we don't believe that there is a marina use, nor do we believe that the existence of an easement to get to the docks which are in the basin create a marina. And if you agree with us that that's so- we're done so lest there be no misunderstanding about easements and marinas and illegalities and things like that our thrust only before this board is to get a permit to build a house. The issue before this board was not framed initially and the board need not reach if it determines not to the issue of whether those docks are legal, or illegal or pre-existing or not existing and it was not our intention in the first instance in coming to this board to challenge an easement or to go down that road that having been said however we are here and there are disputes that are going on in the supreme court. There was a dispute that went on in front of the Trustees and now we are here but don't lose sight of the fact the only reason we are here are we want to build a house and we don't want any area variances from you. We meet all of your requirements. That's the bottom line. CHAIRWOMAN: You need to get the pool out of the side yard. MR. BRESSLER: That's not before us. That may very well come up at a later date, but that's not before us and I'm not going to speak to it. CHAIRWOMAN: Lot recognition under 124 - I just want to get at your pace - either a or what would amount to c under the prior setoff. Page 75 of 96 Page 76 March 20, 2003 Soathold Town Board of Appeals Regular Meeting Public Hearing MR. BRESSLER: We have a setoff; we have a deed and we've got the subdivision map and we've got anyone or more or a combination of them. We've got a lot. CHAIRWOMAN: The 2"d one would be that it is not a marina. MR. BRESSLER: There is not a principal or primary use of the property as a marina. Let's be precise here because when you are talking about a marina if you look at the code, the definition has that concept built into it principal, primary use so that is yet another way to distinguish what is going on down there and to permit a house or residence to be there to reach out and say that to have an easement across a portion of the property to allow people to reach docks that are 99% in the basin constitutes the principal use of the property I think is somewhat of a stretch to put it mildly. So what I'm suggesting is before we even get the Board Member Goehringer's question there are any number of ways that this board could determine the issues otherwise. However since we are here and since the issue has been raised I think it is appropriate that we answer the board's questions in the event it is necessary to go that route. Now the starting point for the analysis is what's the zoning for the property and we know what the zoning for the property is - it's residential zoning. The next question we ask is if in fact the board rejects our pleas that's there's no principal use as a marina and says yeah there is then the next question is - is it a permitted use under the zoning code and the answer plainly is no it's not as it stands today. The 3d question to ask is okay now who's burden is it? It's not ours if somebody is going to claim that that's pre-existing, that's their burden that's plain. We'll address it, let's just keep in mind who's burden of proof that is. We satisfy our burden to show you it's zoned residential and if you find that it's a marina that's not in compliance. It's nonconforming and the burden is on the other side if they choose to do that - that's is pre-existing, it hasn't been expanded, it's been continuous, it hasn't been reconstructed all those things. So with that having been said I think we can turn to the exhibit. You want me to talk on the record? The first point I wanted to make- MR. BRESSLER: Mr. Zupa who has been so kind as to prepare these exhibits and if you just, we have copies of all these. MR. ZUPA: The first point I wanted to make was the chairwoman's suggestion that the area be lined in red - we will submit a survey, but this is the easement area here. The basin's down below and if you can see this area across here is the fenced area, he's referring to the upper boundary- MEMBER GOEHR1NGER: You have Trustee approval on that correct? MR. ZUPA: That's correct. That was the first point. And Mr. Goehringer's question about the basin when it came into existence - I did an exhaustive search through Fidelity Title Co. they came back after doing the search saying there was absolutely no proof that any private entity owned the basin that the basin was navigable waters according to the state of NY the land management bureau, the department of state in Albany. This is their official map on record. They came back with the certification that this property would belong that the basin the better the Page 76 of 96 Page 77 March 20, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing basin would belong to the state of NY __ the Andros Patent therefore belongs to the town. The entire canal and the letter is an exhibit attached to the memorandum. This is the basin here in yellow. There is an exhibit this is the official map of the state of NY it's dated 1900. MEMBER GOEHRINGER: In other words this is your professional opinion because you are an attorney after an exhaustive search from a title company they have determined this property not to be in private hands which would then be indicated to be an unknown owner as opposed to an owner of record. But basically in the town's name. MR. ZUPA: That's a correct statement of what the title company came back with. They made an exhaustive search I asked them to look at a 1989 deed by which the association claimed title by virtue ora cause that says they are title to any adjoining lands under water they looked at that. They looked at all preceding deeds going back Robinson, Cassone, and absolutely said that the dept. of state's office of general services statement that this was absolutely irrefutable by any search that they could do and that was done by Fidelity Title. MEMBER GOEHR1NGER: So this is not a hand-dug canal, this is a canal that existed for a long, long, time. MR. ZUPA: With respect to them what we've done is gone to company's that do aerial photography on a regular basis and we've seen it go back to 1940. The dominant company that does it in this area is Aerographics. They do it for the Dept. of Environmental Conservation as well as other companies. They take these photographs from 1976-2000 these represent actual area photographs to scale showing the basin as well as the docks and the change of the docks within them, then to go past Aerographics we contacted the US Government, the US Geological Survey that maintains maps from the US Air Force so the first map which is certified 1954 by the government shows the basin in existence, shows a boat in this comer. Again the resolution will be improved by the government when they send the updated map but there's a boat in this comer and what appears to be some kind of a floating thing that's not attached to anything on the far side of the basin. The docks are presently in this location that the association has where this little cove is and I try to keep these all in the same proximity. In the next photograph which is also a 1959 - this photograph was taken by Lackner, Pressler, and Brata this is certified as well. That shows this floating ramp loosely in this cove with the boat over here. This photograph which was taken by the air force in 1959 in November shows this floating ramp now out in the middle and a dock in the comer but the cove is here with nothing in it. Basin in existence. The next photograph was taken by a company called Aerovision and it showed the dock certified in 1962 under construction by the association called Paradise Pt. Corp. in mindful effect the association did not come into existence until 1961. That was after the date of the zoning code which is April 9, 1957. MEMBER GOEHRINGER: May 1 just ask how did you know the association was building a dock? Page 77 of 96 Page 78 March 20, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing MR. ZUPA: Because I have papers substantiating this. The actual contracts associated with this. And it wasn't the association, it was the corporation - the owners were actually building those docks. MEMBER GOEHRINGER: Was that the same corporation that owned the piece of property that your wife is now entitled to? MR. ZUPA: Yes. MEMBER ORLANDO: So this was under construction in 19627 MR. ZUPA: '62 construction. MEMBER ORLANDO: And the corporation was founded in '617 MR. ZUPA: The association was founded in '61. The association and the corporation are 2 different entities. MR. BRESSLER: Paradise Pt. the corporation owned at one time the property in issue, the Paradise Pt. association was a group of people who formed a corporation in '61. The association consists of a number of residents in the area that was formed in '61. The Paradise Pt. Corporation pre-dated that and owned at one time the property over there. We never took directly or indirectly from the association. It went from the corporation to a group of 4 people and then us. CHAIRWOMAN: Why don't we give the people in the audience a chance to see this - would it be an appropriate time now? MR. BRESSLER: I think so. MEMBER GOEHRINGER: Do you have any idea how long this hearing is going to take, are we going to be able to get this hearing completed by 5:30 or- CHAIRWOMAN: Yes, I just want to give people in the audience a chance to review it. Make a motion to recess for 5 minutes? 4:25 ~ Reconvened MEMBER ORLANDO: They started building in '62. MR. ZUPA: In '62 the documentation conforms with that the Paradise Pt. Corp. they actually were conveyed title to this part of the land the original '63 subdivision sometime in late 1960 to Hank Robinson who owns basically that entire peninsula at one time. But when they acquired this, they began construction of the docks and they do have documentation that supports that. Now this channel here Mr. Goehringer's question has always been open and I know it was kind of silly of me to expect that's shown on this map the official map which obviously a higher, Page 78 of 96 Page 79 March 20, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing larger map is on file with the state of NY. And that's over here. It shows that channel. That doesn't mean it hasn't been dredged out periodically including in 1962 when the Paradise Pt. Corp began construction of the docks. They had to dredge this out to allow boats to come in because it shoals over especially at that time without the jays that are now existing in front of the- but you can see the natural configuration of that and it matches the configuration on the official NYS map so any idea that this was dug out by man between 1900 and today is absolutely false. Point in fact I have done my own research and taken the maps back to the 1700's to show this channel. These are not official maps and they are on registry with NYS but l've taken them back and just basin is ghown on these maps. MEMBER ORLANDO: And the mysterious floating dock moved again? Like Big Foot it keeps appearing and it's not- MEMBER GOEHRINGER: I was in that marina around 1964 with my boat. Not marina, pardon me, the basin. MR. BRESSLER: That's 2 years after this photo. What's our next- MR. ZUPA: This is 1976 would be the next photo. The docks are at - there are 3 docks out now with what appears to be some type of a floating arrangement and it's in a different spot here a different location in 1980, it then appears a little bit different, it appears to be some construction, and again, the documentation shows that in 1984, there was substantial work done on the large dock which now exists that was added to and there was substantial construction so it kind of matches up with what's going on in here in '88. In '93 it somewhat shows a somewhat similar configuration to the present dock, it's a large dock with fingers and an extension that was added on in the '80's and what it doesn't show because most of the photographs are taken in Feb. or Mar. of the year what it doesn't show is a dock - all of the boats in place and it doesn't show this dock over here that's the 3rd dock one of the ramps that are tied on here for the winter is move over to this far dock and the remnants of the metal dock are still there presently and that metal dock is one of the original docks that was built in 1962. That is not being used because it can't be used because there are now 3 fingers that have been built onto the larger dock. MEMBER GOEHRINGER: Which dock do you use down there? MR. ZUPA: I have my dock here in the comer which is parked in sideways. MEMBER GOEHR1NGER: Oh, you don't use any of those docks? MR. ZUPA: No. I don't use any of them and the only location that is possible to put a dock of our own on this property and the property that Mary Zupa now owns is in the location of the dock where they have kind of a 4x20' float where they just put 2 docks and point of fact we were trying to work out an accommodation - but at any rate, that's the only other location a dock can go in. This area here is all shoaled over and the DEC and the Trustees wanted us to re-vegetate this entire area so there's no possibility of putting another dock in there. The boat we have now goes in this dock here that's parked in front of- Page 79 of 96 Page 80 March 20, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing CHAIRWOMAN: The original photos don't show any jetty there. The jetty doesn't show up until the '76 photo. MR. ZUPA: The jetties were built in 1972 box jetty. ,-- CHAIRWOMAN: Who built the jetties? MR. ZUPA: Rambo - Tom Samuels. CHAIRWOMAN: Who owns the jetties? MEMBER OLIVA: The corporation or the association? MR. BRESSLER: Neither. That's a matter of litigation in the Supreme Court. They are built in the land of the sovern Peconic Bay. CHAIRWOMAN: How many cases are there pending in the Supreme Court? MR. BRESSLER: Currently, 2. CHAIRWOMAN: Any question of the ownership of the jetty? MR. BRESSLER: The ownership of the jetty has been raised. The right of the docks to remain has been raised. And some other miscellaneous rights with respect to the property that don't effect the issues here today. MEMBER GOEHRINGER: Where do we go from here? MR. BRESSLER: You ask the question member Goehringer whether or not there was some sort of use going back and you asked how do we now- BOARD SECRETARY KOWALSKI: How much longer will it be in court, is it near a decision? MR. BRESSLER: Can't say. There is absolutely no way to know the answer to this question. Obviously there are a number of different avenues that court cases can take and I don't know one way or another with the permit process moves forward and the parties will react. BOARD SECRETARY KOWALSKI: What stage are you at? MR. BRESSLER: The beginning. BOARD SECRETARY KOWALSKI: So you just started. MR. BRESSLER: No, we're still at the beginning. Page 80 of 96 Page 81 March 20, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing CHAIRWOMAN: The only thing I wanted to fully understand and 1 would not know that unless you showed me a copy of your papers on it any matters that might pertain I mean it's your position that none of those matters pertain to any of the matters of this board- MR. BRESSLER: No. I didn't say that. 1 said there is an issue as to the ownership of the jetty, but that's not before you. There is an issue before the Supreme Court as to whether or not those docks are legally allowed to be there, but that's not technically or it doesn't have to be technically before you. You may reach that issue, you may not. As I suggested earlier this was given in response to Mr. Goehringer's question. It's our position that you don't need to reach that question at all. All we are seeking is to build a house and if you determine that there is no principal use as a marina then we disqualify us from doing that then the issue of whether or not - that issue is currently before the court, but that may disappear depending on what happens. MEMBER GOEHR1NGER: Let me just ask the last question. Has any member of the community ever been stopped from utilizing the easement? MR. BRESSLER: The deeded easement, no. ,absolutely. MEMBER GOEHRINGER: That's the key issue here. I'm not the chairperson, but I'm going to make a final statement and that is that was one of the determining factors of the last hearing process so why don't we just clear that up? MR. BRESSLER: The answer is no. The deeded easement is the deeded easement. It's there. MEMBER GOEHRINGER: But these people are telling me somebody was stopped. MR. BRESSLER: Well, respectfully- MEMBER GOEHRINGER: You're an officer of the court, you don't have to be sworn in - were they stopped or weren't they stopped? MR. BRESSLER: For using the deeded easement, absolutely not. As to other matters that are not before us, don't forget there are ongoing disputes about other issues but as to the deeded easement there is no dispute that that's a record and they can- MEMBER GOEHRINGER: Mr. Bressler I know you very well and you must understand one thing that people call me all the time, I don't necessarily get extensive calls, nor do I have to listen to them, because I am no longer the chairperson of this board, but it's important for me to realize what is the case. We know the case of validity of this lot, meaning is it a valid lot or isn't it a valid lot? We didn't bootstrap or handcuff or do anything to the Building Inspector to bring this issue in, so therefore it's before us to a certain degree. Now we are going to listen about the Page 81 of 96 Page 82 March 20, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing validity of the lot. So quite honestly I would just like to bring this thing to a head so we understood exactly what the story is here. MR. BRESSLER: We have no dispute as far as we are concerned over thc cxistence of that recorded easement. MEMBER GOEHR1NGER: Is there a dispute that the easement would be extinguished in some way and these people wouldn't have permission to walk over that? MR. BRESSLER: By us? MEMBER GOEHRINGER: Yes. MR. BRESSLER: No. I must tell you in all honesty, by looking at the survey, it's getting thin. That's an issue. That's not us. It's falling into the basin in places. But that's not us. There's no dispute with us about the existence or the ability of those people if they can physically subject to what Mr. Orlando said to use it. And Mr. Zupa can verify that. I've said it in court and I'll say it here. That's not an issue as far as we're concerned subject to what Board Member Orlando raised and that's a physical problem, not ours. CHAIRWOMAN: On the tumside. You can see it on the yellow highlighted area down below. We would like to have an opportunity to - are you finished for the time being, Mr. Bressler? MR. BRESSLER: If Mr. Goehringer is satisfied with that. If you want to hear from Mr. Zupa, he will confirm that. MR. ZUPA: Personally and as an attorney, no one has ever been challenged walking over the deeded easement area. We've clearly marked with a fence and a yellow line where the easement ends and the property which does not have an easement begins. I have seen people pick up the line and march right in. I've seen people walk into where the house side is. I've gone back after the people were in there and found the stakes that the surveyor put in for the house site out of the ground disappeared. MEMBER GOEHRINGER: I understand that. From Basin Road to an area where the docks are, have people ever been stopped? MR. ZUPA: Absolutely not. MS. MESIANO: I would just like to conclude what I had to say and let the others get on with it. We are here to ask you to consider a reversal of the Building Inspectors decision because we do not believe it is correct. We believe that it is in error and we believe we have given you substantial information to support that contention. We further ask that this heating if not be closed than it be closed to verbatim testimony and any further information be submitted in writing. We do not wish for this heating to go on month after month after month. That has been our experience before other board- Page 82 of 96 Page 83 March 20, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing CHAIRWOMAN: Ms. Mesiano, 1'11 tell you right offthe bat - the evidence that was submitted into the record today including this, the board - whenever that happens the board always wants to be able to review it so we can go back and have an opportunity to ask questions ~ that's normal. I'm not going to try to plow through this in the next 20 minutes and think of all the questions so as far as closing it to verbatim given the amount of testimony that was entered into the record today the board members will want to go over it, review it, and possibly have questions for a future date so if you're through, we'd like to go on. Is there anyone else in the audience who would like to speak for or against the application? STEVE ANGEL, ESQ: My name is Steve Angel, Esseks, Hefter, and Angel, Riverhead, NY and I represent the Paradise Pt. Association. James Spiess was here earlier with me and he's been the attorney for the PPA on some of the issues dealt with here today and he intended to be here, but he has a medical procedure that was supposed to start countdown at 3:00. He extended it to about 4-4:30 at the risk of getting his doctors mad, but he has to disappear to take all sorts of evil testing stuff tonight. Also there are members of the PPA here and the president, Mr. Barr. Mr. Barr is also present. I would since a lot has happened since we've been waiting I would request that whatever happens today that the hearing be kept open. I have not had an opportunity to look at the submission that was not in your files nor have I had a real opportunity to look at those maps. I looked at the photographsjust briefly. I think it's a collateral issue, but l want to start where we left off about the easement and whether there's been a position that the easement has terminated. I think it's pretty clear that Mr. Zupa's position right now is that is hasn't and he hasn't done anything to interfere with people using it, but I would point out to you that there is a letter in the Trustee's file dated July 29, 2002 which among other things expresses the opinion by Mr. Zupa that the Association's easement has terminated and he has taken that position. I would like to since it became a collateral issue, I'd like to submit a copy of that to the board. MEMBER GOEHRINGER: I promised the chairperson that I would be very good now, and not ask any questions. MR. ANGEL: So I'm going to get an easier ride. The Association, I guess to start out I would by saying the Association is not unalterably opposed to some additional use of the property whatever that might be. But it's our position, when I say our include me and the Association that the application before you should not be granted for numerous reasons. Most of which I think I'm going to express to you today. I think what's important is to set forth what the Association's interests, why is the Association interested in this property and interested in this application and interested in various law suits that are going on right now. Well the first and I think the most important interest of the Association is to maintain that boat basin. Whether you call it a private marina as you did in your August 1995 determination, or you call it a boat basin for the mooring of boats for people who live at Paradise Pt. is a distinction that I don't think is necessary to make. But that's an integral part of living at Paradise Pt. Since the inception and we have people here who go back to the late 40's of the residential improvements of Paradise Pt., even before the subdivision, even before the incorporation, even before the zoning law, that particular basin was created for this purpose and I believe that those aerial photographs which were submitted by Mr. Zupa will show that especially when hinged to an aerial photograph that I have in my file that Page 83 of 96 Page 84 March 20, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing shows that there was no such basin or canal back around 1930. So it was created for that purpose and it's important for these people to maintain that - that's an amenity that's important for their lots. Now I think at this time I should point out and 1 wanted to hand up to you, I have multiple copies of it though it's probably unnecessary a copy of your determination August of 1995 in which you specifically found the existence of that private marina and I think from our viewpoint it was legally established in that proceeding. I would also add to that something that I'd like to be placed in the record to make that determination of Aug. 1995 even more understandable is a copy of the minutes from your official file in that application from the first full hearing where a lot of these issues were discussed issues that are now being deposited today really weren't issues back then. 1 think the use of the marina basin that's been now discussed for a half hour, 45 minutes was not really an issue, it was an assumption that it was a proper use at that time and here's an extra copy of the minutes. I didn't make 7 or 8 copies of it because I didn't want to spend the money in the copier. I'm also going to put a little additional flesh on this issue of the legality or the right to maintain the boating and the mooring of boats in the basin and I have brought a copy of the lawsuit commenced by the Zupa's and in fact with James Miller against the PPA which seeks to terminate the use of the boat basin for the purposes found appropriate by you in 1995 and we believe have been appropriate since the inception of this particular project. This is a copy of a summons and complaint filed in the, just a complaint, excuse me, filed in the Supreme court of the State of NY, County of Sufiblk. Mr. Bressler's firm represents the plaintifl~s and the index number shown there. Now the 2nd and most important matter for the association which goes hand in hand with the importance of the boat basin for this amenity for living at Paradise Pt. is the maintenance of access to that boat basin and some minimal amount of parking that has been used in a particular fashion by the people at Paradise Pt. and own property there since the early 50's and it's important for them to maintain that access. The 3rd important factor is this jetty because the jetty controls the shoaling at the entrance to the canal or the channel. And it has to be dredged, maintained in fact probably somebody will mention it, but the jetty has been constructed and maintained by the Paradise Point Association and as recently as last year I think they spent $40K with Steve Pawlik to repair or reconstruct it. It's also important, the 4th issue is to maintain access to that jetty with a turnaround that's shown on the map that's been there forever. That's part of a lawsuit that was commenced by the PPA against Mrs. Zupa to establish rights over that loop road that's shown on the survey. I assume that's part of your file and then the PPA's interest is to maintain the easement, the easement Mr. Zupa told the Trustee's he believed had terminated so they can access walk along the shoreway and access their boat basin. The second aspect of what I'm going to talk about today is why I think this particular application as it's been presented is sort of inappropriate. The first part of that is that it seems to me from reading the application and there was some discussion of it today that what the applicant is seeking is to overturn that portion of your determination in 1995 that this lot was attributed at least in part to what you call the private marina. I mean there's no doubt, if you look at that 1995 determination that I submitted to you today of copies of which are in your file that you specifically acknowledge the private marina on this parcel. That raises as the Chairman knows a favorite phrase of mine, res judicata, and collateral estoppel - she's tired of hearing it, but she's not going to throw anything at me because she's a nice person. You made a finding of fact in that determination and that finding of fact was never appealed, never contested, it's out there. There has been no change in circumstances. There's no evidence that whatever marina use was there in 1995 is terminated. There's no application setoffthat marina portion of use Page 84 of 96 Page 85 March 20, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing from the rest of the property. It's an attempt to put the marina use on a different parcel or somehow disregard it and I don't think you can do that as long as you can collaterally attack a determination likc that in the guise of a appeal of a building inspector's determination or on a 2 variance application. It raises true issues of collateral estoppel and as you know as my want I have made copies of a couple of cases which .... CHAIRWOMAN: Mr. Angel, I'm not sure how it would be collateral estoppel, because as you said it never went to court. As far as the matter of res judicata, that's one of the reasons we wanted to proceed with this hearing because several issues have been raised 124 lot recognition for example that was not made part of the prior record. I'm not saying yes or no, I'm saying that's one of the mason it is so important to review everything before a decision on that can be made, but as far as collateral estoppel it was never in the courts, and it's not in the courts before. MR. ANGEL: But once you make a determination and they attempt to attack it, they can't attack it. The concept of collateral estoppel applies to determinations made by your board. That would be my point and I think the case list supports me on that and I don't know, I've given it some thought, I don't know how you would collaterally attack that determination. I think once you make a determination that there was a private marina on this property, the only thing I could think of to deal with that from their point of view from Mrs. Zupa's point of view would be either to show that the circumstances changed in other words if the marina had disappeared the private marina that you had found in 1995 had disappeared, that would be a change in circumstances and certainly if them was a finding that you had to give credence to would be irrelevant. CHAIRWOMAN: Upon new evidence that had not been presented prior to? MR. ANGEL: I'm not sure about that. Maybe we'll get into it. Let me nevertheless burden the record with my cases. It's the Jensen case and I won't cite it and the Fredilno case but there are full copies here, but I'll send you the cites when I get back to my office and land. MR. BRESSLER: I'd appreciate reserving the right to respond to that. MR. ANGEL: Mr. Bressler, Mr. Zupa brought up this issue of the nonconforming use of the private marina for better or worse terminology. I didn't fully expect that sort of a presentation, but I do have a photocopy of an aerial photograph which we believe was taken in or around 1930 that shows that the basin really did not exist back in 1930 and the channel didn't exist in 1930 and that as a result the conclusion would be that at some time in 1954 or prior there to the basin was dredged, the channel was dredged so boats could go in there and the testimony would be from gentlemen that have been involved with the property since the 1940's since the purpose of that was to moor boats. CHAIRWOMAN: You have the photos? MR. ANGEL: This is the basin area and this is the area where it comes up and this is just a little drain here and I think the testimony would be that before it was made into a boat basin for the Page 85 of 96 Page 86 March 20, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing benefit of the people at PP, you could actually jump across that. You couldn't bring a boat in there, there was no basin in which- MEMBER ORLANDO: That should be Cornel next to it, the wetlands there now and that's probably Reydon Shores Marina which is not open either. CHAIRWOMAN: It's very hard to, the contrast- MR. ANGEL: Is that better? Why don't I leave you this. What it was was an area you couldn't get in and it wasn't deep enough, it was improved, but it was landlocked, but of course if you look at it half of all this land was- MR. BRESSLER: It's a question of exactly whether at that time it was clogged up and got re- opened, these things come and they go. MR. ANGEL: I waited until Mr. Bressler finished his presentation- MR. BRESSLER: Almost. CHAIRWOMAN: This is the only photo you have? MR. ANGEL: I didn't expect to fully litigate this issue today so I'd have to go back with my clients to deal with all these other issues, but that's the best I can do today. I don't know if we're going to have time today, but Mr. Ed Boyd and Mr. John Sinning are here and they go back that far. They could explain what that map showed. They were around at the time that the basin was improved for the purpose for which it's now used. The other point that I wanted to make was I carefully looked at the ZBA application in this case and the ZBA application seeks some sort of appeal from the Building Inspectors Determination and 2 variances. The variance related to the lot which is set forth as 100-24B and a variance for the bulk schedule. Presumably based upon the fact that it's not an 80,000 sq. fi. lot there was no application to have the particular residents co-exist with the use. There was some later correspondence in the file where the applicant sought to say to you that even if you find there's a marina, you can grant us a variance to have 2 uses on the lot. I don't think that's properly presented in the application that's currently before you. I wanted to say that, that deals with this marina issue and my next point is on the lot recognition and if it's okay with you I can break and just have either Mr. Sinning or Mr. Boyd explain what happened when that particular basin and canal were created. Which one of you gentlemen wants to go first? JOHN S1NNING: My name is John Sinning. I have been a resident of PP since 1949, I guess nd we were the 2 house down there. I can remember as a 7 year old boy watching Frank Robinson and Eddy Okula dredging the basin out with a pump. They pumped the spoils, it was mud and clay they pumped it over to the wetlands to the west it probably shows on your picture. They filled in a significant portion of those wetlands. At that point, that channel going out there was probably no more than 2-3' wide I remember jumping across it as a 7 year old boy so it couldn't have been much more than that. They dredged it out for the use of the residents. It certainly Page 86 of 96 Page 87 March 20, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing enhanced the value of the properties down there having a boat basin. At that point there was also Southold Yacht Club located down on the point. That basin was also used by some of the members of the yacht club to moor their boats temporarily when they had races and so forth. Prior to that I can't testify whether it was actually closed to the bay or whether it was a fresh water pond. I know there's a fresh water supply in there and a spring in the southeast comer of it. There used to be a different type of vegetation growing there and there was fresh vegetation growing in that one comer so at some point it may have been a fresh water pond that was not open to the bay, but after 1949, 1 know it was always open to the bay, so does that answer your question? CHAIRWOMAN: As far as you know, it was about 1949 it was open to the bay? MR. SINNING: That's when it was physically dredged. It wasn't enlarged in size, it was physically deepened. MEMBER ORLANDO: You couldn't get a boat in - in 1949. MR. SINNING: No, not until they opened up the channel which was done at the same time. CHAIRWOMAN: It wasn't until the 60's that the association was formed. MR. SINNiNG: It was PP Corp. before the Association, before that it was Frank Robinson owned the property. CHAIRWOMAN: So it was just a handful of property owners? MR. SINNING: When he died, the existing owners bought the remaining property and formed PP Corp. CHAIRWOMAN: So from your memory, from 1949 to the time the Corporation actually put in the docks, it was pretty much just for the local use. MR. SINNING: But it was definitely created for what is now the PPA. CHAIRWOMAN: The basin. MR. ANGEL: I'll move on, I'll save Mr. Boyd for another day. To the point of the next point is this lot recognition point. When I was thinking through how I was going to present this point, I thought ofa - what's the word when you use opposite words? What I came up with is it is absolutely unclear that it's an oxymoron that's it. Absolutely unclear that the lot in question is a building lot. There's no doubt that by the setoff that was on June 1, 1981, not Jan. 1, 1981- MEMBER GOEHRINGER: Did I say January? Page 87 of 96 Page 88 March 20, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing MR. ANGEL: No, Ms. Mesiano did. There's no doubt the lot was recognized in some point in time, but I think the records, at least my interpretation of the records and certainly some members of town government interpretations of the records is that the lot was not recognized for building purposes, it was spun-off and in fact there's a memorandum in your files somewhere I think I may even have a copy of it here that was recently done by the PB, that it seemed like the purpose of the setoff was to allow a minor subdivision to be done that was ultimately completed in 1984 that Ms. Mesiano mentioned. That minor subdivision created a new lot 17 and it was necessary to spin off these lots in order to complete the minor subdivision. One of the things and I actually have a copy of the minor subdivision. It's marked up with certain tax map numbers on it. 1 think probably it was marked by someone in town government because I got a copy out of either this file or the file on the prior application. And if 1 could hand that up, you'll see these parcels, the parcels that were mentioned, the 2.75 acre yacht club parcel, what's it called, the clubhouse parcel and the unidentified parcel just didn't have lot numbers. The other ones that were going to be used for residential purposes had lot numbers. Now consistent with this, when I read the record, it was pretty easy because back in 1995, Bob Villa was on your board and Bob Villa knew a little bit about health department regulations, probably having drafted most of them and the requirements of article 6 of the Suffolk sanitary code were applicable to lot subdivisions, any lots created after November 1980 and this particular, as far as I could tell, this particular setoffwas not subject to that sort of subdivision review for building purposes. I have a copy of the report which is in this file I believe from the PB dated Oct. 29, 2002 which discusses I believe the history of this parcel and certainly comes to the conclusion that the June, 1981 approval is incomplete at best. There is a subdivision map, but that's all through the file, you're aware of that. I think 100-24&24B, it just doesn't seem to me that it's the type of application to recognize a lot that is appropriately before this board, it seemed to me that you would deal with the issues of uses and the recognition of the lot would probably be something that the PB would have to deal with rather than the ZBA. CHAIRWOMAN: We get stuck with it all the time - no one wants it. MR. ANGEL: My experience is when you make an application, that involves a lot that would be subject to a variance, it may not be Southold, I've not done too many applications recently, but my recollection is you go to the Board and ask them to identify the lot, they would then identify that a variance is necessary, they'd make a referral to the zoning board for that purpose, then you'd go back to the PB to complete their review. Their safety review, their other types of review in the particular subdivision and their health review in this particular circumstance. CHAIRWOMAN: As far as that section, that's not necessarily the case in Southold, it just isn't. MR. ANGEL: Finally, since we are here on a variance, I think I've got to address the 267B standards. We have those standards that you people know about better than I do, the applicant is entitled to a variance when he or she meets those standards. And I want to address them briefly. The first one is whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance. What you have here is sort ora sideways attempt to get rid of the marina use to get rid of the access to the jetty. To limit the right to get onto the jetty. The package that's presented to Page 88 of 96 Page 89 March 20, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing you is not a pure variance application with just the house on it. If the plan as expressed in the lawsuit and as presented to you in those detailed aerial photographs and the argument that goes with it is allowed to be accomplished, it will have a dramatic influence on the people of PP. They won't be able to access their boat basin for mooring of boats which has been going on since the early 50's it's that type of neighborhood change that is appropriate under the variance standard. CHAIRWOMAN: Is the bottom line in this whole application and the PPA's opposition access to the docks at the basin or access and or access over the easement to that portion of the jetty? MR. ANGEL: I think the bottom line of this application is continued recognition to the boat basin as an accessory or pre-existing use whatever you want to call it, access to the boat the way it's had in the past and access over the roadway to the jetty area pursuant to some sort of turnaround, like as shown there. Those are important things for the PPA. Those are certainly much more important than what is constructed there. Those are the important factors and the PPA has to protect it. The 2nd issue is whether the benefit sought by the applicant can be achieved by some method feasible to the applicant to pursue other than an area variance. The other method would be to go forward with what I believe is a proper application to finish the subdivision on the property and obtain proper recognition on the lot. Number 3 whether the requested area variance is substantial - if you even just focus on that recognition issue with the subdivision issue, the fact that this waterfront lot is that's bounded on both sides or it's a triangle really 2 out of 3 sides on water hasn't gone through the proper subdivision approval that in and of itself is a substantial leap by your board if you were to approve it without the proper PB, HD referrals for I wish I could read better than I do whether the proposed variance will have an adverse affect or impact on the physical or environmental conditions in the neighborhood or district, well as I explained I think the physical alterations as they are proposed pertaining to the roadway and the easement and the use of the boat basin would have a phenomenal impact and then the last one which you don't have to follow is whether it's self created and I think there's no doubt that when the property was acquired a year ago that it was pretty apparent that there were docks in the basin that there was an easement there that the zoning board had made it's determination in 1995 I think this is a picture postcard situation of a zoning self created hardship. I do have photographs from 2002 showing the basin for what they are worth. They are aerials, color aerials much nicer than the 1931 that I submitted and this is what was there at that time. MEMBER ORLANDO: What was the date again? MR. ANGEL: 2002. CHAIRWOMAN: Mr. Angel, we were going to go back for a second and ask you to clearly identify the minor subdivision map PP. It's a map and it does not clearly show what it is. In other words, maybe you could help us identify the significance of this. I'm missing something here. MR. ANGEL: The only purpose it was submitted was to show that the minor subdivision did show these as numerated lots. Page 89 of 96 Page 90 March 20, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing CHAIRWOMAN: I don't think that was disputed before, I think they were 2 different things. I think that's what Mrs. Mesiano had originally said - this was not part of the subdivision - isn't that what she said - it was a setoffi MR. ANGEL: 1 take the position that it was a setoffbut it wasn't a setoff for residential purposes, it was a setoff for open space or marina purposes or just a retention for future development. I don't know what it was. I'm not willing to make that jump, but it wasn't treated as a building lot number which if you look at the original subdivision map, do you have one in your file I have 3 or 4. If you look at the minor subdivision map, all the residential lots have appropriate numbers on them the way any subdivision would because that determines how many residential units can be placed on them. That was not the hard part it was some desire to deal with this in a different fashion and that's the conclusion the town drew in those memos that are in your file. Let me get you a copy of- MEMBER OLIVA: This whole area down here doesn't have any numbers on it either, except on the tax map now. MEMBER ORLANDO: No, they have numbers 11-10-9-8-7. CHAIRWOMAN: We'd like to wrap this up in about 10 minutes. MS. MESIANO: Here's the 1963 subdivision, here's the tax map. This is the result of the setoff when the unidentified lot, our subject lot, this is the property the resolution that refers to the setoff of those properties together with this piece of property up here which is currently retained by PPA at the end of basin road. MS. MESIANO: That was an amendment to the resolution for the setoffcreating this lot I don't know why we need to create it because it was already here. When it appeared that the PB was considering this as a major subdivision and at some point in time someone said we don't need to do that, we'll just set that off because it was the intention of the developer and the PB that these meadowlands lots were being created to distribute that land to the existing lots that were buildable so this was just additional area that was being attached and that was the purpose of this action and since this piece of property didn't affect that, they then changed courses and made this a part of that setoffbecause- MEMBER ORLANDO: Because a minor is 4 lots or less. MS. MESIANO: It is identified as lot 17, but it is lot 17 that was the subject of the setoft: You can't make this stuffup. In this memorandum package if you look in this section. CHAIRWOMAN: We don't have that package. It is not in our file. Page 90 of 96 Page 91 March 20, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing MS. MESIANO: Let's put it this way, it had been submitted to someone on this board at some point in time. MEMBER GOEHRINGER: It was submitted to me 9/01. BOARD SECRETARY KOWALSKI: But it was not part of an application. MS. MESIANO: And in order to have it enter the record I had a copy of it that I brought in because all of the questions are answered in there. MR. BRESSLER: Is that the first thing you gave to the chairwoman? BOARD SECRETARY KOWALSKI: This is the first time the board members are seeing this, so it's the first time it's in the record. MR. ANGEL: I can attest to you that I was here at 8am as all of you know and you threw me out for your executive session. It was not in the file. I think at this point I'm going to wrap up. Our conclusion is that on the record as presented, the application that's presented in light of your prior determinations, the prior determinations of the PB and the Building staff the relief sought as against your prior determinations I don't think you have an application that you can grant relief on here as a matter of law also I've raised a bunch of other issues that go to the nature of the application, I certainly don't want to abandon them, but I also don't want to belabor the record at this point, it's getting late. CHAIRWOMAN: Is there anyone else in the audience who would like to speak for or against the application? KEV1N BARR: I reside at 200 Basin Road in PP. I've been a homeowner in Southold since 1990. In June of last year I was elected president of the PPA. During the course of the past 9 months, the applicants have taken certain actions and have made certain representations that I think are important to relay to the ZBA. First the applicants have claimed that they own the PPA's jetty - the jetty the PPA constructed approx. 30 years ago. The same jetty that the PPA reconstructed last year at a cost of $40K. They have prevented the PPA from getting to the jetty by vehicle or by walking. CHAIRWOMAN: How? MEMBER ORLANDO: Well you can't get there by vehicle on the easement according to the survey. MR. BARR: But we have been getting there for the last 30 years on the road to the jetty. CHAIRWOMAN: How have they been preventing you from walking? Page 91 of 96 Page 92 March 20, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing MR. BARR: There's a fence there and it's difficult, near impossible to walk to the jetty along the easement. In July, the applicant spouse made a formal written demand of the Southold Town Trustees to have the PPA's docks removed from the basin. Some of these docks have been there and been enjoyed by members for about 40 years. Were they to be successful in achieving this demand, the rights of 20 or more families would be seriously violated. Not to mention the financial loss of well over 200K per family if they could not get access the docks. As a result of these actions, the PPA convened a special meeting this past August. During the meeting the membership passed several unanimous resolutions designed to protect our property interests. These property interests include protecting the boat basin for which the PPA pays taxes each year. So he mentions the state owns it, but we have been paying taxes on the boat basin. The PPA has been paying taxes. We are also seeking to protect the PPA's docks, it's jetties, access to the bay, including the right to maintain such properties. We also voted to establish a legal fund for which to pursue events of these property rights. And it's important to note that we had unanimous vote of the membership of all of the members based on the resolutions as well as the establishment of a legal fund. And I think we provided copies of the resolutions of the board earlier. Incredibly the applicants are fully prepared to violate the property rights of over 20 family members in order to build a home in a lot that was previously ruled not a buildable residential lot. They purchased the lot with the full knowledge of the existing impediments and they have stated very clearly that they intend to eliminate the docks as I said earlier they are preventing us from walking to or driving to the jetty. And all of this in connection with an attempt to build a home. In conclusion, it's our firm belief, as I represent the PPA that the applicant's plan to build a home interfere with the association's enjoyment and use of the marina. We own the jetties and we have a right to enjoy and service them and access them and as I said earlier, we are in litigation with the applicants and I believe we have a prescriptive easement over the road which we believe makes a home on this lot infeasible. Thank you for your patience. I know there are other members who have traveled a great distance, some from Florida to speak. I appreciate it. RICHARD ZACH: I reside on PP on Robinson Road with my wife, Rain Carlson Zach at 3370 PP Road. One fine fall day last year and let me precede that by saying that I'm not a boat owner my father told me son there's 2 happy days in a man's life, the day he buys his boat and the day he sells his boat. We do enjoy going for a walk to the point and to the basin and my wife and I went for a walk and we ran across this chain. Let me also include the fact that I am a law enforcement officer but not within this jurisdiction. And when I come to a chained offarea, it says one thing to me do not trespass and I no longer can walk to the jetty without taking a circumvented route through somebody else's property. CHAIRWOMAN: Is there anyone else in the audience who would like to speak for or against the application? STEVE COILER: My name is Steve Coiler and along with my wife and child we reside at 4380 Paradise Pt. Rd. although my family's been in Southold for several generations, and I've been in Southold my entire life, I've only been in PP for just about 1 year now and I think and we've left Steven Angel to make the technical legal arguments against the application you've heard today and although I'm a practicing lawyer, I'm going to give some to what Mr. Angel has Page 92 of 96 Page 93 March 20, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing stated in some words. What we have deduced from the circumstances surrounding this application litigations and so forth which have been severely taxing on all of us and involved an enormous amount of time spent to figure out whether there's an easier path than we have faced thus far is that we have tbund that the applicant here has manifest a consistent intent to eradicate the docks and what I'll call the marina use of the basin that has manifest in letters before as well as during and after the acquisition of this particular parcel. All of the perils of a dual use on a parcel such as this seem to rise to the surface and be glaringly obvious when there is a long term proven stated opposition of the holder of one use to the continued existence of the other use. It seems to us approaching this entire set of procedures from a defensive posture conceptually here that I feel there is no choice but to oppose this that the co-existence of these 2 uses is not really within our perception the contemplation of the applicant here at all and at every tum and procedure in judicial tribunals and in administrative agencies recently as well as going back before a lot was every up for sale or purchased by the applicant there was a decided preference and intent to eradicate the marina use. That having been said along with the comments about the fact that the marina use is of critical importance to all the homeowners there both for economics as well as just living reasons, we see nothing but potential losses in terms of property interest for the PPA from a dual use that is continued with the elevated states of making this lot one that will have the constructed residence that's proposed on it. We could conceive of different proposals and judge Patterson who's the judge for the 2 formal litigations we thought was a very bright proposal having heard all of the positions of the parties over a period of several hours cross several meetings cross several months he sat back and proposed a settlement he thought would be a fair way to balance the interest which involved drawing a redrawing the deeded line along the property and having full ownership of the PPA of a park of which the docks are present all the way out to the jetty. In that situation, it would render the lot of which the house would be constructed would be no longer dual use or be argued to be dual use. The PPA had full discussion of such a proposal but I suspect it would win easy approval of the PPA members to basically have the house constructed on a parcel that's no longer dual use and have the marina protected. What I think all of us feel quite strong about is the interest of the PPA mn from maintaining the land adjacent to the docks and maintaining the docks right on out to the jetty and you look at the aerial photos and you see how important the jetty's are to the continued viability to the basin. I think even those who are involved in conveying the property some years ago would say that the reason for the deeding of the easement that runs to the jetty now was specifically out of a view that it was necessary in order to protect the association's interest to have that deeded easement. The prescriptive easement we are alleging in court arises from the necessity of access to the jetty for maintenance and annual dredging and we're having difficulties right now. We are trying to get access through to do dredging for this year, it's been opposed in one of the court proceedings for Judge Catterson and we're facing a boating season that will be shortened by the inability to have the dredging preformed and already we're seeing compromise of the enjoyment of the property interest of the members as we speak because of the continuing hostilities between the PPA on one hand and __ on the other. In summary, and I won't describe in detail all the litigations. Essentially we have court cases a court case in which the PPA is the plaintiffthat would seek to confirm the deeded easement, confirm ownerships view prevailing that it owns the jetty and establish permission to cross the property, we've got a litigation which the PPA is the defendant in which the requested relief is to eliminate the docks completely. And we've got this proceeding. We don't see having studied the '95 decision quite Page 93 of 96 Page 94 March 20, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing carefully what has changed. We feel strongly that all of this was discussed in great deal of detail by a very conscientious panel in'95 a great deal of energy was spent at the time the result of which was a very detailed and carefully written decision with explanation of it's rationale at the time. Nothing has changed. The marina use enjoyed by the residents today is every bit that it was then. We think we could prove with evidence that the marina goes way back and the usage of this set of docks pre-exists 1957 we feel basically something that was established in '95 is being re-raised for reasons that we can only attribute to an overall strategy to get rid of the marina use entirely. We know the purchase price for the property and you may care more about this was at a price that all of us believe based on experts that have told us this was a small fraction of what the property would be worth in dollars even as an empty lot, the building lot were the pr/or decision the ZBA to be reversed and the lot to be free for the building of a home. That much is very clear to all of us. But we don't quite see and in fact we've also offered or made it clear that we are going to offer to buy out the lot from the applicant at some agreed price that would leave him expense less for his whole endeavor here. Again out of conviction from the PPA's part it would be worth quite a bit of expense defensively to preserve what we have. That's what this is about for this association. So considerable sums have been dedicated by the members first in history the unanimous vote of all members to pursue with these proceedings. All of this to preserve the status quo. CHAIRWOMAN: If all of these matters are before Judge Patterson then I am reluctant to even go forward with certain aspects of this case which is a civil matter at this point. I'd like to review all of the court papers on this case because if this is before the supreme court as a civil matter- MR. BRESSLER: We are certainly agreeable to having you do that but it is our position and I think you'll find upon a review of it, that it would not be appropriate. Ultimately there are issues before the court that may or may not be relevant. CHAIRWOMAN: He just mentioned that Judge Patterson had talked about a type of settlement that would redesign the easement and the PPA would have deed title and etc., if you were to render a decision at this point- MR. BRESSLER: There is no settlement on the table and I'm not going to - I did not intend to bring it up and I do not intend to convey any of the details to you now, settlement discussions are settlement discussions and - MEMBER GOEHRINGER: You are missing a big point here because this board did not in Laurel on Brushes Creek go through with an application that you are reading about with the Trustees today until Judge Catterson rendered where the ROW was okay and that is the problem we have. And that is a problem I have and I have a problem with every one of these people that have rights to that basin. Regardless of what the issue is concerning their docks. It is the same problem I had in 1995 and that is a problem. MR. BRESSLER: There is no issue as to the deeded easement- Page 94 of 96 Page 95 March 20, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing MEMBER GOEHRINGER: You are stopping people from getting to their property which they have an easement over you are causing a problem Ibr me. You are not garnering my vote. MR. BRESSLER: I've not heard any evidence that anyone's been stopped other than by the fact that it's fallen into the water, Mr. Goehringer, as to the deeded easemet~t, Now if there is an issue as to the existence ora prescripted easement, that's not before this board. That's an entirely different issue I think your remarks to me were addressed to whether or not these people could get to their docks. MEMBER GOEHR1NGER: They spent $40K reconstructing a jetty which now they can't get to. MR. BRESSLER: They have every means of getting to the jetty and if we're going to litigate this, then at the next section, Mr. Chairman, we'll bring in the documentation to show you how that has been accomplished or not accomplished, but if that's the way you want to go, we are happy to bring you the documentation. CHAIRWOMAN: Stop. That's a civil matter. Let's be very clear. That's not a zoning issue whether the easement gives you xyz access or how much of the easement, that is a civil matter. MR. COILER: We don't understand how this panel can judicate these issues that are before it today without a clearer picture of the legal rights of the prospective parties in this proceeding. We think it's fair to say I think everyone agreed that there are highly material legal rights concerning this parcel that are in very much dispute at great expense and at great energy today and those disputes may continue for some time. Everyone in this room will attest to that there are different counts to the 2 litigations. Each count of each complaint is highly material to the property entitlements embodied in lot 1. It seems to me, I am an attorney, but not by all means the last word on this type of legal analysis but it seems to me that it would be very difficult to make a proper judgment on an application like this without a foundation of knowing who owns what. That's vital to being able to orient oneself to access- CHAIRWOMAN: That may not play out here, they may play out in Supreme Court. MR. BRESSLER: Why don't we provide you the papers, I know you are anxious to conclude today I would rather defer my remarks to Mr. Angel's presentation to another time, and in the interim, we'd be happy to provide you with the pleadings such as they exist but we believe once you review them you will agree the issues before this board are zoning issues and that you can decide them and that's what we'd urge you to do. And that's all I've got to say at this particular time. MR. ANGEL: I agree, I'll put together a set of the papers. MR. BRESSLER: If that's satisfactory, I'll hold in abeyance anything else I've got to say and in response to those issues that were raised by Member Goehringer, why don't I hold that in abeyance until I hear from the board as to where you are going. I suspect it may not be necessary, but that's up to you. Will we be notified as to a date or can we have one now? Page 95 of 96 Page 96 March 20, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing CHAIRWOMAN: May 15, is that okay Cathy? MS. MESIANO: I've got surgery scheduled, is there any way to do it in April? CHAIRWOMAN: It's booked up. I'm very sorry. When is your surgery? MS. MESIANO: I was scheduled for the early part of May because I anticipated being here in March/April. CHAIRWOMAN: We're going to have to pick a new date, submit it, let's go over the our council, your council to review everything and then we'll have to get a new heating date on this. I'm reluctant because I just don't see anything. BOARD SECRETARY KOWALSKI: May Ist or June 5th? CHAIRWOMAN: June 5th 7pm. I'm going to make a motion to adjourn this hearing until 7pm, June 5th. 5:55pm - End public hearing. Page 96 of 96 APPEALS BOARD MEMBERS Ruth D. Oliva, Chairwoman ~ Gerard P. Goehringer Lydia A. Tortora George Homing Vincent Orlando http:flsoutholdtown.northfork.net BOARD OF APPEALS TOWN OF SOUTHOLD December 5, 2003 Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 Tel, (631) 765-1809 Fax 765-9064 (or 1823 alt) McNulty-Spiess, Attorneys 633 East Main Street Riverhead, NY 11901 Re: Appl. No. 5266 - ZBA Appeal Determination (Zupa Property) Gentlemen: For your records, please find enclosed a copy of the Board's determination rendered at the Board's December 4, 2003 meeting. Thank you. Very truly yours, Linda Kowalski Encl. :r x :~ C0MMI ,ATION RESULT REPORT ( DEC. P. 1 20~ 3:35PM ) :~ :~ :~ FAX HEADER: SOUTHOLD SUPERVISORS TRANSM[TTED/STORED : DEC. 5.2003 3:31PM FILE MODE OPTION ADDRESS RESULT PAGE 809 MEMORY TX 7656119 OK 5/5 BOARD OF ,APPEAL5; TOWN OF $OUTHOLD 1V/.r. ~nd ~. Victor Zupa ~80 B~ ~ Sou~old, ~ 11971 Re: A~I. No. 5266 -- ~A ~peE aet~on De~ ~. ~ ~s. aupa: D~mb~ 4, 2003 me~, ~a~k ~u. V~ ~y (4 pages follow) ~MITH, I~IKELSTEIN, LUi~DBERG, I~LER A~ND YAKABOSKI, LLP APPEALS .F.,AX COVER SHEET TO: FROM: DATE: TELECOPY NO: NO. OF PAGES TO FOLLOW: RE: Ruth Oliva, Chair Frank A. Islet, Esq. May 7, 2004 765-9064 6 ZUPA v. ZBA INDEX NO. 03-29553 IF THERE ARE ANY PROBLEMS WITH TRANSMISSION, PLEASE CALL (631) 7274100 THIS TRANSMISSION IS INTENDED FOR THE USE OF TIlE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED, AND MAY CONTAIN CONFIDENTIAL INFORMATION BELONGING TO THE SENDER WHICH IS PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE OR OTHER DOCTRINE. IF YOU Al°E NOT THE INTENDED RECIPIENT, YOU ~ HEREBY NOTIFIED THAT ANY D1SCLOSDRE, COPYING DISTRIBUTION OR THE TAKING OF ANY ACTION 1N RELIANCE ON THE CONTENTS OF THIS INFORMATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, IMMEDIATELY NOTIFY US BY TELEPHONE TO ARRANGE FOR ITS RETURN. McNULTY- SPIE$$, P.C. August 2, 2004 /IA FACSIMILE rAX NO. 765-90~4 ~[s. Ruth Oliva, Chairperson ~outhold Town ~ning Board of Appeals ~lain Road 5outhold, NewYork 11971 Re: Application of Mary Zupa Dear Ms. Oliva: My office represents the Paradise Point Associa nnection .with an action which is presently pending in ~ upreme Court against Mary Zupa. On behalf of my clien request a postponement of the Zupa matter on tonighi [he following reasons: ~ As thc result of a recent meeting between the B )ard's Special ,~ounsel, Frank lsler, Counsel for Mr. and Mrs. Zupa, Eric Bressler, and .~ounsel for thc Association on the application before the q 'own, Stephen ~ngel, thc Association's Board of Directors met and discasscd various lalternatives for resolving and settling the ongoing controv :rsy regarding he Zupa's pending application. Before any further tions could be negotia, ad between counsel, however, Mr. Angel left for vacation, nd will not be ~eturning until August 4, 2004. In the interim, and on Fl iday, July 30, [2004, the Association's president learned that the Zupa ai )plication was )laced on the agenda for tonight's special meeting for a dec sion. ! The Association's Board of Directors has authorized settlement negotiations which could have the effect of ending the-hllong-standing dispute between the Association and the Zupas over ti te use of the subject property. It is only because of Mr. Angel's vacat on that these negotiations have not yet been pursued. It is the Directors feeling that a · ' ' the Board, whatever it may be, will not foster a settlement, P.02 :ion, Inc., in uffolk County L, I would like 's agenda, for ~:cl~ U LTY- SPIESS ?2? 8262 Page 2 August 2, 2004 ~ut will instead galvanize the parties in their opposition U lterests. Such an effect would therefore make an arnica lore difficult to achieve. Accordingly, please consider ti:, equest for a short postponement of the Zupa application to rhich is convenient to the Board. Thank you. S:kc dc: Eric d. Bressler, Esq. Very truly yours, SS each other's ,le resolution letter as a ae next date APPEALS BOARD MEMBERS Ruth D. Oliva, Chairwoman Gerard P. Gochringcr Lydia A. Tortora Vincent Orlando James Dinizio, Jr. Southold Town Hall · :. 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 Tel. (631) 765-1809 Fax (631) 765-9064 http://southoldtown.northfork.net BOARD OF APPEALS TOWN OF SOUTHOLD August 4, 2004 Regular Mail and Fax Transmission 878-8951 Mr. and Mrs. Victor Zupa cio Catherine Mesiano, Inc. 12 Mill Pond Lane East Moriches, NY 11940 Re: Appl. No. 5266- 580 Basin Road, Southold Dear Mr. and Mrs. Zupa and Mrs. Mesiano: Enclosed please find a copy of the Board's Findings and Determination rendered during the August 2, 2004 Meeting. The original was filed today with the Office of the Town Clerk for permanent recordkeeping. Thank you. Very truly yours, Linda Kowalski Enclosure Copies of Decision 8/4/04 also to: Building Department Planning Department McNulty & Speiss, Attorneys Esseks Hefter & Angel, Attorneys Frank A. Isler, Esq. SOUTHOI. D F. O. 28 9 3 24 4.4A(C) NOTICE COUNTY OF SUFFOLK (~ R~ Property Tax Service Agency t 0 U ,MOV, .- ,~eb. ~ zest S 89'23'0B" E 21,63' TEST HOL ? DATA TEST HOLE No. I TEST HOLE No, 2 (TEST HOLE DUG ON MAY 1, 2002) (TEST HOLE DUO ON JULY 22, 2002,) 60, LOT AREA THE LOT AREA THE SURVEY OF PROPERTY SITUA TED A T BAYVIEW TOWN OF SOUTHOLD SIJFFOLK COUNTY, NEW YORK S.C. TAX No. 1000-81-01-16.7 SCALE 1"=.50' JANUARY 7, 2002 JANUARY 29, 2002 REVISED LOT AREA NOTATION FEBRUARY 14, 2002 REVISED DRIVEWAY LABELS MAY 15, 2002 LOCAT£D WETLANDS & ADDED TOPOGRAPHICAL SURVEY JUNE 1, 2002 ADDED SITE PLAN AUGUST 5, 2002 REVISED WETLANDS LINE, SITE PLAN & ADDED TEST HOLE AUGUST 25, 2002 ADDED PROPOSED SEPTIC SYSTEM No. 2 INCLUDING THE BULKHEAD AREA AT THE NORTHWEST PORTION OF = 75,587,56 sq. fi. LOT PROJECT[NB INTO SOUTHOLD BAY (TO BULKHEADS & TIE LINES) 1.758 EXCLUDING THE BULKHEAD AREA AT THE NORTHWEST PORTION OF = 72,747.53 sq. LOT PROJECTING INTO SOUTHOLD BAY (TO BULKHEADS & TIE LINES) 1.670 ac. CERTIFIED TO. CHICAGO TITLE INSURANCE MARY S. ZUPA COMPANY Z ,72 SO UTHOLD (TOWN HARBOR N 88'54'02" E THE FACE OF aULKHEAD~',.~ 134,02' ,SE Joseph Ingegno Land urveyor PHONE (651)727-2090 Fox (631)727-1727 4 ~OA T N B2 F29" E BASIN ~EVATIONS ARE REF£RENCED TO N,G.V,D. 1929 DATUM EXISTING ELEVATIONB ARE SHOWN THUS: ~ EXISTING CONTOUR LINE~ ARE SHOWN THUS. - 5 2. FLOOD ZONE INFORMATION TAKEN FROM: FLOOD INSURANCE RATE MAP No. 56105C0167 G 5. MINIMUM SEPTIC TANK CAPACITIES FOR A 1 TO 4 BEDROOM HOUSE IS 1,000 GALLONS. 1 TANK; 8' LONG, 4'-5" WIDE, 6'-7" DEEP 4. M~NIMUM LEACHING SYSTEM FOR A 1 TO 4 BEDROOM HOUSE IS 500 sq ff SIDEWALL AREA. 2 POOLS; 6' DEEP, 8' 5. THE LOCATION OF WELLS AND CESSPOOLS SHOWN HEREON ARE FROM FIELD OBSERVATIONS AND/OR DATA OBTAINED FROM OTHERS. ~1-619D