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HomeMy WebLinkAboutZBA-07/31/1958 o��FFo�k�o = aut�sed tau �� a� 4AA&W& SOUTHOLD, L. I., N. Y. Telephone SO 5-2660 APPEAL BOARD MEMBERS Robert W. Gillispie, Jr., Chairman Robert Bergen — Herbert Rosenberg MIN U T E S Charles Gregonis, Jr. Serge Doyen, Jr. Southold Town Board of Appeals July 311, 1958 A regular meeting of the Southold Toren Board of appeals was- held at 7:30 P.M. on Thursday, Jul:y. 31, 1958, in the Toren Clerk's Office, Sbuthold, New York. There were presents Messrs. Robert W. Gillispie, Jr., Chairman; Robert Bergen, Herbert Rosenberg and Charles Grigonisa Jr. Also present: `Mr. Robert W. %asker, Town Counsel and Mro Howard M. Terry, Building Inspector. Absent: Vr. Sorge Doyen, Jr. FMLIC HEARING: Appeal No. 77, dated July 22, 1958s, application of Francis J. Murphy, Wain Road, Nattituck, N. Y. Fee paid, $15.000 The Chairman opened the hearing by reading application for a 'special excep- tion to the Toning Ordinance to erect a sign,- approximately 4' x 6' on the premises of the applicant. Also letter to applicant advising of date of hearing and legal notice .of hearing- with affidavit from the local .newspaper attesting to its publica- tion. After studying application and map submitted of the property in question, it was determined that this sign is now on State property. Mr. Murphy is applying for permission to erect it on property he owns and wishes to move the sign back from the highway* Board unanimously granted the special exception to erect a sign, approximately 41 a 6' at the intersection of the Old Main Road and Route 25, on the south -side of Route 25, Mattituak, New York. . .Sign to be located not less than 5 feet from any property line and- to -advertise products which are sold on the premises* This permission is subject to revocation for cause. Minutes of the July 24th meeting were then read. On motion duly made by Mr. Rosenberg, seconded by Wr. Grigonis, and carried, Minutes were approved as submitted• - 2 _ Southold Town Board of Appeals Jul„ _1, 1958 MINUTES, Continued PUBLIC HEARING: Appeal Now 76; -dated"July 15, 1958; ors application of W. Barry Lister of West Road, Fleets Neck, Cutchogue, New York' for a special exception, in accordance with the Zoning Ordinance. Fee paid - $15.00. The Hearing.convened at' S P.W_, The Chairman read the application for the appeal, legal notice of public hearing .and affidavit that exists in the file attesting -to the publication of the notice in the L.Ie Batchman-Mattituck Traveler and letter to Mr. Thomas Stark, attorney for. Mre Lister, advising him of date of hearing. The Chairman then introduced the members of the Board to the parties present and explained the procedure that is usually followed at public hearings, indicating that he generally asked,those who wished to speak "for" the appeal to speak firsts to speak briefly and to keep their remarks to what the application is about, and then those who wished to object would be. called upon to speak if they so desired and the same rules would apply to the objectors. Then he explained that there would be a period of rebuttal in which those who had spoken originally, either for or against, would have a chance to speak in rebuttal but explained that no direct cross examina- tion would be allowed between the witnesses. Chairman: These statements are being taken down and we would like your name and address if you are going. to speak. Is there anyone present who would like to speak for the application? Mr. Thomas M. Stark, 175 'Griffing.Avenue, Riverhead, New York, addressed the Board advisinggthat he was counsel for the applicant, Mr. Lister.. Mr., Stark: Itd just like to take a few minutes to outline the application of Wre Lister's. I..will try to make my remarks as brief as possible. To understand Mrs Lister's application for this permissive use I would like to state that it applies to the land in the Fleets Neck section of.Cutchogue. - Mr. Lister purohased the property, known as "Boatmen's Harbor in April 1954+ At that time he commenced extensive improvements to this land. In the year 1955, in July, he purchased property on the opposite side of West Road. During the latter part of that year and in 1956 he installed a complete water system and this water system included a house, motor primp and underground service lines to serve his "Boatments harborT,', with the plan in mind of some day developing the creek property with marina facilities and yachtel units for occupancy by general boat owners. This water system was approved by the State Water Power Board. In addition substantial work was done upon the property during 1956 and 1957, including the installation of 148 feet of piling along Wickham Creek to the south of West Road. Before the enactment of the Zoning Ordinance he dredged along the shore front at the entrance to Peconie Bay. The Zoning Ordinance was enacted in April 1957, at-which time the Zoning Commission of the Town classified the "Boatmen's Harbor" property as 'B" Business and the Fleet property as "A" Residential. There was no such classification for "M" Multiple Residence at.,that time. The Town Board upon recommendation of the Planning Board amended the Ordinance in April of this- year to include provisions for the I'M" Multiple Residence district. Mr.,Lister made application to the Town Board for a change of zone from "A" to VI and the change has already been granted. Mrs Lister plans the construction of mooring spaces withthe necessary dredging and installation of piles and bulkheads: necessary for the mooring of noncommercial boats. This marina is to be an integral - 3 - Southold Town Board of Appeals duly 31, 1958 KMTES, Continued part or adjunct to his commercial endeavor to the north, which is occupied to capacity at this time.. It is 'our opinion and the opinion of.many others .that the approval of marina facilities such as Mrs Lister proposes is something that is very much needed and is something that will benefit the economy, health, welfare,' comfort and convenience of the Town. As a guide in determining- the granting.of this special exception we would like to say that the proposed marina or boat docks will not disturbthe orderly and reasonable use of adjacent properties and we call your attention to the property to the north, which is of substantial size and already classified as "B"' Business. We plan to introduce letters and real estate evidence that this proposed-marina will not in any way deteriorate any of the land of the neighboring-property owners. The orderly develop- ment will improve the value of upland property, The orderly development of the land as planned has no adverse affect, on the safety$ health or order of the Town. It Would not attract noise. The area is particularly well suited for the erection of this marina. The facility when erected should not cause any undue vehicular traffic. on the street, and off-street parking will be provided for the marina unit'i for boat owners and others. This is not a use of. land that will produce any excess odor, smoke or soot. It will not interfere with any neighboring public facilities. It will not cause any overcrowding of land as it is large..enough for such a facility,. It is not near any church, school or other place of assembly. On behalf of Mr. Lister, if there are any questions that anyone would like to ask this evening I would be prepared to answer. Chairman: Are there any questions that any of the Board members might like to ask? I would like to ask you, Mr. Stark, what you mean by the Fleet property you referred to? Mr. Stark: It is purely the property which has now been zoned "M". Chairman: Is there anyone else who wishes to speak for this appeal? Mr. William A. Kennedy, Fleetwood Road, Fleets.Neeks I own property and have lived in the neighborhood for over ? years. Before we came here we looked over all the South Fork of the Island and decided that this was the best place. We-have a boat now' in "Boatmen's Harbor"* Seven years ago I recall looking at Boatmen's Harbor and it was a"little run down. In the ensuing years since Mr. Lister has taken over I think that''all the residents of the area will agree that it has improved over the years* . We know' that Mr. Lister lived down here before. We know that there have been changes in his own persoul. property. We see no reason why the additional property he has acquired will not improve the value of the area* I am not being.,unselfish in talking._this way because I own_ our pm property and,: I would. not be in favor of having the property devalued to any great extent. I feel that it will increase the value of the property and win-bring people into the.area, people interested in building nice homes in this area. Generally, that sums up what I ,feel about it. That this entire program up-to- date has been a success down there. That the place has been improved and beautified and that it is going to have an additional values - 4 - Southold Town Board of Appeals July 311 1958 �S. Continued Chairman: Is there anyone else who wishes to speak for this appeal? Frank B. Rogers of Cutchogue, presented a letter from the Cutchogue Chamber of Commerce which he read, as follows: "On request of Mr. W. Harry Lister of Fleet's Neck, Cutchogue, L. I. the Cutchogue Chamber of Commerce has discussed and studied his application before your Board for a "Marina permissive". We have found his request worthy of our support and urge you -to find in his favor and grant him permission to construct mooring spaces along the shore of• Wickham Creek— because, 1. It will-be the only public dockage iri Cutchogue to help increase our tourist business and thereby benefit our community. Because the tourist business is a'- composite of many other-businesses, it stands to reason that what helps one will help others* Tourists spend money/for foods They pay to be catered to and provided with comforts. They buy many things and they need a whole'range of services*. , 2. We believe, to make a real impact on the "Recession", .bold, concerted action is required at all levels of government—federal, state and local— and by business, industry, home-owners and individuals aimed at creating more jobs and opportunities through. immediate spending for needed products,and services. . The dollars Mr. Lister spends for needed goods and services will help re—employ another man and brighten the job picture in our .community. If everybody lights one small candle, many candles will make a brilliant light." Letter was signed, Respectfully yours, Frank Be Rogers, President. Mr. Vincent W. Annabel of Cutchogue: Mr. Annabel presented the-.following letter which he read to-the Board, as follows: "Town Board, Southold, L.I., N. Y., Gentlemen: If Mr. Lister erects-and maintains his own bulkhead the present. Town Dock in the area will not be over crowded and Will be available for residents of Fleets Neck to use. .This bulkhead is necessary for many reasons. To keep the channel to West Creek open so it may be used by the property .owners of West Creek and Fleets Neck: For boat owners using the Public Dock in this area.. To prevent the shore area from being washed into the bay, especially during the hurricane season. A- bulkhead is an improvement in the town and with our shallow beaches a pier of_this type is necessary for boat owners to tie to&* At the present time we are lacking- these necessary facilities. Our government spends millions of dollars -each year on piers, jetties and bulk— heads. If Mr. Lister is willing to spend his money to improve a Waterway in the Torn of Southold, I think he should_be permitted to do so." Letter signed: Yours truly, Vincent W. Annabel. - 5 — Southold Town Board of Appeals July 31, 1958 MT_ENS; Continued James M. Dixont I am in favor of it. Bernard McGaffery, Cutchogue: In favor of it. Ed Grathwohl, Cutchogue: It has my whole hearted support. Muriel Annabel: I am for Hr. Listens project. Bernard Annabel: I am for Mr.. Lister's project.. Doris Annabel: I am for it. Albin Petrovitch: Ism for it. . I'm from Cutehogue. John Braun, New Suffolk: I am in- favor of it. Walter Saelin, Cutchogue: In favor, Paul Rose, Cutchogue: In favor of it, Raymond Hiller, Cutchogue: In favor.. Alan Grathwohl,,, Cutchogue: In favor. Mr. Shomas M. Stark: I would' like to present at this time a letter from John M. Pollock in .favor.'.of,this appeal and a. petition signed by approximately 100 residents of the Cutchogue, Fleets Neck, area. Also'"I would like to read an opinion submitted by Mr. Silkworth of Mattituck regarding his opinion as to the affect of values and and neighboring properties. Letter read as follows: ."To Whom It May Concern.- It is my knowledge and belief that.with the terrific increase in the use of boats the problem of finding adequate public anchorage in a safe harbor, adjacent to our summer homes area is a necessity today if we are to encourage people to come to Eastern Long Island, At Nassau Point alone, residents not on the Rater front are finding it difficult to find places to moor their boats. With the tremendouse'inerease in automobile traffic the pleasure of driving anywhere, especially on week ends, has ceased. Boating has taken its place in this area and is increasing rapidly.. .Where are those people who do not live in`water front homes going to keep their boats? We should all be farsighted enough not to overlook this serious boat mooring condition. If you were in m W business you would realize what we will be soon up against if places are not provided for s e boat anchorage. The present boat yards cannot begin to accommodate the boats of ali of our people. We have had to turn customers looking Southold Town Board of Appeals July 31, 1958 MIS,, Continued I'or property in this area away because of this condition. They have fine boats and would have to travel too far from homes they might purchase to reach a boat yard. -It is my opinion that such a boat marina, properly placed, is a "Nast" today." Chairman: In order to advise everyone present of the contents of Mr. Pollock's letter, which Mr. Stark presented, I will read it. at this time. Letter signed by John M, Polloek' "Pollock & Mysong Corp., Port Washington, N. Y. addressed to Mr. W* Harry Lister, Cutchogue, N. Y. " I was glad to have the opportunity to talk with you today. _I am quite familiar with the type of Marina-Motel or Yachtel that you contemplate'-for your property on the south side of Bay Avenue on Wickham's Creek on Fleet's Neck. I realize that in order to fully effect a plan of the motel unit for which you have already been granted permission to construct, it will be necessary to build Marina slips on your property on the east side of Wickham's Creek just in from Peconic Bay. As the owner of property adjoining yours to the north, I feel that you long range plan is a definite improvement to the area. Hence, I would like to state for the benefit of the Board of Appeals that I am in favor of them granting you the variance for which you are applying*" Chairman: Is there anyone else who wishes to speak for this appeal? Anyone who wishes to speak against it? Mr. Robert W. VAnderbeek: I have here a petition, which I would like to present, of 150 of the property owners of Fleets Neck opposed to the granting of the application and these people are on Fleets Neck. Mr. Herbert F. Porter: I represent a group known as the Fleet's Neck Property Owners, Inc. I would like to read a letter submitted by our counsel, .Mr. 'Harold Ashare of Patchogue. Mr. Ashare is unable to be present tonight and asked me to read the letter for him. Letter addressed to the Fleet's Neck Property Owners Association, Inc., Catchogue, N.Y e, Att: Mr. Herbert F. Porter: "Dear Mr. Porter: This letter concerns the question of the legal propriety of the application of W. Harry Lister for a special exception to erect and maintain a marina for non-commercial boats in an "N" Multiple Zoning District. The Zoning Ordinance of the Town of Southold (Article III-A.. adopted on April 28, 1958) provides for residential and agricultural use-and also for certain types.of multiple residences and also for hotels and motels. Article III-A of the said zoning ordinance makes no provision for a public marina for the use of commercial or non- commercial boats. Article IV relates to "B" Business Districts in subdivision 11+1 and makes provision for boatyards, .boat storage yards, boat storage basins, marinas, mooring piers, etc. - - 7 - Southold Town Board of Appeals July 34 1958 MINUTES., Continued I do not know of any provision in our Torn Law of the State of New York or in the Building Zone Ordinance of the Town of Southold which will permit-the Board of Zoning Appeals of a town to grant a variance or an exception which will change the zoning ordinance so as to permit a business use or any use of property which is not included in the use area in question. In other words, the law provides that a Board of Appeals may not grant a variance where the use applied for is expressly or impliedly prohibited by the zoning ordinance.,. The Zoning Ordinance of the Torn ,of Southold specifically says, "In the M" Multiple Residence District, no building ,or premises shall be used and no building shall be hereafter erected or altered ,unless otherwise provided in this ordinance, except for one or more of. the following uses: # # # e ". (There is not included a marina or anything like a marina in such uses which are permitted.) The law has consistently rejected attempts by Boards of Zoning Appeals to include businesses or other activities in areas provided for in other. zoning classifica- tions. Clark v. The Board of Zoning Appeals of Hemsstead, _301.,N.Y® 86; Dowses v. Village of Kensinaton, 257 N.Y. 221 at 227: Rathkouf on Zonini, 2nd Edition, pp. 230 and 242. The Town Law makes specific provisions for the amendments of the Torn Ordinance and this authority i specifically vested in the Town Board. The Board of Zoning Appeals is an administrative body appointed by the Town Board and can not assume the legislative functions of the Torun Board, even if such authority were delegated to it. There is nothing unique about the situation presented by Mr. Lister's ownership of the property in question.. Merely because the Town Board gave Mr. Lister a change of zone which is in question and which permits him to erect a motel, that does not empower the Board of Zoning Appeals to add to this problem by granting a public marina facility to the motel-property. One is'not an accessory of the other and the continu- ance of. this condition would be destructive of all of the law and theory of zoning. The limitations of the Zoning Ordianed .are specified by the state laws. Mr. Lister, under the guise of a multiple residence use, can not legally extend that grant to a business use and I can find no provision-of the Timm Law which permits such action* Under the existing law, if Mr. Lister wishes to erect a public marina, he must first obtain a change of zone to "B" Business for this property. If the Zoning Board can grant this application, there.-is no-need for Section 265 of the Town Law' which specifically covers the subject 'of changes iai-the Town Ordinance by action of the Town Board. Signed% Respectfully, Harold Ashare." The Board then asked Mr. Porter to submit a copy of Mr. Ashare's letter so that it might become a part of the record. Helene Welker: I am against this appeal. Robert Mulder of Fleets Neck: I am opposed to any kind of business in Fleet's Neck. Fred fit. Young: I wish to oppose this request. Southold Torn. Board of Appeals July 31, 1958 MINUTES, Continued Charles Wysong; Pequash Avenue:. I just want to point that the names on our petition are exclusively of those. in the Fleet's Neck area$ and if you will study the names on the other petition you will find that many of them are not of this area. You will find that 98% of the people in Fleet's Neck are opposed to the changes which, we understand, you have no control over. It is not legal for you people to okay this addition. If this is granted by you we intend to go further if we have to. We are quite concerned. If you Board members_ have investigated you will find that there are some very nice homes in this area. One home in' particular along side of Mr. Lister's that is worth a terrible lot of money A_woman, a widow, is the owner of the property and unfortunately she is unable to be here tonight. She is opposed to this thing. Chairman: May we have her name? Mr. Wysong: Mrs. Nagle. 98%• of the people in the immediate area are opposed to this thing. I keep my boat in Mr. Lister's boat yard. I h6pe he will continue to let me keep it there. I think we are all entitled to express our opinions. I hope he continues to be. a good friend of mine after ,this. I believe that the alloying of this would depreciate my property. It will create a nuisance value. We assume that there maybe & saloon there some time. One thing leads to another. We just can't stand for that. When they say that business is going to decrease your taxes it doesn't work that way. Wears not opposed to progress* We think there _should be progress but it should be in the business district. Motels are usually along Main Roads. We are pretty proud of our place there. A lot of people who have summer homes are retiring and making these their residences and we want to keep it quiet because of the older people. Estelle Comes: I live opposite .the property in question and I am opposed to it. Mx. Gerhardt of West Creek Avenue: I am opposed to it. Grace Wysong: I am opposed to the whole setup. Mrs. Mulder: I am opposed to it. Mr. C. R. Comes: For the last three or four years there has been piles of concrete and rubber tires brought in. The so-c-alled improvements have been very, very, slog and I hope that no more of that will be shown. As fas as Mr. Kennedy is concerned, I under- stand that he is an associate of Mr. Lister and a neighbor and Mr* Kennedy does not live in our section of Fleet's Neck. . I am very much opposed to any so-called improve- ments such as are talked about. Thank you. am Miss P. Griswold, Vest Bay Avenue, Cutchogue: I have lived here for 30 years. We have had a very bad condition in- the road for many years and I do not think there is any improvement, I am against it. Paul Stoutenburgh, Fleet's Neck: I am against this. Florence E. Durland: I have lived here for 38 years. I am against it. Agnes Mothersele, Fleet's Neck: I am against it. t ' �r 9 ~ Southold Town Board of Appeals Ju1y 319 1958 RIM= Continued Howard Meyer: I am opposed to 'this. I feel that there will be additional traffic on the road and.additional danger to.the children. Chairman: If there is no one else who wishes to speak against this appeal, I will at this time ask to bear from those who wish to speak in rebuttal. Mr. Kennedy: I myself ,live on Fleet!a Neck.and I 'cannot see hoar they arrive at the figure of 98% against. Tow of so.*any that are for it. As for.Mr. Comes remark about improvements, you would only have to look around to know that there has been a great dell of improvement over the last few years regardless of what these people say. Among those.who are against this proposition there are many who have homes in this area for the express purpose of 'suibmer rental only. -Mr. Lister has done nothing but improve Fleet's Neck and the Town of Cutchogue and wi310 I believe, bring,a large. amount .of economy to the town. Mr. Stark: I would like to point out- to the Board that a,great deal of the remarks made this evening seem to relate to objections to the change -of zone rather than t the purpose of this hearing tonight._ The application is for the permissive use of the property in an I'M" Multiple Residence .zone. Chairmans There ' s a great deal of .confusion on the part of the people who come here as to whether they are talking to the Board of Appeals or to the Town Board. Mr. Stark: As to the legal position taken by Mr. Ashaie that this Board does not have the authority to grant a special exception to establish a marina, referring to the first paragraph under Section 350 of ARTICLE III A, it states "A use permitted in an "A" Residential and Agricultural District".. What-we are seeking t©night is one of those uses under Section 300 of Article III, specifically Paragraph 3A. Mr. Lister: First of all I would like to answer Mr. Wysongr He is one of my good customers and I need him. With reference to a nuisance value,-we have 17 slips for inboards and15 for outboards in Boatmen's Harbor. Three.quarters of those are occuppied by residents of Fleet's Neck and I live on one of the main streets and would say that our roads are' not-over trafficked* Mr. Wysong also makes reference to 100 of those in the area who are opposed to this change. That cannot be so as there are two unoccupied houses on the corner. Bar. & Bars. Comes are opposed to this application. They rent houses. * Three are advertised every year. I would like you to visit his places and look at mine. There was an ad in the paper.recently which states there were two houses for sale. No name was mentioned but the ad stated that there was a nearby harbor within 500'feet of 'the property It gave two telephone numbers and one is the Comes residences In advertising their property they mention the advantages of being near a marina. In business they consider our property so how can you talk out of both sides of your mouth. Mr. Comes says that Mr. Kennedy is an associate of mine. That is not so. I am not affiliated with Mr. Kennedy in any Ray. Miss Griswold states-that the roads are dug up. The road- is not in bad condition. I would like to compliment Mr. Harold Price for the way he keeps the roads in'Fleet's Neck. I think I have answered everything. The statement was made 'about the fact that there was no noise in this area before. There used to be a place tba t fishermen would rent and they would put three or four in a room. Also they ran parties and I - 10 — Southold Town Board of Appeals July 31, 1958 MhNUTES, Continued . have discontinued it and there is little-,or no traffic of that sort there now. Chairman: How many of these units do you expect to construct? Mr. Lister: I have no definite plan as yet. I would-say approximately 4 or 5 units and it would work out pretty near the same as Mrs. Comes, maybe one unit more. A maximum of five* Chairman: How would that relate to the marina. In calling it a Yachtel will there be a berth for each unit occuppied? Mr. Lister: The purpose of it is to bring in the boat ovmer who will then live off his.`boat and this would mean their staying for a longer period. People with 35, 40 or 45 foot boats which run about $45,000 so that the grade of people who will use these will require a high class Yachtel. Chairman: I presume you mean financially high' class. What is the population of Fleet's Neck? Mr. Wysong: Approximately 150, or twb or three more. I would like to speak of a couple of things. I want to renew that statement that our petition was signed by people who live or own homes in Fleet's Neck and we did not go outside. Chairman: The individuals signing the petition seem to be objecting to the change of zone. Mr. Wysong: The petition was drawn up before the change of zone but everybody signing knew they were signing for the second paragraph. Another situation is' that we are surrouned by salt water on three sides which leads..us to be concerned about the water supply., Chairman: This situation is a Board of Health problem and does not concern this Board. We have nothing to say about that problem. If there is no one else who wishes to speak we will close the hearing and thank you all for coming on a hot night. We will reach our decision in a few days. Hearing closed. The next meeting of the Board is scheduled for August 7, 1958' at 7:30 P.M. Meeting adjourned at 10:30 P. M. Respectfully submitted, Grace B. Meyer Secretary