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HomeMy WebLinkAbout3572 .C.taTfftp3 t� �/�J 7/iLG G�C.' J.dj' 1. s - CC= Southold Town Board ofAppeals MAIN ROAD - STATE ROAD 25 SOUTHOLD, L.I.. N.Y. 11971 TELEPHONE (516) 765-1809 ACTION OF THE ZONING BOARD OF APPEALS Appeal No. 3572-SE Application Dated October 29 , 1986 T0: Barbara L . Coughlan ,' Esq . (Attorney for M. & .J . ' 'Mattes-) [Appellant (s) 1. 130 Ostrander Avenue , Box 757 Riverhead , NY 11901 At a Meeting of the Zoning. Board of Appeals held on February 5 , 1987 , the above appeal was considered, and the action indicated below was taken on your [ ] Request for Variance Due to Lack of Access to Property New York Town Law, Section 280-a [X] Request for Special Exception under the Zoning Ordinance Article III , Section 100-30 (B) [16] [ ] Request for Variance to the Zoning Ordinance Article , Section [ ] Request for Application of MICHAEL AND JOYCE MATTES for a S ecial Exception to the Zoning Ordinance , Article II ectlon 00-3O (B)M 6] for permission to establish "Bed and Breakfast . Use , " "an owner-occupied building , .other than a hotel , where lodging and breakfast is provided for not more than six casual , transient roomers , and renting of not more than three rooms . Location of Property : 50 Luthers Road , Mattituck , NY; County Tax Map District 1000 , Section 113 , Block 03 , Lot 7 . WHEREAS , public hearings were held on November 20 , 1986 , December 11 , 1986 and January 8 , 1987 in the Matter of the Application of MICHAEL AND JOYCE MATTES under Application No . 3572 ; and WHEREAS ,a-t said hearing all those who desired to be heard were heard and their testimony recorded ; and WHEREAS , the board has carefully considered all testimony and documentation submitted concerning this application ; -and WHEREAS , the board members have personally viewed and are familiar with the premises in question , its present zoning , and the surrounding areas ; and WHEREAS , the board made the following findings of fact : 1 . By this application , applicants request a Special Exception under the Provisions of Article III , Section 100-30 (B) [16] of the Zoning Code for a "Bed and Breakfast" establishment , with owner- occupancy , for "rental of three bedrooms to not more than six casual , transient roomers in an existing r.esidence .. . . - 2 . The premises in question is a 1 . 676± parcel located along the east si-de of Breakwater or Luthers Road , Mattituck , more parti - cularly identified on the Suffolk County Tax Maps as District 1000 , Section 113 , Block . 3 , Lot 7 . 2_, and referred to as Lot No . 1 , Minor Subdivision Map #149 of Arlene Marvin . 3. The subject premises is l:acated.'in ' the "A=80" Residential and Agricultural Zoning District and is improved with a two-story , two-family dwelling and accessory metal storage shed . 4 . For the record , it is noted that a Certificate of Occu- Yanc NO, . Z-9306 dated November 17 , 1978 was issued to Mr. and CONINUED ON PAGE TWO ) CHAIRMAN, SOUTHOLD TOWN ZONING BOARD OF APPEALS Form ZB4 (rev. 12/81) Page 2 - Appl . No . 3572-SE Matter of MICHAEL AND JOYCE MATTES Decision Rendered February 5 , 1987 Mrs . Edgar Marvin for a "Nonconforming Two- Family Dwelling" preexisting of the . enactment of zoning (April 23, 1957 ) . 5 . The proposed parking area is shown at the most north- easterly section. of the premises , with access from Luthers Road. 6 . Extending along the northerly property line of the app l i cants' property_. i s_ an, existing ri.g,ht-of-w-ay as shown by Subdivision Map #149 of Arlene Marvin to Lots 2., 3 and 3 . It is the position of this board that access -to the " Bed and Breakfast" establishment must be directly over, the lands of the applicant , from Luthers Road , and the parking area must be suitably screened from adjoining lands . _. 7 . It is the understanding of this board that the applicants propose to discontinue the use of the existing dwelling as a two- family use , and to establish the " Bed and- Breakfast" use accessory to a single-family-, dwelling--use . The single--family use of the dwelling structure will be occupied by the owners thereof. _. 8 . Article III , Section 1,00-30 ( B) ,' subsection [16] makes exception for site-plan approval and reviews .by the Planning Board for this use ._ _ In considering this application , the board also finds and determines : (1 ) the proposed use will not prevent the orderly and reasonable use of- adjacent properties or of properties in . adjacent use. districts ; . (2 ) the use will not . adversely affect the safety , welfare , comfort , convenience or order of the town ; (3) the use is in harmony with and will promote the general purposes and intent of zoning . The board has also considered subsections (a ) through (1 ) of Article XII , Section 100-121 (C) [2] of the Zoning Code . Accordingly , on motion by Mr . Douglass , seconded by Mr. . Grigonis , .. it was RESOLUED ,_to GRANT a Special Exception for a Bed and Break- fast in accordance with the requirements of Article III , Section 100-30 (B ) [16] of the Zoning Code as applied in the Matter of the Application . of MICHAEL_ AND JOYCE MATTES under No . 3572 , SUBJECT TO THE FOLLOWING CONDITIONS : 1 . The grant of this special exception is limited to this property (and shall not be deemed...to include any .other property over which the applicants may have rights ) . 2 . This Bed and Breakfast use shall be accessory to the single-family use of the premises , with owner occupancy , and shall be permitted only while the dwelling is the permanent residence of the property owner (not to be operated while the dwelling is rented or vacated ) . 3. Ingress and egress by Bed .and Breakfast roomers shall be from Breakwater (Luthers ) Road , and a driveway area for such access shall be provided from Breakwater Road over lands of the applicants herein to the on-site parking area a distance at least 15 feet away from the northerly property line or right-of-way , whichever is closer . _. 4. Minimum of five on-site parking spaces at the east side area of the dwelling screened along the north and east sides thereof Page 3 - Appl . No . 3572-SE Matter of MICHAEL AND JOYCE MATTES Decision Rendered February 5 , 1987 with shrubbery a minimum height of three feet and maximum height of 62 feet , continuously maintained at all times . 5 . Compliance with the N . Y . S . Construction and other applicable codes . 6. This Bed and Breakfast Use shall be deemed accessory to the main single-family dwelling use and not_ a principal use at any time . 7 . This approval is subject to the requirements of Subsection 16 of Article III , Section ' 100-30 ( B) of the Zoning Code , for the r_ent.i.ng of not more than three bedrooms for up to six , casual transient roomers . 8 . The premises shall be limited to one single- family dwelling use with accessory " Bed and Breakfast Use . 9 . Covenants and restrictions containing the above restrictions shall be recorded in proper form in the Office of the Suffolk County Clerk , and a copy thereof shall be furnished to the Board of Appeals . Vote of the Board : Ayes : Messrs . Goehringer , Grigonis , Doyen , Douglass and Sawicki . This resolution was duly adopted . by unanimous vote . 1 k �.. �� 0 GERARD P . GOEHRINGER, CHAIRMAN. February 20 , 1987 h ' NOTICE OF HEARINGS NOTICE IS HEREBY GIVEN , pursuant to Section 267 of the Town Law and the Code of the Town of Southold , the following public hearings will be held by the SOUTHOLD TOWN BOARD- OF APPEALS at the Southold ' Town Hall , Main Road , -Southold , NY at :a Regular Meeting commencing at--7*: 30 p .m. on 'THURSDAY , NOVEMBER 20 ; 1986 and as -follows : - 7 : 35 p .m'. Appeal No . ' 3573 MARGARET AND 'JOSEPH BEST . Variance to the Zoning Ordinance ; Arti-cl e I-I I ,--Secti on 100-32 for permission to locate accessory garage structure in the frontyard area at premises located on the south side of a private right-of-w`ay extending off the east side of Camp Mineola Road , Mattituck ; 'NY ; County Tax--Map Parcel No . 1000-123-06-17.- 7 : 40 p . m. Appeal No . 3571 = MARGARET AND 'JOSEPH BEST. Variance to the Zoning Ordinance , Article XI , Section 100- 119. 2 for permission to construct addition at--the southerly side- of existing dwelling with insufficient setback from the--bulkhead along tidal water area and insufficient setback from the rear property line at premises located on the south side of a private right-of-way extending off the east side of Camp Mineola Road , Mattituck , NY ; County Tax Map Parcel No . -1000- 123-06-17 . 7 :45 p .m. Appeal No .- 3568 = 'STAMATIOS AND 'ALENI 'RAPANAKIS. Special Exception to the Zoning Ordinance , to establish one accessory apartment , in . the :existi'ng dwelling structure in accordance wi-t-h the requirements of Article-- III , Section 100-30 (B) subsection [15] . Location of Property : 2030 Boisseau Avenue , Southold , NY; County Tax Map District 1000 , Section 55 , Block 6 , Lot 40 . 7 : 50 .p .m. Appeal No . .3569 - BOATMEN ' S HARBOR MARINA. Variance to the Zoning Ordinance ; Article XI , Section 100- 119. 2 for permission to construct addition to existing dwelling with , an insufficient setback from existing bulkhead . Location of Property : 3350 West Creek Avenue , Cutchogue , NY; County Tax Map District 1000 , Section 110 , Block 01 , Lot 12 . 7 : 55 p .m . Appeal No . 3572 = MICHAEL: AND JOYCE MATTES. Special Exception to the Zoning Ordinance , Article III , Section 100-30= (B ) [16] for permission to establish "Bed and Breakfast Use , " " an . owner-occupied building , other than a hotel , where lodging and 0- N breakfast is provided for not more than six casual , transient `� � a ; U_ roomers , and renting of not more than three rooms . Location of © T " Property : 50 Luthers Road , Mattituck , NY ; County Tax Map ? istrict 1000 , Section 113 , Block 03 , Lot 7 . r 8 : 00 p . m. Appeal No . 3565 - FRANK FIELD REALTY INC . v Variance to the Zoning Ordinance , Article III , Section 100-3 c� Y Page 2 - Notice of Hearings Southold Town Board of Appeals Regular Meeting - November 20 , 1986 for permission to establish two-family dwelling use on a parcel of land containing less than 160,000--sq . ft-. in area , 270 ft. lot -width , 400 ft. lot depth , and with insufficient frontyard , - sideyard , and rearyard setbacks . Location of Property : 320 Linnett Street , Greenport , 'NY; Map of .Greenport Driving Park' #369 , Lots #71 and' #72 ; County. Tax Map District• 1000 , Section 48 , Block 23 Lot 36, 1.. 8 ::05 p .'m. . Appeal. No . 3566-S'E . ' 'F.RANK FIELD REALTY INC. Speci al Exception to the Zo-nin-g Ordinance , Arti-cle--I-II , --Section 100-30 (B) for permission to establish two-family use at premises referred to as 320 .Linnett Street , Greenport;- NY; Map of Greenport Driving Park #369 , Lots #71 and -#72 ; County Tax Map District 1000 , Section 48 , B1 ock -2-; Lot 36 . 1 . 8 : 10 p .m . Appeal No . 3570-SE .- ,PAUL HENRY . Special Exception to the Zoning Ordinance , Article III ,­Section 100-30 (B) [16] for permission to establish "Bed and Breakfast Use , " "an owner-occupied building , other than a hotel , where lodging and breakfast is provided for not more than six casual , transient roomers , and renting of not more than six casual ,'-transient roomers , and renting of not more than three rooms . Location of Property : 50 Luthers Road , Mattituck , NY ; County -Tax Map District 1000 , Section 113 , Block 03 , Lot 7 . 8 : 15 p .m. Appeal No . 3576 - BARBARA D. SCHRIEVER. Application to withdraw Variance conditionally approved -under Appeal No: -3393 on September 26 , 1985 , and to reinstate in full the 1969 Variance conditionally approved under Appeal No . 1260 , permitting the use of a 5 ,600 sq . ft . existing building for storage and repair of contractor ' s machinery and equipment . Location of Property: West Side of Tabor Road , Orient; NY; County Tax Map District 1000 , Section 18 , - Block 05 , Lot 12 . " B-Light" Business Zoning District. 8 : 20 p . m. Appeal No . 3552 - JOHN SENKO . Reconvene hearing concerning Variance for shopping center use in this B-1 General Business Zoning District containing 30 ,084 sq . ft . in lot area. Location of Property : Intersection of Ackerly Pond Lane and North Side of Main Road , Southold ; County Tax Map District 1000 , Section 70 , Block 7 , Lot 1 . 8 : 40 .p .m. Appeal No . 3574 = 'DR . 'JOHN LORETO . Variance to a; the Zoning --Ordinance ,- Article III , Sections 100-30 . and 100-.32 , r.n .. and Article XI , Section 100-119 . 2 , for permissian -to construct 4 G r CD Page 3 .-. Notice of. Hearings Southol.d. Town Boar_d ' of Appeals Regular Meeting - November 20., 1986 storage building with an insufficient setback from bluff along Long Island Sound for storage- purposes accessory and incidental to the existing dwelling adjacent --to these premises . Location of Properties : Lots ' #3 and #2 , Map of Vista Bluff #5060 ; North Side of Glen Court , Cutchogue , NY; County Tax Map District 1000 , Section 83, Block 1 , Lots 9. and 8 . - 8 : 55 p .m. Appeal No . 3562 = ANA 'G . 'STILLO . Variances : ( 1 ) to the -Zoning--Ordinance , Ar.ticle 3II ., -Section 100* 31 , for approval of .insufficient lot area ,. wi.dth -and depth- of -three parcels in- this pending Minor Subdivision , and (2 ) to New York Town Law , Section 280-a for approval of access over private right-of-way extending from the north side of Main Road to the premises in question . Location of Property: At the north end of private right-of-way , (:a:long 1 ands--of-B . Brokaw ) , North Side of Main Road , --Orient, NY ; County Tax- Map District 1000 ,_Section 14 , Block 2 , Lot 26 , containing 3. 2 acres total . 9 : 05 p .m. Appeal No . 3519 - STEVEN SANDERS & AND . Variance to the Zoning Ordinance , Article III , Section 100-31 for approval of insufficient lot area , width and setbacks in this pending set-off division of land . Location of Property : Private - Right-6f-way located off the north side-of- Bay -View Avenue , Mattituck , NY ; County Tax Map District 1000 , - Section 106 , Block 06 , Lot 36 . The Board of Appeals will hear at said time and place all persons or representatives desiring to be heard in each, of the above hearings . Written comments may also be submitted prior to the conclusion of the subject hearing . For more information , please call 765-1809 . Dated : November 3 , 1986 . BY ORDER OF THE SOUTHOLD TOWN _ BOARD OF APPEALS GERARD P . GOEHRINGER , CHAIRMAN Linda Kowalski , Board Secretary -------------------------------------------------------------------x ATTENTION NEWSPAPERS : -Please publish THURSDAY , NOVEMBER- 13 , 1986 and forward 1.3 Affidavits of publication on or. before November. 17 , to : Board of Appeals , Main . Road , Southold , NY 11971 . ------------------- -------------------------- - - --------------x �r Q CA C.'.7 r..i NOTICE OF HEARINGS NOTICE IS HEREBY GIVEN , pursuant to Section 267 of the Town Law and the Code of the Town of Southold , the following public hearings will be held by the SOUTHOLD TOWN 'BOARD OF APPEALS at the Southold Town Hall , Main Road , Southold , 'NY at a -Regular Meeting on. .T.hu.rsd'ay , Decembe.r,'.-ll ;`: 1986,;, at the following times: 7 : 35 p .m. Appeal No. 3216 - EUGENE DAVISON . Variance to the Zoning Ordinance , Article III , Section 100-.30 (A) [1 ] for permission -to establish second -dwelling unit .upon 9 . 8± acre parcel over. . existi,ng horse stable . . -, Location of:.Pr.operty : South Side of .Sound- -Avenue , Mattituck NY ; Lot #4 , -Minor Subdivision of Strawberry Fields , which -received Sketch Plan approval July 8 , 1985 by - the Town. Planning Board ; County: Tax Map Parcel No . -1000-.121-' 3-5 (containing 12 . 6+ acres ) . 7 : 40 p .m. Appeal No . 3577 - 'FRANK AND DELORES DAVIES . Variance to the Zoning -Ordinance , Article III , Section 100-.32 for permission to replace accessory shed in thd: north sideyard area at 2285 Pine Tree Road , Cutchogue , NY; Lot -#.15 , Map of , Nassau Farms filed March 28 , 1935 ; County Tax Map Parcel No . 1000-104-3-2 . 7 : 45 p .m. Appeal No . 3578 - ARTHUR ESSLINGER. Variance to the Zoning Ordinance , Article XI , Section 100-.119 . 2 for permission to locate accessory storage shed within--75 feet of existing bulkhead and wetlands area at 15.15 Arshamomaque Avenue , Southold ,. NY ; Lot #21 , Map of. Beixedon- Estates ; County. Tax Map Parcel --No . 1000-66-3-11 . 7 : 50 p .m .. Appeal No . 3579 - 'CHARLES AND SANDRA BLAKE . Variance for Approval of Access pursuant -to -New York. -Town Law , Section 280-a, frbm.-th& east side of South Harbor Lane along Old Woods Path (Private Road #10 ) , to -premises known and referred to as 695 Old Woods Path , Southold , NY ; County Tax Map Parcel No . '1000-87-1 -23. 7 . 7 : 55 p .m. Appeal No . 3580 - 'NICHOLAS BABALIS . Variance to the Zoning Ordinance , Article III , Section 100=..31 for permission to construct new dwelling with insufficient northerly side yard and insufficient total sideyards at 3360 .Rocky Point -- Road , East Marion , NY ; County Tax Map Parcel No . 1000-21 -04-09. 8 :00 p .m. Appeal No . 3572 - 'MICHAEL AND 'JOYCE MATTES. Special Exception-Bed and Breakfast (reces--sed from--11 /20/86 ) . �t Page 2 - Notice of Hearings Southold Town Board of Appeals Regular Meeting - . December 11 , 1986 8 : 10 p .m. Appeal No . 3557 - 'ROBERT G . EGAN . Variance to amend Conditional Approval Rendered 11 /3/86 under Appeal No . 3557 to allow reconstruction of dwelling with insufficient setbacks upon foundation as exists at 5- and 12 feet , rather than 7 and 12 feet , at 330 Knoll Circle , East Marion, NY; "Map of Section Two , Gardiners Bay Estates , "- Subdivision Lots 27 and part of 28; County Tax Map District 1000 , Section . 37 , B1_ock 5 , Lot 12 . 8: 15 p .m. Appeal No . 3552 - JOHN SENKO . Variance for shopping center use in this B-1 'General Business Zone with 30 ,084 sq . ft . of lot area (recessed from 11 /20/86 ) . The Board of Appeals will hear at said time and place all persons or representatives desiring to be heard in each of the above hearings . Written comments -may also be submitted prior to the conclusion of the subject hearing . For more information , please call 765-1809. Dated : November 20 , 1986 . BY ORDER OF THE SOUTHOLD TOWN BOARD-.,,..OF APPEALS_ GERARD P . GOEHRINGER , CHAIRMAN Linda Kowalski , Board Secretary ---------------------------------------------------------------------x 'Copies to- the -foI1-owi-ng-:-on -or -about- 12-/1 /86 - - - Mr . Eugene Davison , Box 248-A , RD #1 , Sound Ave , Mattituck , NY 11952 - Mr . and Mrs . Frank Davies , 113 Lone Oak Path , Cutchogue , NY 11935 Mr . Arthur Esslinger , Box 172 , Southold , NY 11971 Mr . and Mrs . Charles Blake , 695 , Old Woods Path , Southold , NY 11971 Mrs . P . C . Moore , Rudolph H. Bruer , Esq . ,' Main Road , Southold, NY 11971 as .Agent/Attorney for. Nichol.as. Babalis Mr . and Mrs . Michael Mattes , 50 Luthers Road, Box 831 , Mattituck , NY 11952 Mr . and Mrs . Donald Shaw , Breakwater Road , Mattituck , NY 11952 Mr. Garrett A. Strang , Architect , for R. G . Egan , ,Box 1412 , Southold 11971 Stephen R. Angel , Esq . (for Senko ) , Box 279 , Riverhead , NY 11901. Daniel C. Ross , Esq . , Box 1424 , Mattituck, NY 11952 Suffolk Times (personal delivery 12/2/86 ) L . I . Traveler (personal delivery .12/2/86 ) Town Clerk Bulletin Board Z . B .A. - Office Bulletin Board Building Department Board Members "Individual ZBA Files NOTICE OF HEARINGS NOTICE IS HEREBY GIVEN , pursuant to Section 267 of the Town Law and the Code of the Town of Southold , the following public hearings will be held by the Southold Town Board of Appeals at . the Southold Town Hall , Main Road , Southold , NY at a Regular Meeting on THURSDAY , JANUARY 8 , 1987 at the following times : 7 : 35 p .m. Appeal No . 3587 - ROBERT AND EILEEN M. JOHNSON. Variance to the Zoning Ordinance , Article XI , 'Sec_tion 100-119. 2 for permission to construct addition to existing dwelling with an insufficient setback from tidal water area at premises known as 430 Corey Creek Road , Southold , NY ; District 1000 , Section 87 , Block 5 , Lot 3 . 7 : 40 p .m. Appeal No . 3594 - ANNE C . MASON. Variance to the Zoning Ordinance , Article XI , Section 100-119. 2 for permission to construct deck addition to existing dwelling with an insuffi - cient setback from tidal wetland area at premises known. as 1250 Lupton Point , Mattituck , NY ; District 1000 , Section 115 , Block 11 , Lot 12 . 7 : 45 p . m. Appeal No . 3585SE - ALVIN AND PATRICIA COMBS . Special Exception to the Zoning Ordinance , Article III , Section 100-30 (B) for permission to establish "Bed and Breakfast Use , an Owner-Occupied Building , other than a hotel ,where lodging and breakfast is provided for not more than six casual , ' transient roomers , and renting of not more than three rooms . " Location of Property : 2500 Pe- conic Lane , Peconic , NY ; County Tax Map Parcel No . 1000-74-03-24. 2 . 7 : 50 p . m. Appeal No . 3588SE - MARY J . MOONEY-GETOFF. Special Exception to the Zoning Ordinance , Article III , Section 100-30 (B ) for permission to establish " Bed and Breakfast Use , an Owner-Occupied Building , other than a hotel , where lodging and breakfast is provided for not more than six casual , transient roomers , and renting of not more than three rooms . " Location of Property : ' 1475 Waterview Drive , Southold , NY ; County Tax Map Parcel No . 1000-78-007-20 . .7 : 55 p .m. Appeal No . 3591 - PAUL STOUTENBURGH , JR. Variance to the Zoning 'Ordinance , Article III , Section 100-32 for permission to locate accessory. windmill. tower in excess of maximum-permitted 18 feet height requirement , at 4015 Skunk Lane , Cutchogue , NY ; County Tax Map Parcel No . 1000-98-1 -6 . Page 2 - Notice of Hearings Regular Meeting of January 8 , 1987 Southold Town Board of Appeals 8 :OO .p .m. Appeal No . 3583 = FREDERICK AND HELEN HRIBOK. Variances to the Zoning Ordinance , Articles : (1 ) III , Section 100-31 for insufficient southerly side yard and total side yards , and (2 ) XI , Section 100-119. 2 for insufficient setback from existing bulkhead along Arshamomaque Pond , for this proposal to construct garage addition to existing dwelling , at 90 Carole Road , Southold,. NY ; County Tax Map Parcel No . 1000-52-2-4. 8 : 05 p.m. Appeal No . 3461 = HELMUT HASS . Variances to the Zoning Ordinance , Article VII , Sections : ' (1 ) 100-71 , Bulk Schedule , for insufficient lot area and lot width ; (2 ) 100-70 (A) establishing existing residential use as principal use of proposed southerly parcel ; (3 ) 100-70 (A) and 100-71 for approval of insufficient livable-floor area in the existing dwelling use of proposed northerly parcel . Zoning District : "B-l " General Business . Location of Property : 35350 County Road 48 , Peconic , NY ; County Tax Map Parcel No . 1000-69-04-2 . 1 . 8 : 10 p .m. Appeal No . 3552 - JOHN SENKO . (Hearing recessed from December 11 , 1986 ) . Variance for shopping- center use in this "B-l " General Business Zone with 30 ,084 sq . ft . lot area. 8 : 30 p .m . Appeal No . 3572SE - MICHAEL AND JOYCE MATTES . (Hearing recessed from December 11 , 1986 ) . Special Exception for Bed and Breakfast in existing building. 8 : 45 p .m. Appeal No . 3584SE - DONALD AND JOANNE RITTER . Special Exception to the Zoning Ordinance , Article III , Section 100-30 (B) (100-31 ) for permission to convert existing one-family dwelling to a two-family dwelling. Location of Property : 2585 Peconic Lane , Peconic , NY ; County .Tax Map -Parcel No . 1000-74-03-20 . The Board of Appeals will hear at said time and place all persons or representatives desiring to be heard in each of the above hearings . Written comments may also be submitted prior to the conclusion of the subject hearing . For more information , . please call 765-1809 . Dated : December 11 , 1986 . BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P . GOEHRINGER, CHAIRMAN Linda Kowalski , Board Secretary -------------------------------------------------------------------x FORM NO.3 TOWN OF SOUTHOLD BUILDING DEPARTMENT TOWN CLERK'S OFFICE SOUTHOLD, N.Y. NOTICE OF DISAPPROVAL File No. Date . ?. . . .. ... . . . . .. 19 . �.�. To �. . . .�?'/. . . . . . . . . . . . . . . . . . . . .°. . . . . .-. . . .- . . -. . . . . . . PLEASE TAKE NOTICE that your application dated P-?- . . . . ., 19 . for permit to . ...Ao� CX- �a� 1F. a.cL°Q�. . . . . . . . . . . . . . . . . . . . . at .Location of Property . . . . . . . . . . . . . . . . . . House No. Si eet ha County Tax Map No. 1000 Section . . . . Block . . . . .0. .,5 . . . I.ot . . .7. . . . . . . . . . Subdivision . . . . . . . . . . . . . . . ... Filed Map No. . . . . . . . . . . . . . . . . Lot No. . . . . . . . . . . . . . . . . . � is returned herewith and disapproved bpi the following grounds . . G'�L, - Z Z4 rJ. .-. .3vg � . . . . . . . . . . . . . . . . . . . . . . . . . .v.. . . . . . . . .( V !! aJC.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Bui L ing Inspector RV 1/80 t FORM NO. 1 TOWN OF SOUTHOLD r!r,,✓ BUILDING DEPARTMENT ;, 0 !2 2 1986 TOWN HALL. SOUTHOLD, N.Y. 11971 TEL.: 765-1802 r camined . . . : . . . . . . . . . . . .. 19 . . . Received . . . . . . . . . . . . 1 9 . . . )proved ... . . . . . . . . . . . . . .1 19 . . . Permit No. . . . . . . . . . . . sapprovedA/c ... . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . s . . . . . . . . . . . . . . . . . .i. . . . . . . . . . . (Building Inspector) APPLICATION FOR BUILDING PERMIT Date 19 /Y INSTRUCTIONS a. This application must be completely filled in by typewriter oar in ink and,submitted to the Building Inspector,with 3 s.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 areas, and giving a detailed description of layout of.property must be drawn on the diagram which is part of this appli- ion. . 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-issued a Building Permit to the applicant. Such pen-nit ill be kept on the premises available for inspection throug4out,the work. e. No building shall be occupied or used in whole or in part for any purpose whatever until_a Certificate of Occupancy ill have been granted by the Building Inspector: APPLICATION IS HEREBY MADE to the Building Department for the issuance of a Building Permit pursuant to the ilding Zone Ordinance of the Town of Southold, Suffolk County, New York, and' other applicable Laws, Ordinances or gulations, for, the construction of buildings, additions or alterations, or for removal or demolition,,as herein described. ,e applicant agrees to comply with all applicable.laws, ordinances, building code, housin code, and regulations, and to mit authorized inspectors on premises and in building for necessary inspe (Sig re o applicant, or name, if a corporation) (mailing address of applicant) ate whether applicant is owner, lessee, agent, architect, engineer, general contractor, electrician, plumber or builder. ime of owner of premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (as on the tax roll or latest deed) applicant is a corporation, signature of duly authorized officer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Name and title of corporate officer) a Builder's License No. . . . . . . . . . . . . . . . . . . . . . . . . . Plumber's License No. . . . . . . . . . . . . . . . . . . . . . . . . Electrician's License No. . . . . . . . . . . ... . . . . . . . . Other Trade's License No. . . . . . . . . . . . . . . . . . . . . . Location of land on which proposed work will be done. . . . � . . . . . . . . . . . . .. . E� I.louse Number . . . . . . . . . . . . . . . . . . . . . . .Street . . . . . . . . . . . . . . . . . . .7. . . .Hamlet . . . . . . . . . . . . . . . . . . . . . . County Tax Map No. 1000 Section / . . . . . . . . . . . . Block . .0J. . . . . . . . . . . . Lot . . . .-7 . . . . . . . . . . . . . Subdivision . . . . . . . . . . . . . . . , Filed Map No. . . . . . . . . . . . ,Lot . . . . . . . . . . . . . . . (Name) State existing use and occupancy of premises and intended use and occupancy of proposed construction: a. Existing use and occupancy . . . , . . . . . . . . . . . . . . . b. Intended use and occupancy 'Z%Z�L. . 3. Nature of work (check which applicable): New Building . . . . . . . . . . Addition . . . . . . . . . . Alteration . . . ... . . . . . Repair . . . . . . . . . . . . . . Removal . . . . . . . . . . . . . . Demolition . . . . . . . . . . . . . . Other Work . . . . . . . . . . . . . . . (Description) 4. Estimated Cost . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (to be paid on filing this application) 5. If dwelling,number of dwelling units . . . . . . . . . . . . . . . Number of dwelling units on each floor . . . . . . . . . . . . . . . . If garage, number of cars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. If business, commercial or mixed occupancy,specify nature and extent of each type of use . . . . . . . . . . . . . . . . . . . . . 7. Dimensions of existing structures,if any: Front . . . . . . . . . . . . . . . Rear . . . . . . . . . . . . . . Depth . . . . . . . . . . . . . . . Height . . . . . . . . . . . . . . . Number of Stories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dimensions of same structure with alterations or additions: Front . . . . . . . . . . . . . . . . . Rear . . . . . . . . . . . . . . ... . . Depth . . . . . . . . . . . . . . . . . . . . . . Height . . . . . . . . . . . . . . . . . . . . . . Number of Stories . . . . . . . . . . . . . . . . . . . . . . 8. Dimensions of entire new construction: Front . . . . . . . . . . . . . . . Rear . . . . . . . . . . . . . . . Depth . . . . . . . . . . . . . . . Height . . . . . . . . . . . . . . NumberofStories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9. Size of lot: Front . . . . . . . . . . . . . . . . . . . . . . Rear . . . . . . . . . . . . . . . . . . . . . . Depth . . . . . . . . . . . . . . . . . . . . . . 10. Date of Purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Name of Former Owner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11. Zone or use district in which premises are situated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12. Does proposed construction violate any zoning law, ordinance or regulation: . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . 13. Will lot be regraded . . . . . . . . . . . . . . . . . . . . . . . . . . . . Will excess fill be removed from premises: Yes No 14. Name of Owner of premises . . . . . . . . . . . . . . . . . . . . Address . . . . . . . . . . . . . . . . . . .Phone No. . . . . . . . . . . . . . . . Name of Architect .. . . . . . . . . . . . . . . . . . . . . . . . . . Address . . . . . . . . . . . . . . . . . . . Phone No. . . . . . . . . . . . . . . . Name of Contractor . . . . . . . . . . . . . . . . . . . . . . . . . . Address . . . . . . . . . . . . . . . . . . .Phone No. . . . . . . . . . . . . . . . 15. Is this property located within 1',00 feet of a tidal wetland? * Yes . . . . . No . . . . . * If yes, Southold Town Trustees Permit may be required. PLOT DIAGRAM Locate clearly and distinctly all buildings, whether existing or proposed, and,indicate all set-back dimensions from property lines. Give street and block number or description according to deed, and show street names and indicate whether interior or corner lot. STATE OF NEW YORK, S.S COUNTY OF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . being duly sworn, deposes and says that he is the applicant (Name of individual signing contract) above named. Heisthe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Contractor, agent, corporate officer, etc.) of said owner or owners, and is duly authorized to perform or have performed the said work and to make and file this application; that all statements contained in this application are true 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.this . . . . . . . . . . . . . -. . . . . . .day of. . . . . . . . . c . . . . . ., 19 � Notary Public, . . . . .. y . . . . . County HELE NOTARY PUBLIC K.D[V@EIe . . . . . G . .C'. . S- . . . . . . . . . . . . . . No.470787F (Signature of applicant) Term Expires t IUWN OF SOUTHOLD, NEW YORK APPLICATION FOR SPECIAL EXCEPTION Application No. Date Filed: TO THE ZONING BOARD OF APPEALS, SOUTHOLD, NEW YORK: I (We) , MICHAEL PIvD J ayCF M19TI s of ;TD Uv_ H E S RDAD (Residence, House No. and Street MRTTITf)CK . NEwU 0R_k iigsa (5-/ ) a39--�i719 am et, .State, Zippo de, Telephone Number) hereby apply to THE ZONING BOARD OF APPEALS for a SPECIAL EXCEPTION in accordance with the ZONING ORDINANCE, ARTICLE SECTION .SUBSECTION 30 (3i(p for the below-described property for the following uses and .purposes (and as shown on the attached plan drawn to scale) : 13Eb RN 15REpkFAST F44CI 'LITY RT 5_0 (,0TtIE)25 R014D, fnAT TI T OCk, A. Statement of Ownership and Interest. fC1-F -13 T TES an)b TOY/CE f'htl ?7ES is(are) the owner(s) of property nown and referred to as SO L iluck House No. , Street, Hamlet identified on the Suffolk County Tax Maps as District 1000, Section'_, Block _, Lot(s) 7 which is not (is) on a subdivision Map (Filed , "Map of Filed Map No. , and has been approved by the Southold Town Planning Board _on as a [Minor] [Major] Subdivision). The above-described property was acquired by the owner on Naup B. The applicant alleges that the approval of this exception would be in harmony with the intent and purpose of said zoning ordinance and that the proposed use conforms to the standards prescribed therefor in said ordinance and would not be detrimental to property or persons in the neighborhood for the following reasons: C. The property which is the subject of this application is zoned and [ \/I i.s .consis:ltont. with the. uses) described in the Certificate of Occupancy being furnished herewith. [ ] is not consistent with the Certificate of Occupancy being furnished herewith for the following reason(s) : [ ] is vacant land. COUNTY OF SUFFOLK) STATE OF NEW YORK) ss. : T' U Sworn to before me this �9 day of ww , 19 F(y (Notary Public) - STANLEYA.CIERACH JR. NOTARY PUBLIC,State of New York ZB2 (rev. 2/6/86) No.52-4521326 Suffolk C01.117f1' Commission Exir ryC4�yf��y TOWN OF SOUTMOLD PROPERTY CO CARS F... OWNER STREET VILLAGE DISTJ SUB. LOT ///r f/�-,7 T� t�Y/ f.y f:i"i�y r} `^ .d-`•---..�;.f Y� r,1.�`l f �%E FORMER OWNER N ; E _`` ACR. � A A t� YGI �6' Y> S W TYPE OF BUILDING - Cv ES. g,iJ SEAS. VL. FARM COMM. CB. MICS. Mkt. Value LAND I IMP. TOT AL DATE REMARKS J ���� � 'V O J ��� � j� /I��r_- 7/-=F-. `f-l•Y ? �'� j �/ �f V/� .���,/f' / LJ Sf ti'' F+if'i°^[N4 / / L f _ D U ���,�.Y � � ��t� �So r _5 37— 1)zo FqsTJ�✓�//�� f �7UO i7 ��G DOS ���y 7 � (D 1 be,�to o %o J. Srn,NtLI^ -��J �Y 5��[.1 �r 12 4:t Ft�_i ; � �9.00b 1l � IC)4� y 7z Jn(c1 (v12 i , !3, I PgGtn� R c e.r ►, 43(;� / /17j G/ 741-7 �►&A L� AGE BUILDING CONDITION NEW NORMAL BELOW ABOVE i FARM Acre Value Per Value Acre d: Tillable n 6 `o p FRONTAGE ON WATER-33 ! Woodland FRONTAGE ON ROAD i ,kAeadew cord J �� DEPTH House Plot �� e�. I (� 0 O BULKHEAD Total / �� DOCK f COLOR TRIM s ^4-j— — — -- — ---- --- --- I D I rz 'lY M. Bldg. Extension Extension 1S Extension Foundation r� Bath Dinette Porch Basement i Floors 17 �; K. Porch Ext. Walls S�di Interior Finish LR. Breezeway � `, Fire Place Heat / DR. 1a Garage 9 x `� a�� �n O Type Roof 1 Rooms 1st Floor BR. Patio L ° 1132— Recreation Room Rooms 2nd Floor FIN. B 97 O. B. = Dormer Driveway Total l 13 /3 - 3 - TO OF SOUTHOLD PROPERTY RECORD CARD / C� OWNER STREET ` VILLAGE D/IIST. SUB. LOT l RMER OWNER / N E �s / ACR. 7 X `JGLC �SG7)S GPI Ub a 9� S i / W TYPE OF BUILDING RES. SEAS. VL. FARM I COMM. CB. MICS. Mkt. Value LAND IMP. TOTAL DATE REMARKS 167 ADO %2r�i /S/ao ' / t( /-?/gyp S'l cl " �o oao /�. S�a�,/ fa S�a`i` L aZ I (cc)c� - � Q S�/�`�`/o oo-a E s��/,/ /Q /�. �f�// < y 7-71 a�a ^�-- 7 9�? - f GI f't, �f (_ C Ir y'-c--9 Tillable FRONTAGE ON WATER Woodland FRONTAGE ON ROAD .Meadowlond DEPTH House Plot BULKHEAD rotal TOWN OF SOUTH OLD PROPERTY CAR DLO — //3`J OWNER STREET VILLAGE DIST. SUB. LOT— Do . _ FORMER OWNER N �r� E�JG' // s ! ACR. '�f V ► dU 4 Y � 7, �ft, 4..A fl S W TYPE OF BUILDING RES. SEAS. VL. FARM COMM. CB. MICS. Mkt. Value - LAND IMP. TOTAL DATE REMARKS J, /"// 7�r 1,1117E �4,1rul, �a �l1� � �.sr�000 %SS GotUCS �/ c�C� i / 3 `�✓ 56-r c 7— hr'( ri -7 Zcac� �:� i �Z (33�(a -T v)%b.- l FLLL&jC ow. Tillable FRONTAGE ON WATER Woodland FRONTAGE ON ROAD Meadowland DEPTH House Plot - BULKHEAD oc Total jam!s ■■■■■ ■■■■■i n■iniianii i■ini ME ON a ■n■■■■■■■■■■■■■■■■■■■■■■■■ INEMENOM ;� : ' =y `. ■■■ M WME■■■■■■■■■■ ■■■■■ ■■■■■ ,1■MMEMM ■■■n■■■■■■■■■■■■.. mom MEMO sac 'r i'_t`.i•. c: x. .,`` >r f s ' '' MEMINWO MMIM,■■ ■■ ■■ ■■■■n■■ OF SOUTHOLD PROPERTY 'RECORD CARD OWNER STREET VILLAGE DIST. SUB. LOT "q A A Q P- ?W//I 121 / — 1 FORMER OW Elk N ACR - w- �4 L&J t lk C4 �N)AZv S w TYPE OF BUILDING �' I RES. SEAS. VL. FARM COMM. CB. MICS. Mkt.' Volue f LAND IMP. TOTAL DATE REMARKS fl �Jrel F1 TI-4 I- 9, 7 d- ; z! 6 0 3 rs11/flPl x6'If /7- e, e e),7 6 C, /dZ/ 1. e. /,5' 77 LQcjZt) (: x. L- �4- b� cjc 'ZI, Tillable FRONTAGE ON WATER Woodland FRONTAGE ON ROAD Meadcvwkr4 DEPTH House Plot BULKHEAD Total ., ■■■.■■■■■. .. ..■..■ - . . ■.■■■■.■■■■ ■■.■■. MEMO FINE MM p ■■■■■■■n■■n■■ �■■■■ .t ,., +Y*'s. SC 4 "4i r -•t+` Imo-. 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L MATTER OF MICHAEL AND JOYCE MATTES THURSDAY, JANUARY 8 , 1987 PUBLIC HEARING RECESSED FROM DECEMBER 11 , 1986 Meeting CHAIRMAN GOEHRINGER: -- Do we have a spokesperson for the Mattes ` ? Mrs. ''Coughlan ' :is here. MS. BARBARA COUGHL4N: I am here on behalf of the Mattes ' . My name is Barbara Coughlan: . I'm an attorney in Riverhead at 130 Ostrander Avenue. As I stated, I'm here on behalf of Joyce and Michael Mattes , the applicants. They're before your Board this evening for a special exception permit to operate a Bed and Break- fast in their home located on Luther and Mill Road in Mattituck. It was my understanding from the last meeting that this applica- tion was held over for one reason. That reason being that there was some question in respect to the deed of the Mattes ' . Both the Mattes ' and myself are here this evening to help you resolve that issue if we could. , CHAIRMAN GOEHRINGER: The issue has been held in abeyance pending the fact that our legal council is indisposed at the moment. He is in the hospital and we will discuss it with him after the hear- ing is closed. We have gathered the information that we are look- ing for and we think we have pretty much everything that we need. So I don' t see that there ' s any further reason to go any further with this . That ' s pretty much the situation on our part. We will give the other side the right to respond and we will give you the right for rebuttal. We will limit that to the 4i minutes that I mentioned before. So we'll ask if there' s anybody else that would like to speak in favor of the application. Not asking you to step aside but. . . Seeing no one, we will ask the other side to respond. Yes ma'am. Would you kindly state your name. , MRS. HAHN: Good evening. My name is Mary Jean Hahn, and I'm the adjacent property owner to Mr. and Mrs. Mattes. One thing that I would like to bring up to the Board that I don' t believe has been addressed before. With respect to the right-of-way; it was my un- derstanding that if something were to happen to one of the guests of the Mattes ' on the right-of-way, that we could be sued as well. I would ask the Board to consider requiring the Mattes ' to issue a certificate of insurance for the liability including us as named insured. So that we would not then be sued privately because of the fact that they have a Bed and Breakfast and we have a residen- tial home. And we would just request that we not be responsible for their clientele so to say' and that the Board require that they submit that with us with our names on it. CHAIRMAN GOEHRINGER: Mrs . Hahn, I just want to reflect breifly upon that and that was that I had-:asked Mr. Mattes at the last hearing if he was willing to run an egress adjacent to yours and the other 2 property owners egress „ ingress and egress. There- by, precluding use of that right-of-way at this particular time, one was in conjunction with the Bed and Breakfast operation Page 2 - January 8, 1987 . Public Hearing - Joyce and Michael Mattes Southold Town Board of Appeals CHAIRMAN GOEHRINGER: (continued) if this Board so chooses to grant it. So Vm. not. sure that that is going to be needed assuming we deal with it in that particular way. MRS. HAHN: In other words , you are then requesting the Mattes ' to redesign their driveway. Is that it? And not use the right- of-way. CHAIRMAN GOEHRINGER: That was basically the way that I. . . That was the question that was asked. We had not dealt with that. MRS. HAHN: Are there any plans or any diagrams? CHAIRMAN GOEHRINGER: We have not received any from them. We have not asked anything of them at this particular time. Basically, it was probably a situation where I was not thinking about the holiday season in dealing with all of the information that I might have gathered, ;'. that would have supplemented what I needed. But I don' t feel that I need any additional information from either the appli- cant or the other 3 property owners at this time. If for some rea- son that situation was to change, then we might open the hearing up at that particular time. Reconvene the hearing is the proper term, phrase to use. But at this particular time, I don' t see that,:that is of neces-s ity. So that ' s all I can tell you. MRS. HAHN: I just hope that this question will be. . . . CHAIRMAN GOEHRINGER: That is an interesting area that you just men- tioned. MRS. HAHN: It was a concern to me because of the fact that strangers would be using our property and you never know. People are sue crazy these days and I just don't want to open ourselves up to that liabili- ty. CHAIRMAN GOEHRINGER: I happen to live in the community around the corner and I'm aware of the fact that there is underground power lines running adjacent to the right-of-way. My question was basic- ally, which side do they run on. Do they run on the Mattes ' side or do they run on your side of the right-of-way? MR. MATTES : You're talking about. our power line right? CHAIRMAN GOEHRINGER: Right. MRS. MATTES: It runs in the middle of the right-of-way. MR. MATTES: It runs from the right side by the phone pole which is right on the edge. of the right-of-way (diagonally) very slight- ly diagonally. So over a distance of 150 feet, it goes over 4 feet and then it cuts up to our house. CHAIRMAN GOEHRINGER: So it' s more on the north side then it is . . . MR. MATTES: It' s entirely on the south half. Page 3 - January 8, 1987 - Public Hearing - Michael and Joyce Mattes Southold Town Board of Appeals CHAIRMAN GOEHRINGER: It' s on the south half. MR. MATTES: It goes from immediately on the property line to about 4 feet in and 'then it goes about an 80 degree turn and then goes back across our property all the way up to the house. CHAIRMAN GOEHRINGER: Ok. Just let the tape reflect that I am speaking to Mr. Shaw at the same time that I'm speaking to Mrs. Hahn. The only thing, I ask from you Mr. Shaw if you wouldn't mind, is to give us some sort of dotted line indicated on the four lot subdivision of exactly where the power line is. I may have it here but give it to me as close to as you can. You don' t have to give it to me tonight. You can give it to me. . . You know. We'll close the hearing pending the receipt of that. So that we know exactly where the power lines are and there are no problems with any excavation or whatever the case might be in tho.ge particular areas. Because we would hate to see anybody have their lines cut or whatever the case might be. Ok. Thank you very much. Yes. Ma'am we're going to split this up. We've already used. . . We were only going to go for 2 or 3 more minutes here. So we'll let Mrs. Shaw speak and then we'll ;again; allow Mr. Hahn or anybody else quickly. Go ahead Mrs . Shaw. MRS. SHAW: I would like Mary Jean in regard to the right-of-way to the water,with which all four property own- ers share the right of. Are the Mattes ' going to give up their right-of-way to the water so that we are not liable for their use Of it? CHAIRMAN GOEHRINGER: That again is an interesting question and we have been toying with the situation that deals with that particu- lar question. So that what in effect I'm saying is ; that it opens the entire spectrum or scope of an issue here and it was an issue that we had discussed. Not specifically based upon this particu- lar application but it was minorily discussed last night at the co-committee meeting in reference to rights-of-ways and the li- ability of other persons using them in a transient sense as opposed to just having guests visit you and using the right-of-way. And these are legal questions which we are going to attempt to address at the summation of this hearing which should be the decision. So we have a lot of homework to do within the next 60 days particular on this individual application. So we will be dealing with that and toying with that. Mr. Mattes has a question. Do you have any objection Mr. Hahn, if we go back and .have Mr. Mattes go at this particular time? Sir. MR. MATTES: Good evening. I just want to clarify one thing.. that' s all. The telephone pole of which the lines go down and then bends under the Hahn' s house and the Shaw' s house and not the Brandesforte' s. They get it off Mill Road. That telephone pole is on my side of the right-of-way. And the issue of liability I think, I didn't question any liability issues when the Brandesforte' s decided to use the right-of-way to get into their property or I wouldn' t ques- tion the liability issue when- the Hahns had guests at their house, when- the Shaws had guests at their house or business associates over. So I think we're trying to make a mountain out of a mole hill. Page 4 - January 8 , 1987 Public Hearing - Michael. and Joyce Mattes Southold Town. Board. of Appeals CHAIRMAN GOEHRINGER: While you're up there Mr. Mattes , I just - wanted to ask you, we have, and this was going to be one of the - _ last things I was going to ask, you have given us the indication = that you are willing to discontinue the two family, not that you are using the two-family, but you presently have a two-family c.o. for the premises. Is that correct? MR. MATTES: , Yes. CHAIRMAN GGEHRINGER: In doing so, we may ask for a covenant filed in the Town Clerk' s Office that you discontinue the enjoyment of that second family use. MR. MATTES: I don't see any problem with that. CHAIRMAN GOEHRINGER: Ok. I thank you very much. And we're going to have Mr. Hahn and hopefully we'll wrap it up if you have any sum- mation you'd like. MR. HAHN: This is the closing remarks because I can see that there are a lot of Bed and Breakfast maybe coming up on the northfork and we're now just starting off when it' s a child and we certainly do want to make sure that any future Bed and Breakfast will be handled in the wise manner that is to the advantage of the people that live here all year long. I was born in Europe and was always brought up with Bed and Breakfast. It' s something totally unnew to me. But I feel that certain houses based on their geographic location, are just not condusive for that type. of exposure to the residents that live there all year long. We live in a 100% residential area. There is absolutely no commercial ventures at all in our area. And to just change that for them or for the Mattes , we could have them in any residential area. That it can just suddenly pop up left and right in a haphazard manner without any regard for the residential pri- vacy that people have chosen and therefore, invested and paid proper- ty taxes on. I'm all for Bed and Breakfast but it has to be located where it doesn't change or alter the actual the inherent nature of where that Bed and Breakfast is located and that' s pretty much all I have to say. CHAIRMAN GOEHRINGER: Thank you. You have a question. MR. HAHN: One more thing if I may in closing, to rebuttal on Mr. . Mattes as to the liability. If I have a guest coming over, my homeowners will protect me for that liability. However, if there is a commercial exposure going on, I am suddenly being exposed to not a normal day to day use of a home where there is guests or business associates. But we're talking about people coming in and out at all hours of the night perhaps , depending on if it' s New Year ' s Eve or whatever. After all, the Hamptons , the life up there stay up until four in the morning. They could come at four in the morning to spend the night and that' s a different type of exposure that is being imposed upon our small- private community. That' s all I wanted to say. Page 5 - January 8, 1987 'Public Hearing - Michael and Joyce Mattes Southold Town Board of Appeals MR. .: SHAW: One very small factual thing that _I wanted .,to bring out. CHAIRMAN GOEHRINGER You're over time now so keep it quick. MR. SHAW: I'll go real fast. I'm quoting from memorandum of law on- behalf of applicants , Michael and Joyce Mattes in sup- port of an application. Next, the neighbors propose to limit the Mattes access to a 25 foot right-of-way. The Mattes ' deed gives some access over that right-of-way and there' s no reason they should. relinquish that right. However, if the Board ident- ifies a problem with the right-of-way as a means of exit from the subject property, the Mattes' have agreed to install an exit on their property for use by the guests. of the proposed Bed and Breakfast. .That :indicates .that they are not willing to yield -the right-of-way as long as they do not yield the right-of-way. Our homeowners policy will not cover a commercial use. We will be ex- posed and would have to pick up an additional policy to cover our liability. And I believe that in that little list of things the Board has to consider, that would be actionable under Article 78, that would be something. We have to deal with the right-of-way problem. Both rights-of-ways ; to the water and also the ingress and egress. CHAIRMAN GOEHRINGER: MS. ' ' ; . MS. : What is the definition of a legal two-family house according to the Town Code? CHAIRMAN GOEHRINGER: I believe this is a pre-existing two-family house. MS. What is the definition? What qualifies a house as a two-family house? Two kitchens? What' s the fine line? CHAIRMAN GOEHRINGER: Four acres. Four acres. MS. Four acres. CHAIRMAN GOEHRINGER: Four acres of property. MS. You mean four acres of property. CHAIRMAN GOEHRINGER: 160 thousand square feet and a special excep- tion from this Board. MS. For their requirement insofar as that they may be separate living- quarters or two kitchens , or. . . CHAIRMAN GOEHRINGER: We don' t deal with that issue. That' s Mr. Lessard' s issue. MS. Second question that I would like to ask you; I understand that a letter was put into the file by the fourth proper- ty owner. Could it be possible for the Board to read this into the record? Page 6 - January 8, 1987 • Public Hearing - Michael and Joyce Mattes Southold Town. Board of Appeals CHAIRMAN GOEHRINGER: You're welcome to read it or Doug is wel- come to read it. But by the mere fact that it ' s placed in the file and we received it today, 'it' s in. But if you'd like to read it, we' ll give you the time to. MS. I would like to read it into the record. It' s directed to the Board of Zoning Appeals. It' s dated January 8, 1987. Attention Gerard P. Goehringer, Chairman in regards to ap- peal 3572 ; Michael and Joyce Mattes. Dear Mr. Chairman, I repre- sent Sid Brandesforte and.-John Mickolowski, owners of premises lo- cated adjacent to the above referenced premises which are subject of the application. I understand that the applicants seek special exception pursuant to .Section 100-30 , subsection B of the Southold Town Code to establish a. "Bed and Breakfast" in their homes. My clients vehemently oppose that application for a number of reasons. They purchased their property based on the premise that it was akin to:)a private estate. As you can see from the attached surveys , they have no private entrance to their private from Mill Road, due to traf- fic congestion but rather have access by means of a 20 foot right-of- way. This right-of-way is in conjunction with ( ) estate and it' s uniquely designed to create a. "community effect". Use of it is granted to my client by deed dated October 28, 1986 attached hereto which use they share with adjoining property owners including the applicants. All adjoining property owners are responsible for maintenance of the right-of-way. It is respectfully submitted that any additional use of the right-of-way rather than the owners , an acess to all of these properties, it will create increased traffic to the area and subject my client and other adjoining owners to a legal liability in the event of an accident or other torturous in- cident. Furthermore, New York State Law requires that there be suf- ficient ingress and egress for emergency vehicles to residents and properties. I submit that the additional traffic congestion on this private road, endangers my client and the surrounding neighbors. Possibly preventing any access to their properties in the event of an emergency. The right-of-way was created to accomodate a private community limited use. - Not to provide access to Please be aware that the applicants maintain a legal two-family dwelling on the subject premises at present. Use of the property as a Bed and Breakfast would constitute an overintensification of the use of the premises and burden adjoining property owners. Sec- tion 100-30 , Subsection B-16 , Subsection A; mandates adequate off- street parking for a Bed and Breakfast establishment. Realistically, in giving them a ten parking space as required to accomodate a cur- rent two-family residence- up to 6 proposed guests and employees. Thus creating a mini parking lot in the midst of a residential area. My client ' s home is appraised at $350 , 00 which appraisal is based upon the residential location of the subject parcel. A change in the hue of the adjoining property allowing use by the public will clearly depreciate the value of their home. The Boards may be aware that the applicants maintain a gift shop in the immediate vicinity. It specializes in handcrafted items. My client felt concern, right- fully so, that this business enterprise could easily extend to the subject premises as an added appeal to perspective guests should the premises come open to public use. My client, therefore, request that- the Board deny this application as not being in the best in- terest of the health, welfare and general harmony of the community. Very truly yours , Terry r Page 7 - January 8, 1987 Public Hearing - Michael and Joyce Mattes Southold Town. Board of Appeals CHAIRMAN GOEHRINGER: Thank you. Ms. MS. Just -a couple of things. I'm not that familiar with the question of liability. I would like to research it and submit some kind of ( ) in response to the comments that were brought up by the neighbors this evening. I do know from research that this particular right-of-way was given to the Mattes ' in their deed and the language of the right-of-way is very general. Case law provides that since it is so general, to change the use, to become a more intensified use, the right-of-way still remains and they are still entitled to the use because the. language is so general. I do have a case cite for that. Zoobly v. Community Mainstream Associates , Inc. This cite is 423, New York subsecond. 982. It' s a 1979 case and I've got a copy for the Board if you would like to see it. And it also cites a New York Court of Ap- peals case. Finally, I would like to stress that it is not a com- mercial use. The neighbors keep on saying that it ' s a commercial use. It ' s a principal use as a residence. It' s just an accessory use to that residence. Thank you. CHAIRMAN GOEHRINGER: Thank you. Hearing no further comment, I make a motion closing the hearing reserving the decision untill. later. All in favor- aye. BY SOUTHOLD TOWN BOARD OF APPEALS MATTER OF MICHAEL AND JOYCE MATTES THURSDAY, NOVEMBER 20 , 1986 , PUBLIC HEARING 8: 03 p.m. Sp. Ex. No. 3572 - Public Hearing commenced in the Matter of MICHAEE AND JOYCE MATTES. Special Exception to es- tablish "Bed and Breakfast" in not more than three rooms of existing structure for a maximum of six casual , transient roomers. 50 Luthers Road, Mattituck. The Chairman read the legal notice and application for the record. CHAIRMAN GOEHRINGER: I have •a sketch of the plan indicating a rather large 2-story framed dwelling on a piece of property which is on the corner of Mill Road and Luther right in Mattituck. The surveyor' s name is Frost. I have a copy of the floor plan of the proposed unit. - And I have a copy of .the3Suffolk County Tax Map indicating this and surrounding properties in the area. Mrs. Mattes , we normally would let you do a presentation. Could I just ask Mrs . Shaw what she' s referring to and then we' ll go back to the situa- tion. Ok. You want to .tell us Mrs.' Shaw, what you're referring to.. " MRS. SHAW: What I 'm specifically requesting is that the adjacent property owners and there are property owners immediately adjacent to their property, be given the opportunity to be formerly notified in accordance with the town code which states you are properly no- tified by a certified or registered letter. I happen to find out about this purely by chance. The other property owner was not no- tified. Either the front property, I have not been in touch with. They're not here. Obviously they're not aware of the situation. I think it is only fair given the nature of the request and the community that the case simply be readvertised and properly posted via certified letters to give all interested parties the opportuni- ty to be present at the hearing. CHAIRMAN GOEHRINGER: I just want to say that we Have 2 written notices in the file if you would like to look at them. I don't know if you were notified. MRS. 'SHAW: We were not. CHAIRMAN GOEHRINGER: You were not. You're considering yourself one of the three? There' s 2 others. MR: , SHAW One would be the property belonging to Cyd ,i Branciforte and the other property belonging to Henry and Mary Regina Hahn. Those are the adjacent property owners. I did speak with the Hahns . They were in Florida. And they indicat- _ ted that they had not received notification at the time of their departure nor at when they had talked to their. . . . Whoever it was. The fellow who is picking up the mail. They said they hadn't received any notices. They sent a letter on the basis of the notification that I believe you have. .,Page 2 - November 20 , 1986 ` Public Hearing - Michael and Joyce Mattes Southold Town Board of. Appeals CHAIRMAN GOEHRINGER: Yes. I have an express mail letter from them. Ok. You're welcome to review the file after this and we'll make a determination. I think it only fair however, that. the applicants by law, present whatever portion of the case that they want to present unless they want us to rule on this or what- ever the question might be at this point. Why don't you :address the Board concerning this Mr. Mattes. MR. MATTES: First of all , I'd like to thank the Board for the opportunity to speak. I have indeed fulfilled the requirements of owner notification. Mr. and Mrs. Shaw who just addressed the Board, 'are not entitled (according to town law) notification finally by certified letter. MRS . MATTES: Mr. Lessard actually took me and he showed me that the two property owners ; C... Branci forte._ and Mr. and Mrs. Hahn were notified and he -did send notices. In fact , I know you have a copy of the folder but I also made other photostats so I do have those here. MR. MATTES : I can see no reason for delay of these proceedings because a non-adjacent property o.aner would object to this hear- ing. CHAIRMAN GOEHRINGER: Alright, Let me just show you a copy. I assume the Shaws live there. Is that correct? Did you want to see where I am pointing? MR. SHAW: I'm quite familiar with the survey. CHAIRMAN GOEHRINGER: This is a tax map copy right here. You no- tified these people. It appears it touches here. There 's a ques- tion that you didn't have to notify them? MR. MATTES: Yes. That ' s what I was told also. MR. SHAW: The property does intersect on the property. CHAIRMAN GOEHRINGER: Just let me ask them another question. I am sorry, about this. The fact that the other 2 people that you have contacted, the Hahn's of course know that the hearing is occuring tonight. MR. SHAW: The Hahn's are aware of it because I called them on (I believe) Tuesday morning. I had contacted Mr. Hahn' s secre- tary and. asked for the telephone number of the hotel they were staying at in Orlando and I discussed the matter with them and Mrs. Hahn indicated that she and Mr. Hahn would be sending you something. CHAIRMAN GOEHRINGER: That's what precipitated` the express mail letter. • Page 3 ; - November 20 , 1986 Public Hearing - Michale and Joyce Mattes Southold Town Board of Appeals MR. SHAW: Yes. 'And they were aware of the. situation and felt and I believe they left on Saturday morning of this past weekend, as whatever notification may have been sent to them was not re- ceived at that time. MR. MATTES: Mr. Goehringer; can I object? This is all heresay. CHAIRMAN GOEHRINGER: I'm just trying to. . . . I should. . . I'm just trying to give you an indication of. . . . The code itself is quite explicit Mr. Shaw. And that is that they have to send out the notices. They do not specifically. . . . I assume the notices do not specifically have to be received by the people. In other words , there' s a possibility that it could be placed in a dead letter file some place. That is not the case usually. Secondly, there is also a statement in the code which clearly states that as -long as it' s properly -advertised in the paper of record, then it- is sufficient notice. So we basically do two things as in the Town of Riverhead where they post. We are not posting any. We don't post in this town. In fact , the Town of Riverhead has stopped posting and they are going to our system at this particular point. The question about proper notification to you is a situation that we' ll have to discuss after the meeting, after this particular hear- ing and we'll see what develops at that point. We' ll allow the Mattes ' to continue with their hearing. MR. MATTES: Indeed Mr. and Mrs . Hahn were well aware of the pro- ceedings. because they have already submitted to you documentation or actually comments on this hearing. So I would submit therefore, that they are well aware of this. Their allegations they have made that they did not receive the letter or whatever the case may be. This is all heresay. But indeed they were aware of this hearing and I suggest therefore, that we can go forward. Mr. Goehringer, would it be proper if I submit to the Board at this time, additional documentation? CHAIRMAN GOEHRINGER: Sure. MR. MATTES: I submit here to the Town Zoning Board of Appeals an original and 4 copies of some answers to some objections raised by Mr. and Mrs. Hahn. May I read them very brie.fly? Before the Southold Town Zoning Board of Appeals the matter of appeal number 3572; we , Michael and Joyce Mattes , petition the above caption ap- peal before the Board this evening, wish to respectfully submit the following: the adjacent property owners Mr. and Mrs. Hahn already enjoy the same or similar zoning as that for which we now apply. A copy of Mr. and Mrs . Hahn's certificate of occupancy num- ber Z9307 is submitted herewith. Their dwelling is stated on their certificate of occupancy of being seasonal non-conforming multiple dwelling. We only ask for propriority of use and do not seek to establish anything which does not substantially already exist in the subdivision. MR. SHAW Excuse me. a minute. Would the Board kindly allow Mrs. Shaw to. . . . Page 4 - November 20 , 1986 Public Hearing - Michael and Joyce Mattes Southold Town Board of Appeals CHAIRMAN GOEHRINGER: I'm aware of that situation. That' s what I was just going to do. Mrs. Shaw, why don't you come over here so you can read Mr. Mattes lips while he' s speaking. You're wel- come to come up here if you want to. MR. MATTES: Two: our property is the only property in the sub- division with 2 means of entrance and egress of Bed and Breakfast would be by our own paved driveway which exists on our property at the intersection of Mill and Luther Road. A sign on our proper- ty would direct guests to use this roadway which is our main or formal entrance. Our use of the right-of-way is incidental. Mr. and Mrs. Hahn already have on their frontyard, 2 large multiple car parking lots. So it. appears on our submitted survey, we will simply enlarge and improve our existing sideyard parking area which has been in existance for over 100 years. There is no provision in the town law for expansion of Bed and Breakfast use in such -� and Mr. and Mrs. Hahn statement is purely whimsical and fantisical. We are proud of our home and community. We are certain that the restoration of our home in such is listed on the national register of historic places , have helped to boost the image of Mattituck. and Southold Town. Saving of a small portion of Southold History is ample proof that we are concerned about our community. It;-was our wish to share that part of history with others . As we have Already done through newspaper articles , house tours for local historical society and encouragement of 'others to embark in .simi.-• lar project-so But most of all , this is our home. One which we wish to protect. Not something that we would jeopardize on a whim. Our concern is our bond in our request before you. If our home, given it' s size and the size of the property, is insufficient or unsuitable for a limited Bed and. Breakfast use, we can take a few other houses in S t` hold Town::h.gt,,waiild-qualify. We respect- fully request that you approve of our application. _ CHAIRMAN GOEHRINGER: Thank you. Let me reserve comment or ques- tions until the later part of the hearing and we' ll go into the specifics of it if you don't mind. Thank you. very much. Was there anybody else who would like to speak in favor of the appli- cation? Anybody like to speak against the application? Yes. MR. SHAW. I would like to preface my remarks to the Board by saying at the outset that they have a lovely home. They've done a marvelous job. If you ever have the opporunity to. visit it during the open house, please doe It's beautiful. However, I do have some concerns as to a Bed and- Breakfast application be- cause of the concern. I'm opposed to the application and granting. And I would like to just outline briefly.my reasons. This par- ticular home is located on a 4 lot subdivision under the name of Marvino- property. It is a rather unusual subdivision created by the Planning Board in that one of the conditions that the Planning Board placed on the map that was access to all. of the lots would be over a 25 foot right-of-way. The paved driveway that Mr. Mattes referred to is part of the pre-existing particular driveway. I would like to point out that the entrance, one part of the driveway lies within the right-of-way which is technically on the Hahn proper- ty. and the other end of the driveway is on the Mattes ' property. However, it should be noted that that driveway is right at the intersection. But my point is that the subdivision as it was pro- . Page 5- November 20 , 1986 Public Hearing - Michael and Joyce Mattes Southold Town Board of Appeals MRS. SHAW (continued) posed is a very private type of a community.. Access to all 4 lots is a 25 foot right-of-way. The. Planning Board could have put a public road in. They could have required that a 50 foot right-of-way be put there. Because directly to the north of our property and I will present a ,tax map for it, this is a hagstrom map of the general area and this is the tax map of the subject subdivision that is right at the corner of inter- _ section of Coxneck and Luther Breakwater Road. And behind to the north is the lot , Mr. Bugdin' s farm and other properties to the north. The Planning Board could have said ok. When that Marvin property is subdivided, we want a 50 foot right-of way to go through with an eventual connection to the basic line to the north 130 feet of interior road servicing all that from property to the north. But they didn' t for whatever reason. I don't know. I wasn't there at the time. They chose to say that all 4 lots would have access over a private right-of-way. It ' s not a public thoroughfare: I. t is a private right-of-way. which lies on the property of the Hahns and my husband and I. The effect of this right-of-way is basically to create a very secluded private type of community. This right-of-way is used only by the people who live there. It ' s also only maintained by the people who live there. Because the Planning Board did not set up a homeowners association or some other legal mechanism, the construction main- tenance of tHis right-of-way and it ' s necessity is by the common agreement of the 4 property owners who agree; well ok. We're going to split up the cost proportionately among all 4 property owners . Inconsequently , the matter of fact of this is to create a very private type of a community. I don't think that this right of-way was ever intended to be used as commercial access. And I find it difficult to believe that in the operation of a Bed and Breakfast that you're going to necessarily prevent people from using the driveway. It ' s a circular paved driveway and inevita- bly people are going to use this. It was intended to be a pri- vate driveway. Not something for commercial access. The second point that I would like to make is that the increase in the num- ber of cars and vehicular traffic. At present , the Mattes ' own 4 cars. All of which are parked in what is their frontyard. Now this particular piece of property happens to have 3 frontyards . It has frontage on Coxneck Road that becomes Mill Road. (CHANGED -TAPES ) MRS. SHAW: It has frontage on Breakwater , Luther and Breakwater Road and it also has frontage on the right-of-way. All of the 4 lots frontyards have front yards facing this right-of-way. That point was made quite clear to me when I went to apply for the building on my particular piece of property. Mr. Lessard in- formed me that the house would have to be set back 50 feet from the right-of-way protecting that in the frontyard. So you have an unusual situation by they have a house with 3 frontyards . Currently , they park the 4 cars on one of those frontyards and that frontyard that they happen to use is the one that faces the right-of-way. They could park the cars on the grass . The or- dinance requires , a special exception requires that they provide Page 6 November 20 , 1986 Public Hearing - Michael and Joyce Mattes Southold Town Board of Appeals MRS. SHAW (continued) parking for the guests. Now they're allowed to have 3 rooms and up to 6 transient guests which means that in addition to the 4 cars that now exist, you can have a potential with' 3 to 6 additional cars. You can either have 1 car per couple or you can have the very interesting possibility that you have 6 people in 3 rooms each with their own car. So you have the possibility of 5 to 10 cars total in a frontyard. That's get- ting to be on the line of a parking lot in the sense that what is to be a frontyard is now a depository for 5 to 10 cars. I noticed in the special exception requirement that it shows that in subsection 8 of 122 it shows that the necessity for patillion surface space for the purpose of offstreet parking for vehicles incidental to the use and whether such space is reasonably ade- quate and appropriate and should be furnished by the owner of the property. And I' d just like to say that they do. not have such parking. They have the lawn and I don' t feel that a front- yard is an appropriate place for 5 to 10 cars. . The other thing that I wish to concern. . . . One of my concerns. . . . Most residen- tial subdivisions do have single and separate lots fronting on a public thoroughfare. And consequently each lot has it' s own separate driveway onto a public street. This particular subdi- vision happens to be the type of a subdivision where all the lots front onto a private driveway and access is from that drive- way onto the street. It.' s sort of a more secluded type of a sub- division. Dt's. not your usual run of the mill thing. And I would like to add that my husband and I have paid a premium for a lot in this particular situation. It 's an unusual situation, It seems to me that the intrusion of a commercial' use into this type of residential development was not something that the Plan- . ning Board envisioned and I don't think it's something that the Town Board envisioned either when it adopted this. Bed and Break- fast piece. I recognize that if we, all of 'our lots were on a Main Road or 'Sound Avenue and close proximity to the Hamlet like on Pike Street in Matti-tuck, I mould. not. be here objecting to it. becuase that's a logical place to have a Bed and Breakfast. We're .talking about a side street about a mile and a half. north of Sound Avenue. It.' s. on a small rural country road. We're sort of in the. backwater. . This isn't' Main Street. And I just feel that having this commercial use is a detriment. A real detriment to our community. One of the other things is the bluffs. This particular 'subdivision is. very close to Howard Creek which is an. arm of Mattituck Creek which stretches but into the Sound. These 4 lots also share access to that creek over a 25 foot right- of-way. At the present time, we do. not have a dock there but it is something that has been talked about. by at least 3 of the proper- ty owners (the Mattes ' included) that we do put something in. My concern is that when you have a Bed and Breakfast place , the way the ordinance is set up , there is no way to prevent this from mush- rooming. We have the possibility of 5 to 10 cars in the frontyard. We also have the possibility. of someone saying; well golly, let' s go down to the water or let 's arrive by boat. Let ' s come in this way. There' s nothing to stop the Mattes ' from obtaining a mooring permit and saying we 'll arrive by boat and row up to our dock and walk up the street and you're iri our Bed and Breakfast place. And • Page 7 - November 20 , 1986 Public Hearing.-Michael and Joyce Mattes Southold Town Board of Appeals MRS. SHAW (continued) ` again, I would resent intrusion into the whole nature of the community. It ' s hard enough getting 4 people to agree on main- taining much else dealing with 4 persons plus a business and I think that this is something the. Board should look into for con- sideration when it reviews this application, As I said before , this is a unique residential community. It 's something you don't find. very often and I would just like to be able to preserve these qualities there which is that secludeness. And I don't think that adding the commercial aspect of a Bed and Breakfast is .an asset to it. Particularly in light of the fact that the - way the ordinance is intended there '..is no way of preventing it from being abused and I'm not applying that Mr. Mattes would abuse it. Two months down the road someone could make them an offer -.they can't refuse and that special exception still holds and someone else can run this Bed and Breakfast. Then where are we? Those are my objections. CHAIRMAN GOEHRINGER Thank you. very much. MRS. SHAW. You're welcome. CHAIRMAN GOEHRINGER: Before you go ; I got one more question. Did you want- to rebutt anything that was said there sir? MR. MATTES: Yes I would Mr. Goehringer. As I stated in the comments filed with the Board this evening, I do not intend the Bed and Breakfast guests to use that right-of-way. I think that argument :would be irrelevant. Second of all , mine, again, I stated to the. Board, is the only property of the 4 which has 2 entrances and exits. The other properties must use'.that right- of-way. I do not. , I have a. separate entrance on the road and that' s the entrance I purely use any way because the other one kind of takes me away from :the corner and so on and so forth. That's the one I would intend the. -Bed and Breakfast people to use. I don't own a boat. I don't intend to use that right-of- way there on the Creek because basically that` thing is all silted in any way. It' s muddy and not much use to anybody. It does run with the property. but I have. no :intention of using it, I haven't used it in the 8' years I've lived there. , As far as the secluded area, its . concern and the fine area which we live, I couldn't agree any more with. anybody else. I think Mattituck is a great area. That' s why I've stacked 8 years of building, sweat and soil un- der that house. Not only for this matter of personal sAtisfac- tion for my wife and myself but also that I feel I'm giving some- thing back to the community.which I enjoy. I. respect my neigh- bors. I respect the community. CHAIRMAN GOEHRINGER Is there any type of screening that you would be placing around the parking area? MR. MATTES: Well I was going to do some additional landscaping and I would suggest maybe putting up maybe evergreens or ferns or something. Page 8 - November 20 , 1986 Public Hearing - Michael and Joyce Mattes Southold Town Board of Appeals MRS. MATTES: Part of our property boundary there is shrub. CHAIRMAN GOEHRINGER: I'm aware of that. MRS . MATTES: There is also a berm which separates us from the Hahn house. It is on the Hahn property but it runs about the length of the Hahn house and the shrubs are really mature pine trees and they're like 15 feet high now. But we are planning on doing a lot of new shrubbery outside. The place where the cars are parked now, it is gravelled rather than just on the grass and we realize that we would have to up grade that to black top and improve that. We're aware of that. MR. MATTES: As far as our frontyard being used for parking, I would state that the Hahn's have 2 parking lots in their yard facing their right-of-way and they park there any where from 3 to 5 cars. They also have a garage there additionally. CHAIRMAN GOEHRINGER Mr. Mattes , when you had mentioned the c.o. of the Hahns , .that was non-conforming, MR. MATTES: I submitted it Mr. Goehringer. Yes they are of a seasonal multiple use. So I'm not asking for something they don' t already have. CHAIRMAN GOEHRINGER You're referring to the, not specifically the way the property is now but when it was originally a carriage house as it exists . MR. MATTES : Mr. Hahn has a lot of visitors over there. I can't tell you exactly how he uses the property. He ' s in presently. . . . CHAIRMAN GOEHRINGER I'm talking about since its most recent up- dating when it was rebuilt. MR. MATTES I am not that.'familiar with all the people that come over there. There are a lot of people that. visit and stay over the weekends. I don't know if they're getting paid. MRS. MATTES: This is the current c.o. they came for when they came to file and their occuring coo. CHAIRMAN GOEHRINGER: Well it would probably carry right on through. It wouldn't change. You know what I'm saying? Because you have a 2 family house, 2 family status right now also. So it just perpetuates . MR. MATTES: Right. The other 2 family has the multiple. So I'm not asking for anything that one of my adjacent property owners doesn't already have. • Page 9 : - November 20 , 1986 Public Hearing - Michael and Joyce Mattes Southold Town Board of Appeals CHAIRMAN GOEHRINGER: . Oko Let 's see what else. We still have not discussed the issue of proper- notice but we'll see what de- velops. I'm trying not to carry this too lengthy. Thank you. MR. MATTES: Thank you. CHAIRMAN GOEHRINGER: Yes. Mr. Shaw. MR. SHAW: There is something I would like to say. I don't think that my wife and I, I don't. believe. . , . We're not unalterably op- posed to the establishment of a Bed and Breakfast. but we are fa- miliar with the law. ' And the law is regrettably vague in terms of the requirements , the standards that are to be met. It makes no provision for inspection. It makes no provision for a number of things. Now our experience with the Mattes ' is that they keep their house. very nicely. They do a great deal with it. But as my wife pointed out, the exception runs with the property. And the law as it is written, does not address the whole range of things that ordinarily that kind of a. law would address. To just assume you 'can do it in 3. rooms , we've all been over that before. I think that if there were a specific set of (I don't know if I'm using the correct term. ) convenants and restrictions that would run with the property that is spelled out Very clearly and explicitly exactly how the. Bed. and .Breakfast operation will be run, we would feel rather�differentlyo But I don't know even if the public hear - ing is the place to bring that particular thing up. Based on that thought, we feel obliged to oppose it. I would like to resolve certain key questions. One of which is liability for the right- of-way. The terms bf the subdivision. very specifically states that the second entrance. . . . I don't know how the pre-existing thing works but I guess that 's what makes it useable and we would have to do a little more research on that. But it specifically states that access for all lots is over the 25 foot right-of-way which is shared and which we.'ve already had quite a go around. . Not with the Mattes ' s. but trying to hammer out an agreement to serve this proper- ty. Anyway, as I say, not to delay at this point , I wouldn't throw that one issue out. A. very clear and detailed covenant that would run with the property and.which would be enforceable by any of the other owners in the subdivision would make a difference in our stand on this issue. CHAIRMAN GOEHRINGER:. It's a. very interesting point you bring up because this Board is. not a Board that usually places covenants. We place restri.ctions. but they are not necessarily deeded cove- nants and so on and so forth. I should however , point out to you Mr. Shaw, that (I'll probably get in trouble by saying this but I've been in trouble recently anyway so it doesn't make any dif- ference) the public hearing did occur. I did go to the public hearing and I did mention to those particular members of the Town Board that I felt that additional things should have been placed, cast within this particular law. And they had, through -their wis- dom, felt (I assume) that it wasn't necessary. So we all know the type of people we're dealing with here. And of course living around • Page 10 - November 20 , 1986 Public Hearing - Michael and Joyce Mattes Southold Town Board of_ Appeals CHAIRMAN GOEHRINGER: (continued) the corner from them, I know the Mattes ' . I've known them for many years. I.'ve never been in their house since they've pur- chased the house. But what you are saying concerning the pos- sibile selling of the house or whatever the case might be, cer- tainly has merit in this particular case. I think at this par- ticular point we should deal with the issue of notice. As for the area of ingress and -egress over the common right-of-way, (I'm going to address this question to the Mattes ' ) you pre- sently use the common right-of-way for mainly egress . Is that correct? MR. MATTES: Yes sir. MRS. MATTES: It' s more of an incidental. We use the basic en- trance which is at the corner. Most of the time it's more con- venient. CHAIRMAN GOEHRINGER Do you 'go around the Port of Gull at all? MR. MATTES: Yes . CHAIRMAN GOEHRINGER You do go around it. MR. MATTES: ` You mean Igo through the port. CHAIRMAN GOEHRINGER: Can you make a turn coming in if you're using the right-of-way in question? Can you Ienter that as easi- ly as you enter it from a reversal side or from the train track side? MR. MATTES: Usually I don't because it means driving north. CHAIRMAN GOEHRINGER: So you're going through the big tree and usually up and around. MR. MATTES : Up through the big tee and through the Port coming out. CHAIRMAN GOEHRINGER Alright. How staunchily opposed are you Mr. Shaw about us closing this hearing tonight? MR. SHAW Well I. think we have said just about everything that concerns use I believe the issue of notification is something that had we'd been notified and actually our reason to wanting to adjourn it was that it would have been good if we could have had time to dis- cuss with the Mattes ' directly and perhaps informerly some kind of an arrangement to properly and clearly define what the use of the property will be. As I say, I'm not staunchily opposed to closing the hearing. I. don't know what the Hahns said. I know they've ex- pressed themselves and I don't know whether or not the Brandts are for or even aware of the situation. I don't know. What do you think? Should we hold it over? Do you want an adjournment? • Page 11 - November 20 , 1986 Public Hearing - Michael and Joyce Mattes Southold Town Board of Appeals CHAIRMAN GOEHRINGER: We haven't voted on this yet so we're just placing it on. . . V MRS. SHAW I would suggest that we adjourn it for one reason. I think that because of the egress situation that it will be use- ful to the Board if they had a site inspection sometime without prior notification to see the site::.;�' And if the Board determines that it wants to put some conditions on it., they could at least put on them on the knowledge of what it 's dealing with. CHAIRMAN GOEHRINGER: We have all- made site inspection. Not in- eriorily. I know the house. I have not made an interior. MR. MATTES: No. I would welcome an inspection by the Board, inside. MRS. MATTES: I would be glad to meet with any of the neighbors that want to discuss it because we have very detailed plans , what we plan to do. We have travelled the country and gone to some of the very best. Bed and. Breakfast inns that the country has to offer getting ideas because we put so much into the house that we're not going to. . . We're going to be very specific about who would stay there and who would run it. And we have been working very hard to restore the house very accurately and to put period furniture in there and we want those things to be taken care of too, MR. SHAW: As we said before.;:5bur true concern is not how the Mattes ' are going to run the. Bed and. Breakfast because we have seen how they've restored their house. Our concern is what runs with the property. In that sense, we are saying we don't object but we object unles there is something that we can enforce either here coming into the town that we can through section 78 , force the town into enforcing or running directly with .our land. We would like the use of the right-of-way clarified. Both rights- of way, etc. , etc. Exactly how it'-s going to be done. CHAIRMAN GOEHRINGER: Mr. Mattes , do you have any objection (I should address both of you.. I apologize. ) if I had gotten a legal opinion during the period of the next 3 weeks and we reconvened the hearing for a short period of time and just close it at that particular point concerning the convenants that these people are referring to which we are not totally privy to. I'm being honest with you. We do not deal with the imposition of covenants as the Planning Board does . And they in many times , don't even. vote on something until those covenants are undellabily placed on the property. That does not necessarily mean we're going to do it. All I want is a legal opinion. MR. MATTES : Certainly. But I mean as a general statement. I would not object to a covenant or a restriction being placed by the Bed and Breakfast guests on the use of the right-of-way, CHAIRMAN GOEHRINGER I see. Ok. We are scheduled' to" have':the next meeting on December 11 which is only about 3 weeks away. We are not hoping that it ' s. not going to be a lengthy meeting in any case. I. would like to reconvene this for about 5 minutes at that particular point if' you don't have any tremendous objec- tion at this particular time. And maybe you could meet with the. . . Page 12 - November 20 , 1986 Public Hearing - Michael and Joyce Mattes Southold Town Board' of Appeals CHAIRMAN GOEHRINGER (continued) I got into a little of trouble about 3 weeks or a month ago suggesting that neighbors meet. And in any case, I don' t think that we have the problem here that we had at that particular hear- ing. So I sincerely hope that you do and would come back with some constructive things. And I thank you very much. The both couples for being (your family) so courteous. This has really been an absolute pleasure of a hearing and I thank you. So I' ll make a motion recessing the hearing to the next regular scheduled meeting. We' ll attempt to have it on the early part of the evening and wrap it up and then we'll make a decision. Hearing no further questions, I'll make a motion recessing the hearing again. All in favor, - aye. By ��' l�C��-�����A'\—Q-_ I l eo O •- r QY 03 • � a.. .. 6 7`r QUO � .�', f=. � - ,. to 1 •�` �a 4r I •raw i Z Jr- hs - 1 . I � tirwe , ZW I ' ' 1,:,: l ti dLie•A ��� .pi N i�:,• O N �} u -73, off -76 fvlrr�c�r� v D v/5 0 - .yt.: MA11>G ! Viz Yiv ��ActQas 210 a// /0t-5 skill era GYM'✓ ',�• _. . . _. t./it._Z Q r1`-a -u�ry sfrowr� hertori. J�k Ma 4:ed tS#!`z9� ;977 I z n�o /0 gray be lartfier s�r6d�✓i rIa d. ~��,'� - i'�o�JF:k..`lr/F: V�av TUYL, P.C_ i t 'oty. -%lyeG7 �i.141.! 3v�oik Co.�rx t�1ab Dc•a! rldit nrr i SCcl% l(31 Okx:k B, Ltvf T. d c:. 2� /a7�' G►-E�arypr► f rVe�V •�OeJL f j ., De C. lez,1977. FORM NO.. S .. TOWN OF SOUTHOLD BUILDING DEPARTMENT Town Clerk's Office Southold, N. Y. Certificate Of Occupancy No. .L 9306. . . . Date . . . . . . . . .November.. 17,, THIS CERTIFIES that the building located at W�o.s t.4i.11.}Stree xRoad on Lot 1 of Edggar pp� ne Marvin 3i��or Subdivision No. 149 M XXXXXX�tXXXX A XXXXXXXX 14X4G . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RE,QUIRE;LEEZUS FOR A PION-CONFOMUNG TWO -FAMILY DWELLIi3G built conforms substantially to the 1tKfl�t:�4�dg 'e�CJ $� 5 ? ' j�'g prior to CERTiriCATE OF OCCUPA�JCY 1. .2�.. . . . . . . . .1 19. 5 7. pursuant to which10"11% 'MAlt No.Z. .9 3.0.6. . dated . . November. l7 , 197P. ., was issued, and conforms to all of the require- ments of the applicable provisions of the law. The occupancy for which this certificate is issued is . . a xJon�Cor... or.nind Ttio" Family. Dwelling . . . . . . . . . . . . . . . . . . . . . . . . The certificate is issued to EDGrP NvAP,VItJ & t 1Ir ; (owner,`I�ssee ®I°%tdri�iit) of the aforesaid building. Suffolk County Department of Health Approval PRL-.'r1:{ISTI :G T.�XI 0 a'1�.dG UNDERWRITERS CERTIFICATE No. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . HOUSE NUMBER . . . . . . . . . . . . . .. . . . . Street .. . . . .. . ..eakat �. . .i. . . . .zaaefl ??attitucl. . . . . . . . Ne:w York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . County Tax ',lap No. .0_e�V�j� �!� /,cti. 1000-113-3-part of Lot 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Building Inspector *This does not cover the dwelling sitting on the line of Lot No. 1 and Lot No. 2 which must be removed. �o 31 �� : @AZeo S 102 01 Irl ILI% Al CA � r r-Yi •!s. 1' .t ,D 'y � .. - 1 , .'+ ' - tt r t,�CyY.' �,�.. tt .�` i -i ^�► a. 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A. 41 �� Y! � L• o•r..' y(r f y{i t{ ` `,�i y r. r���,r�.:,� v ��t���. �� . _ _ _� - _ -..�-.':•�: T :� �, . �;,.�:.�.� It �`�• - `iYID"°Z ti,�L»'P"�db`�ao .y- \ s' -. r ,•. �7 ,•p".,. 1t?,.' ;:•- +',jam' ` ... .-'.�',�j•' � i . . "!.!.. t�. f r i.!. ,�' � � r ® � II.�d�I �+ ••r�'' t ',f,/ACC4✓.7 �G3 GY1's'' �1.3.�"M a�.'•=�;: ,..�;• G L'!:7 ��`�, i �ri:il�;��t c�c�:�'a�' rC!7! - �y/ y' �j� tDD� Y�"d,~`m't'7�a' d r:<� :F!rr �1 E:YvCtJ. \ _ �•� E (/ �,r �J , 6 r e 6 � 1 J a si, � i•8 $ �f°_ f��..v}��Cr vG �f;� Vr-1�t�•st _�lJ��.� ` • 4s- j- - ,��e,F �Qik ram. rK f4fcts D1�Je9 �tr�,rt; .. L2 t � v� . .� "y e��l �,.��}•;PLrt�. SMITH, FINKELSTEIN, LUNDBERG, ISLER AND YAUZABOSKI ATTORNEYS AND COUNSELORS AT LAW 456 GRIFFING AVENUE,CORNER OF LINCOLN STREET P. O. BOX 389 HOWARD M.FINKELSTEIN RIVERHEAD, N.Y. 11901 PIERRE O.LUNDBERG FRANCIS I.YAKABOSKI (516) 727-4100 FRANK A.ISLER S/` REGINALD C.SMITH SUSAN POST ROGERS ✓_ 3926-1983 May 21 , 1987 Victor Lessard Southold Building Department Town Hall Southold, NY 11971 Re.: Mattes Bed and Breakfast Permit Dear Mr. Lessard: I have had the opportunity to review the special exception granted to the Mattes premises and am of the opinion that once the Mattes ' have complied with the deci- sion of the Board of Appeals relating to parking, fencing, access, and the like; we are required under our zoning ordinance to grant a certificate of occupancy. There is no provision in the local law or in the determination of the Board of Appeals , which authorizes or requires that the Mattes '. submit to annual inspection. This opinion would also apply to those Bed and Breakfast establishments which have received special exception determinations from the Board of Appeals prior to that given to Mr. and Mrs. Mattes and which decisions do not contain requirements for annual inspections. Very ruly you , FRA AB SKI FJY/dnb 1 McNULTY, DiPIETRO SPIESS ATTORNEYS S COUNSELORS AT LAW 130 OSTRANDER AVENUE P. O. BOX 757 RIVERHEAD, NEW YORK 11901 516-727.8200 JOHN R.McNULTY PAT FRANK NESCI ARTHUR DiPIETRO EDWARD D.BURKE JAMES SPIESS OF COUNSEL BARBARA L.COUGHLAN March 9 , 1987 Robert W. Tasker, Esq. 425 Main Steet P.O. Box 697 Greenport, New York 11944 Re: ZBA Approval of Mattes Bed and Breakfast Use Appl. No. 3572-SE Dear Mr. Tasker: Enclosed herewith please find a draft of a Declaration of Covenants and Restrictions, prepared in accordance with the Southold Town Board of Appeals decision #3572-SE. Kindly review said Declaration and if everything is in order, please contact me so that I may record it. Very truly you,'rs, V. COUBARBARA AN BLC/tms Enclosure cc ; Southold Town Board of Appeals DECLARATION F ' THIS DECLARATION, made the day of March, 1987 , by MICHAEL MATTES and JOYCE MATTES, both residing at 50 Luther ' s Road, Mattituck, New York, 11952 , hereinafter referred to as the Declarant. WHEREAS, the Declarant is the owner of certain real property situate at the corner of Luther' s Road and Mill Road , Mattituck, in the Town of Southold, Suffolk County, New York, more particularly bounded and described as set forth in Schedule "A" annexed hereto, and WHEREAS, the Declarant has made application to the Zoning Board of Appeals of the Town of Southold for approval to establish a "Bed and .Breakfast ..Use" , on the said real property described as set forth in Schedule "A" , and WHEREAS, for and in consideration of the granting of said approval, the Zoning Board .of Appeals of the .Town 'of Southold has deemed it to be for the best interests of tbe owners and prospective owners of said parcel that the within, covenants and restrictions be imposed on said parcel, and as , . a condition of the. said approval said Zoning 'Board of Appeals has required that the within Declaration be recorded in the . Suffolk County Clerk' s office, and WHEREAS, the Declarant has considered the foregoing $: f and determined that the same will be for the best interests of the Declarant and subsequent owners of said parcel, NOW, TH-�REFORE, THIS -DECLARATION WITNESSETH: That the Declarant, for the purposes of carrying out the intentions above expressed, does hereby make known, admit, publish, covenant and agree that the said premises herein described shall hereafter be subject to the following covenants which shall run with the land and shall be binding upon . all purchasers and holders of said premises, their heirs, executors, legal representatives, distributees, successors and assigns, to wit: 1 . That the grant of a Special- Exception for a Bed and Breakfast in accordance with the requirements of Article III, .Section 100-.30 (B) [16 ]_ of .the, Zoning Code of the Town of Southold is limited to the within described property, as A r forth in Schedule 2 . -' 'That the subject Bed and;Breakfast . use -shall be - - - - ----accessory---to -the 'principal user of the premises, a single- -- :family '.residence, with owner. occupancy, ,'and shall .be - , permitted ,o, nly while the dwelling is the permanent residence -,of .the Declarant, his :heirs,.,.successors :.and assigns, or any other Purchaser of said premises. ` t :. 3 . That ingress and egress by Bed and Breakfast roomers of the subject property shall be from Luther Road, and a driveway area for such access shall be provided from Luther Road over lands of the Declarant, as set forth herein in Schedule "A" , to an on-site parking area. 4. That the said driveway shall be located a minimum of fifteen (15 ) feet from the Declarant ' s northerly pro- perty line or right-of-way, whichever is closer. E t5 . That a minimum of five (5) on-site parking spaces shall be provided at the northeasterly section of the 3 subject premises. _ 6 . That the said parking spaces shall be screened along the North and East sides thereof with -shrubbery. - :.Said 1 shrubbery is to be continuously maintained by Declarant and shall consist of a minimum height of three :(3) feet and a maximum height of six and one-half (6 1/.2) feet: 7 . That Declarant shall comply with the N.Y.S. . ' Construction .Code ' and other applicable codes. 18 . That the subject,:-Bed and 'Breakf ast use shall be accessory to the principal single-family dwelling use. 9 . ---That the grant of a Special Exception fora Bed and Breakfast 'is subject to 'the requirements of Subsection. 16 of Article III, Section 100-30 (B) of the Zoning Code of the Town of Southold. 10 . Thatethe subject. premises as herein described shall be used only as a single-family dwelling with allowable accessory uses, including a "Bed and Breakfast Use" as set F forth above. 11 . That the within Declaration may not be annulled, waived,- changed or modified, unless and until approved by resolution of the Zoning Board of Appeals of the Town of Southold. IN WITDESS WHEREOF, the Declarants above named have executed the foregoing Declaration the day and year first above written. 3 9 MICHAEL MATTES - JOYCE MATTES STATE OF NEW YORK) ) ss: COUNTY OF SUFFOLK) On the day of March, 1987, before. me personally came MICHAEL MATTES, to me known and known to me to be the individual described in and who executed the foregoing instrument and acknowledged that he executed the same. NOTARY PUBLIC .STATE_OF :NEW YORR) )ss: COUNTY `OF SUFFOLK) 'On the day of March, 1987 , before. me personally . came''ZOYCE ',MATTES, to"me 'known and known to/ me to -- be the-'-individual described.--in and who executed the--foregoing =-instrument and acknowledged that .she executed the same. NOTARY PUBLIC SCHEDULE •A' ALL that certain plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being at Mattituck, in the Town of Southold, County of Suffolk, and State, of New York, bounded and described as follows: BEGINNING i� the corner formed by the intersection of the northerly side of Mill Road with the easterly side of Luther's Road and from said point of beginning; RUNNING THENCE along the easterly side of Luther's Road North 5 degrees 37 minutes West 267.20 feet; THENCE South 86 degrees 49 minutes 20 •seconds East 295.00 feet; WHENCE South 01 degrees 37 minutes 50 seconds West 260.00 feet to the northerly side of Mill Road; THENCE North 87 degrees 44 minutes 00 seconds West along the northerly side of Mill Road, 261.20 feet to the corner at the point of place of BEGINNING. `-.,TOGETHER with a right of way over a 25 foot strip of land. running from the southerly side -of Mill Road to Mattituck ,Creek, more particulary bounded and described as follows: BEGINNING at the northwesterly corner of. the parcel herein described distant the following three courses and distances �? from a monument situate at the intersection of the southerly line of Mill Road and the westerly side of Jackson's Landing; " 1. North 88 degrees 02 minutes 20 seconds West, ---41.2'0-feet;----- -- -- 2. South .69 degrees 04 minutes 40 seconds West 3.0 feet; qK. 3. •North 87 degrees 44 minutes West, 297.0 feet; , ..THENCE from said point' of beginning running along the southerly side of Mil Road South 87 degrees 44 minutes 00 - - - " seconds 'East, .25 feet to a point and lands now of Marvin; . THENCE RUNNING South 3 degrees 39 minutes East, 115.0 feet more or less to the ordinary high water mark of Mattituck .� ;- :Creek• '., THENCE in -a westerly :diredtion along the .ordinary high . - water mark ,of Mattituck,Creek, .25, feet'more or less to lands`. . -now or formerly of Sullivan; THENCE along .said last mentioned lands, North 3 degrees 39 -minutes, West 117.69 feet,to ,the .point ,or place of BEGINNING.. '`.TOGETHER with a right of `ingrees-and 'egress in common with others ,to and from Luther's Road over ,a 25 foot right .of .way ,. the southerly line .of which-.is the northerly line' of .the _ `premises herein'described;,`and which line runs the -following course :and di stance,"to wit: , :Sout 86„:degrees 59 minutes 20'�seconds East 295:00 :, h ;feet r liK Foik.c' OFFIC y�> ORNEY R013ERT W:'CASK!?R T D TELEPHONE Town.Attorney (516) 477-1400 425.MAIN STREET P.O.BOX 697 GREENPORT,.L.I.,NEW YORK 11944 ' March ,11, 1987 Barbara L. _Coughlan, Esq. McNulty- DiPietro 8 Spiess 130'Ostrander Avenue P. . O. Box 757 Riverhead* New York 11901. Re: ZBA Approval. of-Mattes' Bed and Breakfast "Use Application. No. 3572-SE Dear Ms. Coughlan have reviewed the .de' cla ration of covenants and restrictions sent to me in your March 9; 1987. letter, and find them in' accordance with the requirements of the Southold Town.,Zoning Board of Appeals decision 'in this matter. Yours, very truly, ROBERT W. TASKER RWT/jr cc: Southold Board of Appeals i COUNTY OF SUFFOLK �61, Michael A. LoGranders 8 SUFFOLK COUNTY EXECUTIVE DEPARTMENT OF PLANNING 360-5206 LEE E.KOPPELMAN DIRECTOR OF PLANNING February 28, 1987 Town of Southold Zoning Board of Appeals Pursuant to the requirements of Sections 1323 to 1332 of the Suffolk County Charter, the following application(s) which have been referred to the Suffolk County Planning Commission are considered to be a matter for local determination. A decision of local determination should not be construed as either an approval or a disapproval. Applicant(s) Municipal File Number(s) Michael & Joyce Mattes 3572 Robert E. Johnson 3587 Very truly yours, Lee E. Koppelman Director of Planning S/s Gerald G. Newman Chief Planner GGN:mb 3, 51. J-7 VETERANS MEMORIAL HIGHWAY HAUPPAUGE,L.I..NEW YORK 1 1 7B8 (5 1 6)360-51 92 o��c�VFFO(��oli aSouthold Town Board of Appeals (WAIN ROAD o STATE ROAD 25 SOUTHOLD, L.I., N.Y. 11971 TELEPHONE (516) 765-1809 APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. f ROBERT J. DOUGLASS JOSEPH H. SAWICKI i Pursuant to Article XIII of the Suffolk County Charter , the Board of Appeals of the Town of Southold , New York , hereby refers the 'following to the Suffolk County Planning Commission : Variance from' the Zoning Code , Article , Section Variance from Determination of Southold Town Building Inspector xx Special Exception , ArtiCIeIII , Secti on 100-30 (B) (16) Special Permit Appeal No . : 3572 Applicant : Michael and Joyce Mattes Location of Affected Land : 50 Luthers Road, Mattituck, NY County Tax Map Item No . : 1000- 113-03-7 Within 500 feet of: Town or Village Boundary Line X Body of Water (Bay , Sound or Estuary ) State or County Road , Parkway , Highway , Thruway Boundary of Existing or Proposed County , State or Federally Owned Land Boundary of Existing or Proposed County , State or Federal Park or Other Recreation Area Existing or Proposed Right-of Way of Any Stream or Drainage Channel Owned by the County or for Which The County Has Established Channel Lines , or Within One Mile of a Nuclear Power Plant Within One Mile of An Airport . COMMENTS : Applicant is requesting permission to establish "RPd. -anc1 Breakfast Use. " Copies of Town file and related documents enclosed for your review. Dated :February 24 , 1987 SecreVary , Board of Appeals : . Southold Town Board of Appeals MAIN ROAD - STATE ROAD 25 SOUTHOLD, L.I., N.Y. 11971 TELEPHONE (516) 765-1809 APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS,JR. SERGE DOYEN,JR. ,ROBERT J. DOUGLASS February 20 , 1987 JOSEPH H. SAWICKI Barbara L . Coughlan , Esq . 130 Ostrander Avenue , Box 757 Riverhead , NY 11901 Re : Appl . No . 3572-SE - Michael and Joyce Mattes Dear Ms . Coughlan : Transmitted herewith is a copy of the official findings ' and determination rendered in the above matte..r...• Please be sure to return to the Building Department and the Suffolk County Health Department if applicable , for reviews . .and issuance of. permits or other do_c.ument_s necessary for this project. Yours very truly , GERARD P . .GOEHRINGER C_HAI RMAN By Linda Kowalski Enclosure Copy of Decision to : Mr . and Mrs . Douglass Shaw Perri Carol- Fitte_rman , Esq . Mr . and Mrs . -Henry M. Haan Building Department ' Suffolk -.County Planning Commission 0-1 Southold Town Board of Appeals �•��1 ��®� MAIN ROAD - STATE ROAD 25 SOUTHOLD, L.I., N.Y. 11971 TELEPHONE (516) 765-1809 APPEALS BOARD: MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. ROBERT J. DOUGLASS JOSEPH H. SAWICKI TO WHOM IT MAY CONCERN : ' Enclosed herewith as confirmation of the time and date of the public hearing concerning your recent application is a copy of the Legal Notice as published in the L . I . Traveler- Watchman , Inc . and Suffolk Weekly Times , Inc . Someone should appear in your behalf during the public hearing in the event the're are questions from board members or persons in the audience . Please be assured that your public hearing will not start before the time allotted in the Legal Notice . If you have any questions , please feel free to call our office , 765-1809. Yours very tr- 1 G -RARD P . GOEHRINGER CHAIRMAN Linda •Kowalski Secretary and Board Clerk Enclosure py (LAY McNULTY & DIPIETRO ATTORNEYS S COUNSELORS AT LAW 130 OSTRANDER AVENUE P.O. BOX 757 RIVERHEAD, NEW YORK 11901 516-727-8200 JOHN R.McNULTY PAT FRANK NESCI ARTHUR DiPIETRO EDWARD/D. BURKE JAMES SPIESS OF-COUNSEL BARBARA L.COUGHLAN January 30 , 1987 Southold Town Board of Appeals Main Road State Road 25 Southold, New York 11971 Attention: Gerald P. Goehringer, Chairman Re: Application of_Joyce & Michael Mattes Dear Mr. Goehringer: As you may recall , at the Board' s hearing on January 8 , 1987 , opponents to the Mattes ' application raised a question with respect to liability on the 25-foot right of way running to Luther Road. At that time; I requested that I be allowed time to respond to this question of liability. This letter is written in light of that request. Initially , I respectfully assert that .-the issue of liability on the right of way is not within the purview of the Board of Appeals . The applicants have presented to the Board a deed, which indicates that the applicants have a right of ingress and egress over a 25-foot right of way located to the north of the applicant' s property. The critical question before the Board is whether or not the Mattes , in fact , have a means of exit from their property to enable them to .run a bed and breakfast establishment in their home . I believe that this deed indicates that they do have that right. Any question which may arise concerning that right or any hypothetical increase in liability resulting from an exercise of that right is a civil matter for the Supreme Court and not one to be considered by this Board. However , I will point out , as I did at the hearing of January 8 , 1987 and in my letter to the Board of January 13, 1987 , that New York case law provides that since the right of way granted to the Mattes by deed, is general in nature, (a right of way for ingress and egress) , a change in the use of their house does not create an overburdening of the right of way entitling the servient estate holder (the Hahns) to relief . McNULTY & DiRIETRO ATTORNEYS & COUNSELORS AT LAW Page Two January 30 , 1987 Again , I direct your attention to the case of Zubli v. Community Mainstreaming Associates, Inc. , 102 Misc. 2d 320 , 423 N.Y.S. 2d982 (1979) , which held that where there were no words of restriction in the easement other than that it was to be used for a means of entrance and exit the purchase by a non-profit corporation of the property from the dominant estate holder in order to use the house as a resident facility for mentally disabled adults did not violate the easement on the basis that such property had been used as a single family residence and that the easement over the adjoining property was designed for such use and contemplated only such use. Id. at 990. The Zubli Court went on to state that "the ommission from 'the grant here of any words limiting the use of this ease- ment. . . must control the construction of the grant, for a limitation upon the existence and continuance of an easement privilege can be predicated upon a change in the character or use of the dominant property only when an intention to impose such limitation is found in the language of the grant itself. " Id_. (Citing the Appellate Division case of Mittnacht v. Montana, 205 A.D. 643 , 200 N.Y.S. 82/(1923) . I believe that this should resolve the questions concerning use by the Mattes and their guests of the 25-foot right of way running to the road. Further, this same reasoning is applicable to any question concerning the right of way running to Mattituck Creek. If you have any questions , please do not hesitate to contact me. Very truly yours , . BARBAR L. COUGHLAN BLC/tms cc: Joyce & Michael Mattes Robert Tasker, Esq. A McNULTY & DiPIETRO ATTORNEYS & COUNSELORS AT LAW 130 OSTRANDER AVENUE P. O. BOX 757 RIVERHEAD, NEW YORK 11901 516-727-8200 JOHN R.McNULTY PAT FRANK NESCI ARTHUR DiPIETRO EDWARD D.BURKE DAMES SPIESS OF COUNSEL�(�.� f�s �, BARBARA L.COUGHLAN January 13 , 1987 Southold Town Board of Appeals Main Road State Road 25 Southold, New York 11971 Attention: Linda Re: Application of Joyce.-and-Michael-Mattes Dear Linda: As per your telephone conversation with my office of January 12 , 1987 I enclose herewith copies of the following cases, which were cited in my Memorandum of Law: 1. Green v. Logrande, 96 A.D. 2d 524, 464 N.Y.S. 2d 831 (2nd Dept. 1983) ; 2 . Matter of North Shore Steak_ House v. Bd. of Appeals 30 N.Y. 2d 238 , 331 N.Y.S. 2 6 (1972) ; 3 . North Shore Eguitees v. Fritts , 81 A.D. 2d 982 , 440 N.Y.S. 2d 85 (3rd Dept. 1981) ; 4 . Matter of Tandem Holding Corp. v. Bd. of Zoning Appeals of Town of Hempstead, 43 N.Y. 2d 801 , 402 N.Y.S. 2d 388 (1977) 5 . Sal De Enterprises, Inc. v. Town of Islip, 99 A.D. 2d 469 , 470 N.Y.S. 2d 176 (2d Dept. 1984) . Please note that a line was inadvertently left out of page two (2) of my Memorandum of Law, said line being that which is highlighted on the corrected page two (2) enclosed herewith. This should clarify the quote from the case of Green v. LoGrande, Supra. I also enclose herewith a copy of the case of Zubli v. Community Mainstreaming Assocs . , Inc. 102 Misc. 2d. 320 , 423 N.Y. S. 2d 982 , aff 'd 425 N.Y.S. 2d 263 (2nd Dept. 1980) , to which I made reference at the hearing on January 8 , 1987 . McNULTY & DiRIETRO ATTORNEYS & COUNSELORS AT LAW Page Two January 13 , 1987 If you require additional information, please do not hesitate to contact me. Very truly yourss/,�� BARBAR L. COUGHLAN BLC/tms Encs. ccm Joyce & Michael Mattes a� E I GREEN V. LO GRANDE 831 Cite a9464N.Y.S.2d831 (A.D.2Dept. 1983) -any's advertising month for the seven years thereafter. to whether Kerner's appointment as Thom- atitled to fees, 11-1 Clause (AX3) governed termination of the as' representative was cancelled in Decem- Aer representativep agreement prior to the expiration of its ber, 1979, when Levy:was appointed in his ent as represents- term, stating: -appointment lasted place, or whether' tW' tied at that In case-the;-said agreement between until Kerner's death in March; 1980 (see appointment, Thomas and Kerner should terminate, or Kerner v. Levy,88 A.D.2d 796,'450 N.Y.S.2d in,case Kerner or Levy should to- representative's, cease to 644). z n appointed in his represent Thomas i i its publishing busi- - Although defendants did not crdss-ap- raised substantial ;Hess the employment of D oyne shall peal, this court may search the record and ',ed summary judg- cease,and neither.Kerner or Levy will be grant them partial.summa judgment(see - ultant was entitled required to pay him any further compe n- CPLR, 3212, subd fb];' Jim, Jack & Joe triod• sa ion. Realty Corp. v.Rothenburg, 78 A.D.2d 634, In 1979 Kerner became seriously ill and 432N.Y.S.2d 110). Since the defendants Thomas notified him in December, 1979, are not liable,in any ev�lzit .sdale,for appellant.`.� for any consult- that his contract to act for the company ing fees due after Mai`rch, 1980, an issue inlan, Garden:City.'.' was cancelled for reasons of health, that severable from their liability,if any,for the ,rden City, of coun Levy was appointed in his place,and that if consulting fees payable .in February and ,.nees Florence Kei- Kerner regained his health he would be March, 1980, we grant the defendants par- c! reappointed. Kerner`died in March, 1980, tial summary judgment' to the,extent that )ld, Cedarhurat., for and Levy continued to manage the business. their liability cannot exceed the principal Y. When Doyne failed to receive any payments sum of $2,000, representing the consulting, after,January, 1980, he brought this action fees for February and March, 1980 (see and MANGA$0'.,9, against Levy and Kerner's estate, seeking Clifford Realty.v. Dudrak, 72 A.D.2d 964, )FF, JJ- $35,000, representing the final 35 payments 422 N.Y.S.2d 260).. The trial of this action under the agreement. Levy defended on should thus be confined to the date of ter- ' THE COURT. the basis that the agreement terminated mination of Kerner's agreement with t6ver damagds upon the loss of Kerner's license in Decem- Thomas. g contract, plaintiff: ber, 1979. Plaintiff now appeals from so of an order of the much of Special Term's order as denied his County,dated June motion for summary judgment. -notion for summary The.threshold determinatio6g whether- Ad the termination clause in th4!'-partnership the law, by' 6ing agreement is ambiguous(see Sutton v. Fast rating partial sumima .,,` ;';,4 Riv. Say.Bank,55 N.Y.2d 550,450 N.Y.S.2d efendants dismissing . : 96 A.D.2d 524 460, 435 N.E.2d 1075). This analysis in- 3 the extent that it- - : Thomas F. GREEN,ipt al., Appellants, �sElting;fees payable'­,,:,-�_,' volves a determination as to whether rea- �,W sonable men may reasonably differ as to modified V., .9 so the meaning of the language employed in ,pealed from,without' Michael LO GRANDE, et al. the contract or whether the words cinder examination have a definite and precise etc., Respondents. �A Doyne, was an cede- g meaning concerning which there is no rear :ing advertising apace_;;; sonable basis for a difference of opinion Supreme Court, Appellate Division, Second Dep"A'rtment. ihing Co. (hereinafter (Breed v. Insurance Co. of North Amer., 46 ,cemb6i'1973 he N.Y.2d 361, 355, 413`'N.Y.S.2d 352, 385 July 11' '1983. ant with his then..e N.E.2d 1280). In our view,'the clause is ner and Bert Levy; i fiYy unambiguous since it clearly'provides for Doyne's retirements termination upon the termination of Ker- Article 78 proceeding was brought to as representative for 'ner!s contract with Thomas or upon either review determination of town board deny- -ntion of Doyne as a Kerner or Levy ceasing to represent Thom- ing application for special use permit to and Levy at a.fee'.of as. But, as determined by this court in a operate bar and grill. The Supreme Court, -La years and$1,006 per 7 related action,there is,a•question of fact as Special Term, Suffolk County, Stark, J., Eby•� . t .:.f 3 1 . y Ct ' 832 464 NEW YORK SUPPLEMENT, 2d SERIES denied the petition, and petitioners appeal- Board of the Town of Islip denying peti- 78. Speci. `. ed. The Supreme Court, Appellate Divi- tioners' application for a special use permit the deter: sion, held that town board's determination to operate a bar and grill, the petitioners to the tow n was not supported by substantial evidence. appeal from a ud j gment of the'Supreme ground t5 Reversed. Court, Suffolk County, entered October 7, ;, the findin 1981, which denied the petition." ever adop i "'Judgment reversed, on the law,.without z town boat 1 1. Zoning and Planning *-435 costs or'disbursements petition de- $4.-., Pursua: Burden on applicant for special use per- n�' termination annulled, and matter remitted town boa; mit, unlike heavy.burden on one seeking to to the respondents for the purpose of issu- April 23, ] obtain variance, is light one, requiring only ing the permit in accordance herewith upon tion was that he show contemplated that use is one contem P° T`a' P such reasonable conditions as they, may were state t., by zoning ordinance subject to any condi- deem appropriate. tion that may be deemed necessary to mini- Petition The petitioners are the owners of proper- G'>z proceeding mize impact of use on surrounding area. ty located in a Business I use district in the tion. S pe 2. Zoning and Planning 0-375 Town of Islip: In May, 1980, they applied r finding th! Administrative authority, be it a town for a special use permit to allow their les- was.suppo board or zoning,board of appeals, is .re- sees to operate a bar and grill, a condition- We revs quired I to grant special use permit unless ally permitted use;on"the premises:: reasonable,.grounds exist for its denial, for Following consideration of the application F„ s .'. [1-31 example, that use, although permitted, is by the town planning board,'a public'hear- =�ljt. special us( not desirable at particular location. ing was held on September 18, 1980 before :' ognition t; I t 3. Zoning end Planning the Town Board of,the Town of Islip at ted use ir. special use permit may not be Denial of which a vote was taken denying the apph mount.•to r cation. Thereafter, petitioners were in s.-mitted u based upon'general objection to special use formed that by resolution dated September or concluso findin s that P zoning PIE ry g proposed use 18, 1980 their application for a-special use �" ` ..the neigh! itself is undesirable. Permit had been denied for the following Steak Ho 4. Zoning find Planning Q-645 reasons: F Vil. of Th s Town board's determination. denying "1. The use is characterized by late hour ,N.Y.S.2d 6 t' application for special use permit to operate Patronage and parking. '.:on,the ap; bar and grill was not supported by substan- ''2. Town policy has consistently granted 15r A on one see teal evidence where late hour patronage and permits for such uses only in larger shop- 3: .,light one,. d.. Parkin g was;characteristic of the business, ping centers. or.. at locations otherwise :the use is area was predominantly business otie,prem- buffered from residences. a ,, `...c ordinance ises had more than adequate.parking facili- "3. The proposed use, because of the t� -,, tions.that �3 s ties and strain on local traffic would be less additional .parking. 'required beyond the a.: amize 'the due to eveningnature of business. normal ;°,requirement for a permitted use rounding in a business district,represents a signify- icorp. v..t cant intrusion on residences,beyond that Harold Holtman, Huntington, for appel- of a permitted use. �921, 422 P lants. "4. The proposed location has a high de- }f iener v. William E. Bennett, Islip(Francis J.Tier- gree of traffic congestion and an accident' ° sa 85 A.D.2d «:: , ney Islip, ofcounsel), for respondents. ratio 40'�pe �. rcent above the critical level, • j ; :•;ministratie according to the New York State Depart- ,i:,or:a zonin, Before LAZER, J.P., and O'CONNOR, ment of 1ransportation. ,.grant a sp BROWN and RUBIN, JJ. "5. Numerous locations exist in the,A {6 ;; grounds e, cinity better suited to such an.intensive ;x ',;use althot; MEMORANDUM BY THE COURT. use" .particul E' In a proceeding pursuant to CPLR article Petitioners challenged this determination ry .Devi Corp. 78 to,review 'a determination of the Town in a proceeding i p g Pursuant to CPLR=article ;:l er.of:.Ple, ® ,i y c • q i P A GREEN v. LO GRANDE - 833 Cite as 464 N.YS.2d 831 (A.D.2 Dept. 1983) 10 denying peti�- 18; Special Term(BRACKEN,.J.),annulled Wagner,41 N.Y.2d 1028, 395 N.Y.S.2d 631, nyi pecial use permit the determination and remitted the matter 363 N.E.2d 1376; Matter of D & G Enter- 1, the petitioners -to the town board for a new hearing on'the tainment v. Rose, 86 A.D.2d 608, 446 N.Y. of the -Supreme ground that there was no indication that S.2d 107). Denial of a.'special use permit :eyed October 7, Y 4 the findings set forth in the resolution were may not he based upon general objections - ;tion . ever adopted.by any of the members 6f.,the to the special use or coficlusory findings he law, with6ut town board. that the propose&use itself is undesirable tion granted,de- Pursuant to Special Te' s direction, the (Matter of Pleasant Val.;Home Constr. v. matter remitted town ........... board held a new public' hearing on Van Wagner, supra; Matter of Scott v. purpose of issu- April;23, 1981,following which the applica- Zoning Bd. of Appeals of Town of Salina,88 3 herewith,upon tion was denied for the same reasons as A.D.2d 767, 451 N.Y.S.2d 499)., as they may were stated in the prior resolution. Petitioners then commenced the instant [4] The record herein•does not reveal �. the existence of reasonable:grounds sup- vn6rs of*oer. proceeding to review the new determina- ported by substantial evidencelor.-denying 7. ie district in thetion. Special Term denied the petition, the permit. The,first reason set forth in 30, they applied finding that the town board's determination the town board's resolution, that the use is 1. allow their les- r3 was supported by substantial evidence. characterized by late hour. patronage and V6 reverse. a condition- parking, ,amounts -to an ;objection to 'the -emises. nature of the use itself.- A restaurant and the applicatio [1-4] Review of An' application for a bar is a permitted use and since such a a public hear- spec ial use permit must begin with the rec- business by its very nature is characterized 18, 1980 before oghition that"[t]he inclusion of the permit- by late hour patronage and parking, this i. wn of Islip at ted We in the [zoning] ordinance is-.tanta- reason for denying,the permit is meritless. 4 ,ying the appli- . mount to a legislative finding that the Per It is tantamount to finding that a bar is an ners were in- miited use is in harmony with the general undesirable use, which conclusion runs con- ited September zoning plan and will, not adversely affect trary to the zoning plan 'permitting such a r a speci al use the neighborhood" (Matter of North Shore use (Matter of North Shore Steak House v. the followingriu Steak House v. Board of Appeals Of Inc. Board of Appeals of Inc. r7l. of Thomaston, Vil. of Thomaston;30-N.Y.2d 238, 243, 331 30N.Y.2d238,331N.Y.S.2d,645,282N.E.2d,., ,d by late fioui 'N.Y.S.2d 645,282 N.E.2d 606). The burden606 supra). k, on-the applicant, unlike the,heavy'.burden Nor does the recoil Untly granted on one.seeking to obtain a variance, irecoilsupport the conclu- -liht one,'requiring only that he show that slo s a in larger shop- g q g y n that the use is not sufficiently ficiently buffered from ons otherwise residential locations.� In fact,the ree- the� use is:one contemplated by the ord reveals that the area i predominantly a ordinance subject, of course, to any condi- business one, with only 'one private resi- ecause of the tions that,may be deemed necessary to min-. d beyond the A dence within 200 feet of the proposed bar imize the impact,of the use, on the sur- permitted use and grill. -rounding area (Matter of Carrol's Dev. ients a signifi- -Corp. v. Gibson,-73 A.D.2d 1050, 425 N.Y. Likewise, as to the third,and fourth con- s beyond that S.2d.420,.'affd. 53 N.Y.2d 813, 439 N.Y.S.2d clusions,the record indicates that the prem- 921, A22 N.E.2d.581; see, also, Matter of ises has more than adequate parking facili- has a high de- Biener v. Incorporated Vil.- of Thomaston, ties and further, since a significant propor- ad an accident 85 A.D.2d 730, 445 N.Y.S.2d 808). The ad- tion of the business traffic of the premises critical level, niinistrative authority, be it a town board will more than likely occur in the evening, State Depart- or:a'zoning board of appeals,is required to it will place less of a strain on the local. grant a special use permit unless reasonable traffic than would another use. Moreover, :ist in the vi- grounds exist for its denial, e.g., that the the traffic survey relied upon by the.town an intensive use, although-permitted, is not desirable at board was out of date and the testimony a particular location (Matter of Carrol's submitted regarding more recent accidents 'etemifiation Dev. Corp. v. Gibson, supra; see, also, Mat- at,the adjoining intersection was not specif- 1JPLR article ter of,Pleasant Val. Home Constr. v.. Van is as to whether those accidents occurred 41 7 7 1 464 NEW YORK SUPPLEMENT, 2d SERIES k 1 during the day or night. On this record, Jessel Rothman,P.C.,Mineola(Julian Ka- ` tens tc therefore, it cannot be said that there was plan, Mineola, of counsel), for appellants• Justice '. substantial evidence to su{ pport the finding Grutman Miller Greens that the use would adversely affect traffic poon & Hendler, �, .; York t. New York City(Donn A. Randall and Vito 19E congestion in the area. ' C. Casoni, New York City,of counsel), for Fin could ; f ally, there was no evidence in the 'r'eSpondent. t, cause record establishing the existence of numer- money ous locations in the,vicinity better suited to' Before BRACKEN, J.P., and.BROWN, r,� stantia such use. NIEHOFF and BOYERS, JJ. mitted ' MEMORANDUM BY THE COURT. . $ Accordingly, we find that the town parent boards determination denying In an action inter alia, for an injunction, yi g petitioners' , application for a special use permit was not Plaintiffs appeal, as limited by their brief; Less supported by substantial evidence and, from so much of an order of the Supreme denied therefore, Special'Term erred in denying Court, Queens County, dated January 20,. junctio the petition. 1985, as, upon defendant's motion.pursuant action, to CPLR 3211 (subd. [a], 'pare. 4, 7 to stant w dismiss the action for failure to state a Count; S KEYNUIRBERSYSTEM cause of.,action and on the ,ground that tion rep T to her; another action was pending between the same parties for the same cause of"action, ''' tens n t 96 A.D.2d 527 granted that motion to the extent of direct- York C JENSEN ASSOCIATES, et al., ing a change of venue of the action to New '""'' or, in of the Appellants, York County,,without prejudice to an appli- :. ,r v. ' cation by either, party to move to consoli- �4 County V. date it with certain actions pending in New 1982, Joan MARTENS, Respondent. York County. �'t tion, c. . tion iri: b'. Order affirmed insofar as appealed from, affront Supreme Court, Appellate Division, with costs. Second Department. ess", ar In June, 1982, the East 68th Street Ten- shoppir= Jul 11 1983. ants Corp. and several of its shareholders a Y commenced an action against Jensen As �' On . ciates(hereinafter Jensen)and FSB Proper- On In an action, inter alia, for injunction, ties, Inc. (hereinafter FSB), the plaintiffs " prelimi. Plaintiffs a cember P appealed from an order of the herein, in New York County. The-tenants Supreme Court, Queens.Count Lerner J. 'r, ' alia, de- Supreme Y. corporation accused Jensen and FSB'of mot 3 approp. which granted,defendants motion directing honoring their agreement to make the mod- and orc a change of venue: The Supreme Court, ifications necessary to-obtain a tax abate- � der of }. Appellate Division, held that Special Term ment and a permanent certificate of occu- Court properly exercised its discretion in directing pancy for the building Jensen sold to the w '�subjec that venue of action for injunction be tenants corporation. By a counterclaim in- then'pr changed to county in which previous action terposed in the, action, as, to which Joan { t 4 In th arising out of same controversy between Martens, the defendant herein, and others Marten,, parties was pending. were named as additional parties, Jensen , sen F. Affirmed' sought damages caused, inter a&6 by-Mar- 4 f x1 Court, ` tens' alleged failure" to, comply with .an ' Sul Venue *-42 . agreement in which she granted Jensen and to do ti: FSB access to her co-operative apartment ment h: Special term!properly exercised its die- for,the purpose cretion in directing that venue of action for repairs necesary to securing t erecertificate � tY actin injunction be changed to county in which of occupancy and tax abatement. the ter previous action arising out of same contra against veray between:parties was In July, 1982,Jensen and FSB moved-for Eight. r pending, a preliminary injunction compelling Mar- trial of jr a �r. lit NORTH SHORE ST&HSE.V.BOARD OF APP. 30 N.Y:2d 2 t 98 Cite as 331 N-Y-8.2d 645 645 even mOre's'gn ifiCantly,,the State -Insurance Fund filed notice that it 4. V W. ouldimot''cOntjr6vert either,claim. There Was, as to both claims,, agreement that they arose out.of and in the course of-employment. All that was,.,necegsary to Perfect these claims was medical testimo- tkjfi ny—pfiesurnably to-.,be;submitted, when-available, In ,fact,Ahe only reason further,proceedings were not commenced immediately was the negligence of claim'ant's doctor, combined with claimant's mental Condition. Under such circumstances, we can only conclude that 1�4 substantial evidence supported the Board's conclusion that these ca ses 0 were not closed within the contemplation of section 25—a, and, there- fore, the Board's Ateterminatidn should not be disturbed. Tfie order' of the-1ppellate-, Division should be reversed and the "Al QA L determination of Vie Board reinstated. V­ FULD, CI J.,,f'and,,BURKE SCILEPPI, BERGAN, BREITEL and GIBSON JJ concur. Order reversed, with costs, and the determination of the Workmen's Compensation Board reinstated. W hr O 5FFT NUMBER SYSTEM Qll o b", pli 30 N.Y.2d 288 in the Matter.0 f.NORTH SHORE STEAK HOUSE INC., Appe�zjj, v. _L23s BOARD OF APPEALS OF the INCORPORATED VILLAGE OF THOMASTON et al., Respondents. Zest j Appeals of New York. C6tirt;of, March 24, 1972. J A CIL .'-.'App6al from an 'order of the S.upreme Court, Appellate Div.ision, .,.,.,,8ffi.rming-a judgment of the Supreme Court at Special Term, Nassau County, Michael M—D'Auna, J., dismissing petition in Article 78 proceeding wherein petitioner sought a judgment annulling a determi- F-ation of,villaget%ardof Appeals denying application for a special permit and a'variance. The Court of Appeals, Burke, J.fter'a , ­hdd that denial of special exception permit on ground that extension iutlih of parking area of restaurant, on a split zoned lot, 25 feet into a single inj family residence district was not in harmony with general purpose and dc" "I tbtt'of zoning plan, in that addition of parking spaces for 25 or 30 -:Vehicles, to be used primarily on weekends, would adversely affect rtY Values or-greatly increase traffic in area, was inconsistent, x,N V - {� t-"" � =�-.- "_ --��-Vie`=_�:.S�±tfi" €�� 1s�1,-._ �:���F�'��.�•,,,., ,� j l k t � ` r 646 331 NEW YORK SUPPLEMENT, 2d SERIES 30 N.Y.2d 2sa, 30.N.Y f arbitrary. and capricious, and would be overturned, where uncontro only verted evidence established that granting of permit would have 'a surroc beneficial impact by relieving traffic during peak dining hours, while preventing any spillback onto a heavily traveled boulevard by vehi- Cha; Iles unable to enter front entrance.of ,parking lot. appell: Order modified to extent of reversing denial of special exception ;' Bruc permit, ! remainder of order affirmed. P In t, l{ 1. Zoning-'4=509 Appeal. j Fact that property next to restaurant was more valuable as accessory parking for restaurant was insufficient to..warrant a hard-' North ship variance to permit such parking, where'property, located in•a =<, its Pm'' residential zone, -could be reasonably employed for that use as..evi-; #( residen s denced:.by a .proposed•:new house on an adjoining parcel. x Parkin- I t Nort: 1 2. Zoning e-482 the nor r A:"variance" is an authority to a property owner to use'property °`' the Vill 4 in a manner forbidden by ordinance,' while a "special exception" ; ;r�' is from allows. ro rt owner to put his property to a use ex ressl permitted P Pe .Y P P P Y . .expressly Y P y,>`.` on Nort' i by ordinance. depth o s� { See publication Words and Phrases for other judicial x ' -that the c I constructions and definitions. X' the lot A, Er Zoning *-271 zoned f Inclusion of a permitted use in an ordinance is tantamount to a t = separate 1 i; used as legislative finding that permitted use is in.;harmony with general ; zoning plan and will not adversely affect neighborhood.' ` " }t premise, All at: 4. Zoning *-509 blacktop Denial of special:exception permit on ground that extension of }� made tw l parking area of restaurant, on a split'zoned lot, 25 feet into a single ti the seat family residence district was not in harmony with general purpose and (t as ! intent of zoning plan,'in that addition of parking spaces for 25 or 30 i; spaces' addition: vehicles, to be used primarily on weekends, would adversely,affect to 85 ca, k ' property values or greatly increase traffic in area, was inconsistent, arbitrary and capricious, and would be ,overturned, where uncontro- In Dec verted evidence' established that granting,of permit would have; a c man We• beneficial impact by relieving traffic during peak dining hours, while: Pursuant preventing any spillback onto a heavily traveled boulevard by vehicles r "Sectic unable to enter front entrance of parking lot. hearing, .harmony r 5.,Zoning a-536 ry addition i a` Burden of proof on an applicant for a special.exception permit is ` State of 4, muh:lighter than that required for,hardship variance,.as. it does..not 7tt nance gi. ' require applicant to show that it has been denied; any reasonable use .„(e) W. of property but only that use is contemplated b ordinance sub &t p p y y P Y J a "�� the effect t Y �Y A� dig NORTH-SHORE,STK. HSE.v.BOARD OF APP. 30 N:- `20 647 Cite as 331 N.Y.8.2d 645 only.Ao conditions- attached.to its use to minimize its impact on surrounding area. ti Charles R. Van de Walle, New York City, and James Sawyer, for ,Leo appellant. Bruce D. Xencher, for. respondents. BURKE,-Judge. 41 lip _E In this article 78 proceeding, appellant North Shore Steak House reAher North Shore) seeks to review A decision of the Board of T, Appeals of the Village of Thomaston (hereafter the Board) denying North'S ore s app icati6n for: (1) a special exception permit to extend 'k lit its s, zoned.ed 16t, - its parking area, on p 25 feet into a residence district, and (2) a hardship variance permitting accessory parking`,` 6'n.the residentially'zoned property'beyond'the 25-foot strip. ar. ,North iVll Shore is the lessee of aplot of land used for a restaurant on the northwest corner of Northern Boulevard and Summer Street, in the Village o Thomaston in Great Neck, Long Island. 'The lease term tx is from May 1, 1961 to February 28, 2003. The premises front 181 feet on Northern-.Boulevard, a heavily traveled State highwa and have a -y depth of 286, feet -along Summer Street . The zoning map provides that.t e,.Busine'ss."B" District has a depth of 200 feet and, therefore, the.lot is split zoned, the rear 86 feet being in Residence "B" District I. zoned for single-family homes. The plot has been in single and separate ownership since: 1903 and is impro ved with a main building, use d a','a'restaurant sin ce 1940, and an old stable, in the back of the r. premises, ap proximately 5 feet from the 'rear line. All'available;soace within the.200 feet -business district has been bla6ktopp d for parkin' during th�i paAti,ni-he years. North Shore has e g made"two small' extensions to the main building which did not increase ty the ,seating'capacity but did, result in the lostLof several parking g ki spaces. e;Th'' restaurant has seats for 170 people at the tables and an additio nal 18-at the bar. At present, there are parking spaces for 76 to 85 cars': In December, 1969, North Shore, joined by the owner-lessor, Her- man Weinman,-'made an application for a special exception permit, pursuant to article X (§ 3) of the Zoning Ordinance, which states.- : ro -'S6ction 3. They may in appropriate cases, after public notice and hearing, and subject to appropriate conditions and safeguards, atidin 6rm. :o, ny With the general pu- rpoiie and intent of this ordinance, in Addition to the powers and duties set'forth in the Village Law of the State of New York and such powers as are heretofore in this ordi- nance,given to them, "(e) Where a zone boundary line divides a lot in single owners'hip at the effective date of this ordinance affecting a use district;as the ease jig `IMEW 648 331 NEW YORK SUPPLEMENT, 2d SERIES 30 N,Y,2d 242 30 N.Y.2e may be, permit a use authorized on either portion of such lot to extend to the entire lot, but not more than twenty-five (25) feet beyond the ;; new hox. boundary line of the N.Y. 71. ry greater restricted zone. (emphasis supplied). 6 N.Y 2d In addition, the application sought a variance for the balance of the Forrest rear 86 feet beyond the 25-foot strip, except fora 50-foot by 100-foot ' plot on the northeast corner, to be improved with a new one-family t [2-4] house fronting on Summer Street. findings tal differ 1 , In rejecting the application for a variance, the Board found, among. variance ' others,':that (1) the premises were:not unique or different from other,._. manner split zoned property in the villa e 2 that the hardship, if any, was P P P Y g (.) the prop: t self-created (3) that the evidence that the variance would have an. ' the ordir: adverse.effect on the adjoining property was not rebutted and(4) that. ` �4 tantamot a ratio of one car. to every three or four seats is all that'should be J harmony reasonably required. Based on these findings; the Board also conclud-` the neigh ed, without any additional findings or conditions, that the 'special rt I PP• 54-3- exceptions permit "would not be in harmony with the general"purpose 126, 174 and intent of the zoning plan and 'scheme". A,D.2d 7 ` Center•v. Special Term, in sustaining the board's determination, did so, not on permit or. the merits, but on the basis that a prior application by the.owner4es- the reside sor in 195.7 was 'res 'J dicnta in the absence of "changed circumstane- purpose a i es". ' "The majority in the Appellate Division did not rely on' this See ger. rationale but concluded that the record did not support the view that the residential [5] Th 143 portion of the1property'could not be used for that '. permit is purpose. In addition, citing Matter of Lemir. Realty Corp. v. Larkin; 7 . { (;Verona, 11 N.Y:2d"20, 226 N.Y.S.2d 374, 181 N.E:2d 407, it held there was'a Y reasonable basis for the denial of the special exception permit. op. cit, su_ j At,has bee In his dissent, Justice Gulotta agreed with the majority with respect a,;, `.' the use,is, to the denial of the variance but determined that the denial of the `; > t attached :I special exception permit was arbitrary and capricious since:the Board. North Sh: "erroneously applied the same test to the special.exception applica i; testified t. tion" as that required for a hardship variance. Des ite tl> shortage On this record, it cannot be said that the hardship variance,was ¢ 'r A ,25-foot improperly= denied. It- was sought for accessory parking on the ' to 30 more northwest corner of the property,(measuring approximately 61 feet by m :back up or. 81 feet)'beyond the 25-foot special exception area and next to the, r problem is „= 50-foot.,by 100-foot plot, on the northeast corner on which the owner- on Norther lessor planned to erect a new, conforming one-family house fronting . A i:.. eastward f, i, on Summer Street. North Shore's contention; no doubt true, that this : Instead, th. {; plot is more valuable as accessory parking is insufficienf to`warrant a ,_1{ j ` turn, addir.. hardship variance since the property, located in a residential zone, The Boa: may be reasonably employed for that use as evidenced b theproposed Y `parking pr- 331 N.Y.5.2d- s.4 ,• is � r T, 0-111,10"I'M 775, dky a. 650 331 NEW YORK SUPPLEMENT- 2d SERIES 30 N.Y.2d 244 � admitted that there was an, adjacent water tower, 80 feet.to 100 feet jk 1 tall, but declined to estimate the impact of the tower on residential P ,f values. In addition, 'he admitted that Briggs }, ggs Auto Leasing had been. issued a-permit to extenda large parking area beyond;the ,Z00 foot f ' business district on a plot less than two blocks,from the;restaurant a` and that the Methodist Church fronting on,Northern Boulevard in the T w vicinity had parking well beyond the 200-foot line without harm to "z Bc A.- anyone. He, nonetheless, concluded that granting the permit would �f �� k adversely affect property values and generate more traffic on North; `dii ernBoulevard. <re: In :view of,the changes which have already taken place in theto t �� immediate area, there is no basis for the conclusion that the addition . an( P! 1g4s of parking spaces for 25 or 30 cars,,to be used primarily .Lon weekends; cor, }i will adversely affect property values,<or greatly increase traffic`in the r area(Matter of Young Men's Christian Assn. v. Burns 13 A.D.2d,1006' f as 1010, 216 N.Y.S.2d.716, 717) On the contrary,, the .uncontroverted evidence is thatY F # granting;ofhepbrmit,,will have a beneficial impact , GjF £; by relieving traffic on Summer'Street during peak dining hours while C preventing any spillback onto heavily traveled Northern Boulevard by cars traveling eastward and unable to enter the front entrance of ' i F ' the parking lot (Oursler v. Board of Zoning Appeals, 204 Md. 397, 104 { A.2d b68). Nor. does there appear to be.any reasonable basis for the { u conclusion that the additional cars will'increase noise or gas fumes'in 5 �S the immediate area since North Shore has agreed;to provide a 10-foot ' screen of shrubs or trees at the rear of the extension to protect the `1 neighboring residences. Absent .,any support in the record for the ?V conclusions advanced by the Board justifying the denial and in,view #� of "erroneous standard" used, -namely that applicable to a,.hardship variance' the decision of•the Board with respect to the special permit; must 'be deemed,arbitrary and capricious (.67 N.Y.Jur., Zoningd an ire i .f 1 ( Planning Laws, §`340 Matter of Lemir Realty Corp. v. Larkin, 11 .2d. at NY 226 XYS2d, p. 377, �181;N.&2d,'.p. 409) p, 25, . . . - § The argument, relied on by Special Term; that a prior application , �gtlf was res judicats is not applicable. In 1957 the present owner made an s in u e ( app ieation for a use variance as well-as a.special exception permit for ' j' accessory parking in the residential zone. The application was denied Court, and the denial sustained by Special Term. -The denial was'apparently } ' manta AppeIla on the;basis that the additional parking was available on'the 200-foot 2 kt '' $ P plaint 1 busine's zone:des ite 'the.owner s reluctance to disturb the lawn'and J 1 trees then present. ''Since then substantial changes have occurred: evident The'200-foot business zone has been con, letel blackto ti '` Patron' U _ -completely Peed for�parkr not in -co: g; Northern,Boulevard, a State highway,has been widened eliminat in on-street parking, reviousl _ contra g P g, P y .=permitted, as `well as adding a r median strip making it.'impossible for eastbound traffic .to enter the: ;f � ;, wide ha 1 1 tf 3 y ,RIES 30 N.Y.2d 244 ORLICK,vi GRANIT HOTEL&COUNTRY,CLUB 651 36 N.Y.2d 246 Cite an 33i N.Y.8.2d 651 30 feet to.100 feet parking lot from the front entrance. Substantial changes have also Wer on residential occurred in neighboring parcels in which. parking has been extended Leasing had been into the residential area from the business zone. �yond the 200-foot-. In sum, North Shore has advanced sufficient proof-of compliance 4m the restaurant with- the ordinance'. justifyi the-special permit by the Bouk' i' ng issuance of vard n the Board. The testimony of North Shore is virtually unco ntroverted. without hirin 'td' 246 As a result it would appear there is no r6om, for the exercise of the permit would- discretion.on the part,of the Board and no pu rpose would be served by traffic*on North-` -remanding the matter for further hearings. Accordingly'the'order"of the Appellate' Division should be-nibdified th" W:. z ken place in e to the extent of reversing the denial of the-speciali�e�ception permit that the ad dition ng'the Board,to issue the permit subjc*ct0'; ' ble and direoti Any reasona -xily mon weekends' conditions it'deefils,appropriate and the remainder.of the order insofar 3ase traffic in th6w ,, "."41" hw it d bnied� the aoolidation for 'a' use variance should be affirmed. s, 13 A.D.2,d.1009� ,e.uncontrovei ed FULD C.� J., ,and SCILEPPI, BERGAN,, BREITEL, JASEN and 'GIBSON, JJ.' concur. act beneficial imp. 'ining hours while"'It. Ordered accordingly. thern Boulevard front entrance of 204 Md. 397, 104 WE UMBER STSYEM able basis for the or gas fumes in' provide a 16-f6ot. on to protect the ,e record f6r'th6. 80 N.Y.2d 246 -nial, and in pell ship� We to a hard ilih 6RUCK et'al -C' ants, v.'GRANIT HOTEL*& WNTRY CLUB et al.' _L246 Respondents. ,ie special permit, Jur., Zoning And,: Court of Appeals of New York. rp. v. Larkfin-,11­ March 24, 1972. p. 409). prior 4.3 Negligence action against hotel and others to reep'verdarriage's for j14A ay� hotel patron sustained in fall on stairwi The Supreme 'j ,It owner ma e an injuries ,eption Ormit-f Court,. Trial Term, Kings County, Frank J. Pino, J., rendered judg�- :ation was do,me"c-f ments -for defendants, and plaintiffs appealed. Thd,-,Supftine Court, Appellate Division, 35 A-D-2d 998, 318 N.Y.S.2d 80, affirmed; and d was apliarent'ly��:.',, 43 on the 200_fo& ` plaintiff apPibaled. : The Court of Appeals, Burkej J.,:held that scanty- .rb the la win�:diA4 'Y": 'evidend'e- of accidents on stairway in or leading to no prior corrid s have 6ce"'arr6d", pAtron's-room in four years in which hotel had been'in operation was ­v :to ped for �p not.,conclusive on issue of whether hotel had been negligent in Aridenedelimi-nat� const g and maintaining. corridor and stairway by failing to pro- ruin ide, handrail and by furnishing,carpeting of the. sa design and as adding sL vi me ffic to enter, A MW 7 777� <_ a 84 440 NEW YORK SUPPLEMENT, 2d SERIES f , 81 A.D.2d 985 sewer and drainage requirements, there In the Matter of NORTH SHORE was no substantial evidence to su In den pport find- ;` found tha EQUITIES, INC., Petitioner, ings by zoning board of appeals in denying V. corporation's application for s Feura Be pedal exogp- and dang Charles B. ]FRITTS et al., Constituting tion. The boar the Zoning Board of Appeals of the 3. Zoning and.Planning 0-489 access roa Town, of Bethlehem, Respondents. A mere general objection by an adja- ous sight Supreme Court, Appellate Division, cent landowner is not sufficient to justify Feura Bur Third Department. denial of a special exception to a zoning ordinance. adjoining May 4%, 1981. •;: - value and welfare w- In Article 78 proceeding transferred b Finally, it y Schrade & Kimmey, Albany.:{Karl H. ter and loc order of the Supreme Court, Special Term, Schrade, Albany, of counsel), for petitioner. ir in.harmon, Albany County, developer corporation Don 1ald D. DeAngelis,Delmar,for.respon- �r=;;r�_�. ., y develop sought review of denial by zoning board of dents. x adjacent d appeals of developer corporation's applica- The rec,tion for a special exception to city zoning ordinance. The'Supreme Court, Appellate N Before MAHONEY, P. J., and SWEE- three exile" Division, held that there was no substantial EY,`$ANE, CASEY and WEISS, .JJ, petitioner. evidence to support zoning board of ail- the buildiD peals' denial of developer corporation's ap- MEMORANDUM DECISION. a and set-ba plication. quirementt Proceeding pursuant to CPLR article 78 of the devo Determination annulled, application (transferred to this court by order'of. the „ •,,,,.... the orderl- granted with directions. Supreme Court at Special Term, entered inzx3;; value of at Albany County) to review a determination of respondent denying k t appraiser Po yi g a special exception. . would be is is 1. Zoning and Planning e=481, 490 Petitioner is a wholly owned subsidiary of of the diet; A"special exception"is a use expressly P Y Guardian Federal Savings and Loan Associ- adjacent Is permitted by orrinance; its inclusion is tan- ation and owns a 7.8-acre tract of land on fessional m tamount to a finding that the permitted use Feura Bush Road in the Town of Bethle- } is in harmony with the general zoningand -; Cation. a, hem. The zoning districts in question .are � ant to Stagy will not adversely affect the neighborhood. designated as .Residence `.`A" and :Retail study of th, See publication Words and Phrases Commercial District"CC"., Article-V of•th �{ 4 than a 10' for other judicial constructions and e definitions.. Bethlehem zoning ordinance provides that a ':" '., . within the 2. Zoning and Planning *-538 four-family apartment building is a,permit- ;;:;; ., tion of traf ted use in.both zones if a special exception x The ad'a In view of compliance by developer cor- is granted by the Zoning Board of Appeals 1v Poration with special exception to city zon- Pursuant to this article tion to the petitioner applied no witnesw ing ordinance, which provides that a four- to respondent. for :a special exception in experts teo family apartment building is a permitted order to build 15 buildin dings, each containing and conten� ;. use in both residence.and retail commercial four apartments with two bedrooms each, `+ ' -:_; mendous in district zones if a special'exception is grant After a public hearing, respondent adoptedvalues,..wou ix ed by the zoning board of appeals, and in a resolution containing its findings of fact k' character absence of proof offered to contravene that and conclusions of law which denied-the tered. of developer corporation's three experts, application for a s I, who testified that buildin of the t pedal exception. The [1_3] In type instant article 78 proceeding was then oom=permitted through such special exceptions menced and Special Term transferred the of exception is and which corporation proposed .to build application, to this court pursuant,to CPLR the ordinar, •; would meet all lot restrictions,setbacks and 7804 (subd. to a findin; r: harmony wi !' Mu 11r a{i 9;: t� s}e .cY, ✓. _an S s.•. '� �• 'P"' �`.: ! •t i .!', J s ¢> A :?u 7 t , 11 j TOWN OF CLIFTON PARK v.'ItIVERCREST SEWERAGE ; Cite as,App-Dlv.,440 N.YSSd 83 85 ents,..,there : ; In`_denying the,application the board will not adversely affect the, neighborhood apport find ,,,.ra found that the traffic densityand flow on in denying (Matter of North Shone' steak House v. i. Feura Bush Road was already quite heavy Board of Appeals of Inc Vil. of.Thomaston, .^vial excep- i':' ti and dangerous and "already congested". 30.N.Y.2d 238, 243; 331 N.Y.S.?, 645, 282 i The board also found that the proposed N.E.2d 606). From our examination of the ' access road:was "hazardously close" to the record, we are of the view that petitioner neighboring homes which would cause Seri- complied with the standards outlined in the :y an,adja- ous ,sight obstructions for entrance onto ordinance. Furthermore;"there was no to justify a ° Feura Bush.Road: It further- found that o a zoning ', 'oinin proof offered to contravene that of peti- adl g properties would be impaired in tioner's three experts. .Consequently, there z value and that'the public convenience and is not substantial evidence to support { ' welfare would not be-substantiallyserved. re- welfare spondent's findings. A mere general objec- y ,. Finally,it determined.that the.size,•charac- tion 'by the adjacent land owners is..not (Karl H. t` ter'and location of the project would not be sufficient'to justify. a denial (Matter of petitioner. in harmony with the appropriate and.order- Tandem'Holdin Co ly,development of the neighborhood and ;il B �' v.:Board of Zoning 'for respon- adjacent districts. Ppeals of Town of Hempstead, 43 N.Y.2d 801, 802, 402 N.Y.S.2d 388,373 N.E.2d 282). The`record reveals that at the hearing There must be an annulment. ad SWEE- F ,;. three expert witnesses testified on behalf of � Determination annulled,, without costs, { FEISS JJ. petitioner. . A civil engineer testified'tbat petitioner's application granted,and respon- ! the buildings would meet all lot restrictions i ' and set-backs and sewer and drainage re- dent is directed to issue the special exoep- g tion subject to any reasonable conditions it quirements and that the.character and size deems appropriate. ` f article 78 of the development would not detract from Eder of the the"orderly development of or impair the { entered in value of-adjoining property. A real estate w ermination appraiser testified that the subdivision ° s KEreuMBEasrsrcr exception. z n: would be•in harmony with the development T . of the district and not impair the value of ibsidiary of p aan Associ- adjacent land. The last expert was a pro- of land on fessional engineer specializing in transpor- of Bethle- tation. . He testified, inter%slia, that pursu- 81_A.D.2d�982 �estion are s ant to State studies and his ,own physical TOWN OF CLIFTON PARK, Appellant, ::,,; .' :,, study of the traffic,there would be no more cud Retail V. 'le V of the than- a 10% increase 'in traffic which is RIVERCREST SEWERAGE DISPOSAL ides that a ? within the normal daily and hourly fluctua- s"a permit_ tion of traffic. CORPORATION et al., Reapondenta. I exception }' The adjacent land owners voiced objec- Supreme Court, Appellate Division; :f.Appeals. tton to,the proposed project but produced Third Department. f ;er applied no witnesses. They questioned the various caption in �'' experts ,testifying on behalf of petitioner May �, 1981. i containing and contended .that there would be a tre- eoms each, mendous increase in traffic; that property { :#t adopted �; values, .would be impaired; and ,that..the Town brought'action!-against corpora- . Aga of fact character of the neighborhood would be al_ tion; which had operated j sewage disposal :enied the i tared: service for homes in a subdivision for over son. .The r ; ; ten years,when corporation discontinued its then oom- [141``Initially, we note'-that a special operation of the system,; The Supreme exception is a use expressly permitted b Court Saratoga Count Am of J..erred the Y ga Y� Y partial- 4 to CPLR the ordinance. Its inclusion is tantamount ly granted defendants' motion for summary to a•finding that the permitted use is in judgment. Appeal was taken: The Su- harmony with the general zoning plan and preme Court, Appellate Dim. ioh, held that: i i_ tp ' h $$$ 402 NEW YORK SUPPLEMENT, 2d SERIES 43 N.Y.2d 788 , . ,. :. :. TAN: ' 43 N.Y.2d 802 1. Arrest -�-63.1 528).. Accordingly, the trial court could Fey ;Zoning 0=50' Police officers were warranted in mak- have properly,concluded,that the motion tol3 ing inquiry based upon their observations suppress the evidence should have been de- '_: Board of zc i' died,,.application and defendants furtive movements and did nied. i, not act unreasonably in focusing their in- permit developrr; in, residential r r quiry on contents of defendant's hand and BREITEL, C.J.,and JASEN, GABRIEL- {r,. _ shopping center in asking that defendant remove a bottle LI,.;BONES, WACHTLER,' FUCHSBERG y ' 'that.develo mer, ,:.:., . P a which concealed,:a glassine envelope in his and COOKE, JJ., concur. ;<; +:':::;alter character.a - palm as they approached. ; Order reversed, the conviction reinstated F _,' Sidential area, 2. Arrest e—7T:1(8) and the case r itted to the Appellate Divi- ya 7 and,increase tra. Removal of bag of heroin from defend- sion,First Department,for further proceed- 'Zoning e=48. ant's pocket was reasonably contemporane- ings in accordance with the memorandum ': 'Ent't.itlement j.' ous with defendant's arrest for possession . herein. =`' " ri matter of right;: of heroin previously found in his hand as lance.guiding.c police officers made reasonable inquiry of ception applicati defendant upon observing his furtive move- o S KEYNUMBERSYSiEM ;L I fore.-any exce, ments. r 3 :Zoning 0-49, _L7BT 1R0 Ma bert M. rgenthau, Dist. Atty. (Su- 373 N.E.2d 282 p p Standards g san.K. Wasserman Peter L. Zimroth and43 r, ' t exceptions may Robert M.'Pitler, New York City, of coun- N.Y.2d 801 ;logical as to allc sel), fora llant. �In the Matter of TANDEM HOLDING �„ j Dart of zoning b PPe CORP., Respondent, Hal R. Lieberman and William E. Heller- # stein, New.York City, for respondent. V. M _ W: Kenneth C BOARD OF ZONING APPEALS OF the k' en'e"Kirby Fen. s: OPINION OF THE COURT TOWN OF HEMPSTEAD, Appellant. ` Counsel), for apF MEMORANDUM. d d'v�nCent J. De Court of Appeals of New York. respondent. The order of the Appellate Division should be.reversed, the conviction,reinstat- Dec. 19, 1977. �yf° ed, and the case remitted to the Appellate Division for review of the facts. MEMORAND: Appeal was taken from an order of the ;� [1,21 The observations made by the po- ;order;of the E lice and the defendant's'furtive movements Supreme Court,.Appellate Division, Second r.�tith;,�osts and " Department, 53 A.D:2d 697, 385 N.Y.S.2d ' as the police approached were sufficient to P air of Zoning warrant inquiry (People v. De Bour 40 119, affirming a judgment of the Supreme u, 1 N.Y.2d 210 386. N.Y.S.2d. 375 352 :N.E.2d Court, Nassau County, William J. Sullivan, l' The deter # ' J. annulling a determination of a.town's w`pettttoner's app. 562). Under the. circumstances we cannot .. board of zoning appeals denying an applica- i)ot; through th say that it was unreasonable for the offi- ' tion for a special exception to permit estab- eon itions, meet cers to focus-their inquiry on the contents 5 of the defendant's hand and therefore to a residential Hance governing, lishment of a parking field in ask that he remove the-bottle which he held district. The Court of Appeals held that, m`Ce Lions, is suf as they approached. Removal of the bag of the board's determination that a special ex-' �Vr l Ord 'There �: heroin from the defendant's pocket was rea- ception should'. not be granted was sup- f'. a.'private' p: ported b the record. ,��r,dietrict abutting sonably contemporaneous with his arrest p° y to a. 'Business for possession of the heroin previously Order of Appellate Division reversed1_4 n alter the charac found in his;hand (People v. Evans, 43 and determination of board of zoning, ap- rounding resider. s: N.Y.2d 160,1 A00 N.Y.S.2d 810, 371 N.E,2d peals reinstated. values, and inert iA 1 y r-r n 0 ' S ;z A 43 N-Y-2d:7"8'$ TANDEM i1OLDING CORP':. v. BOARD-OF ZONING APPEALS 389 'NX2d 862 Cite as 402 N.Y.S.2d 388 court trial pei.; 43 Of course, characterization of a parking :iat the m0iio I L &ning 4-509 r Board of zoning appeals properly de- lot as.a special u ald have been d'e" se or exception permitted Died, application- for special exception to with board approval precludes the board permit,development of-private parking lot from arbitrarily.:denying applications, and in residential district abutting propbsed denial solely betau' SENO se there is,'a general ob- oppi.rig center in business district on p tion would 4, FUCHSB sh jection to the special use or excep that development of lot,would significantly be arbitrary(Matter df Pleasant VAL Home alter character and quality of surrounding Constr. v. Van Wagner,41 N.Y.2d 1028, 395 ,iction rei stiQ residential area, diminish -property values N.Y.S.2d 631, 363 N.E.2d 137* 6, see Matter c Appellate Di and increase traffic congestion. of North Shore Steak.House v.-Board of further pr6ceed_�,',,77, Appeals of Ina V11. of Th' omaston, 30 2. Z6ning 4-488 , Ulm. ;e memorand' N.Y.2d 238,243-245,331 N.Y.S.2d 645,648-- Entitlement to special exception is not oes 650, 282 N.E.2d 606, 608-609).1, It d not inatter of right; stiited standards in ordi- follow, however, that ."fo, requ r special :nance,giiiding consideration of special, ex- exceptions must always be granted subject ce tion applications must be complied,with p only to the imposition of reasonable condi- before any exception can be secured.' tions. X �;.A,_�0 t-to a special-exception is 3.,-Zoniig 4-485 [21 Entitlemen Standards governing issuance of special not a matter of right (Matter of Lemir exceptions may not be so general or t�uto- Realt Corp.. v. Larkin,11 N.Y.2d 20, 24, y logical as to allow unchecked discretion on 226 N.Y.S.2d 374,376, 181 N E.2d 407, 408). part of zo ing board. The stated standards in the'ordinance g�uid- ent, ing the board's consideration of special ex- ception applications condition"availability of V- Kenneth Chave, Jr., Town Atty. (Eu- A--wii a special exception, and compliance with LS OF:th',`­­­A f :A gefib Kirby Ferehcik, Asst. Town Atty., of e �": those standards must be shown before any counsel), for appellant. Appellanti";� exception can be secured (e.lg., Matter of Vincent J. De Rosa, New York City, for Mobil Oil Corp. v. Oaks, 55 kb cw York. .2d 809, 390 n respo dent. N.Y.S.2d 276; Matter of C G Developers JP v. Granito,53 A.D.2d 612,38CN.Y.S.2d 844; Matter of Klein v. Seig�], 4 A.D.2d 924, OPINION OF THE COURT 7 367 N.Y.S.2d 58; see 2 Anderson,New York MEMORANDUM. 'order of Zoning Law and Practice [2d'iad.], § 19.01; Order.of the Appellate Division,reversed, d, vision, Second,`:�­,� 2 Rathkopf, Law of Zoning 'and Planning, 'with.,costs, and the determination of the pp. 54-1-54-30; see, also, ALI, Model 385 N.Y.8�2' 4-I t S . he Board,of Zoning Appeals reinstated. uprerne�,,� Land Development Code,. §' "7, subd. ij [1] The'determinafion of the board,that [2]). In the North Shore case.(s6pra), reso- nJ Sullivilill of a towrei petitioner's application did not nor could lution of the problem was bot,h simpler and '_g an not, through the imposition of reason different from this case only:'b'ecau able se the rmi estkb�:,' ordinance there involved stated no elaborat- conditions, meet the standards in the ord a resident nance governinj th�pggranting*of s ed standards. pecial ex- 4 ils held ceotidns, is' sufficiently supported in the [3] 'One caveat is aopropniiate' a special Stan- record. There was proof tha t development dards governing issuance of 'special excep- A was of a private parking lot in a residential tions may riot be so general oi tautological dist A�ict abutting a pro posed shopping center as to allow unchecked discretion on the part n re— reversed '­0 in a business district would significantly of the zoning board (see 2 Anderson New alter the character and quality of the sur- York Zoning Law and Pra' zoning ap�I' ctice [2d ed.], d rounding residential area,diminish' property § 19.11; 2 Rathkopf, Law of Zoning and values, and increase traffic congestion. Planning pp. 54-14-54-30). No such in- i _ ,b arm ' 390 402 NEW YORK SUPPLEMENT, 2d SERIES., 43 Naf.2d 802 +: 43 N.Y.2d firmity has been demonstrated to exist in Donald H. Zuckerman and William E• ' ; BREITE. nc. the instant ordinance. Hellerstein, New York City, for appellant: LI; JONE; and COOK John J. Santucci, Dist. Atty. (William G. ua BREITEL, C. J.,and JASEN, GABRIEL- Schrager, Kew Gardens, of counsel), for t Order of ` LI, JONES, WACHTLER;'FUCHSBERG' �. respondent: ,. and COOKE, JJ., concur in memorandum. x: Order reversed, etc. �1} OPINION OF THE COURT MEMORANDUM. x " o T I(fl NUMBERSYSTEM Order of the Appellate Division affirmed t t Defendant pleaded guilty•to robbery in. ` t the third degree in 1949, and has long ago o.•� �-,,;._.1..The PI 373 N.E.2d 284 served the indefinite sentence then im 43 N.Y.2d 803 posed. He is able to appeal by virtue of ; -2;.. _U 1The PEOPLE of the State of New resentence obtained under the rule in Peo- i Euge York, Respondent, pie v. Montgomery,24 N.Y.2d 130,299 N.Y. S.2d 156; 7 N.E.2d 130. He offers a me {` Cou V. lange of arguments based on State and John !McGRAT A Federal cases in which f 's H, Appellant. guilty pleas have been set aside. " 5 ' Court of Appeals of New York. His guilty plea falls within none-of the DefenE j Dec.,19, 1977: several precedents relied upon. Defendant ' Preme Coe was represented by counsel at all times '} Riccobono,f He had had prior criminal court experience, a_felony, 1' Defendant appealed from the action of includingJthat of pleading guilty. In the ,a` and affirn: the Supreme Court, Appellate Division, several motions he has made'in the'nature 1 -~ late,Divis Second Department, 53 A.D.2d 810, 384 of coram n6bis he has been uniformly un 879,'390 1 N.Y.S.2d 714, affirming a judgment of the. successful. The crime with which he was "•`peals held Supreme Court, Queens County, Leo charged, robbery in the second degree, and ,: mitted in « the lesser crime of robbery = Brown, J., resentencing him pursuant to ry in the third by police degree to which he leaded arrest People v. %ntgomery following his guilty p guilty, consist plea to charges of ,robbery in the third of simple elements .understandable' for Affir; degree. The Court of A pleading u } Appeals held that p g purposes by laymen in every mate defendant presented no grounds for having rial way. At the time of the plea there was guilty plea;set aside. no assertion or intimation casting doubt on ,{ Feat Affirmed defendant's guilt of the crime charged. -. :;i '.. When Most novel and ironic is the contention, '•ing after among others offered by defendant, that he ,4 ;and office Criminal Law 41---274(3) was not advised in advance of pleading from defc• guilty that the 1949 conviction would pro " Pursuit le: Defendant.was not entitled to have his vide a predicate for a more severe sentence r 'vation of guilty'plea.to charges of robbery set aside if he ever would, as indeed he did, commit {, subsequer, on any' grounds advanced by him, including another felony, for which he was sentenced ;� j shotgun C contention that he was not advised in ad-. in 1954. The rules set forth in .People 6. _ ed unque Vance'of pleading guilty that conviction Nixon are applicable (21 N.Y.2d 338, 350, "fendant's would' provide predicate for more severe 353-356, 287 N.Y.S.2d 659, 670-671, .234 k ancident t' sentence if'he ever committed another felo- N.E.2d 687, 695,,cert. den. 393 U.S. 1067;89 ny' S.Ct. 721, 21 L.Ed.2d 709). a._ d� np � s 176 470 NEW YORK SUPPLEMENT, 2d SERIES dismissed the complaint because the re ui- site hostility was lacking. q v. State of New York, 234 N.Y. 309, 317, k 2., onin ,and P; 137 N.E. 599; Rusy-Bohm Post No, l� 1; z ;` . g [2-4] It has long ljeen the rule that the Amer. Legion of Islip v..Islip Ente Trlal court pi Possession by a tenant of ]ands adjoining tra 5 A.D,2d 774, 170 N.Y.S.2d 23, .a d 6plicants for.a sr, the demised premises; is to be considered N•Y.2d 856, 181 N.Y.S.2d 796, 15b N.E.2d tons mposed�to r. the possession of the aandlord and cannot 676). bd adverse to the landlord's interests, $uM'ounding area s Such,nonadversity continues for a statuto- town board did ry period after the end Of the tenancy as a ° TREY NUMBER SYSTEM :reason for denying rebuttable presumption (Whiting v, Ed- Aria the tow; munds, 94 N.Y..309): RPAPL 531 now trial court should codifies this rule. The`result of this rule is be•.issued subject that a tenant may acquire a designed, to minir. a permanent 99 A.D.2d 469 interest in adjacent'lands belonging to third In the Matter of SAL DE ENTERPRIS- persons for use with the leased property ES INC., et al. Res `which will enure to the tenant's.benefit Respondents, William R. Ben., during the tenancy. (Guy W.�Germano; Y However, on its expi- V. lip;of'counsel), for ration, the land so acquired"appertains to TOWN OF IS LIP, et al., A "* the landlord D Appellants 'Patrick, Kevin B( empaej%i v. Kipp, 61'N.t Supreme Court Appellate Division, (Patricia S. Muhli 462, 470). The same principle has been PPe held applicable to adjacent lands owned by Second Department. counsel), for reapon, the landlord of a tenant'who takes posses- Jan. 3, 1984. sion of those lands (see'Bedlow v. New Before TITONE, York Floatin D �j 4'CONNOR and BR 9 Dry Dock . 1in N.Y. In Article 78 proceeding, appeal was MEMORANDUM 263, 282-283, 19 N E.: 8U0), Plaintiff is taken from judgment of the Supreme thus precluded from showin . g that he has Court, Suffolk County, in a Proceeding pu taken title .by adverse possession to land t3', Corso,J., which an- } adjacent to his tenancy ljecauae his interest nulled determination of'town board.den - 78''the appeal is frc Y x{ Supreme Court, Suf: is, as a matter of law;' regarded as not. ing application for special-,use permit to hostile to that of his landlord. Moreover serve food and beverages at an establish- Qetober 5,,1983, whit ment. The Supreme Court, Appellate Divi- 4 nation.of the .Town plaintiff and his father, in building a gar- lion, held that.the trial.court properly con- y ti to den on undeveloped ]and near.a railroad `t1One �'aPPlication fa track, were not performing any act.that eluded,that applicants.demonstrated a will_ serve food and bev- contradicted the interests of the landlord. ingnesa to comply with conditions imposed #'N lishment, and grantee: Such a compatible use:;also negates the to .minimize impact of use and that,town Judgment modifie4 required hostilityboard's determination failed; to.`offer a after the words "[aPl (see Geruritz v. Gelso- sound reason for den n a 1Ecation; how; to min, 69 A.D.2d 992, 416 N.Y.S.2d 127)... Yi g PP issue a,-special use ever, in directing town board to issue a ing: 'with reasonable 15,61 Plaintiff's father was shown to Permit, trial court should have also directed thereon and". :As sa have had the disputed land within his pur that it be issued subject to reasonable con affirmed, without cos: view as a watchman -and it therefore ap- pact. designed to minimize"anticipated im- Appellants are directs r pears that%his entry onto the.land was by pact. able' eonditions and iss, permission. Such Jud permission is presumed gment modified and as modified,at: "r.-r �"15'days afte mit wi to continue until the contra a firmed. x '' °f a copy of the order {Lewis`v New R.R. Co. witl}.notice of entry. York�nd Harlem :5 162 N.Y. 202, 220, 56 NX. 540: Her h`. F In early -1983 there is no evidence of a•distinct assertion 1' Zoning and Planning�375 ;`4 ,,, . . music hall known as t`�' Generally, s special use , 145 $ Of right hostile to the owner durin the p permit should be ;,; uprise Highway, Will- statutory g issued once applicant demonstrates a will, ry period required ao obtain title b gii York. Prior to that adverse Y m ess to"comply` with restrictive cove- r were run by a corporati� Possession and it;inuat be conclud- Hants imposed to minimize impact of use on r ed that possession was Permissive(Hinkle s use permit to operate?f surrounding area.' r ;, 4 5 .. i 'T,Y yh Y" I.:S ` h ♦ ��.5� 4 - - - n4.1. t i 8 •X l 'Ii u S �' t' -' S.y { J k ,t.i,:.,b rc-..�;'•r�x .`:. Y -urc?.� .�-n � S.syt, a .3*� ' '.� -- SAL DE ENTERPRISES, INC. v. TOWN OF ISLIP 177 i Cite as 470 N.Y.S.2d 176(A.D.2 Dept. 1984) 309; 317 ,_ 2...Zoning,and Planning.4-645, 721 discotheque known as "Hammerheads". 1 No—4/1, Trial court.properly concluded that ap- The permit was revoked based on violations . 4 i wterprtse, t;, .plicants for.a special use permit.demon- of restrictions in the permit'(cf. Matter of 3, affd 5 strated a willingness to comply with,condi- Aprile v. Lo Grande, 89 A'D.2d 563, 452 55 N.E2d tions.imposed to minimize impact of,use'.on N.Y.S2d 104): c x ;tea surrounding area and that determination of The property in issue is zoned 'Business town board did not fail to offer sound I" under section 68=271 of the Code of the . :reason for denying application; however,in Town of Islip and as such requires especial =' directing the town board to issue permit, permit in order to serve`foodor beverages. ;f L trial court should have also directed that it In March, 1983,petitioners filed an applies- t` be:issued subject-to reasonable conditions ] tion for a special.use permit to operate the designed to minimize anticipated impact. premises as a community hall/dance- j hail/bar/tavern/discotheque ` 'for up to r "ERPRIS �4 "' 1,500 persona. After a hearing, the Town William R. Bennett; Town At Iali < �''' p Board of the Town of Islip denied,the appli- i •nm+ r=` (Guys W Germano, Deputy Town Atty., Is- cation and issued written findings in sup (;. lip, of'counsel), for appellants. �^ port thereof: Petitioners thereafter.com- 'ellants. .. Patrick Kevin Bresnahan; Jr., Babylon menced this proceeding seeking 'review of vision ' = '(Patricia S. Muhlrad, New York City, of that determination. The trial court grand counsel), for respondents. ed petitioners' application, annulled' the 4 Before TITONE, J.P., and MANGANO, town board's determination, and directed I `j O'CONNOR and BROWN, JJ. appellants to issue a special use permit to petitioners. Al { eal was MEMORANDUM BY THE COURT. P [1,21 A special use permit contemplates Supreme �.};, In''a proceeding pursuant to CPLR article a use expressly ermitted b a particular " which an < °: 78;Ahe appeal is from a judgment of the zoning ordinance. Generally, such a per- rd deny ;j, Supreme Court, Suffolk County, entered mit should be issued once an applicant dem- :omit 'to October 5, 1983,.which annulled a determi- onstrates a willingness to comply with re- cstablish j " nation of the Town of Islip denying.;.peti- strictive convenants imposed to minimize :ate Divi tioners' application for a special use permit the impact of the use on the surrounding 4erly,con h to serve food and beverages in their estab- area (Matter of Peter Pan;Games of Bay- ed a will ,: lishme'nt, and granted the application. . side v. Board of Estimate of City of N.Y., imposed Judgment modified by ,adding thereto, 67 A.D.2d 925,413 N.Y.S.2dA64; Mobil Oil jy gat town after the words "[appellants]'are directed Corp. v. City of Syracuse, '52 A.D2d 731, offers 1 ,, to,issue a.,special use permit", the follow- 381 N.Y.S2d 924). The trial,court properly rr on; how ing: "with reasonable conditions imposed concluded that petitioners demonstrated a issue a '' thereon and". As so modified, judgment willingness to comply with such conditions 'directed `, affirmed, without costs or disbursements. and that appellants' determination failed to e able con- p Appellants are directed to impose reason- offer a sound reason for denying the appli- sated im- able.conditions and issue a special use per cation. However,in directing appellants to mit within 15 days after service upon them issue the permit,the court should have also lified af- . of a copy of the order to be made hereon, directed that it be issued'sdbject:to reason- with notice of entry. able conditions designed to; minimize the kn In early 1983, petitioners opened up a anticipated impact. g: music hall known as `.`Key Largo" at 134- In view of the delay herein and the re- "=' 145 Sunrise Highway,, West Islip, New . sulting'prejudice to petitioners, appellants ;could be s.swill York. Prior to that time, the premises are directed to impose any reasonable con- '� 'r <� were run by a corporation holding a special ditions they deem appropriate within the e cove- use permit to operate the premises as a time specified. } use on pit Fs T r is -21 w .myy 1 .. a mm. va,uem.r••..- 4bs ZUB' 982 423 NEW YORK SUPPLEMENT, 2d SERIES j dent facility for s of subdivision for the Legislature to consider a further brought action alle 2. For the purpose to CPL rovide its house violated tE one of this section, a crri shallctbe con- benefits ion or amendment down s tuat situations. In the breach of restrict; proceeding against a pe by the corporatio sidered terminated in favor of such per- meantime,s however,t now provide its benefitsP n tions of Commis- 160.50 son where: Mental Retardat .(a) an order dismissing the entire ace on "plea down" situations such as intervenor _.^ Disabilities viola instrument against such person respondent Robertson's and Judge Becker ; . satory stitutional rights pursuant to article four hundred seventy excee February 1,u1979ity in issuing the order applied, µ'me u: was'entered; .or ° y _° ,� `, preme Court,Na: (b) an order to dismiss the entire aceu- Accordingly,the petition is granted in all Douglas F. You; satory instrument against such person respects and Judge Becker is prohibited r. plaint failed to s. from ordering the return of intervenor-re- pursuant to section 170.30 palm- prior owners of (Emphasis supplied,) spondent Robertson's fingerprints,d ,p ,1 ration; , and from ordering the corpo According to Joseph W. Bellacosa in his prints and photographsrrest and conviction erty owners we 1977 Supplementary Practice'Commentary PL records toreflectnge in hanaarrest and conviction providing that (McKinney's Consol. Laws, Book 1 , improved by °` §:160.50 [Cum.Sup. 1979-801 p. 327), these on the charge of Disorderly Conduct,'a vio- only,and adjoo sections were amended"to. emove an.ambi- lation; rather than an arrest on the charge uit and to make 1;absolutely clear that . of Criminal Possession of Stolen Property in acquire title tc g 'y y the Third Degree, a misdemeanor. ` years after the sealing and return orders are issuable only adjoining when the dismissal or termination is of the The cross-motion of respondent Becker to h the were entire accusatory instrument" (Accord: dismiss is denied. The motions by interve- State Executive Committee Memorandum, 1977 nor-respondent Robertson to intervene and jo�rig proper Accompanying 1977 Act, McKinney s for related relief are granted and the cross- Session Laws of New York, 2454 claim to compel respondent Becker to order action Sr why The 1977 amendments to 160.50 were the sealing of the records is dismissed. Y tion; ( ) made effective August 11, 1977 and were F restriction in was to be us operative on all the dates involved in this !ES purchase bymatter. Thus, no -matter how well inten- oEYNUMBE SSYSIEM ecy from do: tioned his purpose, or how sound his zrgu- t:, �' to use house. ments. for granting the benefits of CPL { . ly disabled a 160.50 in"plea down" cases, the statute did } 102 Misc.2d 320 ment on bas: 1 not provide the authority for Judge Beck- LI and Yvette Zubli, his used as sin; er's order since it is clear that there was not Avi ZUl3Wife, Plaintiffs, easement ov a dismissal of the entire accusatory instru- v. `' - signed for s' ment. such use; a: In one reported 1978 case, which specifi- COMMUNITY MAINSTREAMING ASSO- unconatituti- tally considered the effect of the 1977 CIATES,INC.,Ira Csvrell,Sadie R.Cav- Defend- amendmentstituti " lea down" situations, it on p rell, his wife, Thomas Coughlin, III, as '1 was held: "Now there can be no doubt that Commissioner of the State of New York plaint and the entire accusatory instrument must be Office of Mental Retardation and Devel- cross-motio dismissed in order to have a favorable ter- opmental Disabilities and Eastern Fed- f; nied. 4, char a contained urination: A plea to any,charge eral.Savings and Loan Association of .•. therein, or added thereto, does not fall - I. Covens= Sayville; Defendants. , , within the.purview of CPL 160.50(Empha- ecial Term, ! ?`: In act sis in original)." (People le v. Ebner, 95 Supreme Court, Sp p Nassau County, Part I. ty adjoin: Misc.2d 781, 408 N.Y.S.2d 234, Criminal , corporatio Court of the City of New York,Queens Co., Dec. 11, 1979. disabled a= Galfunt, J. [19781; also, see In re Vergari house viol (Fried), supra). will ro- Owners of property adjoining house reatrictior Perhaps, Judge Becke 's opinion and persuasion purchased by nonprofit corporation as resi- vide the necessary imps - o , i N A i C ZUBLI v. COMMUNITY MAINSTREAMING ASSOCIATES 983 Cite as 423 N.Y.S.2d 982 further dent: facility for mentally disabled adults poration had occurred, that actions of Com ovidd its brought actionalleging that such use of the missioner of State Office of,Mental Retar- o� house violated terms of easement, that dation and Developmental Disabilities vi In the "at CPL breach of restric tion in mortgage assumed lated property owners' constitutional rights -iefits in by the corporation had occurred, that ac- and that Padavan Law, as' applied, was tervenor tions of Commissioner of State Office of unconstitutional, complaint failed to state Becket Mental' Retardation and elopmental 'Dev cause of action against prior owners of :ie order Disabilities violated property owners con- property purchased by the corporation. stituitional rights and that Padavan Law, as 2. Covenants e-77 applied, was unconstitutional. The Su- ed in'all Where adjoining property owners were preme Court, Nassau County, Special Term, Phibit.ed not parties to mortgage providing that sub- Douglas F. Young, J., held that: (1) com- ject premises were to be im roved by one or enor-re- pro plaint failed to state cause of action against palm-. two-family dwellings only, and,adjoining prior owners of the property conveyed to did not acquire. title to ordering property owners riviction tF the corporation; (2) where adjoining prop their property 'until seven years after the nvictioil erty owners were not parties to mortgage mortgage was made, neither the adjoining providing that subject premises were to be property charge ed by one or owners nor their grantors were t,'a vio- improv two-family dwellings shown to'be intended beneficiaries of such , -)erty in only,and adjoining property owners did not restriction, and thus the adjoining property acquire title to their property until seven owners had no cause of action for any al- years after the mortgage wasmade,neither leged breach of the restriction. ccker to the adjoining property owners nor their W,,r grantors were shown to be intended interve- benefi- 3. Covenants 0-77, 84 Unless otherwise expressly provided for ane and V, ciaries of such restriction, and thus the ad- eirs, exec- ie cross- in mortgage, all covenants'bind h joining property owners had no cause of to order. action for any alleged breach of the restric utors administrators,successors and assigns ;missed. (3) where there were no words of of mortgagor and inure to benefit of the tion; restriction in easeme nt other than that it heirs, executors, administrators, successors d assigns of the mortgagee. be used for "egress an was to and ingress," purchase by nonprofit corporation of prop 4. Covenants 0=103(2), 114(1) erty"from dominant estate holder in,prder Transfer of title to property subject to to use house as resident facility forpentil- mortgage, containing,restriction that prem- ly disabled adults did not violate the 'ease-' ices were to be improved by one or two his ment on basis that such property had been family dwelling only, to nonprofit corpora- used as single-family residence and that tion for resident facility for mentally dis, easement over adjoining property was de- abled adults did not violate the restriction, - n for breach of the 4 signed for such use and contemplated only and no cause of acti0 ASSO.' such use; and(4)the Padavan Law was not mortgage existed 'in absence of any facts 2%.Cay. unconstitutionally applied. alleging actual change in use. III, as V Defendants' motions to dismiss com- 5. Easements 0=55 v York Devel- plaint and for summary judgment granted; Where there were no words of restric- Fed cross-motion for permanent injunction de- tion in easement other than that it was to a ion of nib' be used for "egress and ingress," purchase Al by nonprofit corporation of property from 1. Covenants e-114(1) dominant estate holder in order to use In action brought by owners of proper house as resident facility for mentally dis- ty adjoining house purchased by nonprofit abled adults did not violate the easement on corporation as resident facility for mentally basis that such property had been used as disabled adults alleging that such use of the single-family residence and that easement house house violated terms of easement, breach of over adjoining property was designed for ts resi- restriction in mortgage assumed by the cor- such use.and contemplated only such use. �1- 711: q jj �y r 984 423 NEW YORK SUPPLEMENT, 2d SERIES , �E 6. Easements *-42 state. Mental Hygiene Law § 41.34(axl), Pia• Where language of easement was an- (bxl-5; 2), (c, e); EDPL § 206; CPLR 7801 g it pu- j ambiguous, circumstances surrounding et seq. zomD { grant of easement no and situation of parties �14Y',:'.; as re 14. Zoning and Planning E N.i could t be considered in interpreting the giene State or its agency, in exercising au- easement. thority in furtherance of governmental p ur- EDP! 1978 4, 7. Easements, 54 pose, is exempt from local regulatory con 7-70{ � trol; where zoning ordinance would have - And actual change in use of dominant estate does not,in absence of any qualifica- effect of thwarting express policy of the tions, change,'use of easement. state, the zoning ordinance, insofar as it Fr 8. Easements 0-52 conflicts with the state law; must'yield. i York s References, in easement providing for 15. Eminent Domain a—2(1.1) j'' Se- ingress and egress, to right of dominant Purchase by nonprofit corporation of defe> p estate owners to erect two signs with oce property to be used, pursuant to Padavan i; 1.; ciate= pants' .names and addresses was not evi- Law, as community resident facility for f!; ;'' . Rc dence of intention to qualify use of the ' q y care, maintenance and treatment of up to fend: dominant estate to use by biological family . 12 mentally retarded, functionally disabledRo '.; unit. " ' adults did not result in taking of.property City, 9. Constitutional Law �45 of adjoining property owners, whose prop- :,•VY Courts have inherent authority to de- erty was subject to easement for ingress for termine whether duly enacted statute tran- and egress, even if value of property of s Loar. ,1_,,.: scends constitutionally imposed limits, but adjoining,property owners were to decrease s court of first instance should approach a as a result of use by the corporation of the Df k' constitutional question with reluctance and purchased property. Mental Hygiene Law M` 1 q �. 8 Tl; i; caution. §41.34(axl),(bxl-5,2),(c,e); EDPL§20G; CPLR 7801 et seq. )':;_. the j, 10. Constitutional Law Q- 48(1) l , actin Statute is presumed to be constitution 16. Constitutional Law *-81V diem { al. 1 McKinney's Consol.Laws, Statutes, Every enactment under police power judg i` §'150, subd. b. y 1,:: must satisfy test of reasonableness and {i:., and 11. Constitutional Law e-48(3) must have substantial relation to legitimate mar} ! Presumed constitutionality of statute is governmental purpose. Th f ' rebuttable presumption against which un- 17. Constitutional Law (8=81 ,. plait constitutionality must be demonstrated be- Purchase by nonprofit corporation of pear fend yond reasonable doubt. 1 McKinney's Con- property and use, pursuant to Padavan ;Statutes, § 150, subd. b. ate+ sol.Laws Law, of house on such property as resident �,g facility for mentally disabled adults was not plair, 12. Zoning and Planning than shown, b owners of adjoining property Absence of an provision for notice and y I public hearing in Padavan Law did not ren- subject to ingress and egress easement,•to egre P g be. unreasonable and arbitrary exercise of dens der it constitutionally defective; the Pada- ` �'-. lice power, and thus authority under tin-- .. sue F van Law is:act of general legislation and Po p° ! der'Padavan Law was constitutionally ap- a '` men, therefore requires neither notice nor public hearing to effect desired than e. Mental xl), § 41 plied. Mental Hygiene Law § 41.34(a Hygiene Law§41.34(a)(1),(b)(1g5,2),(c,e); (bxl-5, 2),(c,e); EDPL § 206; CPLR'7801 E ;. EDPL § 206; CPLR 7801 et seq.; U,S.C.A. et seq. PI bj Const. Amend. 14. 18. Zoning and Planning Q-14at �I 13. Zoning and Planning �8 Padavan Law, to extent that it affects :'1 Yorl r The Padavan Law is not an unconstitu- ' local zoning ordinances, is not within re. hem= tional exercise of local zoning authority by quirements of Village Law, and thus the 4,. ... prop a-� s .j'. �" `r +STY Y`GF 4 r ..t.,.t: �- n'$x �3 ,•' [!�Y- ,�,� ` .�� �t Y:R7t 1 �45S�•`' S`�' sA'� )"`�-+.Y7 ,y �e`/ -•S� :rn+h r t� -,,[x P a ws. �'���J,.�v y 7M.Yf�-�y�i r5Y;",' � �'�S `"�• t,;s- r'� '��•R `C: "1{``Sy S „i �� ��y4ti �a.�i����� t� !;�:i;,; .x: �} d ZUBLI v. COMMUNITY MAINSTREAMING ASSOCIATES 985 Cite as 423 N.Y.S.2d 982 11'.34(axlk Padavan Law is not defective,on basis that plaintiffs reside there with their three chit- ,PLR 7801 it purports to implement changes in local dren. zoning ordinances without notice in hearing Defendants Ira Cavrell-and Sadie R. Cav- #; as required by Village Law. Mental Hy- rell were, at the time of the commencement ( ( of this action, the owners of an adjoining giene Law §41.34(axl,.4), b)(1-5,2), c,e); •cising au �' EDPL § 206; CPLR 7801 et seq.; Laws property, also a one family dwelling (re- ;t rental P ur rs 1978, c. 468, § 3; Village Law §§.7-706, ferred to herein as "Carrell property"). -atory con h 7-708, 21-2100, 21-2102:.1:- Defendant CMA is a corporation formed •ould have 8cy of the s pursuant to the Not-For=Profit Corporation s ofar as it Friend,Perles,Dorfman&Kleefeld,New Law and with the approval of the Depart- ment of Mental Hygiene. CMA's purpose is gust yield Y, York City, for plaintiffs. to acquire a home to be used as a"eommu- *f Seymour H. Kligler, New York City,'for nity residential facility for the disabled" as -oration of iii s defendant Community Mainstreaming Asso- defined in § 41.34 of the Mental Hygiene o Padavan ciates, Inc. i` Law ( Padavan Law"). This home would :acility for `; Robert A. Shtister, Oyster Bay, for.de- be used as a group home for.no more than t of up to �; fendants,Ira Cavrell.and Sadie R. Cavrell. twelve functionally retarded and mentally y disabled RojDert Abrams, Atty. Gen., New York disabled adults. Ty )f property City, for defendant Thomas Coughlin, III. Defendant Thomas A. Coughlin, III, is hose prop- s ' n., } b .or ingress Van Brunt & Richardson, P. C.; Sayville, the Commissioner of the New York fate roperty of for defendant Eastern Federal Say. and Office of Mental Retardation and Develop o decreas A' Loan Ass'n of Sayville. mental Disabilities. He is authorized by e law to, and license community resi- giene Law DOUGLAS F. YOUNG, Justice. dential facilities for mentally disabled per- fi OPL§2O6; This Court is presented with motions by sons. the various parties in the above entitled Defendant Eastern Federal Savings and rf action. Each of the defendants moves to Loan Association of Sayville ("Eastern") t dismiss the complaint and/or for summary holds a first mortgage on the Cavrell prop- ; dice power judgment. (Motion numbers 100, 101, 102 erty and consented to the assumption of :eness and, s: and 103) and plaintiffs cross-move for:sum- said mortgage by.CMA. : legitimate `; tasty judgment(Motion number 104). ' r This action was initially commenced'by BACKGROUND v'•' plaintiffs against the defendants to enjoin Plaintiffs commenced,this action by serv- )oration of e permanently the threatened use by the de- ing the summons and complaint together z Padavan fendant Community Mainstreaming Associ- with an order to show cause for a prelimi- r as resident = ates, Inc. ("CMA") of the easement over nary injunction. Plaintiffs sought an order As was not > plaintiffs' driveway for a purpose other pendente lite enjoining the defendants Cav- ' tell from conveying title to their premises . { property than its express use, to wit: as a means of cement,`to f egress and ingress to a single family resi- CMA. The Cavrell property was benefit- y exercise of dense. Plaintiffs•amended the complaint.to ed by an easement over the Zubli property's under nn_ sue for damages for violation of said ease- driveway as a means of egress and ingress tionally ap- ment and to attack the constitutionality of to Station Road. Plaintiffs argued. that 41.34(a)(1) § 41.34 of the Mental Hygiene Law. since 1955 the Cavrell house had been used ; CPLR 7801 as a single family residence and that this PARTIES. subject easement was intended to benefit y..<k Plaintiffs are the owners of the premises that use only. Since a group home would ' at 161 Station Road, Kings Point, New not be within the scope of the easement, ct it affects. York, a one family dwelling (referred to they contended in the original complaint, 4 within re- " The Zubli the proposed use by CMA of the Cavrell d thus the ;x''` herein as Zubli property ). property was purchased in March, 1978 and property would violate the easement r, 986 423 NEW YORK SUPPLEMENT, 2d SERIES ZL' On May 11, 1979• this 'Court (Young, J.) The Cavrell and Zubli properties were, at ;" to the Village denied plaintiffs' application holding that one time, a single tract of land. When this plan. The Vill: the proposed use would constitute a"family tract was subdivided the common grantor gave its approv: unit", that the easement was unambiguous conveyed what:is,now the Zubli property to ject.to certain s- and without limitation and that plaintiffs plaintiffs' predecessor in title and retained Plaintiffs co: failed to meet their burden for obtaining for himself that'portion which is the Cavrell moved to. enjob preliminary injuzictive relief. Instead, the property. He did, however, reserve a right discussed above, parties were directed to proceed to trial. of way through the Zubli property by way denied and the of an easement over the driveway on the trial. Plaintiff: Shortly thereafter plaintiffs served an e Zubli property for egress and`ingress to and complaint now amended complaint which realleges th from Station Road. Because of the hilly is the subject c i cause of action contained in the original h of the Cavrell property the though this oar. complaint and adds five additional causes of topography p Y easement is the only means of getting to nied plaintiffs' action. The first cause of action alleges and from Station Road. Said. easement ' by such determ that CMA's proposed use of the premises as a community'residential facility will violate reads as follows:_ the case and tl the terms of CMA's easement over the Zu- "Reserving to the parties of the first de novo conic bli property. The second, third and fourth part, their heirs, successors.and assigns, stated by this causes of action allege that Sadie R. Cav- an easement running to the contiguous this Court in is cell,CMA and Eastern`'are each answerable lands of the: grantors over the present junctive relief to plaintiffs for the breach.of a restriction driveway near the north line of said Par- the law of the in the mortgage between Cavrell and East- eel C for egress and ingress including the the merits and ern and which mortgage has been assumed ' right to erect and maintain two (2) signs the.same exte: by CMA. The fifth and sixth causes of containing thereon the occupants' names i injunction had action allege that the threatened acts of and/or addresses on the northerly stone _ J.; 5/11/79) (C Coughlin violate plaintiff's constitutional column at the entrance of said driveway, { THE rights and that the Padavan Law as applied said easement to run with the land forev- _ The Padova in this case is unconstitutional. er." effective Sept: This driveway is a partially unpaved pri- by Governor C FACTS vote way approximately 8 feet in width, act amending The facts in this case are not•in dispute. with no shoulders or walkways. It is main- the Eminent Plaintiffs are the owners in'fee simple of tained by plaintiffs. When the Zubli's took puree is to the premises known as 161 Station Road, title to their property they did so subject to munity reside Village of Kings Point, New York which is the easement. The Cavrell property had, '• abled. a one family dwelling in an A-2 residential prior to plaintiffs taking Title, been oceu- -' The declares zoning district which, according to the Vil- pied and used as a single family dwelling. lage's Zoning Ordinance, is restricted for Padavan Law On or about March 29, 1979 Sadie R. "' f� � signed to me: single family use. The Zubli property Cavrell entered into a contract with CMA GE' .,. disabled by pr fronts on Station Road, a public street. for the sale of the Cavrell property. CMA opportunity f.- The premises known as 165 Station Road was interested in acquiring this property als to remair, is contiguous to the rear of the Zubli prop- and obtaining, pursuant to the Padavan j' tings". It is arty. This property, at the time this action Law, the appropriate license from the de- ;L gather the was commenced, was owned by Sadie R. fendant Coughlin to use the premises as a ;fir agencies and Cavrell who, in 1969, acquired title by a community residential.facility for the care, ter communis deed from herself and her husband, Ira maintenance and treatment of up to twelve 468 § 1 L.1971- i Cavrell. In 1971.Sadie R.Cavrell executed mentally retarded, functionally disabled The law.d: a mortgage to Eastern, which provided, in adults. The proposed use would also re- facilityfor part, that the premises are to be improved quire two resident supervisors and other by a one or two family dwelling only. The support personnel from time to time. The operated or li Health or the Cavrell property does not front upon a pub- office of Mental Retardation and Develop- and Develo lie street and access to Station Road is over mental Disabilities gave preliminary assent p the driveway of the Zubli property. to CMA's proposed use and notice was given :; video a supe-- t -'S -: e. �a >a,igth � � a +� ,t i' _- tiA, ..} ,� cx 'C .,:7. - u t .... h• i�� Cs c. z�. . it.': �+ �'t k 'v+`"•• � a ^.LrF a s r x .��, y_5 z:a'R '�' '�',4t, �_,x x- � `c 0;�;;:yJ t�,:�l�.,�, �.r,� ��;w: ,,,;r �. ,�� ;� I. .,�: h ,! , '", i ! '4.ri.:''r+rt: 'yy' rg ¢7 �e:•+s r-�`�: 7' ;.r ?. yRd, ZUBLI v. COMMUNITY MAINSTREAMING ASSOCIATES 987 Cite as 423 N.Y.S 2d 982 s were, at to the Village of Kings Point of CMA's to fourteen mentally disabled persona rings, It further rovides that F When this plan. The Village, after public hearin (§ 41.34(a)(1)). P grantor '', gave,its approval to the proposed-use sub- such a facility shall be deemed a "family . •operrety to ,erect.to certain conditions. unit" for purposes of local laws and ordi- ! nances (§ 41.34(e)). retained ` `' � Plaintiffs commenced this action and :e Cavrell moved to enjoin the closing of title. As Procedurally, the law requires that a .; ,,e a right sponsoring agency, such as CMA, must give discussed above,the pendente life relief was y by way denied and the matter was set down for notice to the municipality of the proposed :y on the trial.. Plaintiffs then served the amended program. .The municipality then has 40 t !ss to and complaint now before the Court and wh days.to approve the site, suggest an alter- the hilly w is the subject of the various motions. Al- native site or sites or object to the program. w :erty the though this same Court passed on and de- The municipality may only`-'object to the E getting to vied plaintiffs' motion, it is not bound here establishment of the facility.if it would ' easement by such determination'as being the law of result in a concentration of such facilities in " the case and the instant motions are given the community(§41.34(bxl)—(5)). The mu- ' the first de novo consideration. 'It was expressly nicipality may hold a public hearing purau-, assigns, ' stated by this Court that "the refusal of ant to local law before responding to the mtiguous this-Court in its discretion to issue the.in- proposed program (§ 41.34(6)(2)). Any ob- present junetive relief sought does not constitute jection by the municipality shall be re- said Par- the law of the case or an adjudication on viewed by the Commissioner whose deter- E iding the u r: ;x the merits and the issues must be tried to urination is reviewable pursuant to CPLft (2) signs r r the same extent as though no preliminary Article 78 (§ 41.34(b)(5), (c)). The Padavan s' names ' injunction had been applied for." (Young, Law amends Section 206 .of the Eminent -1y stone =i r J.; 5/11/79) (Citation omitted.) Domain Procedure Law. Now, upon tour- :riveway, pliance with the licensing procedure,a pub- y d forev. °` THE PADAVAN LAW lic hearing is not required. The Eminent. ; I)omairi Procedure Law requires "notice by . The Padavan Law (Chap. 468 L.1978), sued pri- effective September 1s19789 was approved and hearing" before a property may be { n width, ;: by Governor Carey on July 6, 1978. It is an taken for public use. . y is main- act amending the Mental Hygiene Law and On approving the Padavan Law the'Gov- the Eminent Domain Procedure Law. Its ernor's message'stated in part: a bli's took r �' At the same time,the bill aims abject to purpose is to codify site selections of tour- « m had n4 unity residential facilities for the dis- to facilitate the establishment of commu rt - z en ohad, abled. nity residences by discouraging frivolous swelling. sf The declared legislative intent.behm'd the aegal challenges that have needlessly de- iadie R. „'. Padavan Law is two-fold. First, It is de- layed proper establishment of such facili- th CMA r„ signed to meet the needs of the mentally ties in the past, at great cost to the , �. CMA z disabled by providing,wherever possible, an litigants. This legislation attempts to en- 'ro opportunity for these handicapped.individu- courage a process of joint discussion and <. Pe Y $ i "'adavan ' ' als to remain in normal community set- accommodation between the providers of the de- tinge". It is.further designed to draw to- care and services to the mentally disabled gether the various state agencies, .local and representatives of the community, See'as a L a encies and local communities and to fos- rather than legal antagonism." (Mchin- ;he care, x g 1821) (Em- o twelve .# ter communication and cooperation (Chap. ney's 1978 Session Laws, p. 468 §.1 L.1978). phasis supplied.) disabled i also re- The law defines "community residential The reference to "frivolous legal chal- ; A other facility for the disabled" as any facility lenges" seemingly refers to a number of i ;e: . ice of Mental pre-Padavan Law. cases which involved The operated or licensed by the Off { )evelop- Health or the Office of Mental Retardation whether such group homes were to be con- y assent and Developmental Facilities which pro- sidered the equivalent of single families. j as given vides a supervised residence for from four .(See, Little Neck Community Assn. v. 1.` b p 4 988 423 NEW YORK SUPPLEMENT, 2d SERIES Working Org. for Retarded Children, 52 party in interest and the complaint fails to tiffs were ne A.D.2d 90,383 N.Y.S.2d 364(2d Dept. 1976), ..state a cause of •action against him. He fact, plaintif' leave to app. den., 40,N.Y.2d 803, 387 N.Y. cannot be enjoined, temporarily or perms- property un: S.2d 1030, 356 N.E2d 482 (1976); Inc. Vil- nently, from transferring title which he gage was rr lags of Freeport v. Assn for Help of Re- does not have nor is he in any way liable to ;` show an int tarried Children, n:o. r. N.Y.L.J. 4/1/77, p. plaintiffs for the consequences of his wife's grantors we 14, col. 6 (Sup.Ct.Nassau Co.) aff'd, 60 conveyance of title to CMA. striction the A . A.D.2d 644, 400 N.Y.9.2d 724 (2d Dept. This action should likewise be dismissed any alleged • �'' s•'. 1977); Tytell v. Kaen, N.Y.L.J. 6/11/79, p- against the defendant Sadie R. Cavrell. j . man, 14 N. 12, cola. 4-6, p. 13, 'Cols. 1-2 Su .Ct.N.Y. N.E.2d 192 ( P Since title has already passed to CMA she Co.'); Taussig v. Westchester Assn for Re- can no longer be enjoined from,doing an act f :', 251 N.Y. 27 j Larded Citizens,N.Y.L.J. 4/18/79, p. 5, cols. which has:already been done. Further, the ° ble Life As. 5 and 6- (Sup.Ct.Westchester Co.); Living mere fact that the Cavrell premises have 43 N.E. 173 Resources Corp. v. Burns, 91 Misc-2d 919, been conveyed to CMA does not change the [3,4] TV 898 N.Y.S.2d 928.(Sup.Ct.Albany Co.1977); use of the premises and the complaint and fasts to es' see also, Group House of Port Washington, affidavits fail to substantiate that any such intended to Inc v. Town of North Hempstead; 45 changes have been made..' As discussed be- " ''' upon plaint. N.Y.2d 266, 408 NX.S2d 377, 380 N.E.2d low, no representations or warranties were predecessor 207 (1978); People v. Renaissance Project, made by this defendant of which plaintiffs mortgage. Inc-, 36 N.Y.2d 65, 364 N.Y.S.2d 885, 324 were the beneficiaries, or upon which they mortgage N .,,( fir, N-E-2d 355 (1975); City of White Plains v. could justifiably rely. At best, the com- �;,:,., them or a Ferraioli, 34 N.Y.2d 300, 857 N.Y.S.2d 449, plaint alleges that Sadie R. Cavrell was the mortgage t= 313 N.E.2d 756 (1974)). record owner of the Cavrell property,,that tion or cov the same was benefited by the subject ease- ,`. otherwise THIS ACTION SHOULD BE DISMISSED ment and that the premises were used as a mortgage, AGAINST THE CAVRELLS one or two family residence. Plaintiffs ecutors, ad' AND EASTERN have not shown that they are entitled to signs of t! The Court will first take up the motions recover damages against this defendant. ';: benefit of of'the defendants ,Cavrell and Eastern to Eastern moves to dismiss and for summa- ;1,. tors, suem dismiss the complaint and for summary ry judgment on several grounds. First, it gee(Real judgment argues es that laintiffs -do not alle a an h found in t The Cavrells' motion is based on two ar- actual violation of the mortgage clause re- ;? vides for guments. The first argument is that Ira citing that the Cavrell property would be predecesoc Cavrell is not a party in interest as he had used as a one or two family dwelling; ' ' '' transfer o divested himself of any title to the property second, that this clause cannot be construed any rp-A6 in 1969. Therefore,he contends,the allega- as a restrictive covenant and third, assum- :;''' ' absence c tiona in the complaint against him fail to ing the clause is construed as a restrictive i,„ .,';.` change in state a cause of action. The second argu- covenant, that plaintiffs have no cause_of 3 .+ breach u ment is that Sadie R. Cavrell has already action against Eastern for any such breach. " ', notes thr conveyed title to CMA and that the use of [2] The Court. finds that this action mortgage "• , the property has not changed. This defend- should be dismissed against the defendant ?=' - .. inserted ant further argues that the representation ;;`j' tax exem; Eastern. The gravamen of the,complaint p. Law § 2 made by her in the mortgage with Eastern against Eastern alleges that Eastern, with <"s that the premises are improved by a one or knowledge of CMA's intended use of the !. ^ . intent to two family dwelling;was not violated at the Cavrell property, did, in violation of the Thus, t time CMA took title and assumed the mort- which co: covenant to use the premises as-a one'or gage. two family.dwelling, permit CMA to as- f concerns [1] This action, should be dismissed sume the mortgage to Eastern, which stat CMA's pi burden against the defendant Ira Cavrell. He has ed in part, "[s]aid premises are improved or . , ,;': not been the record owner of the Cavrell will be improved with a one (1) or two.(2) y ;..,� concerns legislativ property since July 31, 1969. He is not a family residence or dwelling only." Plain- o 1 „ A.. i a5'...:R °ti ,i:,.3-. �' M `; +: `".�� �,, y:GF "`w ,'� t ., 1 drt,;a.. t �s� '*i ' �{L,.a.-,5- :A'r^ y`.+ fi'•:: ;. Y i r. ZUBLI v. COMMUNITY MAINSTREAMING ASSOCIATES 989 Cite as 423 N.Y.S.2d 982 )faint fails to , tiffs were not a party to said mortgage:. In posed use, i. e., the Padavan Law, is uncon- )st him. He fact, plaintiffs did not acquire title to their stitutional. With respect to these issues the Y or pertna- property until seven years after this rriort- Court finds'that: (1) the easement is not ;e which he ''' gage was made. Without any facts that violated and (2) the PadavanLaw is consti- waY liable to ii show an intention that plaintiffs or their tutional. of his wife's grantors were to be benefited by the re- {, striction they have no cause of action for CMA's PROPOSED USE WILL NOT 4e dismissed i any alleged breach (Steinmann v. Silver- VIOLATE THE EASEMENT R. Cavrell. xr;: man, 14 N.Y.2d 243, 251 N.Y.S.2d 1, 200 Plaintiffs argue that since'1955 the Cav- i to CMA she a F N.E.2d, 192 (1964); Bristol v. Woodward, rell property has been used a's .a single soing an act 251 N.Y. 275, 167 N.E. 441.(1929); Equita- family residence and that the easement urther, the ble Life Ass. Soc. v. Brennan, 148 N.Y. 661, over the Zubli property was designed for Mises have 43 N.E. 173 (1896)). that use and contemplated that use only. y: change the [3,4] The complaint fails'to allege any Thus, they contend, the proposed communi- ,iplaint and facts to establish that the mortgage was ty residential facility would be a change in A any such the use of the Cavrell property and there- intended to confer a beneficial interest fore violate and overburden the easement. . cussed be- ;4 upon plaintiffs. Neither plaintiffs nor their mties were predecessors in title were parties to the This same issue was presented to this plaintiffs mortgage. There is no provision in the Court in plaintiffs'motion fora preliminary Which the mortgage which can be construed to make injunction. This Court, in denying the mo- the com- tion for in unctive relief, ruled that the the t" m or anyone else not a party to the j all was the 'ry language of the easement is.unambiguous :•„ mortgage a beneficiary of any term, condi- )erty, that tion or covenant contained therein. Unless " and unconditional. The meaning of .the t ject ease- easement is clear. t otherwise expressly provided for in the w, usedas a mortgage, all covenants bind the heirs., ex- As the Court stated in denying plaintiffs' 0, Plaintiffs ecutors, administrators, successors and as- motion for a preliminary injunction:' ntitled to signs of the mortgagor and inure to the There are no words of restric- ktt lefendant. a' benefit of the heirs, executors; administra- tion in the easement other than that it r summa- " tors, successors and assigns of.the mortga- shall be used for 'egress and .ingress'. It '}f vt y� First, it gee(Real Property Law § 257). Nothing is does not import any limitations in its use -ege any found in the mortgage that expressly pro- and so long as the driveway is used for aauae re- vides for benefitting plaintiffs or. their this purpose only the easement will not would be } predecessors in title. Further, the mere be affected by subsequent changes in the t a swelling; '` transfer of title to CMA does not violate use and occupancy of the dominant prem- onstrued any restriction in the mortgage and in the ises (Arnold v. Fee, 148 N.Y. 214 [42 N.E. kri. assum- ` absence of an facts alleging an actual 588 1896 ; Mittnacht v. Montana 205 ; Y gig ] ( ) !strictive ' change in use no cause of.action for its App.Div. 643 [200 N.Y.S.':82] (1st Dept. cause of k breach exists. Parenthetically, the Court 1923)). As the language of this easement ' breach. notes that such restrictive' language in is unambiguous circumstances surround- ; action mortgages like the one held by,Eastern is ing the grant of. the easement and the �fendant inserted to obtain the benefit of a $25.00 . situation of the parties may not be con- mplaint tax exemption from the mortgage tax (Tax sidered (Miller v. Edmore Homes Corp., 'n, with Law § 253,, subd. 2(a)) and not with the 285 App.Div. 837 [137 N.Y.S.2d 324] (2d k of the intent to create a restrictive covenant. Dept. 1955), aff'd, 309 N.Y. 839' [130 i Of the - "``''`" Thus, there remain only two other issues N.E.2d 623](1955)). The right-of-way for one or p '' which confront the Court. The first issue egress and ingress is available to the to -as- +' concerns the plaintiffs' contention that heirs, successors and assigns of the domi- ?h stet. CMA's proposed use would violate and over Want estate, or, in this case; CMA." .ved or burden the, easement. The second issue (Young, J.; 5/11/79). ' z :wo (2) aw"A concerns the plaintiffs',contention that the The above cases are in accord with 3 Pow- Plain- legislative scheme.for licensing CMA's.pro= ell, Real Property § 415, which at page , ...../'.�:.:,�.v... �. ": ....:... .. , .... ......-..�.,^.mil^n_rrxT+.. ,_..:....:::. _ .. .... .. .. _ _,.., .. a... ..... ..' i11 • 990 423 NEW YORK SUPPLEMENT, 2d SERIES i Z 34-183, states ". with respect to was -to be used for "ordinary purposes", the scope of the easement created, courts then this Court would have to look beyond duly enacted stress the primary control exercised by the the language of the grant. However, in tionally imps language of the conveyance." this case there is a conspicuous absence' of Const.Law §§ any,. qualifications, expressed or implied,[5-7] Upon reconsideration of this same9 , P P first instance tional question question this Court adheres to its prior find- and therefore CMA is entitled to use the , easement for "egress and ingress" as is "While there is e ing that the easement speaks for itself and � g power to deter: : does not purport to be limited to any partic- necessary. to courts a ular use.' There is no language in the ease- Since it is not necessary to construe the hierarchy, it ha f pa ment, expressed or implied, which restricts easement to determine whether CMA's pro- that a court o or qualifies its use other than for a means posed use would constitute a single family general rule at- of entrance and exit from the Cavrell prop- use, plaintiffs':,-reliance on Tytell v. Kaen, termine uncons erty to Station Road.4"The easemene-omits supra, is misplac6&:`'Tytell, unlike the other consequences n any reference as to W o,may use it or for pre-Padavan Law cases,<.ruled on whether a age irreparable what purpose. Thus,CMA is entitled to use group home of a similar type was a single statute is app: the easement for "egress and ingress" re- family for the purpose of interpreting a This policy to gardless of whether the Cavrell property private restrictive covenant (other pre-Pa- tionality to app retains its traditional character or is used as davan Law cases involved compliance with ly desirable w; a"community residential facility". Any ac- local zoning ordinances). In that respect it ortance and f tual change in the{' use'of the dominant is analogous to the instant case since here law has been estate does not, in the absence of any quali- the Court is confronted with construing an period of time. fications, change the ase of the easement. easement. However, Tytell is distinguisha- Realty Co., 68 . "The omission from the'grant here of any ble from the instant case by the very nature S.2d 257, at 2,m words limiting the use of this easement of the language used in the restrictive cove- 40 A.D.2d 950, . . . must control,the construction of nant. There, the owner of the tract of land 1972) rev'd on the grant, for a limitation upon the exist- imposed covenants providing that each par- 347 N.Y.S.2d ence and continuance of an easement privi- eel was to be used solely for a private (Citations omit• lege can be predicated upon a change in the dwelling house for the use of a single fami- Statutes § 15C character or use of the dominant property ly,and not to be used for a public or private A.D.2d 304, 3! only when an intention,to impose such limi- homeJor treatment, shelter or care. Thus, 1976), aff'd, 4.1' tation is found in the language of the grant an issue of fact was raised as to whether or 200, 372 N.E.2c itself." (Mittnacht v. Montana, supra, 205 not the proposed group home was a single 68 Mise.2d 100, App.Div.at 646,200 N.Y.S.at 85) (Citation family or an institutional facility. If it N.Y.C.1971); P, omitted.) were the latter then its use was prohibited ' 18 Misc.2d 103t [8] The Court does,not find, as plaintiff by the covenant. Since, as discussed above, Queens Co.19X would have it, that the references in the the easement in question has no restrictive the court of fir easement of the right' to erect two signs language as to, use, there is no need (as determine an i with the occupants' names and/or addresses there was in ell) to categorize CMA's tionality of a st is evidence of intention'to qualify the use of Proposed use as familial or institutional. Misc.2d 123, a Sessions, Villag the dominant estate (the Cavrell property) THE PADAVAN LAW IS does require th for use by a biological family unit. This is CONSTITUTIONAL be -manifestly not a situation where the easement provides unconstitutiona that it was to he"as the same is now used." The plaintiffs argue that the Padavan ;.. (Lattimer v. Sokolowski, 31 1,i.Y.S.2d 880 Law is unconstitutional in that it fails to yn § 79)•. (Sup.Ct.Orange Co'1941) (not officially re- Provide for notice and public hearing and °i [10,11] In ported)). Nor is this easement one that was that, as it applies to the circumstances in statute's const; this case it encroaches upon plaintiffs' s- to be used "for all ordinary purposes of Po P ,'; fundamental rr ingress and egress" (Bd. of Education, Cen- Property without substantial relation to a constitutional tral School Dist. No. 3`'v.Nielsen,21 Misc.2d legitimate governmental purpose. § 150(b); Wig, 368, 195 N.Y.S.2d 169 (Sup.Ct.Nassau Co. [9] It is settled law that courts have "; N.Y.2d 215, 17 1959)). If the subject easement read that it inherent authority to determine whether a 869 (1958); Pt. £' 649,360 N.Y.S.; 723 N.T`S.2d-2 t k�c z5M- T '° J .r ,• -a-_ j7,... - < + °s 7..;:is}' y TRIES ZUBLI v. COMMUNITY MAINSTREAMING ASSOCIATES 991 for "ordinary Purposes", Cite as 423 N.Y.S.2d 982 would have to look beyond duly enacted statute transcends constitu- 37 N.Y.2d 100,371 N.Y.S.2d 471, 332 N.E.2d the grant. However, in tionally imposed limits (8 N.Y.Jur., 338 (1975)). However, this is a rebuttable a conspicuous absence of 3 Const.Law §§ 42, 43). ' However, a court of presumption against which unconstitution- . is, expressed or implied, first instance should approach a constitu- ality must be demonstrated beyond a rea- 4A is entitled to use the tional question with reluctance and caution. sonable doubt",,(Fenster v. Leary, 20t.N.Y2d "While there is.-no rule of law limiting the press and ingress" as is 309, 282 N.Y.S.2d 739, 229 N.E.2d 426 power to determine constitutional questions (1967); Matte: of Van Berkel v. Power, 16 necessary to construe the to courts of particular tank in the judicial N-Y.2d 37, 261--,N.Y.S.2d 876, 209 N.E.2d 539 mine whether CMA's pro- hierarchy, it has been authoritatively stated (1965)).- Any; doubts must be,resolved in that a court of first instance should as a�onstitute a single family favor of constitutionality. As stated by the iance on Tytell v. Kaen, general rule and if possible hesitate to de- Court of Appeals, "[i]t has been our re- Tytell, termine unconstitutionality, save where the unlike the other peated admonition that legislation should consequences may be severe and the dam- cases, ruled on whether a not be declared unconstitutional unless it age irreparable or where invalidity of the clearl -similar.,type was 4. single y appears to be so; all doubts should ,rpose of interpreting a statute is apparent on its face. be resolved in'favor of the constitutionality This policy to' 'leave questions of constitu- covenant (other Pre-Pa- tionality to appellate tribunals '[ils especial- of an act. This court has repeatedly stated nvolved compliance with ly desirable where the law is of great im- that the wisdom of legislation is not.for 'us nces). ' In that respect it to determine:" (Johnson v. City of New portance and far-reaching effect, or if the instant case since here York, 274 N.Y. 411, 430, 9 N.E.2d 30, 38 law has been effective for an appreciable .nted with construing an (1937)). period of time..'" (Blye v. Globe-Wernicke !r, Tytell is distinguisha- Realty Co., 68 Misc.2d 948, at 950, 328 N.Y. ' ' case by the very nature S.2d 257, at 259 (Sup.Ct.N.Y.Co.1972), aff'd, [12] The plaintiffs first constitutional d in the restrictive cove- 40 A.D.2d 950, 338 N.Y.S;.2d 386 (1st Dept. argument is that the Padavan Law obviates vner of the tract of land 1972) rev'd on other grounds- 33-N.Y.2d 15, the necessity.for notice and public hearing to affected property owners while purport- )roviding that each par- 347 N.Y.S.2d 170, 300 N.E.2d 710 (1973) 1 d solely fora private (Citations omittefl); (see also, McKinney's ing to effect-'zoning changes by declaring he use of a single fami- Statutes § 150(a); Co I miskey v. Arlen, 55 community residential facilities to be family d for a public or private A.D.2d 304, 390 N.Y.S.2d 122 (2d Dept. units. Constitutional due process, they sub- shelter or.care. Thus, 1976), aff'd, 43 N.Y.2d 696, 401 N.Y.S.2d mit, requires that before a zoning change raised as to whether or 200, 372 N;E.2d 34 (1977); People v. Kiger, affecting a particular property or adjacent :)up home was a single .68 Misc.2d 1_00'1`326,N.Y.S.2d 591 .(Crim.Ct.. property is adopted, notice must'he Oven to utional facility.. If it N.Y.C.1971);"Piantoni v. City of New York, affected prope"rty owners and a public hear- its use was prohibited 18 Misc.2d 103.0, 189 N.Y.S*2d�804 (Sup.Ct. ing held. 4 ace, as discussed above, Queens Co.1959)). This does not mean that The Padavan Law does not provide for ition has no restrictive the court of first instance shirk its duty to notice to any'affected property owners or there is no need (as determine an issue involving the constitu- for their participation in the licensing proc- 4 to categorize CMA's tionality of a statute(People v. Paddock, 56 ess., While the municipality may hold put)- nilial or institutional. Misc.2d 123, 288 N.Y.S.2d 96 (Ct. of Spec- lie hearings, the sole ground upon which the "AN LAW IS Sessions, Village of Dansville, 1968)) but it municipality ;may object to the proposed does require that the challenged legislation facility is that,it would result in a concen- UTIONAL be manifestly invalid before a finding of tration of community residential facilities ,e that the Pada,,an unconstitutionality.(8 N.Y.Jur., Const.Law in the municipality (Mental Hygiene Law ,a] in that it fails to § 79). 41.34(b)(5)). Further, it appears from read- d public hearing and [10,111 In approaching the issue.of a ing the statute that any review of the Com- the circumstances in statute's constitutional validity there is a missioner's determination to grant or deny hes upon plaintiffs' fundamental rule that it is presumed. to be a license is limited to either the sponsoring itantial relation to a constitutional (McKinney's Statutes agency or the municipality. Thus, plain- al purpose. • § 150(b); Wiggins v. Town of Somers, `4 tiffs argue, by declaring the facility to be -w that courts have N.Y.2d 215, 173 N.Y.S.2d' 579; 149 N.E.2d the. equivalent of a single family* home determine whether a 869 (1958); People v. Broadie, 45 A.D.2d without affording them an opportunity to 649,360 N.Y.S.2d 906 (2d Dept. 1974), aff'd, participate iri the procedure, the Padavan 423 N.Y.S.2d-23 PM 7T X 992 423 NEW YORK SUPPLEMENT, 2d SERIES Law 'e:ffects,a zoning change without due tice and hearing' only in quasi-judicial or process. adjudicatory settings and not with re-It'is the conclusion of this Court that the I 'ct to the adoption of va: s�� } general legisla- wb absence of any provision for notice and Lion. res public hearing in the Padavan Law'does not 'Where a rule of conduct ap- fin render it constitutionally defective. The plies to more than a few people, it is un Padavan Law is an act of general legisla- impracticable that everyone should have Lion and therefore requires neither notice a direct voice in its adoption. The Consti- d°� nor a public hearing to effect the desired tution does not require all ad change. q public.acts to on be done in town meeting or an assembly prc. In the case of San Diego Building Con- of the whole. General statutes within me tractors Association v. City Council of City the state power are passed that affect the the of San Diego, 13 Ca1.3d 205, 118 Cal.Rptr. person or property of individuals, some- fac 146, 529 P.2d, 570 (1974), appeal dismissed, times to the point of ruin, without giving un 427 U.S. 901, 96 S.Ct. 3184, 49 L.Ed.2d 1195 them a chance to be heard. Their rights fee (1976), the Supreme Court of California are protected in the only way that they 1 an- held, inter alia, that due process requires can be in a complex society, by their lice notice and hearing only in quasi-judicial or power, immediate or remote, over those adjudicatory•settings and not in respect, to who make the rule.' the adoptionlof general legislation. wl the decisions applying the due re.. In the SanDiego case the voters.of the process requirements of notice and hear- re:, City of San I)'iego, a charter city, enacted a ing have all involved governmental deci- coning ordinance through the initiative lion-making in an adjudicative setting, in prc process. The ordinance established a 30 which the government's action affecting foot height limitation for buildings con- an individual was determined by facts structed within the City's prescribe(] coastal Peculiar to the individual case; the zone. Plaintiffs, building contractor associ- present matter by contrast, involves the ations, challenged the validity of the ordi_ adoption of a broad, generally applicable nance contending that the City Charter and legislative rule. the "due process" clause of the federal con- We are thus not faced in the stitution precluded the City from adopting instant case with any of the great num- any zoning ordinance without affording all ber of more limited 'administrative' zon- ? affected property owners notice and hear- ing decisions, such as the grant of a vaki- ing (relying primarily on Boddic v. Conn., ante or the award of a conditional use '401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 permit, which are adjudicatory in nature (1971)). and which thus involve entirely different The ('curt concluded that notice and constitutional considerations. Instead we hearing are required by due process only in review the enactment of legislation of the quasi-judicial 'or adjudicator settings and classic mold, establishing a broad 'adjudicatory g' 6 ' , gener- I'. not with respect to general legislation such ally applicable rule of conduct on the as the ordinance in question. In so ruling basis of a general public policy." (San the Court said': Diego Bldg. Contractors Assn v. City "Plaintiffs' entire due process argument, Council, 13 Ca1.3d 205, at 211--13, 118 ` however, is founded on an erroneous Cal.Rptr. 146, at 149 150, 529 P.2d 570,at premise. From the inception of this na- 573-574) (Emphasis in original.) (Cita- tion's legal system, statutes of general tigns, footnotes omitted.) application have regularly\been enacted This Court, adopting the logic and reason- without affording each potentially affect- ing of the Supreme Court of California, of ed individual notice and hearing. As we holds the Padavan Law constitutional de- 100 shall explain it is black letter constitu- . spite the absence of any provision affording ex tional law that due process requires 'no- plaintiffs' notice and hearing. The Pada- p° PI; af' i. I . a F � � �virker�L �® ta,�.� ,�•u:u�tne:sai��_:� _ _ a'• 994 423 NEW YORK SUPPLEMENT, 2d SERIES Cavrell property. The State has not acted fore limited to determining whether under The Coo to create the easement. No property was all .of?,,the-circumstances, the legislation is the test o :::;;taken from plaintiffs The right of . ay " reasonably related to the community policy encroachm. preexisted the Padavan Law and was creat- sought to be implemented, and not unduly property ri; ed by deed. The plaintiffs purchased their'` oppressive (People v. Goodman, 31 N.Y.2d to a legitirr_ property subject to a valid easement of 262,.338 N.Y.S.2d 97,290 N.E.2d 139(1972)). F. French record. As the successor in interest to the York, supra prior owners, CMA has the clear right to [171 Here, the legislature has recognized veway as this was a the need to encourage a more enlightened While pl:: use the plaintiffs' dri property right appurtenant to the Cavrell and humane approach to the care and treat- of the Cavr property. The specific terms of the ease- ment of mentally disabled people. This the use into ment grant CMA (without restrictions) the need was aptly stated by Justice Di Fede in and that ot: right to "egress and ingress" over the Zubli Tytell v. Kaen, supra, in which he said, a determina property's driveway. As discussed previ- [i]nstitutions such as the infamous Willow- the defend. ously, the proposed use of the Cavrell prop- brook State School on Staten Island, we Law § 41.34: erty by CMA does not;violate the easement. now see as destructive warehouses little Brent v. He The rights of plaintiffs are subservient to better than concentration camps which the right of CMA to use the easement. must be closed in favor of appropriate com- [181 Plas That is the nature of an easement in favor munity facilities." The State of New York Padavan La• of the dominant estate (Huyck v. Andrews, had such a goal in mind when it adopted the Law, is defe 113 N.Y. 81, 20 N.E. 581 (1889); Pierce v. Padavan Law. By amending the Mental The Padav Keator, 70 N.Y. 419 (1877)). Hygiene Law the legislature expressed a Eminent Igo Should the value of plaintiffs' pro public policy that the needs of the mentally obviate the ► perty disabled should be met through the concept when a site i decrease as a result of CMA's use this of group homes in communitysettings en- would not alter this Court's determination. g establishing CMA acquired the Cavrell property, includ- abling each individual an.. opportunity to ty (Chap. 46 ing the easement, without taking property develop capabilities with that degree of tend that in ;,.rights from plaintiffs.; Thus, CMA's use treatment,:.care, rehabilitation and educa- amendment would be a use of contiguous property only. tioif that he or she requires'(Chap. 468 § 1 van Law (by, As a matter of law adjacent property own_ L.1978). The Padavan Law authorizes + tial facilities ers are not deprived of their property be- agencies such as CMA, under license by the implement c cause of the State's use of a contiguous State, to establish and operate these facili- nances witho property. This is so even though the value ties. quired by the of the property of the adjacent owner is Plaintiffs have not shown that this legis- decreased .(Gervasi v. ' Commissioners of lotion is unreasonable or arbitrary. This is Plaintiffs rr Hicksville Water District, 45 Misc.2d 341 not a case involving a regulatory statute of the Villag 256 N.Y.S.2d 910 (Sup.Ct.Nassau Co.1965); that exercises restraint or control over an and coextens j Matter of Brent v. Hoch, 25 Misc.2d 1062 individual or his property. The Padavan Article 7 of t! 205 N.Y.S.2d 66 (Sup.Ct.Suffolk Co.1960))� Law merely provides a procedure for estab- ]ages to enac lishin and licensing community residential sive zoning pl Additionally,plaintiffs argue that the Pa- g g ing ordinance facilities for those less fortunate than oth- divan Law; as applied.in the instant case, amended by t does not further a legitimate State interest ers. The effect of the statute on plaintiffs and is an unreasonable exercise of the po- is merely fortuitous in that the property plying with tl:ing requiremc proposed for a group home has the benefit lice power. 7-708, 21-21C of an easement over the Zubli property.[161 Every enactment under the police The State has not singled out plaintiffs' example, if th power must satisfy the,•test of reasonable- property to provide egress and ingress to to change the ness and must have a substantial relation to the Cavrell property nor does it expand the ments for buil« a legitimate governmental purpose (Fred F. scope of the easement. The permissive use district the al. French Investing Co., Inc. v. City of New of the easement by CMA has been deter- to be given, f: York; 39 N.Y.2d 587, 385 N.Y.S.2d 5, 350 mined without consideration of the Pada- However, such N.E.2d 381 (1976)). Any inquiry is there- van Law. stance. i IFS 4 ✓>f s�``f; xi '�v.�,� { ,j�,F:.kz iw..4d^�e}X7y' 4. / ZUBLI v. COMMUNITY MAINSTREAMING ASSOCIATES 995 Cite as 423 N.Y.S.2d 982 The Court finds that the statute meets The notice and hearing requirements of tether under the test of reasonableness. There is no the Village Law are applicable only when egislation is encroachment on the exercise of private the municipality itself proposes the change ,unity policy property rights without substantial relation or amendment. The Padavan Law, to the that it affects local zoning ordi not unduly to a legitimate governmental purpose (Fred extent t- not within the requirements of 31 N-Y.2d F. French Investing Co., Inc. v. City of New nances, is 139(1972)). York, supra). the Village Law. It was duly enacted by the State legislature an.d signed into law by s recognized While plaintiffs argue that the selection g - The Village Law does not enlightened appropriate for the governor. of the Cavrell property is in, require I re any notice and.hearing- in this in- ,e and treat- the use intended, to wit: "mainstreaming stance. Only if the change or amendment :ople. . This 4 1 and that other sites are more suitab e, such were to originate at the village level would e Di Fede in a determination is not for this Court but for notice and hearing be required. Since the ich he said, the defendant Coughlin (Mental Hygiene Padavan Law is a statute enacted in Alba- Island,Willow- Matter of Law § 41.34(a)(4), (b)(5); see also ny and of statewide application, notice and Island, we Brent v., Itoch, supra). hearing is not. required. louses little imps which [181 , Plaintiffs further argue`that the opriate com- Padavan Law, by not amending the Village CONCLUSION ,f New York Law, is defective.adopted the While this Court is"not unmindful of the the Mental The Padavan Law specifically amends the concerns of plaintiffs' in having the neigh- expressed a Eminent Domain Procedure Law so as to boring Cavrell property converted to a com- :Lhe mentally 1 obviate the necessity for notice and hearing munity residential facility for the mentally the concept when a site is condemned for the purpose of disabled, nevertheless', this action must he settings en- establishing a community residential facili- dismissed.. The easement does not preclude ,)ortunity to ty (Chap. 468 § 3 L.1978). Plaintiffs con- a change in use of the Cavrell property and degree of tend that in failing to include a similar was created to benefit it., regardless of its and educa- amendment to the Village Law the Pada- use. Further, the legislature has deemed it lap. 468 § 1 van Law (by defining community reside' appropriate to codifY'a public policy of pro- authorizes tial facilities as family units) purports to viding the mentally disabled with an oppor- cense by the implement changes in local zoning or(h- tunity to live, not in institutional isolation, these facili- nances without notice and hearing as re- but in community interaction. quired by the Village Law. In accordance with the foregoing, it is the at this legis- Plaintiffs misconstrue the plain meaning decision of this Court to grant the defend- ary. This is of the Village Law as being applicable to ants' respective motions to dismiss the com- tory statute and coextensive with the Padavan Law. plaint and for summary judgment. Plain- trol over an Article'! of the Village Law empowers vil- tiffs' cross motion for permanent injunction 'he Padavan lages to enact and implement comprehen- is denied. -re for estab- sive zoning plans. Once enacted, local zon- y residential ing ordinances may not be changed or- te than oth- amended by the municipality without com- on plaintiffs plying with the prescribed notice. and hear- .he property ing requirements (Village Law § 7- 706, K[XNUM9[RrYST[M S. =1_111i[- the benefit 7­708, 21--2100 and 21­2102), Thus, for 1;�Nu 9 )li property. example, if the Village of Kings Point seeks 4t plaintiffs' to change the minimum frontage require- d ingress to ments for building lots in a particular zoned t expand the district the appropriate notice would have !rmissive use to be given, followed by a public hearing. been deter- However, such is not the case in this in- of the Pada- stance. Board of Zoning Appeals, Town of :Southhold Page Two January 8, 1987 and surrounding neighbors possibly preventing ready access to their properties in the event of an emergency. The right-of-way was created to accomodate a private community of limited use, not to provide access to an establishment open to the general public. Please be aware that applicants maintain a legal two-family dwelling on the subject premises at present; use of the property as a "bed and breakfast" will constitute an over-intensification of the use of the premises and burden adjoining property owners. Section 100-30 (B) 16 (a) mandates adequate off-street parking for a "bed and breakfast"..establishment. Realistically, a minimum of ten parking spaces will be required to accomodate the current two families in residence, up::to six„ proposed. "guests" and employees, thus greating a mini-parking lot in the midst of a residential area. My clients ' home is appraised at $350, 000," which appraisal is based upon the residential location of the subject parcel . A change in use of the adjoining property allowing use by the public will clearly depreciate the value of their home. The Board may be aware that the applicants maintain a gift shop in the immediate vicinity which specializes in handcrafted items. My clients are concerned, rightfully so, that this business enterprise could easily extend to the subject premises as an added appeal to prospective guests, should the premises become open to public use. My clients therefore request that-.the Board deny this applica- tion as not being in the best interest of the health, welfare and general harmony of the community. Very truly yours, PERRI CAROL FITTERMAN PCF: lc Enclosures cc: Ms. Cyd:.Branciforte Mr. John Michalowski Perri Carol Fitterman ATTORNEY AT LAW 73 North Ocean"Avenue Patchogue, New York 11772 516-654-4664 'George E. Lechtrecker,P.C. Of Counsel January 8, 1987 Board of Zoning Appeals Town of Southhold Southhold Town Hall 53095 Main Road Southhold, NY 11971 Attention: Gerard P. Goehringer, Chairman Re: Appeal 43572 Michael & Joyce Mattes Premises : 50 Luther' s Road,, Mattituck, NY (113-30-07) Dear Mr. Chairman: I represent Cyd Branciforte and John Michalowski, owners of premises located adjacent to the above-referenced premises which are the subject of, the application to the::. Board this evening. It is my understanding that the applicants seek special exception pursuant to §100-30 (B) 16 of the Southhold Town Code to establish a "bed and breakfast" in their home. My clients vehemently oppose this application for a number of reasons. They purchased their property based on the premise that it was akin to a private..estate. As you can see from the attached survey, they have no private entrance to their property from Mill Road due to traffic congestion, but rather have access by.-means of a 25 foot right-of-way. This right-of-way is a result of the division of an old estate and was uniquely designed to create a "community within a community" . Use of it is granted my clients by deed dated October 29, 1986, attached hereto, which use they share with. four adjoining property owners, including the appli- cants. All adjoining property owners are responsible for .mainten- ance of the right-of-way. It is respectfully submitted that any additional use of the right-of-way by the general public as access to applicants ' property will create increased traffic to the area and subject my clients and other adjoining owners to legal liability in the event of an acci- cent or other tortious incident. Furthermore, New York State law requires that there be sufficient ingress/egress for emergency vehicles to residential property: I submit that the additional traffic congestion on this private road endangers my clients and t _ 1 kit3utdaid N.Y.B.T,U. Form 8007* I.8I.30AI-1 i and Sale Deed,with Covenant against Grantor's Acts—Int I or Corporatioi CONSULT YOUR LAWYER BEFORE SIGNING THIS INSTRUMENT—THIS INSTRUMENT SHOULD BE USED BY LAWYERS ONLY. THIS INDENTURE, made the 29thday of October , nineteen hundred and eighty-six BETWEEN CYD D. BRANCIFORTE, residing at 3 Idaho Court, Coram, New York, and MARGOT PURSLEY, residing at 105 Nassau Court, Rocky Point, New York, as tenants in common, each as to an undivided one-half interest party of the first part, and CYD D. BRANCIFORTE, residing at 3 Idaho Court, Coram, New York and JOHN MICHALOWSKI, residing at party of the second part, WITNESSETH, that the party of the first part, in-c nsider0ioir f- for NO CONSIDERATION ' - lawful-money-c -the43nited-Stater, paid by the party of the second part, does 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 plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being irI-the- at Mattituck, Town of Southold, County of Suffolk and State of New York, bounded and described as follows : BEGINNING at a point on the northerly side of Mill Road, said point being South 87 ° 44 ' East, 261 . 20 feet measured along the northerly side of Mill Road from the intersection formed by the easterly side of Luther' s Road with the northerly- side of Mill Road.; RUNNING THENCE North 1° 37 ' 50" East along the easterly line of lands now or formerly of Arlene Marvin, 260 . 00 feet to .a point on the southerly side of a 25 foot right of way; THENCE North 870 14 ' 16" Fast, along said right of way, 175 . 01 feet ron' to a monument on the westerly boundary 1 ne of "Map of Jackson ' s Landing" , Map Number 5280 ; 1000 THENCE South 80 05 ' 4,0" East, along last mentioned land, 1.90 . 32 feet 113 . 00 to a monument on the northerly side of Mill Road; 0300 THENCE South 690 04 ' 40" West, along said road, 22.3 . 76 feet to the point or place of BEGINNING. 007 . 00 TOGETHER with a right of way over a 25 foot strip of ].and running from the southerly side of Mill Road to Mattituck Creek, more parti- cularly bounded and described as follows : BEGINNING at the northwesterly corner of the parcel herein described distant the following three (3) courses and distances from a monument situate at the intersection of the southerly line of Mill Road and the :7e ter.ly line of Jackson' s Landing: (1) North 88° 02 ' 20" West 41 . 20 feet; (2) South 69' 04 ' 40" West 3 . 0 feet; and (3) North 87 ' 4.4 ' West 297 . 0 feet; E TOGETHER 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, . TOGETHER 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 assigns 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 said premises have been incumbered in any way whatever, except as aforesaid. AND the party of the first part, in compliance with Section 13 of the Lien Law, covenants that the party of 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 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 of the same for any other purpose. The word "party" shall be construed as if it read "parties" whenever the sense of this indenture so requires. IN WITNESS WHEREOF,the party of the first part has duly executed.this deed the day and year first above written. IN PRESENCE OF: CYD D. BRANCIFORTE MARGOT PURSLEY THENCE from said point of beginning running easterly along the. southerly side of Mill Road 25 feet to a point and lands now of Marvin; THENCE running South 30 39 ' East 115 . 0 feet, more or less, to the ordinary high water mark of Mattituck Creek; THENCE in a westerly direction along the ordinary high -water mark of Mattituck Creek 25 feet, more or . less, to lands now or formerly of Sullivan; THENCE along said last mentioned lands North 39 39 ' West 115 . 0 feet to the point or place of BEGINNING. SUBJECT to any state of facts that an accurate survey may show. TOGETHER with a right. of ingress and egress in common with others to and from Luther' s Road over a 25 foot right of way the southerly line of which is partly the northerly line of premises herein described and partly the northerly line of premises now or formerly of Marvin adjoining to the west,which line runs the following two (2) courses and distances : (1) South 86' 49 ' 20" East 295 . 00 feet; and (2) North 87° 14 ' 16" East 125. 00 feet. Said premises being known as and by 49. East Marlene Lane, Mattituck New York. BEING AND INTENDED to be the same premises conveyed to the grantors herein by deed of August A. Stahl. dated April 24, 1985 and recorded in the Suffolk County Clerk' s office on May 1, 1985 in Liber 9782 at page 96 . The premises herein are not encumbered by a credit line mortgage. ' STATQ OF NqW-YOM COUNTY OF SUFFOLK u: STATE OF NEW YOM COUNTY O' u: On the'- 9 tbay of October,' 19 8 6, before me On the day of 19 , before me •personally came personally came Cyd D. Branciforte and Margot Pursley to me known to be the individuals described in and who to me known to be the individual described in and who executed the foregoing instrument, and acknowledged that executed the foregoing instrument, and acknowledged that they executed the same. executed the same. Notary JOAN E.McNICHOL NOTARY PUBLIC,State of New York No.4713439 Qualified in Suffolk County Commission Expires June 30,1 STATE OF NEW YORK,COUNTY OF ss: STATE OF NEW YORK, COUNTY OF SS: On the day of 19 before me On the day of 19 before me personally came personally came to me known, who, being by me duly sworn, did depose and the subscribing witness to the foregoing instrument, with say that he resides at No, whom I am personally acquainted, who, being by me duly sworn, did depose and say that he resides at No. that he is the ; of that he knows ,'the corporation described in and which executed the foregoing instrument; that he to be the individual knows the seal of said corporation; that the seal affixed described in and who executed the. foregoing instrument; to said instrument is 'such corporate seal; that it was so that he, said subscribing witness, was present and saw affixed by order of the board of directors of said corpora- execute the same; and that he, said witness, tion, and that he signed h name thereto by like order, at the same time subscribed h name as witness thereto. joargain anb fibatc oeeb SECTION 113 . 00 WITH COVENANT AGAINST GRANTOR'S ACTS sNO. ' Citation Abstract 8608-731064 BLOCK 0300 LOT 007 . 003 CYD D. BRANCIFORTE' and COUNTY OR TOWN Suffolk County MARGOT PURSLEY TAX BILLING ADDRESS TO CYD D. BRANCIFORTE and Recorded At Request of The Title Guarantee Company JOHN MICHALOWSKI RETURN BY MAIL TO: STANDARD FORM OF NEW YORK BOARD OF TITLE UNDERWRITERS PERRI CAROL FITTERMAN, ESQ. Diitribared by 73 North Ocean Avenue Patchogue, NY 11772 TITLE GUARANTEE- NEWYORK Zip No. ATICOR COMPANY McNULTY & DiPIETRO ATTORNEYS & COUNSELORS AT LAW 130 OSTRANDER AVENUE P. 0. BOX 757 RIVERHEAD, NEW YORK 11901 516-727-8200 JOHN R.McNULTY PAT FRANK NESCI ARTHUR DIPIETRO EDWARD D.BURKE JAMES SPIESS / -7 OF COUNSEL BARBARA L.COUGHLAN l� (A,A J . (j L�Q January 7 , 1987 Southold Town Board of Appeals Main Road State Road 25 Southold, New York 11971 Attention: Gerald P . Goehringer, Chairman Re : Application of Joyce & Michael Mattes Dear Mr. Goehringer, Enclosed herewith please find original and four copies of a Memo- randum of Law submitted' of behalf of the applicants . If you have any questions , please contact me. Very truly yours , BARBARA . C0U LAN BLC/tms Encs . ZONING BOARD OF APPEALS TOWN OF SOUTHOLD ------------------------ ---X In the Matter of the Application of MICHAEL AND JOYCE MATTES ---------------------------X MEMORANDUM OF LAW ON BEHALF OF APPLICANTS, MICHAEL & JOYCE MATTES, IN SUPPORT OF APPLICATION FOR A SPECIAL EXCEPTION USE January 6 , 1987 BARBARA L. COUGHLAN of Counsel McNULTY, DiPIETRO & SPIESS Attorney'S at Law 130 Ostrander Avenue P.O. Box- 7 5 7 Riverhead , New York 11901 ZONING BOARD OF APPEALS TOWN OF SOUTHOLD ---------------------------X In the Matter of the Application of MICHAEL AND JOYCE MATTES ---------------------------X MEMORANDUM OF LAW ON BEHALF OF APPLICANTS, MICHAEL & JOYCE MATTES, IN SUPPORT OF APPLICATION FOR A SPECIAL EXCEPTION USE. This memorandum of law is submitted on behalf of the applicants, MICHAEL and JOYCE MATTES. The application concerns real property located on the corner of Luther and Mill Road in Mattituck. Said real property is also known as Lot 1 of Edgar and Arlene Marvins' Minor Subdivision (No. 149) , approved by the .Town of Southold in 197$. There are three (3) other lots which make up the Marvins' Minor Subdivision, all of which have access over a twenty-five (25) foot right of way, immediately to the north of the subject premises. The real property is improved by a seven (7 ) bedroom, three (3) bath victorian home, which has been carefully restored and is now listed on the state and national Registers of Historic Places . The property is presently located in an "A" Residential zone and has a Certificate of Occupancy for a pre-existing non-conforming two-family dwelling. (Attached hereto as Exhibit A. ) Applicants' neighbors, in particular , those that own the remaining three (3 ) lots of the Marvins' Minor Subdivision, have opposed the application. Most of the opposition seems to be against the use itself. They have also, however, expressed a concern regarding privacy, access over the twenty-five (25 ) foot right of way, and any signs which will be placed on the property. With respect to the neighbors' opposition to the use, it must be pointed out that the use is permitted within the zone; it is not a prohibited use. Consistent with this , New York Courts have held: "Review of an application for a special use in the [zoning] ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood." Green v. LoGrande, 96 A.D. 2d 524 , 464 N.Y.S. 2d 831 (2nd Dept. 1983 ) , citing Matter of North Shore Steak House v. Bd. of Appeals, 30 N.Y. 2d 238 , 331 N.Y.S. 2d 645(1972) . Furthermore, "a mere general denial by the adjacent landowners is not sufficient to justify a denial [of a special exception permit] ." North Shore v. Fritts , 81 A.D. 2d 982, 440 N.Y.S. 2d 85 .(3rd Dept. 1981) ; Matter of Tandem Holding Corp. v. Bd. of Zoning Appeals of Town of Hempstead, 43 N.Y. 2d 801 , 402 N.Y.S . 2d 388 (1977) . Moreover , in the instant case, it must be pointed out that the property is presently a pre-existing two-family dwelling . The two-family dwelling, located on only 73 ,000 + square feet , today would not be permitted, but is because of its pre-existing status. However, the applicants have indicated a willingness to abandon this pre-existing, nonconforming use if they are granted a special exception use for a bed and breakfast. Surely, the neighbors should prefer a permitted use to a prohibited one. With respect to the neighbors' opposition regarding access , privacy, and signs, the applicants recognize that the board may impose conditions on their use to minimize the impact on the surrounding area. Further , the applicants have demonstrated a willingness to comply with certain conditions. However, the declaration of convenants and restrictions proposed by the neighbors are unacceptable. Initially, in their covenants and restrictions , the neighbors propose that the parking area "shall be screened by a contiguous and uninterrupted row of evergreens not less than six (6) feet in height and not less than ten (10) feet in width to be located along the entire length of the northerly boundary line of the premises owned by the Mattes ." ( emphasis supplied) . Applicants first point out that §100-119 .1 of the Town Ordinance prohibits shubbery within five (5) feet of the property line in excess of four (4 ) feet in height in a front yard. The applicants' northerly boundary line is considered a front yard since the twenty-five (25 ) foot right way is adjacent thereto. Accordingly, the Mattes cannot plant "evergreens not less than six (6) feet in height" along this boundary line and still comply with the Ordinance. Further , to require a full screening of the northerly boundary of the applicants ' property would be excessive. The boundary line is over 260 feet long while the parking area itself will not be greater than 100 feet in length. Finally, we must remember that the property is presently improved by a legal two-family dwelling. Therefore, the parking lot now accomodates two families . The additional parking required for a change from a two-family dwelling to a bed and breakfast with three (3 ) rooms for rent, should be minimal . Next, the neighbors propose to limit the Mattes' access to the twenty-five ( 25) foot right of way. The Mattes deed gives them access over that right of way and there is no reason that they should relinquish that right . However , if the Board identifies a problem with the right of way as a means of exit from the subject property, the Mattes have agreed to install an exit on their own property for use by the guests of the proposed bed and breakfast . With respect to the issue of signage, the Mattes assert that they will comply with the Code of the Town of Southold before installing any sign. In conclusion, the Court is Sal De Enterprises v. ------------ of Islip Town, 99 A.D. 2d 469 , 470 N.Y.S. 2d 176 (2d Dept . 1984 ) held: "A special use permit contemplates a use expressly permitted by a particular zoning ordinance. Generally, such a permit should be issued once an applicant demonstrates a willingness to comply with conditions imposed to minimize the impact on the surrounding area." Id. at 177 . The applicants, MICHAEL and JOYCE MATTES, have demonstrated a willingness to comply with conditions, which the Board may impose to minimize any impact upon the surrounding area. However, those conditions must be reasonable. CONCLUSION For the reasons stated above this application should be granted. Respectfully submitted, McNULTY, DiPIETRO & SPIESS 130 Ostrander Avenue P.O. Box 757 Riverhead , New York 11901 January 6 , 1987 FORM NO. 4 TOWN OF SOUTHOLD BUILDING DEPARTMENT Town Clerk's Office Southold, N. Y. Certificate Of Occupancy No. .Z Z . 93.06. . . . Date . . . . . . . . .Ngygmber, 17 . . ... ., 19 7i; . THIS CERTIFIES that the building located at i:r. �a}•:?at!=?'. ,% . ;�::.s t ,;•till 4KR0ac on Lot 1 of Edgar p�-1�ne Marvin nor Subdivision 11o. 149. 2-up d2�XXKXX)SXXRxxAL911,ftXXXXitXXX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. RLQUIRE M.':.TS FOR A .70N-00NF0r%!1ING TWO -rAMILY DL7r:LLINn built conforms substantially to the 1bp�SliZo�cfQr: r]irtg;�et�ttrhtoiOia. ;�n prior to ;thi9 Arx .. . . , 19. �%. CERTIrI''�1TE, OF OC;CUPP..,.—y pursuant.to which= 3 , - . �id . . . . dated . . ;.c)vc.-»e3;, 17, 197!1. ., was issued, and conforms to all of the require- ments'of the applicable provisions of the law. The occupancy for which this certificate is issued is . . a. .tlo�i•-C:��r :-�r:�in!� 'I'�;o; I:.z.nil: n�;;:?' i;:��;*. . . . . . . . . . . . . . . . . . . . . . . . . . The certificate is issued to . .EDC:A1! "L'1R�'I21 ;. I.I.I.?t: . . . . . . . . . . . . . . . . . . . . • (owner,'Iessee or'teriaiit) of the aforesaid building. Suffolk County Department of Health Approval �'?�-'. :��`I:�':?�.��. . . . . . . . . . . . . . . . . . . UNDERWRITERS CERTIFICATE No. . . . . . . . . . . . . :': `' �Ir;tc.: HOUSE NUMBER . . . . . . . . . . . . . . Street . . . I;raa3:; �- 1 , ►!:�t�:i Luc . . . New. York . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tax. ,.IzLp 1�.,u 11:�X�11 1U00-113-37part of Lot 7 . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . ... . . . . . Building Inspector ° "This does not cover tho dwelling sitting on the line of Lot No. 1 and i Lot No. 2 which rust be removed. e P. I:NGB,O:i�R D •��: � {f ,� tj , j1Y T 0 ; sbuu 9+ LD y Southold, N.Y. 11971 (516) 765-1938 December 30 , 1986 Mr. John W. Davis Sterling Road Cutchogue,NY 11935 Re: Minor subdivision of Edgar and Arlene Marvin (#149) Dear Mr. Davis: Enclosed is a copy of the subdivision and tax map for the above mentioned approved subdivision. Would you please make an inspection on the right-of-way and advise our Board as to what would be necessary for improving the access road, pursuant to 280-a. Thank you for your assistance in this matter. If you have any questions, please don' t hesitate to contact our office. Very truly yours , BENNETT ORLOWSKI, JR. , CHAIRMAN SOUTHOLD TOWN PLANNING BOARD By Diane M. Schultze, Secretary cc: Board of Appeals enc. Page 24 - Town Board il /18/86 - SUPERVISOR MURPHY: Okay, that's the end of the, prepared and added-on agenda. Anyone at this time like to address the Town Board on any matter? Yes. Valerie, would you use the mike, please. VALERIE SCOPAZ SHAW: I'm not familiar with the procedure for addressing a question to- the Board that doesn't have anything to do with anything that's on the agenda tonight.- SUPERVISOR MURPHY: This 'is 'the time to do it. MS. SHAW: Now? Okay. COUNCILMAN SCHONDEBARE: Provided it's short. MS. SHAW: This is 'Valerie'Scopaz Shaw. I'm a resident of Mattituck. 1 have a question that 1 would like to ask the Board about a law that was passed by the Board a few months ago, to the best of my recollection. It happens to be Local Law No. 5 i n' relation to Bed and. Breakfast faci li tes, and I picked up a copy of this from the Town Clerk's Office, and I'm a little unsure as to what the meaning of it is; and I'm just wondering if 'I could ask for an interpretation as to what's being meant. SUPERVISOR MURPHY: We have our man right here. MS. SHAW: Okay. The first question is; that my understanding is that the Board of Appeals ultimately has to consider the two items that are mentioned under Sub- section 16, which is that there should not be more than three rooms in the owner- occupied dwelling, and cannot be more than six casual and transient roomers, and that the only other condition attached to that is that adequate off-street parking spaces shall be provided for the rented rooms, in addition to parking spaces for the use of family of the owner. Is.. that the only. conditions that the Board of Appeals must consider? TOWN ATTORNEY TASKER : I think.it's a Special Exception, isn't it? MS. SHAW: Yes. TOWN ATTORNEY TASKER - There is 'a whole section in the Town Code, other than this, where there are general conditions that must be met, and 'general criteria 'that must be considered, and it's in another section of the Code. MS. SHAW : Okay. That will explain my confusion. Okay. My second question is this: What happens if 'the proposal or the request for the Special Exception is 'for Bed and Breakfast within a private community where road access is over a private right-of-way, as opposed to a public street? TOWN ATTORNEY TASKER : What happens? MS. SHAW: In other words, can the Board of Appeals entertain a request for a Special Exception where access to the dwelling is over a private right-of-way, as opposed to a public--dedicated public street? In other words--- TOWN ATTORNEY TASKER : There's nothing in the Code which prohibits them from considering that. h1S. SHAW: I'm sorry---- Page 25 - Town Board i i /18/86 TOWN ATTORNEY TASKER : There is 'no prohibition. against them considering such an application. MS. SHAW: I realize that. What I'm asking is.' can the Board of Appeals grant permission--can the Board of Appeals grant a Special Exception in' a situation where the access to the dwelling is not over a public'street? Over private property? TOWN ATTORNEY TASKER: I just finished- telling you that there is 'nothing in' the Code which says they may not do this; so therefore, I would say that since there is ' nothing that prohibits it, it's not prohibited for them to consider one of these things with access over a private right-of-way. Do I make myself clear?. MS. SHAW: It's not completely clear. Well, because--- TOWN ATTORNEY TASKER: There is 'nothing---let me put it 'this way---there is nothing in'the Code that says that the Board of Appeals, in' considering an application for a Bed and Breakfast, cannot consider it if 'its access is over a private right-of- way. There's nothing like that in' the Code. So that doesn't preclude them from granting one. MS. SHAW: Well, I understand the Board of Appeals can consider any application that comes before it: The question is; does the Code address the issue--does it discriminate between, for instance, in a situation 'Where there is no public access.? Is, there any requirements that the community--the private community which the applicant is-asking for permission--I'm just asking whether there's anything--- TOWN ATTORNEY TASKER: To my knowledge there's nothing specific'in the Zoning Code which says that the Board of Appeals cannot grant a Bed and Breakfast permit if the only access to the facility is 'over a private right-of-way. Okay? MS. -SHAW: Okay. Is the Board .of Appeals required to obtain' any sort of--or is the applicant required to obtain a waiver from the Planning Board to waiver conditions that the Planning Board may have placed on the map specifying that--- TOWN ATTORNEY TASKER : You're going far afield here. - COUNCILMAN SCHONDEBARE: Valerie, I have a funny feeling, Valerie, that this is not a hypothetical question on hypothetical issues, and that you've got a specific .case going before the ZBA. MS. SHAW: Right. COUNCILMAN SCHONDEBARE: Well, then I really think it's not quite fair to both parties .in that matter before the ZBA to be coming before the Town Board and asking the Town Attorney questions relating to a matter going before the ZBA. MS. SHAW: Okay. I didn't mean for this to be interpreted as a---I 'm not baiting anybody, okay? I just wanted to know. From my reading of the law it wasn't clear to me. I thought--and evidentially from what`Mr. Tasker is saying, it's an open question--a legal question. Okay? TOWN ATTORNEY TASKER : No, I didn't say that either. This is the problem with hypotheticals. I didn't say it was an open question. You asked me if there was any prohibition in the Code, and I said I know of none. That doesn't make it an open question. Southold Town Board of Appeals ZIP�A ® MAIN ROAD - STATE ROAD 25 SOUTHOLD, L.I., N.Y. 11971 TELEPHONE (516) 765-1809 APPEALS BOARD MEMBERS November 20 , 1986 GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. _ SERGE DOYEN,JR. S.E.Q.R.A. ROBERT J. DOUGLASS JOSEPH H. SAWICKI NEGATIVE ENVIRONMENTAL DECLARATION Notice of Determination of Non-Significance APPEAL NO. : 3572 PROJECT NAME: MI'CHAEL acid 'JOYCE' 'MATTES -- This notice is issued pursuant to Part 617 of the implementing regulations pertaining to Article 8 of the N.Y.S. Environmental Quality Review Act of the Environmental Conservation Law and Local Law #44-4 of the Town of Southold. This board determines the within project not to have a signifi- cant adverse-effect on the environment for the reasons indicated below. Please take further notice that this declaration 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. TYPE OF ACTION: [; ] Type II ] Unlisted [ ] DESCRIPTION OF ACTION:E5tablish "Bed and Breakfast Use" in owner occupied building where lodging and breakfast is provided for not more than six casual, transient roomers, and renting not more than three zooms LOCATION OF PROJECT: Town of Southold, County of, Suffolk, more particularly known as: 50 Luthers Rd. , Mattituck 113-03-'0.7 REASON (S) SUPPORTING THIS DETERMINATION: (1) An Environmental Assessment in the short form has been submitted which indicates that no significant , adverse effects to the environment are likely to occur should this project be imple- mented as planned; (2) This is an application concerning use of the premises and is not directly related to new -construction. FOR FURTHER INFORMATION, PLEASE CONTACT: Linda Kowalski, Secretary, Southold Town Board of Appeals, Town Hall, Southold, NY 11971; tel. 516- 765-1809 or 1802. Copies of this notice sent to the applicant or his agent and posted ,on the Town Clerk Bulletin Board. - MARRIOTT5 J OtbndoWo Cen{cr RESORT AND CONVENTION CENTER 7VC Ai tf 9y 2 Jo w-,n ef end T wn- .367a Jo r` ze J 77 MARRI07S >>\ Ot andoWo d Cen{cr RESORT AND CONVENTION CENTER (�tl� �5o NO T 7-3 IW VE ,� �ff�c'f<lit/G GOT Iy U vA. �c20.UT � awe. Jz� Of MARRIOTT5 NandoWo 'd Centcr RESORT AND CONVENTION CENTER )• ' 11Y' IDA COHHRY ISSION EXP. SIC STATE EPTF3f,1 80 BONDED THOU GENERAL INS. UND. 1,0 . �u 74 P(C- HREL ftwo aDYCE M1477E5 50 LUTHERS ROAD }�rl 11 TTiT 0 C K n a rr 0191S ` 47 �' ' 5 . � 1 t p ',rea KktsT + ass q%a� XIS a / / J; [dt �' X� � F) 7 Roo M 1b` X 1 ;[4/a- 17 �� BED ANP 8RE KFAS—r COS, i r 13EI> Root t BE D Pz c,o rat lay XIS ' NO ] FA12 is J� ,I ID J6 1 . • p �oRhc—Q.�Y 1'LA Qv r w ZST �y FQAHC r� E� LI NCB • STk Sf� FR(�HE sar S. ti3cp�.t-{`;• ZO,.E, � ► __ -PpQC►'� `raT4 l Zc1 5.00 Acne WV[' c.. ra z39.3Y '1a zs p�t1 O I 7.9'9 .f •s, r3 3.8'g• • N 73.y � � ' o o GAZFP->O N 2 h Q - Q T.7RTICC 1 r � � Z- 3ToRY 1•� `r— F QA Ff E 1 flwcuFt,+G I ~ M 1 N ° L in • � O / If� {I'f 0 O ✓� Vl ST.c N. 67 o 'i Ll c o• . SGT lET ' C=) = - �5 (4'D•4'4a'v4 R Al b7'4400"yv' 297 .at.o 0 rz. _ _....„.,.,-:•ir_a•_•r..-:::sa+ar�rsclz�sr� :.ra:T31•.�i4':srr::�r:Y'.7':7:S391rtJi.�sz7T�SA.Y.T:^".)'•.YY:.��-�i:C—"^!Y.'-;`..!':"-�..7t1"�-t:.�--_:+.!'.'i�71.c.:�•:tY•'7C� ^r •,Iris N: J.•F'• !•F"N —:C' /' ... r: THE -l' F.'.'N C'.:Y • I..r rG-.i•. �C�fi rll.. rj. .r�`.. _ F-il-L NO. .. . 'tlla•.f '1. i".TF. '1,iL'F'... •1.� ._ fF MICF•+f�EL AND TOY C.e- m19rTES 5o L0rH eRs RdwD TT) TVCI� aq�- -ff7 3 �•�GPEATIOry.y 4 PTO as . o M New York State Office of Parks, Recreation and Historic Preservation LL The Governor Nelson A. Rockefeller Empire State Plaza U. NEW YORK STATE z Agency Building 1, Albany, New York 12238 518-474-0456 Orin Lehman Commissioner September 24 , 1986 Mr . & Mrs . Michael F . Mattes P .O . Box 831 Mattituck, NY 11952 Richard Cox House Subject: Mill Road and Luther 's Road Mattituck, Suffolk County Dear Mr . & Mrs'. Mattes : We are pleased to inform you of the .listing of subject property on the State and National Registers of Historic Places. Should you have any questions regarding- the State and National Register programs, please write or call the Historic Preservation Field Services Bureau staff at (518) 474-0479 . Sincerely, Corrsniss�io er State Historic' Preservation Officer. cc : (See attached list) An Equal Opportunity/Affirmative Action Agency c 12-`i/�� �� COUNTY OF SUFFOLK OFFICE OF THE COUNTY EXECUTIVE PETER F. COHALAN• .TORN C.JGALLAGHER SUFFOLK COUNTY EXECUTIVE CHIEF DEPUTY `. l _ .July 23 , 1984 ., .. , s Or Lehman, Commissioner*. ' y: New York State Department of Parks, .- . C Or� Recreation and Historic Preservation O Nelson Rockefeller Empire State Plaza '-`Agency Building 41 . At Z 61 -Albany, NY .12238 Dear Commissioner Lehman: TOWN OF SOUTHOLD a:... — . Re: Richard tox House, Mattituck The County of. Suffolk enthusiastically supports the nomina- tion of the Richard Cox House . to the National .and State Registers of Historic Places.. Official ,recognition of this property will not only add substantial protective measures. -that will assist . in preserving the structure ' but will also greatly enhance . the community identity, of Mattituck and all of Suffolk County. Thank You for . yourconsideration of this property and for your assistance in preserving the heritage ` of eastern Long Island. Sincerely, 4ETER F. H. CO ALAN SUFFOLK COUNTY EXECUTIVE PFC:rar cc: Honorable Francis J. Murphy, Southold Town Supervisor "'-s- this com, for John Chester, Commissioner, Parks Department Lance Mallamo, Historic Services Director Magdeline Goodrich, Southold Town Historian P. o eox 620 CAPTAIN KIDD CIVIC ASSOCIATION CAPTAIN KIDD ESTATES Mattituck,. N. Y. 11952 Oct.1:2100 Mr. Orin Lehman, State Historic Preservation Officer N.Y.S. Parks and Recreation, Agency Building #1 . Empire State Plaza, Albany, N.Y. 12223 Re z Richard Cox' House Mattituck, -N.Y. Dear Mr. Lehman: The Captain Kidd Civic Association represents the several hundred residents of the area an Cox Neck,Matti tuck,' near the mouth of Matt.ituck Inlet-.- Recently our area has been the. 'subject. of unfavorable press coverage due to the pollution. of Mattituck Creek occasioned by' Fed - the leakage of certain oil tanks near the mouth. State and eral agencies are currently involved in resolving the matter and local efforts are under way to. upgrade the. area and its imag¢. The home of Mr. and Mrs. Michael Mattes., the Richard Cox House, at the entrance to Cox's:•Neck is. currently,. undergoing restoration and is a symbol of the revitilazation of our community: Its history has defined our area and has, in fact, given our area its name. We could think of no more fitting place for the State to affirm its committment to our area than with the Richard Cox 'House. We therefor urge you Mr. Lehman, as State Historic Preservation Officer, to nominate this house for the National Register of Historic Places. Thanking you for your consideration, Nick Bolobanic President Cap 't Kidd Civ As ociation. Inc. MATTITUCK _IN _L_E_T=:_ CIVIC ASSOCIATION N C O R P O R A T E D 80X?O911LIATTITUCK, N. Y. 11952 Mr. Orin Lehman, October 1011980 State Historic Preservation Officer, N.Y.S. Parks and Recreation, Agency Building #1 , Empire State Plaza, Albany, N.Y. 12223 Dear Mr. Lehman: The Mattituck Inlet Civic Association was formed to promote the well-being of the communities surrounding Mattituck Inlet. Our sheltered harbors and charming homes make this area a haven for tourists from all over the Eastern Seaboard. It. was with great pleasure, therefore-; that our Association learned of the restoration of the Richard Cox house, one of our best-known landmarks. Mr. and Mrs. Mattes, the owners of the Cox house, have spent thee last two years in research and restoring their lovely historic home. The Cox family and their descendants contributed greatly to the history of our area in particular and to the history of eastern Long Island in particular. One descendant, Allan Forman, was a noted writer and editor of the Brooklyn Eagle at the turn of this century and was born, lived and work at Nabichauge Farm, as the Cox house was known then. His wife, the former Xesia Carlstadt, was a noted operatic prima donna in the 1890s who toured the United States extensively. Local residents still spealt of her friendship with the noted actress Lillian Russell and,. later, Marie Dressler. Our area also had the famous American sculptor and furniture maker J. Q.A. Ward who was a friend and neighbor of the Cox' s(Formans' ) and the house was the center for a great many of the area's cultural events. Indeed, President Taft was a visitor of the Formans' . It is for these many reasons that the Mattituck Inlet Civic Association most strongly urges that the Richard Cox House, Nabichauge Farm, be placed on the State register of historic, places and. that. it .be nominated by you, Mr. Lehman, to the National Register of Historic Places. This affirmation of the historic nature of our area would be received with the utmost appreciation by all of our residents. Sincerely_,._--- ,, t: Lydia Tortora, President s _ s a of Long Island Antiquities eSpnng/Summer 1981 Preservation Notes eSociety for the Preservation of Long Island Antiquities eSpring/Summer 1981 P. r N° R 'n'TI•c _" ,r fir:sia{4+'� •'S..x" h k�T P'.�f4'tS 3,ifbd z r x v. i 41�1Y+Z NS` � � tk The following Long Island historic and cultural resources have been saved through :+ :..the enlightened efforts of the owners dedicated groups of local citizens and or n tf f >�. g P official action Mattituck t Cox-Mattes house. „{ r IM Built mid-19th century,architect unknown w . Saved by action of new owners who rescued and re tat the old house habili ed W�; - t- J15' Patchogue Old Carnegie Library. Built C.1908,architect John Van Pelt _ d Saved by'action of the Patcho a Villa a Board', the Rn '.Brookhaven Industrial Development Agency, and Bnazcliffe Secretarial School x'•'r7p4{t to � �.: .ad ,'Iv ;:3 :s; `�' i � •. a taxi✓vie "' - -= Roslyn r - { 4 A;�§+ Y` Roslyn National Bank and Trust Co., , r *, F Built 1930,architect William Bunker Tubby Saved by sympathetic purchaser.`who converted the 'building for his engineering firm, preserving the former banking chamber and its 22 foof ceiling �qit r SayvillC - s k ✓3i �, Suffolk County News building Built 1906, architect I.H.Green.Jr. Saved after a very bad fire by painstaking reconstruc _� tion that exactly replicated the original structure b 'Smith Point Marshall Allen octagonal house. Built 1964,architect Hobby Miller of Patchogue ? r s d When Fire Island National Seashore was established ? ` building was saved by removal and adaptive re-use by the Suffolk County Department of Parks 1 a ' Recreation and Conservation Southold i .ate �,. Prince store. T f6 y �;r; � fu Built 1874,architect unknown r,��'r-*, s"' '' r✓ -_ r r' Saved when the Southold Savings Bank decided not to buy it and tear it down. A new owner now proposes to preserve the building and its integrity. West Meadow Beach 2t rSY z < p Photo by Judy Ahrens - " s `"The Game Cock,"Shipman Boathouse. House TourS'A ' ,rfi we'• 3 p Built circa 1850's,architect unknown. Saved by action of the Brookhaven Town Board that Up Of VISItorS tF)I'b h her M• alJrin9 - has leased this important landmark to an apprecia- �ored`by the Mattitlick Historical Society — tive tenant. "d?�vaf'x�y�,�xi.sar,}4 �-�. r:•x�. k'4` `�% u... t y- 4.. K ��' �5 .- ' ,; 9 Z ; HHAA THE HISTORIC HOUSE ASSOCIATION OF AMERICA THE OWNERS GROUP CERTIFICATE } To attest that NAB1 CHAvff FA" in 41�f. kIt ✓ (CW Tolfic/ has been recognized and enrolled in the Historic House Association Owners Group as a property possessing historical and architectural significance that has been well preserved by its owners EXECUTIVE DIREC OR CHAIRIVIAN F THE LRD DATE ANNE C.MASON.Variance to�� ficient livable-door area in the existing dwelling use of prop- the Zoning Ordinance, Article osed northerly parcel. 'Zoning XI,Section 100-119.2 for permis- District: "B-1" General Busi= sion to construct deck addition to ness Location of Property: existing dwelling with an insuf• 35350 County Road 48,Peconie, ficient setback from tidal wet- NY;County Tax Map Parcel No. land area at premises known as 1000-69-04-2.1. 1250 Lupton Point, Mattituck, 8.10 p.m. Appeal No. 3552'-- NY; District 1000, Section 115, JOHN SENKO.(Hearing recea- Block 11,Lot 12• No. 3585SE sed from December 11, 1986), 7:45 p.m. AppealVariance for shopping-center ALVIN AND PATRICIA use in this "B-1" General Busi- COMAS. Special Exception to ness Zone with 30,084 sq.ft.lot the Zoning Ordinance, Article rea. III,Section 100-30(B)for permis'- 8:30 p.m. Appeal No. 3572St sion to establish "Bed and _ MICHAEL AND JOQ s d Breakfast Use, an Owner-Oe- MATTES. (Hearing cupied Building, other than a from December 11, 1986), S hotel,where lodging and break- . ial Exception for Bed and Break- fast is provided for not more fast in existing building. 8:45 p.m. Appeal No. 3584SE than six casual,transient room DONALD AND J OANNE era,and renting of not more than Special Exception to three rooms." of Pro¢- RITTER.LocatioRI 2500 Peconie Lane, the Zoning Ordinance, Article arty. County Tax Map Peconie, NY; III, Section 100-30(B) (100-31' Parcel No.1600-74-03-24.2. for permission to convert exist ing one-family dwelling to a two - 7:50 p.m. Appeal No. 3588SE family dwelling. Location of MARY J. MOONEY•, .property: 2585 Peconic Lane, GETOFF. Special Exception to peconic, NY; County Tax Map the Zoning O. iinance, Article parcel No.1000-74-03-20. III,Section 100-.50(B)for permis' The Board of Appeals will sion to establish "Bed and hear at said time and place all Breakfast Use, an Owner-Od- persons or representatives desir•- cupied Building, other than a ing to be heard in each of the hotel,where lodging and break- above hearings. Written corn- fast is provided for not more ments may also be submitted than six casual,transient room- prior to the conclusion of the era,and renting of not more than subject hearing.For more infor- three rooms." Location of Prop- mation,please call 765-1809. arty: 147b Waterview Drive, Dated:December 11,1966. Southold,NY;County Tax Map BY ORDER OFF Parcel No.1000-78-007-20.' THE SOUTHOLD TOWN 7:55 p.m. Appeal No. 359f- BOARD OF APPEALS PAUL STOUTENBURGH, GERARD P.GoEHRINGER•, JR.Variance to the Zoning Or.• CHAIRMAN — -- - dinance,Article III,Section 100- Linda Kowalski, 32 for permission to locate acces- Board Secretary sory windmill tower in excess of 2TD25-5458 maximum-permitted 18 feet height requirement, at 4015 Skunk Lane, Cutchogue, NY; I County Tax Map Parcel No. STATE OF NEW YOR K 6 F ' 1000_98-1-6. _ r.q NOTICE OF HEARINGS 8:00 p.m. Appeal No. 3583 COUNTY OF SUFFOLK i FREDERICK AND HELEN NOTICE IS HEREBY IIRIBOK.Variances to the) 111 Of Gr0®nport, in GIVEN,pursuant to Section 267 of the Town Law and the Code of ing Ordinance, Articles: (1) III,ho the Town of Southold,the follow Section 100-31 for insufficieht said County,being duly sworn, says that he/she Is ing public hearings will be held southerly sde ardXlnd WWI on Principal Clerk of THE TIMES, a Weekly by the Southold Town Board aide yards, of Appeals at the Southold 100-119.2 for insufficbulkhead Newspaper, published at Greenport, in the Town Town Hall, Main Road, South- back Armamo tinue Pond, for old,NY at a Regular Meeting on along of Southold, County of Suffolk and State Of New THURSDAY, JANUARY 8-, this proposal to construct garage York, and that the Notice of which the annexed is at 1987 p.the follo following 3581 -- 90dCarolition eoRoad,existing timed: uthold,dwellinNY a printed copy, has been regularly published in ?B T Appeal Tax Map Parcel No. OriP ROBERT AND EILEEN M: County JOHNSON. Variance to the 100000--52--2-4•Appeal No. 3461• -- said Newspaper once each week Or 24 Zoning Ordinance, Article Xi-; weeks successively, commencing 86 the Section 100-119.2 for permission IIEI,MUT Hord nance,S. aArticle day of Dec to construct addition to existing the 'Coning dwelling with an insufficient VII, inlet for(insufficient B lot i setback from tidal water area at Schedule, a and lot width;(2)100 70(A) premises known as 430 Corey are Creek Roan Southold,NY;Dis= establishing as rinci existing use of proposed trict 1000, !:iectiun 87, Block 5, southerly parcel; (3) 100-70(A)/i Prine peal Clerk Lot 3. roval of insuf 7:40 p.m. Appeal No. 3594 ;-, and 100-71 for app Sworn to befo ne this day of 19 MARY K.DFGNAN NOTARY]'`` ,,r Mate of New I Suftni': y�o.48498690 C, Tpr,,. �..,inres Februar NOTICE!,,,,: IEARINGS • ' NOTICE'IS:HEREBY GIV EN,puisua tt to-Section 267 of•z '.I C,.,,,ATY OF S U F FO L K .the Tdwn Law and the Code of' STATE OF NEW YORK ss: the .Toown :of i'Southold,`.'the following'pub' hearings will be,,.'' held ,by,�'.the-'Soutlold 'Town Board-:' of Appeals at.the i; ' Southold' TownHall,''Main j Patricia Wood, being duly sworn, says that she is the Road,` .Southold,-;NY;,at .a ;! Editor, of THE LONG ISLAND TRAVELER-WATCHMAN, Regular:Meeting on THURS= a public newspaper printed at Southold, in Suffolk County; DAY;J IARY 8,19 7ZF—at,the oowingg times'. '•. and that the notice of which the annexed is a printed copy, '��-� •• ' ' 7;35''p.m.':.Appee1 No.'3$87=''`: has been published in said Long Island Tr4veler-Watchman ROBERT 'AND•EILEEN M.'' once each week for . / weeks JO . artance,to. e . . . . . . . . . . . . . . . . . . . . . . . . . . nmg Or Section 100-110.2 for permission.; dinance,'Articl e.Xr, . �;� successively, commencing on the . . . . . . . . . . . . . . . . . . . . . . to construct addition to existing ,;'l dwelling witli an iuffi nscient set- back from tidal.witer,area;at c day of / 19 . , , , premises,known'.as,430`Corey :U Creek Road,, Southold, NY;; Districf.1000;Section 87;;-Block: • • • • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, Lot.3i 7:40 p.m.Appeal No.,3594- ANNE CI-MASON Variance to tFe-Zonin mission toe ns�tru c 2 for addle' _ g ,J p Sworn to before me this . . . . . . .` / day of tion to existing dwelling with an insufficient setback from tidal �» 19 ' 8:05 p.m. Appeal NO.''.3461 wetland area at premises known... HELMUT HASS.Variances.to as 1250;Lupton Point,. Mat- t to Zoning,Ordinance, Arf►cle'• tituck, NY; District 1000, Sec .VII; Sections:'(1)1100-71,-Bulk-, tion 115,Block 11'' Lot,12., Schedule,,for.'insufficient'lot• .7:45 p.m:Appeal No.3585S.E- / area'and lot width; ALVIN ' AND P,ATRICIA, . . . . . . . . . . . . . . . . . . .� `'! `��- iL establishing existing residential.' COMBS..Special Exception'W' i use as principal use,of propos Notary Public the Zoning Ordinance, Article ed southerly-' parcel; (3) III, Sectioii;100-30(13) for perW,l BARBARA FORBES 160-70(A) and 100=71'for ap- mission to'establish "Bed and Notau•y 1'Liblic, State of New York proval;of insufficient,livable- Breakfast; Use,:% an "Owner- No. 41a068,16 floor area in the existing dwell- I',' Occupied Building, other'tilan . Q m);fied in Suffolk County ing use'of,proposed northerly a hotel,, where. lodging',and Corrunission Expires 19 J parcel. Zoning District: B-1. , breakfast is`provided for not '" General Business.,Location 'of l more than six casual, transient Property: 35350 County Road, roomers,.and-renting',,of,not 48, Peconic; NY;'County 'Pax more than three rooms",Loca-. Map Parcel No. 1000-69-04-2.1. tion of Property: 2500 Peconic 8:10 p.m. Appeal No. 3552= .i. Lane,Peconic,-NY;County Tax JOHN SENKO`.' (Hearing 4� Map Parcel r•.No. recessed from December 11, s,:, . 1000-74-03-24.2..• 1986). Variance for.shopping ,i; 7:50 p.m.Appeal No.-35885E ! center use in this"B-1"General MARY J. MOONEY GETOFF'; Business Zone with 30,084 sq.ft. SpecialException to ning '' k.!.y''Y t area. I Ordinance, Article III, Section 8:30 p.m.AppealNo.3572SE-d6 •100-30(B), for permission to' MICHAEL AND JOYCE establish' "Bed and Breakfast MATTES. (Hearing ;recessed' Use,• an Owner-Occupied �q roi om December!=-ll;-'1986). Building , other'than a hotel; Special Exception for Bed and• where'lodging and breakfast is• Breakfast in existing building•.'. provided for not more than six '' 8:45.p.m:Appeal No.3584SE casual, transient roomers'sand ?{;:' DONAUD AND -JOANN) •.� ,renting of not more than,three P.R.BITT Special,Exception'to rooms. Location'of Property:,'.', the'Zoning Ordinance, Articie 1475 . Waterview,. Drive,• III,'Section•100-30(B).(100-31) Southold,NY;County Tax Map 'for`permission•to,convert,ex- Parcel No. 1000-78-007-20. y' isting one-family'dwelling toga 7:55 p.m. Appeal.No. 3591 two-family&welling.'Locatio,'n PAUL STOUTENBURGH;JR•:• of Property:2585 Peconic Larie, '. Variance to the,-Zoning,.Or-, :Peconic,NY;�County Tax,Map dinance,;,Article,:l1I,;;'Section: Parcel No. 1000-74-03-20. 100-32 for permission to,locate. The Board of:Appeals will accessorywindmill tower.in ex i hear at said time-and place all cess of maximum-permiited118:',; persons or representatives desir-' feet height requirement,at 4015;' ing to be'heard'in each of the• Skunk Lane;':Cutchogue�.NY;' �.- above hearings. Written com- County.Tdx.•�Map Parcel.;No. . j ments may, also be submitted 1000-98-1-6.,., :' ;i prior to the conclusion of the 8:00 p.m :'Appeal.No; 3583-f"'; subject hearing.For more infor FREDERICK AND HELP, mation, please call 765-1809.` HRIBOK.Variances to the Zon- '• Dated: December ll,'1986' mid nance,-Articles; (1)III, BY ORDER OF THE Section 100-31 for.insuffieient SOUTHOLD.TOWN 'southerly side_yard and.total.. r' BOARD OF APPEALS side yards, and(2)XI, Section GERARD.P.,GOEHRINGER, 100-119.2 for insufficient setback CHAIRMAN from existing bulkhead along,' ' Linda Kowalski' Arshamomaque Pond, for.this., Board Secretary proposal to.consiruct garage.ad- • 1T-12/25/86(6)3' dition to existing'dwelling,at 90 r Carole Road, Southold, NY; County 'Ihx'Map Parcel-No::. i 1000-52-2-4. _ 77 J1,` �•• ; h 1 y �i��. I /� r a{ t V• h--twy h� " � CTEw ,RDSHI 'ESORY' r< �� : A f f`'�, r t4 -✓ >w�+ {� �rAk�t,+"1ti"C'FF '.r , a �?C► Mr e. A� f`1. µw chaf�M. gesTberng made tn1910'-- andr' �� ) `until the'1950s,,it remamed,in aha ndCo f the { q• t.�.sit { x$ 'r,ram i.� n.�f�t c�' �r yam,. 4' •' '"yN���t ?£,kY�k4 ,xw�:..drvNV+anal`fR.�rlily:'� kr. a'i9}-�y.io"s,tu�>• •� ..i}d '1.i :M,rr y s ; t i t l�i s V"After the"depression,-•'Joyce.continues, 9/rE p $,a P4 1 .. s,•t x fi:fell intoa state'of'neplect and waS turned'Into a ` * �-,s fij �� . >� T x�„j�tome to��1978,>and�ttawas:tn°such��:a'r state r of� �� 4 :^�d�' � ��disrepatr that=the�bank'dtdn;t eyen?wanf,td gtve•�?� � aa A;� us,a fuJ)3.O yearrmotgage on it °Since we moved r°' r ";weve been tryMg to.:undoSO'years of neglect s i - a at we'i ,doingYis restoringieach'room basedr f`' K a Va. h ical�and°tntdr e. retive-s',evidenc he P 3's . p Queen"Anne Gglden Oak foyer was inspired by ' " agamQxe4Ht thew parlor b mitts. Ttalianate �'; `Ft " =, ter ; tY : , ,tmarbI641keplacle,� t d t e dtnutg xoorn is Hi h c r Many peo leas tate � feelin � of � » � �f �r's *; 1 ,.g 5 ` q. :. y g £ C1COran�kr s aZr$F /';111 ' k:gloominesswith Vtctortan.ltomesput'Mike andt has been-'a long,l?hard`job but.little'by {st y^Joyce;'Matt-s,a',presenf owners of,,<",�tW�-massive i-r s?little;the house is shovrring''off�the fruits'of the rt Vtctorianyhgine locafed on,the,cotner of Break, ,iMattes labor,3arid once;agatn is returning to the +water..Road'`and.;CoxrNeck:Lan 'tn gttituck r ��- f a " e M ra]esty-it:once`knew: +adamantly'protest that tt is notgtrue, pointing;r,, '' T"Arhouse ltke•this provides.an anchor in £ ;out;that their,•house�ts,•bright and `cheery, with r icotiim, 'tnremarks <"' ?{ Mike ,+;"Es eciall ..tn �;,r { ' Mgh,ceilings,=:big*roomszan�rlarge'windows ' toda 'sasoete y"y ty where there s�-solittle that< is r ,,]oyce`adds,"I'thirlk it(the`Victorian'era)was anw permapent'There ts'such a sense of c ntinuit r '• aexuberant time because pit;was,�the'tirst time,;r t '.here � One 'of�"they 'trees`',out"--front�is pre ',when we had a large middle class'It was a good s',Revolutionar -War The house has a''loY of r {' • time out+here' r t t ;. a r >, f a y ,. , tromance'and',history to it-and.`living-here-and '�i` r t. To look-at1thetr home, you would never Y; 'working'on it reaffirms-our position in history guess�rthat ithe 15-plus room a=bath 'home { It,makes us,,a part of�an ongoing stewardshi ) (com letewath cu ola)was once a much smallerY`� ,S +� ►°� ' •� P • z• P �. k � „aAnd�, f�Joyce adds,4 its also an `artistic )` �t house':..'—.:.butraccordtng'•to-mtormativn :the4endeavgr' l'guessthe'bottoline ts,that livin3 Y ' ' �;�?Mattes".have gathered�tt,certainly'was "Since it ��s���tn�a house,�hke�this ts'a'�hobb r- avocationg'�r� �}y �� �' 'was builtaround 1829"�M ke` oints out;"it has`��^ro`�� �' � yr ' � ,, ; t P �Sorrae^people cpllect antiguesr we choose to } undergone three major modifications with th e r ,"k. ' x ` Ax t.`' C"�tve°iri ones >ry �� .y 3 yv. _,..r. t rl, AS �.t P • 4��?""w'm' w , )1,'KF r .7�•+'-x'g'i',.'„ .tul Srp CLANCY G> 1 I I f J N f•f 7 1 f't hi �'l. a`.`t�:u���1� k r/�"� xv` d tt�`�,i"'•c d�' {�, � �a 7 ''4 C <L F.' J ,k i f' 33'.✓3�y.+, ,�5+$'F"._y+ 1 k !`�• r +t i t .-S'� °i�rt-W"v eiy„k•4� �ti"yi 4•yrp.y y rT 4y� r 4�Y yr���y t(�'aa� � s ,s * �}T�/A}`,ts9 �t4 lgy�'ry7 at�`�r 4. � � � �� 1 � .a;:+r� 't y:r+i7.r ,.. �':iY�d'+. :j'c.i: r._r�l+� r t �•:�xs /kii%.F � F :girt 751 GP 4 A.i/1 'r�r-:)n�"t y�"tr; 't � Se s_^ '{ _ r� _. � • - _-....t<.}: .x�?. ''3�t:;t:'. i:1y- S!t.`�?.h .G,.,..tl. •t�"tZ'�t`.stt!rr'�+:'t _ .,.. sJ ....- :�� , t ! A i \ a,p �' �' '� �., - .t" �.,,�- >,K ,� ,� ��. cc r2 �r•:y 1Z� � � :ram.. Y�'r��"' ,.r ... I��uo}siH�i�ntil•IeIN ayl�(q pa�osuods mod asnoy s,puo�aann 6uunp awoy jay y6noa4J sJoisin-jo dnoi6 8 sa�e }a�) s� Ew a��(o� K 2 a Y :Y 'a 's a w�►rlu 1J R c-�_. "y'`K �:u j T,$�� /� 1 .�-/� ".. .,. �k 9�,�u�x �, j� � y� � ��F � �- ' 't�T"�"t'"a�:xp-+-- o-,..e„�5.+. \ �fi t r'{ r jnQ asnO ®, aQ � i xs �.a i i Y �y y b�?s3 N =sG j s r rax aka �k S rr rI S Ynr •` 'W r��d3z`-;z '-:;�- -e;.-.w v-^t`''s''.4't� cF.a,_ %. yy ,� i'C.:�`.:r:�h t-+'-tom ,S�...� t fx? K rs,u�•` '.r� �.� s�*., ct x M ,�-. P. ::c ,`'":._ ^S'` U. rri r rt rz(' �`ir"`7. •'-'• 777"' .M ;� '' -i �, 'fir s r, t� y 3a r4. ; - x'r-fi � �- �. �- � •�' �' _ yr -r-�S.Sri ' 4 MATTITUCKHIST( xRICAL SOCIETY' °r sI t�. �����5_ TO uc THE OLD ACID THE N_EV�/"� 4y X SY. uA CY4 � ♦� L ft _ SFrTEMBER 17 ' � x r f 4 '���;: f..zF z �f'. ;� d.i '•k''£; ^4' s �.'p -z''�„ oU.,tr'.c :,trh�Yz.g.C:��ar�.irv 'S 'h.� t':: ;,d' i t r '��'+�S"• Rain Date September 1I3th -,`'3',� 1... '<. .. e•�3 � E` �':__� i t�,E3 >�l r,r'> ? ;�`- µ-. ',� ; �,m`; + "ui is "� i•` 3 HOus@s O r�.Z :. �..�'-.b.)k'•� .,�. l ti� r!� r. ��r:F-.. +G � ` Pen_'12-4 THE NEWe , 3 r SANDOLLAR� On the Ba : y,r Circular Solar Home T�Porter Widiham's- 1/V Artis th t's Studio' J, Stack z tw i +3 THE OLD AND RESTORED ` �:- r L HEGGENS HOUSE Wi kham FlAland-�Fiegg a `)en KUJAWSKI:HOUSE -On SoundAvenue���,ih 3 i MATTES Being R t , r.r `N trMrr- a �r CI(@ts � 8Y �� �d'ks+� avail le at tt>ftud Historica le } �4 't sFr 11 30 4 "_ a'-'r k'�•,.,�. ''� i c t YiJy "F^rnsored bY Mattl Floo I' � uc� rs �--s, .- ;y.,n �}£3z�r•y � �5q �-�. L=' _ �r. �i'kr�.-'�- of,r.�:- A.. s:' Aa ^+ � Y t y'-r -..r ��:.,.•`�„'� c',: -t�` '�i r� -.cx � s 1. r,'T.•...g' z T F Our Southold Town Board of Appeals MAIN ROAD - STATE ROAD 25 SOUTHOLD, L.I., N.Y. 11971 TELEPHONE (516) 765-1809 ti APPEALS BOARD MEMBERS November 20 , 1986 GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. - SERGE DOYEN, JR. S.E.Q.R.A. ROBERT J. DOUGLASS JOSEPH H. SAWICKI NEGATIVE ENVIRONMENTAL DECLARATION Notice of Determination of Non-Si nificance APPEAL NO. : 3572 ...... PROJECT NAME: MI'CHAEL 'arid JOY'CE MATTE'S' --- This notice is issued pursuant to Part 617 of the implementing regulations pertaining to Article 8 of the N.Y.S. Environmental Quality Review Act of the Environmental Conservation Law and Local Law #44-4 of the Town of Southold. This board determines the within project not to have a signifi- cant adverse effect on the environment for the reasons indicated below. Please take further notice that this declaration 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. TYPE OF ACTION: [;;] Type II ] Unlisted [ ] DESCRIPTION OF ACTION:Es-tablish "Bed and Breakfast .Use" in owner occupied building where lodging and breakfast is provided for not more than six casual, transient roomers, and renting not more than three zooms LOCATION OF PROJECT: Town of Southold, County of, Suffolk, more particularly known as: 50 Luthers Rd. , Ma,ttituck 113-03-07 REASON (S) SUPPORTING THIS DETERMINATION: (1) An Environmental Assessment in the short form has- been submitted which indicates that no significant adverse effects to the environment are likely to occur should this project be imple- mented as planned; (2) This is an application concerning use of the premises and is not directly related to new -construction. FOR FURTHER INFORMATION, PLEASE CONTACT: Linda Kowalski, Secretary, Southold Town Board of Appeals, Town Hall, Southold, NY 11971; tel. 516- 765-1809 or 1802. Copies of this notice sent to the applicant or his agent and posted on the Town Clerk Bulletin Board. ro ��For'.��o �, x, Southold T® nBoard ®f Aealspp MAIN ROAD - STATE ROAD 25 SOUTHOLD, L.I., N.Y. 11971 TELEPHONE (516) 765-1809 APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS,JR. SERGE DOYEN, JR. ROBERT J. DOUGLASS JOSEPH H. SAWICKI TO WHOM IT MAY CONCERN : Concerning your recent application filed with our office, please find enclosed a copy of the Legal Notice as published in the local and official newspapers of the Town of Southold, to wit, the Suffolk Times and the L.I. Traveler-Watchman indicating the date and time of your public hearing. Please have someone appear in your behalf at the time specified in the event there are questions brought up during the public hear- ing and in order to prevent any delay in the processing of your application. If you have any questions, or If you would like-to review your file prior to the hearing, please do not hesitate to either stop by our office at the Southold Town Hall, or by calling our secretary, Linda Kowalski, at 765-1809 (or, if no answer, 765-1802) . Yours very truly, GERARD P. GOEHRINGER CHAIRMAN lk Enclosure Page 3 - Mailing List Public Hearings - January 8 , 1987 Southold Town Board of Appeals Copies by mail to the following on or about 12/19/86 : Mr . and Mrs . Robert E. Johnson , 40-24 208th St . , Bayside , NY 11361 Bob Koch & Son , for Anne C. Mason Woodcliff Drive , Mattituck, NY 11952 Mrs . Anne C. Mason , 709 Vivienda West Blvd , Venice , FL 33595 Mr . and Mrs . Alvin Combs , 2500 P.econic Lane , Peconic , NY 11958 Mrs . Mary J . Mooney-Getoff, Box 377 , Southold , NY 11971 Mr . Paul Stoutenburgh , 4015 Skunk Lane , Cutchogue , NY 11935 Mrs . P . C . Moore , Rudolph H . Bruer , Esq . , Main Road , Southold , NY 11971 for Mr . and Mrs . Frederick Hribok Samuel J . Glickman , Esq . , 114 Main Street , Greenport , NY 11944 for Mr . Helmut Hass J . . Kevin McLaughlin , Esq . , 828 Front Street , Box 803 , Greenport , NY 11944 for Mr . and Mrs . Donald Ritter Stephen R. Angel , Esq . , 108 E. Main St , Box 279 , Riverhead , NY 11901 Daniel C. Ross , Esq . , Main Road , Box 1424 , Mattituck , NY 11952 Mr . Garrett A. Strang , R . A. , Box 1412 , Southold , NY 11971 Barbara L . Coughlin , Esq . , McNulty , Dipietro & Haefeli '7 A 7,FZDD 130 Ostrander Avenue , Riverhead , NY 11901 for Mr . and Mrs . Mattes Mr. and Mrs . Douglass Shaw , Breakwater Road , Mattituck , NY 11952 Mr . and Mrs . Henry Haan , 340 Breakwater Road , Mattituck , NY 11952 Mr. and Mrs . Michael Mattes , 50 Luther Road , Box 831 , Mattituck 11952 Z . B . A. Members Posted on the- Town Clerk Bulletin Board 12/19/86 Z . B . A. Office Bulletin Board 12/19/86 Building Department 12/19/86 Suffolk Times 12/22/86 L . I . Traveler 12/22/86 NOTICE OF BEARINGS NOTICE`IS HEREBY,GIVr' EN;pursuant to Section 267' of .:i COUNTY OF S U F FO L K the 7bwn Law and the Code'of STATE OF NEW YO R K ss. the 7bwn of;Southold;;tle. following public hearings will be• held by the- SOUTHOLD s' ii the BOARD OF Town Patricia Wood, being duly sworn, says that she is the at the Southold Town Hall, '` Main Road,Southold;.NYita;.;; Editor, of THE LONG ISLAND TRAVELER-WATCHMAN, Regular Meeting on Thursday;; a public newspaper printed at Southold, in Suffolk County; December 11, 1986,1commenc- and that the notice of which the annexed is a printed co Ing at the f6llowing,tim6s: p copy, 7:35 p.m: Appeal No. 3216 has been published in said Long Island Traveler-Watchman EUGENE DAVISON:Variance once each week for . weeks to the Zoning Ordinance;Artl= cle III;Section 100-3Q(A)[1J'for_' permission to establish second • successively, commencing on the . . . . . . . dwelling unit upon 9.8±.,acre parcel over existing horse stable,. Location of. Property:'South'` ; day of . fir % • • . •, 19 • , . Side.of Sound Avenue,',,Mat-- tituck, NY; Lot'No.'4,:Minor, -- Subdivision. of. SErawb'erry . . . . . . . . . . . . . . Fields, which receiver] Sketch Plan approval July,€;'198S by. the .Town Planning Board; >: County Tax,Map. Parcel;No: 1OW121-3-5(containing 12.6t'°'-. Sworn to before me this Y clay of acres). '7:40 p.m: Appeitl No.'3577=' ��e�,C',� , 19 .r.'6 . FRANK AND 'DELORES:A' . . . . . DAKES.-Variance to the Zones'",'i# ing.Ordinance,Article III,�Sec-`.` tion I00-32. for permission ao replace accessory:'shed,in,-the.,'; north sideyard area a4'22851?itie ; !/ � Tkee Road;,qutchogue;NY;.Lot;;' . • • . . . . . . No. 15, Map`of.Nassau'Farms Notary Public filed lvlarch'28 .1935; County,,;.:.I'1 .,',�810'p.m.i'Appeal No. 3557= Mix Map ..' Parcel'; No "- ';..:ROBERT'G. EGAN._.Variance 1000-104-3-2. ;, :; ;',,: ;,;.';;.,'','' :..,:to�imendRCon' n tti°onaT•Approval BARBARA FORBES 7:45 p.m. Appeal No:;3578='•`',q:>r •'•Rendered li/3/86 under•AppeWl Notary Public, State of New York ARTHUR ESSLINGER. ' '�,;.:.No.3557toallowreconstruction .:_ No. 48068-16 Variance to the Zonis ®e='`.` ..:a, ;of.dwelling with insufficient set- '+ Qualified in Suffolk County g' Commission Expires dinance, Article YI,=_Section ^',;,;+backs upon foundation as exists P s 3 i 19 F'�- 100-119.2 for permission -to .`;�;. at 5,and.12 feet, rather than 7 locate, accessory storage;shed;;•.°i' . and 12 feet,at 330,Knoll Crircle,' within 75 feet of,"existing East Marion;°NY;,,'Map'of Sec bulkhead and wetlands area at r�,,rY-' ton TWv 'Gardiners Bay Estates;' '. ' 1515 Arshamomaque Avenue;:'`,:- Subdivision Lots 27 and part of Southold,NY,Lot No.21,Map ,:;,28;:'County 7hx Map District, . of Beixedon Estates;Counfy 7tuc y;a" 1QQO,Section 37,Block 5,Lot12 Map Parcel No: 1000.46-3-11:; ;V';ia; 8:16,p.m.;Appeal No: 3352-.' 7:50 p.m. Appeal No. 3579- ^`s ,:-i• JOHN:SENKO:,Variance for CHARLES AND SANDRA II` , shopping center use in this B-1 I Vananee ffor Approval:,,,,! General.;Business-,,Zone.; with 67 Access pursuant to New York!": r,,.30;084aq ft.of lot•area(recess Town Law, Section 280-a from -ed,from 11/20/86).,.,:. . the east side of South.Harbor '.; "the Board'of;tlppeals°`will :.' at 'said time;and place all., Lane 'along.OldWoocls` Path;.;' (Private,.Road`rNo:...10), t °':":�•`,': 1`3ons or representatives desir= premises known'and referred to �ng,to'be heard hi each of the:;.; as 695' Old' Woods~Patfi; .;, ,,, bovd,hearings. Written,com- y :_ Southold,NY;County':TMap; (:4•F,;.?!�cnts•may.also•;be,submitted' Parcel No. 1000-87-1-Z3.7. Poor to'the conclusion 'of the 7:55 p,m. Appeal'No..3580-is subaect hearing.FoA mote infor-` NICHOLAS; BABALIS r nlaQnon; please call 765 1809.' Vanance,to- the LgmngOr,z,.y�1,�_,? Dated-,Nove'mber`20,`i986 BY ORDER OF-,THE ,; dinance, Article,':,III,,,Section`.i< �„ r 100-31 for permission'to;con- ,a^.,i h:c.ir': : ` SOUTIIOLD.TOWN, , struct new dwelling with insuf-,-,�_. t;:,;i::- BOARD ®F APPEAIC.,';. F . GERARD P. GOEHRINGER'..: .. ficient northerly side yard and insufficient..total`sid rds CHAIRMAN;'• 7` ' Linda Kowalski, 3360 Rocky Point Road, Eas -'' ,i; a ': :: tt°: , Board Secretary IM arion,:.NY;'Count Tax'.Ni ": 1T 12/4/86(49) Parcel No: 1000-21-04-09.' 8:00 P.M. Appeal No. 3572.=. MICHAEL AND' JOYC�I; . T.'1ATI-ES. Special,,Exception- Bed and Breakfast. (recessed, Bed 11/20/86) I NOTICE OF HEARING: ' •; NOTICE' .' 1S'•• HERE]' GIVEN;pursuant to Section e of the Town Law and'the Code o+ the Town of Southold,the follow- ing public hearings-will be held . by' the SOUTHOLD TOWN STATE OF NEW YORK ) BOARD OF APPEALS at the,•, Soul hald Town.Hall,Main.Road, •t 1 SS: t''Soul1►oTd;NY al a Regtifar 1GCeetr:` COUNTY OF SUFFOLK 1 ing on Dec;11, 1986,'commenc-. -.ing at the following times: Carol Sgarlata ✓'•;7:35 p.m. Appeal No. 3216- of Greenport, in EUGENE DAVISON. Vari- said County, being duly sworn, says that he/she is 'ance to the Zoning Ordinance, Article III,Section 100-30(A)[11 Principal Clerk of THE SUFFOLK TIMES, a Weekly for permission'to establish sec- Newspaper, published at Green port, in the Town and dwelling.unit upon 9.8± p acre parcel over existing horse of Southold, County of Suffolk and State of New stable. Location of Propertyi York, and that the Notice of which the annexed is South .Side of'Sound Avenue. Mattituck,.NY; Lot A, Minor a printed copy, has been regularly published in Subdivision*--"., Strawberry. one Fi6id,;.,.whieh; received-Sketch said Newspaper Once each week for Plan.approval July_8,.1985.,by. weeks successively, commencing on the 4 they Town . Planning- Board;, County.Tax.Map .Parcel •No:� day Of Doc 1000-121-3-6'(containing,12.6+.' acres). i 7:40'p.m: Appeal No. 3577•-y". FRANK AND : DELORES. . ` DAVIES. Variance to the Zon-'ff �' <<'' .=G [<_'� ing Ordinance, Article III;Sec`' tion 100-32 for permission to re-; Princ pal Clerk place accessory shed in the north r++ ,''•8:10 p.m.:'Appeal No. 3557 aide and area at 2285 Pine Tree' ROBERT P. EGAN. Variance y to amend Conditional Approval befo a this Road, Cutchogue, NY; Lot #15;-. .,;Rendered 11/3/86 under Appeal Map of Nassau Farms tiled Nu•:1;')v rto allow reconstruction. 1 March 28, 1935;.County' Tau„�. of dwelling with insufficient set- MARY K.DEGNAN Map Parcel No.1000-104-3-2. backw upon fixundation as exists 7:45 p.m. Appeal No.: 3578 NOTARY PUBLIC,State of New York at 5 and 12 feet, rather than 7 'I-�Suffolk County No.4849860 ARTHUR ESSLINGER.,Vari-'.I•.; T and 12 feeet,at 330 Knoll Circle, erm Expires February"19�� ance,to the'Zoning Ordinance,' c,• .East Marion, NY; "Map of Sec Y Article XI;Section 1Q0-119.2 for. :+: (>',�"lion.Two; Cardinara Bay Es- � permission to locate accessory` I r.'.tales," Subdivision Lots 27 and storage.shed•within 75 feet of J existing bulkhead and wetlands pa rt of 28;County Tux Map Dis- areil at t;1b16 `Atahamomaque 'trict 1000, Section 37, Block 5; . Lot 12. Avenue,Southold,NY;Lot#21,• 8:lr+ p.m. Appeal No. :3552 Map of Beixedon Estates;, JOHN SENKQ. Variance for County Tax Map,Parcel No, shopping center use in this B-1. • /' 1000-66-3-11. General Business 'Lane with 7:60 p.m. Appeal No: 3b79 — 3oo,f sq,ft:of lot area I reccssedi CHARLES-.''.AND.: SANDRA � from 11/20/8fi). BLAKE:Variance for Approval The Board of Appeals will •� 'of Access pursuant to New York hear at said time and place all ' '1'owd;Law, Section 280-a from persons or representatives desir= a the east'side-of South'Harboring to be heard in each of the '' I Lane along Old Woods Path(Pri- above hearings..Written com- vate Road #10), to--premises-- ments may also he submitted known-.and rreferred.to.as 695 prior to the.conclusion of the Old Woods Path,,S.outhold;NY;',-, subject hearing.Fyr more infor- 6unty',Tax';Map,,.Parcel -No: rnation,please call 765-1809. 1000-87-1-23.7:', Dated:November 20,1986.' 7:55 p.m.,.Appeal-No: 3580 = BY ORDER OF / NICHOLAS,:BABAL1S.`Vari:' THE SOUTHOLD'-,;: ance:to,;the.,Gonina Ordinance;,.. TOWN BOARD- '; Article:,111,'.s ction'100-31•fora OF APPEALS permission,:.tci,­construct;,new,... GERARD P,GUEHRINGER, (. " dwelling with insufficient north-,"' CHAIRMAN' i''erly sjdu"•yard and-insufficient.'- ! =(Linda Kowals~ti,, total i sideyaMs:at 3360- Rocky Board of Secretary , Point•Road, East.'Marion,.-NY,,' , 1TD , i4-5446 r County. Tax".Map;Parcel• No: �n� _ ar Tom' °1000-21-04-09. M 8:00'p.m:`.Appeal No. 3672'— '•-MICHAEL";•.AND JOYCE ` MA'1TES: .;Special Exception•' __. Bod:'•and :Breakfast (recessed = from 11/20/86). . . i,, cOG o ® thou ® Dais MAIN ROAD - STATE ROAD 25 SOUTHOLD, L.I.. N.Y. 11971 TELEPHONE (516) 765-1809 APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. ROBERT J. DOUGLASS JOSEPH H. SAWICKI TO WHOM IT MAY CONCERN : Enclosed herewith as confirmation of the time and date of the public hearing concerning your recent application is a copy of the Legal , Notice as published in the L . I . Traveler- Watchman , Inc . and Suffolk Weekly Times , Inc . Someone should appear in your behalf during the public hearing in the event the're are questions from board members or persons in the audience . Please be assured that your public hearing will not start before the time allotted in the Legal Notice . If you have any questions , please feel free to call our office , 765-1809 . Yours very tr 1 G RARD P . GOE RINGER CHAIRMAN Linda Kowalski Secretary and Board Clerk Enclosure i Town Hall, 53095 Main Road D,y P.O. Box 728 Southold, New York 11971 JUDITH T.TERRY TELEPHONE TOWN CLERK (516)765-1801 REGISTRAR OF VITAL STATISTICS OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD October 29, 1986 TO: Southold Town Zoning Board of Appeals FROM: Judith T. Terry, Southold Town Clerk Transmitted herewith is Zoning Appeal No. 3572 , application of Michael 6 Joyce . Mattes for a Special Exception. Also included is notification to adjacent property owners; Short Environmental Assessment Form; Certificate of Occupancy for Non-conforming Premises; and survey of property. • Judith T.Terry Southold Town Clerk Page 4 - Notice of Hearings (Notification List ) Southold Town Board of Appeals Regular Meeting - November 20 , 1986 Copies to the following 11 /6/86 : Mr . and Mrs . Joseph Best , Camp Mineola Road , Box 609 , Mattituck , NY 11952 Mr . and Mrs . Stamatio Rapanakis , North Bayview Road , Southold , NY 11971 Mr . Dennis Ketcham , Manager , Boatmen ' s Harbor Marina , 3350 West Creek Ave . , Cutchogue , NY 11935 Mr . and Mrs . Michael Mattes , 50 Luthers Road , Mattituck , NY 11952 (P . O . Box 831 ) Frank A. Field Realty , Inc . , Box 631 , Greenport , NY 11944 Mr . and Mrs . Paul Henry , 236 North Road , Box S , Greenport , NY 11944 Charles R. Cuddy , Esq . , Attorney for Mrs . B . D . Schriever Esseks , Hefter , Cuddy & Angel , Box 279 , Riverhead , NY 11901 Stephen R. Angel , Esq . , Attorney for Mr.. J . Senko Esseks , Hefter , Cuddy & Angel_ , Box 279 ; Riverhead , NY 11901 Dr . and .Mrs . John Loreto , Box 41 , Cutchogue , NY 11935 Rudolph H . Bruer , Esq . , Attn : Mrs . P . C. Moore , "Attorney for A. Stillo ..Main Road , Southold , NY. 11971 Rudolph H. Bruer , Esq . , Attn : Mrs . P . C . Moore , Attorney for Sanders and Schwartz , Main Road , Southold , NY 11971 . Town Clerk Bulletin Board Z . B . A. Office Bulletin Board Building Department Z . B .A. Individual Files Z . B . A. Board Members . Personal Delivery - Suffolk Times and L . I . Traveler-Watchman !rJ CL to F LL C r V� vI C Z ? G z 6 4 �. 06-17. two-family dwelling use on•a reinstate in full the 1969 Vari- Legal-Notices 7:45 p;m. Appeal No. 3568 - parcel of to , containing less ance conditionally approved proval of insufficient lot area, and depth of three parcels rAMATIOS AND . ALENI than 160,01 ft. in area,270 under Appeal No. 1L60, permit- in this d depth of th r e parcels APANAKIS. Special Excep- ft. lot vial 10,ft. lot depth, - ting the use of a 5,600 sq. ft. sion,and(2)to New York Town, tion to the Zoning Ordinance;to and with insufficient frontyard, existing building for storage and Law,Section 280-a for approval- NOTICE OF HEARINGS establish one accessory apart- sideyard,and rearyard setbacks, repair of contractor's machinery of access over private-right-of- NOTICE . IS. HEREBY ment in. the existing dwelling Location of Property: 320,Lin- and equipment. Location of way extending from the north GIVEN,pursuant to Section 267, structure in accordance with the nett Street,Greenport,NY;Map Property: West Side of Tabor side of Main Road to the preen. of the Town Law and the Code of requirements of-Article 1II,Sec- of Greenport Driving Park Road, Orient, NY; County Tax ices in question. Location of the Town of Southold,the follow- tion 100-30(B) subsectign [151. #369,Lots#71 and#72;County Map District 1000, Section 18, Property: At the north end of ing public hearings will-be held Location of Property:2030.Bois-d Tax Map District 1000, Section Block 05,Lot 12."B-Light"Busi- private right-of-way (along by the SOUTHOLD TOWN: seau Avenue, Southold, NY; 48,Block_ 2,Lot 36.1. nessZoning District. lands of B. Brokaw),North Side .BOARD OF APPEALS at the ` County Tax Map istrict 1000, Southold Town Hall,Main-Road, Section 55,Block 6 of 40. 8:05 p.m.Appeal No.3566-SE. 8:20 m. A I' of Main Road, Orient, NY; jj1��� p- Appeal No 3552 -: ' Southold,NY at a Regular Meet 7:50 p.m. Al.ea•iIo. 3569 FRANK FIELD REALTY JOHN SENKO. Reconvene County Tax Map District 1000,- STATE OF NEW PORK ) -BOATMEN'S HARBOR MA-. INC. Special Exception to the hearing concernin Variance for _ Section 14, Block`l,Lot 26,con- ing commencing at 7:30 p.m. on g tainin 3:2 acres total.THURSDAY; -NOVEMBERR RINA. Variance to,t+he Zoning Zoning Ordinance, Article III; shopping center use in•this B-1 g ) SS: 20,1986 and as follows: Ordinance, Article•XI, Section Section 100-30(B)for permission _ General Business Zoning Dis- 9:05 p.m. Appeal No. 3519 - 100-119.2 for permission to con- to establish-two-family use at trict containing STEVEN SANDERS& ANO. COUNTY OF SUFFOLK ) 7:35 p.m. Appeal No. 3573 - P g 30,084 sq;ft. in Variance to the Zoning MARGARET AND JOSEPH -struct addition to existing dwell-` Premises referred to as 320 Lin lot area. Location.of Property: g Ordi- BEST. Variance to the Zoninging with.an insufficient setback nett Street ->Greeniport, NY; Intersection of A of Pr 'Pond nance, Article III, Section 100- Ma of Green ort Drivin Park 31 for approval of insufficient lot Carol Sgarlata Of Greenport, In Ordinance, Article III, Section from existing bulkhead. Loca- P P g Lane. and.North Side of Main ! p tion of Pro ert #369,'Lots#71 and#72;Count area, width and setbacks in this 100-32 for permission to locate P Y 3350. West Y Road, Southold; County Tax en Seld County, being duly sworn,says that he/she is accessoryCreek.Avenue, Cutchogue, NY; Tax Map.District 1000 Section - Map:District 1000,''Section "70, P ding.set-off division of land. garage- structure in County Tax Map District 1000, 48,Block 2 Lot36.L Block'7,Lot 1. Location of Property: Private Principal Clerk of THE SUFFOLK TIMES a Weekly the frontyard area at-premises' . p y located on the south side of a ri- Section 110,Block 01,Lot 12. ." 8:10 p.m•.Appeal No.3570-SE ! Right-of--way located off-the P -•PAUL HEN$Y.:Special Ex- 8:40 p.m. Appeal No. 3574'- north side of Bay View Avenue, - Newspaper, published at Greenport, in the Town vate right=of--way extending off 7:55 p.m. Appeal No. 3572 ception to tihe Zoning Ordinance,- DR.: J,OHN LORETO.:Vari- Mattituck,NY;County Tax Map. Of Southold, County Of Suffolk and State of New the east side of Camp Mineola` MICHAEL AND - JOYCE. Article III,Section 100-30(B)[161 ance to-the Zoning Ordinance, District 1000 Section 106,'Block Road, Mattituck, NY; County :`MATTES. Special Exception to for permission to-establish"Bed Article I1I,Sections 100-30 and 06,Lot 36. York, and that the Notice Of which the annexed is Tax Map Parcel No. 1000-123-: . ' the Zoning Ordinance, Article and;Breakfast Use,'"an owner- 100-32,-and Article XI, Section - The Board.of Appeals .will 06-17. III -Section •100-30-(B)t161 for occupied-budding, other than a 100-119.2,for permission to con- --,.-hear-hear at said time and place all a printed copy, has been regularly published in 7:40 m. Appeal No. 3571_- - - one P• PP permission to establish"Bed and hotel,where lodging,and break- struct storage building with an persons or representatives desir- said Newspaper once each week for MARGARET AND JOSEPH Breakfast Use,""an owner-ocuc- fast is provided=`for' not more insufficient setback from bluff ing to"be heard in each of the BEST."Variance to tlfLy---Zoning pied building,other than a hotel than six casual;transient room along Long Island Sound for above hearings. Written tom- WeekB 8UCC6SSIVeIy, commencing On the 13 Ordinance, .Article XI,sio Section where lodging and,breakfast is ers,and renting of not more than storage-purposes accessory and ments``may also be submitted day of November 100-119:2 for permission to con provided for not more than six three rooms." Location'of Prop- incidental"to the existing dwell- prior to the conclusion of the struct addition at the,southerly casual, transient roomers, and erty: 236.(68555 C.R.48) North !ng adjacent to these premises. subject hearing. For more infor= side of existing dwelling with in- renting.of not more than three-: Road, •at intersection with , Location of Properties: Lots #3 mation,please ca11765-1809. sufficient setback from the-bulk- rooms. Location of Property:50 ,, McCann Lane,;Greenport, NY; and #2,. Map of Vista Bluff' Dated:November 3,1986. . head along tidal water area and . Luthers Road, Mattituck, NY; County Tax'Map District.1000, #5060; North Side of;Glen -BY ORDER OF insufficient setback from the -County Tax Map District 1000,, Section 033,Block 05,Lot 13.1. Court, Cutchogue, NY; County, - THE SOUTHOLD.TOWN rear property line at premises lo- Section 1-13,Block 03,Lot 7. 8:15 p.m. Appeal No. 3576 - Tax'Map District 1006, Section BOARD OF APPEALS Inc! a Clerk cated on the south side of a pre 8:00 p.m. Appeal No. 3565- BARBARA D. SCHRIEVER. 83,Block 1,Lots 9 and 8. GERARD P.G�DEHRINGER, vate right-of-way-extending off FRANK ' FIELD REALTY Application to withdraw Vari- 8:55 m. A ) CHAIRMAN the east side of Camp Mineola INC.Variance to the Zoning Or- ance conditionally `a P•. Appeal No. 356`L - Linda Kowalski, Sworn to before a this Road Mattituck, NY,"Count 'approved ANA G. STILLO. Variances: k , � e ' •. Y, _ dinance,Article III,.Section:100_ _-.under Appeal-No."3393 on Sep_ w_-(-U-to-the-Zoning=0rdinance,-Ar--.-_. f Board Secretary day of �� 19 [V[ARY K.DEGNAN ax'1VIap Parcel No. 10�0-�213 .31, for permission_to establish tember 26, 1985, and to title III,,Section-100-31,for _ �TNf3=5412^"`-`u- I p I NOTARY PUBLIC,State of New York " Suffolk County 4849�8t6 � Expires ru a BOARD OF APPEALS, TOWN OF SOUTHOLD In the Matter or the Petition of rwcH -7(__41LID M6Ycf MqTTes NOTICE TO to the Board of Appeals of the Town of Southold ADJACENT TO: PROPERTY OWNER CID p, BRANc) FORTE /tIiUD MARGoT PURSLEY YOU ARE HEREBY GIVEN NOTICE: 1. That it is the intention of the undersigned to petition the Board of Appeals of the Town of outhold to request a (Variance) (Special Exception (Special Permit) (Other) [circle choice] 2. That the property which is the subject of the Petition is located adjacent to your property and is des- cribed as follows: Sb LUTHFgs 66AD 3. That the property which is the subject of such Petition is located in the following zoning district: RF_51 DEN 1119L 4. That by such Petition, the undersigned will request the following relief: BED I%V D R EAtE A S 5. That the provisions of the Southold Town Zoning Code applicable to the relief sought by the under- signed are Article TD: Section_ /Dta 3O f3/Gs [ ] Section 280-A, New York Town Law for approval of access over right(s)-of-way. 6. That within five days from the date hereof, a written Petition requesting the relief specified above will be filed in the Southold Town Clerk's Office at Main Road Southold, New York and you may then and there examine the same during regular office hours. (516) 7d5-1809. 7. That before the relief sought may be granted, a public hearing must be held on the matter by the Board of Appeals; that a notice of such hearing must be published at least five days prior to the-date of such .hearing in the Suffolk Times and in the Long Island Traveler-Mattituck Watchman, newspapers published in the Town of Southold and designated for the publication of such notices; that you or your representative have the right to appear and be heard at such hearing. Dated:OC aq , q Petitioner Owners ' Names iA L 4- TO VC_C Post Office Address a Pox R % •._,.�•` .:.,.�.✓S�..��'� •/:lip,...e..ti::l► P 28,1y3], 503 RECEIPT FOR CERTIFIED MAIL NO INSURANCE COVERAGE PROVIDED NOT FOR INTERNATIONAL MAIL(See Reverse) PROOF OF MAILING OF NOTICE � n $K Sent to CYD D. �+IUcIFoP.T E �+ 'ITTACH CERTIFIED MAIL RECEIPTS CID rn ADDRESS Street and No. 4 Star C i-cS , r P O..State and ZIP Code ErPATCNOGUC NA(, If 77,_�— Postage g Certified Fee Special Delivery Fee Restricted Delivery Fee Return Receipt showing to whom and Date Delivered rn co Rel ^;nt showing to whom. ICKWig�_�(d PJ�'/1 r of Delivery Mf' OT., os(u e and-�ees S a V� STATE OF NEW YORK ) COUNTY OF SUFFOLK ) ss.: nYC F MITTES residing at Sb LU THE R S FORT) WRTTI TOUKj NEW NOR . being duly sworn, deposes and says that on the 2_ day Of f , , 19 3(p deponent mailed a true copy of the Notice set forth on the re- verse side hereof, directed to each of the above-named persons at the addresses set opposite their respective names;that the addresses set opposite the names of said persons are the addresses of said persons as`shown on the current assessment roll of the Town of Southold; that said Notices were mailed at the United States Post Of- fice at JbHTTI TO C N(EI,U Y 0 Pk ; that said Notices were mailed to each of said persons by (certified) (registered) mail. Sworn to before me this day of 42A 9 Notary Public STANLEY A CIERACH JR. NOTARY PUBLIC State of New York No.52.452IR6 Suffolk County 6otnmission Expires Feb.28,19.Jer (This side does not have' to be completed on form transmitted to adjoining property owners.. ) BOARD OF APPEALS, TOWN OF SOUTHOLD In the Matter of the Petition of R11romEt- Alub XQYCE mA7TFS NOTICE TO to the Board of Appeals of the Town of Southold ADJACENT TO: PROPERTY OWNER HENRY AWD MARI TE'AI/ f-fRAN YOU ARE HEREBY GIVEN NOTICE: 1. That it is the intention of the undersigned to petition the Board of Appeals of th.. Town of Southold to request a (Variance) (Special xcep tion (Special Permit) (Oth!gr) [circle chdice] 1. 2. That the property which is the subject of the Petition is located adjacent to your property and is des- cribed as follows: 50 LVT148(R S 90)D 3. That the property which is the subject of such Petition is located in the following zoning district: EMI I)F7&1 T I AL 4. That by such Petition, the undersigned will request the following relief: 5. That the provisions of the Southold Town Zoning Code applicable to the relief sought by the under- signed are Article Tf�, Section j n 3 O R( 6 [ ] Section 280-A, New York Town Law for approval of access over right(s)-of-way. 6. That within five days from the date hereof,a written Petition requesting the relief specified above will be filed in the Southold Town Clerk's Office at Main Road Southold, New York and you may then and there examine the same during regular office hours. (516) 7�5-1809. 7. That before the relief sought may be granted, a public hearing must be held on the matter by the Board of Appeals; that a notice of such hearing must be published at least five days prior to the date of such hearing in the Suffolk Times and in the Long Island Traveler-Mattituck Watchman, newspapers published in the Town-of Southold and designated for the publication of such notices;that you or your representative have`the right to appear and be heard at such hearing. Dated: Oct 2 q )3.2r& Petitioner Owners ' Names :/L/iCy��L Post Office Address D ,3o x a3/ /'W7-7i7-0c/C tit/ //957z- .(Tel —c2 Jc8- L1 7SY ) ` f: i Y�• ia�La :.. i' 281 531 504 RECEIPT FOR CERTIFIED MA.-_, NO INSURANCE COVERAGE PROVIDED NOT FOR INTERNATIONAL MAIL (See Reverse) PROOF OF MAILING OF NOTICE Sent to NEI�1�1� F11�P rn�Ry�"ERrU(f 1911/ ACH CERTIFIED MAIL RECEIPTS ADDRESS `t Street and No O P O, State and ZIP Code LUAD p1L�2 � 17 2— Postage J Certified Fee I Special Delivery Fee Restricted Delivery Fee Return Receipt shows- to whom an !Deuvr lA Retu ��� ; .i CO rn �v�„n rn Date u, .'s&11]e' c TC i �gItN I S(q, 3 7 df P�,t a k� 00 EILL o a --�— —z---�—---— STATE OF NEW YORK ) COUNTY OF SUFFOLK ) ss.: ,F6VC E 0Q8TTFc--, residing at D 1-uTH EIS nor D W A TT.1 TU c j; I NEW OR K , being duly sworn, deposes and says that on the �_ day of f , , 19 IV-P , deponent mailed a true copy of the Notice set forth on the re- verse side hereof, directed to each of the above-named persons at the addresses set opposite their respective names;that the addresses set opposite the names of said persons are the addresses of said persons as shown on the current assessment roll of the Town of Southold; that said Notices were mailed at the United States Post Of- fice at TUC K IAA y0 P �_; that said Notices were mailed to each of said persons by (certified) (registered) mail Sworn to before me this day off°-- 19 _ Notary Public w RYPEY CStofeNOTA UBLI hW York COmtniwon Expl esSFeb!2 ,County (This side does not have' to be completed on form transmitted to adjoining property .owners . ) The 161. Y . S . :ny iron In CH to I (qua I i ty 1(r:v i r >, AC t requ i r(!.. sub- "' mission of th forms and iln en be review vri 11 'br. .... : made by this b and before any action is ken . _.,.ar••,e ^ SFrC`RT VIVIRQh^dF.11T.4r, AS:;T';.`;!dE!I j Yr:P'J ,�ttir`,�1 'I•'71• �;• .` ,, ;:,,'.1 ,!'. '. '. r.' .•. •• .'i �I.•{.F1:t•}t• VJ. VA. .1MIqCT7M •�,�'7i.3;`.i' �' .1, i,1{•�°i r.. • ., ,• i'i•,. �'. . '�1.,I.:tj,�,::''ii 1\+t:�r�•�.. (a) In order to answer the questions'•'in this short EAF 13 is•.assur.ed that' the preparer will use currently available infor--itIon concerning the project and _he %j '•�' p It is not expected ,2 ,' ?':.�ely ispacts of the action. xp that nddltlor;a '+`' � or ether investigations w 1 studio. , roeoareh, :. ill be undoreakonr ',,.,. •,. ..;,,, ,::;i'' ,!' ,1i r,...�. r`,..:r:•i,4}�,'� ��. I;.• ,;, •,.: �,., ... .}•'•. .. ,�•.. i;..iy"' jf'a: ;L;._ ,Lf,�,; �i{i.; ;. (b) If any q j a g i ucstion has been answered Yes the P n ica =.y ;'r','f+,• � 1'•''r 'se....pleted Envircetmontal Assesarunt Form is project racy be i f nt and a ' ••,•�r�••r ••�'��,j f't•j.• ..i ,,_ 'a .I.'i't'•r ':• :.i.. •, . . • . � i,i• ,i..:.,���..:1;.;a- J:i. ?q boen answered Ito i� .,•; `�`.•(c? 'If•all •uastions have ,• is likoly.thnt thin ro '9,��. 'ri;r: :;.<•�:`:1 •;;;�i4.nc significant. P j :1• � .i�i �i•j��Yh�i�'4•,�'i :r•rl.� .�. ,i'�•. .... • 'i' :.: i' � ;.f� �•�:±��� '1•!!'Si (d) Envirormental Asaessment cl fit•. .I��ri•v �;:: 4.. �. ,r•• '..�: ./.° : ,'�'. .J'. .�•;:41• :.\�i�,.A! "Ittl.1..e:1 .pt;t:•;,1;'•. ,'�.. j.' '�, is �, .•:; •., '�;, ,• .:;� .+.' '?:;;; 1• Will project result i n large, i� 4'i,.:l•i.:+ :i:,�.':St` A:'i,, P j n 1 ge phys al chanvo :••:f : ;: :a':, • to the project -sito or physically alter more :,!.!,: .,�:;`• ' .r',....r.rf{ ti ''•YJ3='i '• .1'. than 10 acres of land? • •t '.r)• '•r:i!•.,rP.l, .r•' • • • • • • e o • o e ••r+ Yo:) Ito `'•,s�;� , ,, ::;,; ';•�� 2. Will there be a. •,,..,.=,0 1'. . ;:�;ri rr r. jor change to any unique or ;:' •!.'j,;; 5:. ' unusual land forma found on tho site? C:r.••., {,' . o • . . Pro 30 WU1 project alter' or have a larEo effect on ; :1;;:'..r`°,i ,•r.; 3t' an oxlsting body Of water? • • • • • o o a 0 4 Yes Ito •i i!�'j{•''!1•i,. ,'•`• 4• Will project hiavc a potentially O lam $.1Ta acY, O ✓' '"•7''! ' ,,•i4,j :.4�.;:;';�;;• . . ', groundwater quality? • • . a F n • e . e _ Yon V Imo �'u�t+% ,':4., •, �. Will project significnntl'y •effect drainago flow.! ` :`.'.�;t�1•.:};�• i on adjacent sites9 a r o • • • • • • • o o YUs ✓ so b. Will project affect any threatened or endangered plant or animal species? • • . o • a o e 9 !S .. • • o Ye 9 _ 7• 'dill project result in a rra n ✓ ra '.l a., • P j jor dverse effect on air quality' . . . . . . . . . � Yt:9 , Will project have a trs jor effect on visual char- actor of the co.,t .unity .or ocenic vieviii or vistas ;�. known to bo important to'the or,_ .,• .. i'. ;"' . • P c ^unity? . • Ycs • :. 9• Will project adversely impact any site or atruct- • cro of historic, pro—historic o aloe to o� ' 'I �L P r p n 1 ,�icial : Importance or any site dosij rnatod ao a critical +' ' environmental area by a local agoncy? . . yos trot ' 10• Will project have a major effoct on oxioting'-or future recreational opportunitioa? r Yes 11. Will project result in'ma jor traffic probler-1s or a caurre a major effect to existing tran:;portaticn 3y3Lefr9? o • • r • r s e o o It Yes . NO 12. WS11 project regularly cause ob•icctionablo odor-_., noise, glare, vibration, or electrical dioturh••- ance an a result of the pro jecL13 operation? . Yen ;to 1). Will project have an,/ impact on public health or Yes No'. ]L. Wi!l project Affect the existing COrviunity by dlrr.ctly causing a 91'cwth in Ycrmnnent poptila— t1cn of r.•oro than 5 percent over a on(.youar period r.r have a :`.a for n^r,:itave effect an c:'.e charactt!" of the cOM"Una^y :r r,aa;ntort:ocd' . . Yeo too 15. I , there'"puc ce „r:v rsy nc .n thk: Vro •c^• '' _ Ye9 'do �_ T: 1' FV36(W7)6twulard NNID.T.U.Form OW Etorgain and Salo EDoad,with Covenant against Grantees Acts-Individual or corporation - p CONSULT YOUR LAWYER BEFORE SIGNING THIS INSTRUMENT—'PHIS INSTRUMENT SHOULD BE USED BY LAWYERS ONLY. THIS INDENTURE, made the ® day of November, nineteerrhundred and sere t =� n y eight, LIBEM 8550 rAGE 17 BETWEEN EDGAR MARVIN and ARLENE MARVIN, his wife, both residing at Horton' s Lane (no street number) , Southold, NewQY® 11971, ist, )00 DISTRICT SECTIONLij L.-A—i ,q BLOCK /31177�1 rT1 CE12 , Z L3 .. party of the first part, and MICHAEL F. MATTES and JOYCE A. MATTES, his wife, lock both residing at White Spruce Drive (no street number) , Wading River, New York 11792, ot /o 7 � party of the second part, VVITNESSETH, that the party of the first part, in consideration of TEN AND 00/100--=----- ----------------------------($10. 00)------ ---------------- dollars, lawful money of the United States, and other good and valuable consideration paid by the party of the second part, does hereby grant and release unto the parry of the second part,the heirs, or successors and assigns for the party of the second part forever, ALL that certain plot,piece or parcel of land,with the buildings and improvements thereon erected,situate,lying and being�bx g at Mattituck, in the Town of, Southold, County of Suffolk and State of New York, bounded and described as follows : BEGINNING at the corner formed by the intersection of the northerly side of Mill Road with the easterly side of Luther' s Road and from said point of beginning; RUNNING THENCE along the easterly side of Luther' s Road, North 5 degrees 37 minutes West, 267. 20 feet; ti THENCE South 86degrees 49 minutes 20 seconds East, 295. 00 feet; THENCE South 01 degrees 37 minutes 50 seconds West, 260. 00 feet to the northerly side of Mill Road; THENCE North 87 degrees 44 minutes 00 seconds West along the north- erly side of Mill Road, 261.20 feet to the corner at the point or place of BEGINNING. TOGETHER with a right of way over a 25 foot strip of land running from the southerly side of Mill Road to Mattituck Creek, more particularly bounded and described as follows : BEGINNING at the northwesterly corner of the parcel herein described `> distant the following three courses and distances from a monument situate at the intersection of the southerly line of Mill Road and the westerly side -of Jackson' s Landing; 1. North 88 degrees 02 minutes 20 seconds West, 41.20 feet; 2. South 69 degrees 04 minutes 40 seconds 'West, 3. 0 feet; 3. North 87 degrees 44 minutes West, 297. 0 feet; cal, THENCE from said point of beginning running along the southerly side of Mill Road South 87 degrees 44 minutes 00 seconds East, 25 feet to a point and lands now of Marvin; ARTHUR J. FELICE � r, 0 R OF D. DEC 14 1978 Cl,,rk of Suffolk Coui:ty. NA550 IS THENCE RUNNING South 3 degrees 39minutes East, 115.0 feet more or less to the ordinary high water mark of Mattituck Creek; THENCE in a westerly direction along the ordinary high water mark of Mattituck Creek, 25 feet more or less to lands now or formerly of Sullivan; THENCE along said last mentioned lands, North 3 degrees 39 minutes, West 117. 69 feet to the point or place of BEGINNING. TOGETHER with a right of ingress and egress in common with others, to and from Luthers Road over a 25 foot right of way the southerly line of which is the northerly line of the premises herein described, and which line runs the following course and distance, to wit: South 86 degrees 59 minutes 20 seconds Fast 295. 00 feet. 06EfeVG ANb c "T61JDCTD TO [56 PMLT of 11116 POWORTY YN6 QI-AM71565 Ins D66-T PPM5D 3 f 15j18 Rerrco(t"v If/1117T oAI L1560L $C11 Cp (f32- , 41vD D6 &.p A R6 TKIC-SA�b4C- rEt& SoMS AS rH6 GPLAPOToas ` ARTHUR J. FELICE r '- C O R DE D DEC 14 1978 Perk of Suffolk County I 1 f 0 { 1 February 10, 1978 Richard Cron, Esq. Main Road Cutchogue, New York 11935 Dear Mr. Cron: The Following action was taken by the Southold Town Planning Board at a regular meeting held January 30, 1978. RESOLVED to grant approval to the map of the subdivision of land of which Arlene Marvin is the contract vendee, located at j Mattituck, New York, subject to: a a 1. Provision being made to control erosion on the lots 'i facing Mill Road. 2. Covenants and restrictions being filed in the Suffolk County Clerk' s Office as to no further subdivision. Yours truly, Muriel Brush, Secretary Southold Town Planning Board J! NO ] •4,I_L ! '10 VA'cn2v I P-4 BAH C NC7 sTx 5Tice." - FaANE ser S. 8(0� I•l9 'TEA L 7-ICI 5.00• �_ Dolt.rNF 1 Z39.34 +.i r'�• aw r�aT I 7.9' 9 •f t,S'ra '� 3.8's• N 73-Y o 70 0 O GAZFf� N I a > • Q 0 �szT1Co r Z 3To Ica Y 1•� `r— F e A F1 E pwr_LLI►.JC� q¢ I r I Po¢cN ! W //j ------------J UTt yy 'o o• W Z6 i.20 ' LTA •'SGT w^ &ET ' ,v \ 1 1✓� C] 'c�'z�) �S 4.0'v'l 297 on' 7 •ti'`.�i %%AYr +yJ\ S BB'oz'2o;r Z ; ' 1 41.zo' Q e. h 1 --NihN vvATM u.J` �._._ .-T I L !_ N� _ _ :�•:cr r_r �aa-;rsz-s��r�r.[_r_va srr;�:tS?Y:SE9J'�a. r=rlA.Y.'T.'7 t,- ^f;"7: ^� �+J= "'!�.7�fac7=•:tY:l r •kris 'E:SIGNS• _I.Rirr5 r: :: ? -7�'j ''r� •� NO.-iiF T.'.'-4 f.• � L ----- - . f.•'' '� w t'•pF.;•r cn F'i�l''r'F. ' .E THE MICHAELL AND 3OYCE M14TTES S'p LUTHE R5 RORD MRTT1 TUCK , a 9 S- 11 7 87 r, J 90It144 NO. 4 TOWN OF SOUTHOLD BUILDING DEPARTMENT Town Clerk's Office Southold, N. Y. ' J � Certificate Of Occupancy No. 9306. . . . Date . . . . . . . . .Noveii1jer. .17.,. . . . 197.4 . THIS CERTIFIES that the building located at ¢rxRoad on Lot 1 of Edgar ne Marvin or Subdivision No. 149 $ XXXXXXXXXXX =XXXX: xxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . REQUIREMENTS FOR A NON-CONFORPIING TWO -FAMILY DWELL }wilt conforms substantially to the 7E3�p�} 1� +. 4t�g� �R :$t �u_�: h� Q. icA prior to CERTIFICATE OF OCCUPPIlrly q$d . . Syr . .' . . . . . . . . .. 19.a;. pursuant to which.'Si�UT1Q.47&YAlt No. dated . . November 17 , 1979. ., was issued, and conforms to all of the require- ments of.the applicable provisions of the law. The occupancy for which this certificate is issued is . . a rdoll:-COr� or:nillcJ 'I��c.:4 4linilir nw. L1_ I . . . . . . . . . . . . . . . . . . VIIFThe certificate is issued to . . ' aEDGAR M. . . . . .! C., t. . . . . . . . . . . . , (owner,`I�ssee'br'teriaiit) of the aforesaid building. Suffolk County Department of Health Approval `l'Tt;(� UNDERWRITERS CERTIFICATE No. . . . . . . . . . . . . ..,.... . .. . .!(. . . . . . . . . . . . . . . . . . . . HOUSE NUMBER . . . . . . '� . . . . . Street . . . . . . . . ... .. .. . . .1... . . '-. . . . .. . .. ..3. . . . . . . . Ne;w York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . �. . . . . . . . . . . . . . . . . . . . . . . Cc.)urty Tax Map No. 1000-113--3-part of Lot 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Building Inspector *This does not cover the dwelling sitting on the line of Lot No. 1 and Lot No. 2 which must be"removed. ..jd�w^"''F+a,4(•j4�� (�.rffr- $6.1u'""ir.fr ��'{'•.:�''':i�. .'t ;" i'1.••1 .)ti:•. • .` Y7, 1;.�;J:H iY,yf`' 'Jr' :�.' '•ri' ^'st "��) i; ci...:a - - tip,. .~` C. r:.��C /� - LIAdam" .. ::���N?3 .,� y. .5 ► . :: .. :� �� ..g� � Alt CD sp fwr--- � CLl:v�'1 n.1. 'y, �'4 .� �. •_•`'�.. 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LIBER 8404 MUM �. f C: 1978, by DECLARATION made this day of // EDGAR MARVIN and ARZENE MARVIN, residing at Hortons Lane, Southold, New York, hereinafter ,,called .the "Owners" ; WHEREAS, the Owners have title to certain lands situate, lying r and being 'at `NLattituck`, in the Town of Southold, County of Suffolk and State ' - f New York, said lands hereinafter being more particularly de- [� scribed; and WHEREAS, it `is the Owners''. intention that the aforesaid land be subdivided into a minor subdivision consisting of not more than four (4) residential lots ; NOW, THEREFORE, the following described lands shall be, re- stricted as hereinafter set forth: ALL that certain plot, piece or parcel of land, with"the buildings- and improvements thereon erected, situate, c: , • ' . , j and being at Mattituck, in the Town of Southold, County of • SuffoIIk and State of New York, bounded and described as follows : . 00 BEGINNING at the corner formed by the intersection of the northerly-side of Mill Road with the easterly side of -T Luther' s_ Road, and from said point of beginning; -� running thence along 'th,e•'eas`terly side of Luther' s Road, the ifollowing.; two (2) courses and distances : Ili l)' North 5 'degrees 37"minutes West' 267. 20 feet; . 2) North 24 degrees 07 minutes West 150. 0 feet to land of _. � Sledjeski;`. ; running thence along the southerlyand easterly side of land ; of` Sledjeski ' the` following two (2) courses and distance's : 1) South 72 degrees 17 minutes East 188 . 50 feet; , ' North''0•idegree's 28° minutes 30 seconds West 278. 0 feet; running thence South. 81 degrees 13 minutes 20 seconds East i RICHARD,J. CRON - COUNSELLOR AT LAW v CUTCHOGUE. NEW YORIC � ----I ; . '.. ... .._..�';.-r`r�,. �a _'.7,r.`�:.,r.,7•.-1,LIBER 40 4 PACE alon the southerly side of land of Sledjeski and land of g Bergen 345. 50 feet to land of Remuzzi; thence along the westerly side of land of Remuzzi, running and Lots 24, 25 and 26 as shown on and land of Gesswein, two "Map of Jackson' s,:7Landing" Map No. 5280, the following (2) courses and distances: seconds 1) South 2.. degrees.111 minutes 100 seconds East 190.0 32ffeet 2) South 8 degrees 05 minutes 4 to the northerly side of Mill northerly; side of Mill Road, the running thence along t st following two (2) courses and distances : 1 South 69 degrees 04 minutes 40 Se2ond20 feet 2to. the feet; 2) North 87 degrees 44 minutes West ` corner, the point or place of BEGINNING. DECLARANTS do hereby warrant, covenant and represent that on approval of the aforesaid described lands as a minor subdivision by the Town of Southold, no further application will be Planning Board of the made to that Board or:- to any other Board in the Town of Southold to ` subdivision. further subdivideof the lots set for in said minor divide any ,'.of further warrant, covenant and represent that DECLARANTS do hereby described lands within the minor subdivision cannot be the aforesaid d " ts and that each lot shall compri, subdivided into more than four (4) lo ' with one residence. an area of not less than 40, 000 square feet, rther warrant, covenant and represent that DECLARANTS do hereby fu •n restrictions and agreements shall bind the undersigned the foregoing ersonE their heirs, successors and assigns , and any and all person or p who shall succeed to the ownership of any of the lots shown on said -2- RIC14ARD J. CRON - C6UNs6LLOR AT LAW - CUTCHOGU5, NEW YORK _p_u�„_..+..-_—_-- •-• ----- - j' it Via•. •:_.._:, --.... ,; ,._ .... .. . . ., z . ,;.� - • LIBER 8 44 �� - , aforedescribed premises in said minor subdivision by transfer or otherwise. IN WITNESS WHEREOF, the Declarants have caused their hands and seals to be affixed this - � day of /1tG��-9 1978. Edgar Marvin Arlene Marvin STATE OF NEW YORK ss . . COUNTY OF SUFFOLK ersonall of �0 On- the day 1G� 1978, before me p d ARLENE Mp,RVIN, to me known and known to me to b= came EDGAR MARVIN an foregoing instrumer the individuals described in and who executed the ame. and acknowbdged to me that they execute hey ry Public Vj-public ithe state joilt �g un s 90� 861�0-s rfes 14ar.30, EW YORIC WCHARD J. CRON - COUNSELLOR AT LAW CUTCHOGUE, N Or Southold Town Planning Board Town Hall • Southold, New York 11971 Re: MARVIN minor subdivision Gentlemen: The following statements are offered for your consideration in the review of the above-mentioned minor subdivision and its referral to the Suffolk County Planning Commission: (1) No grading, other than foundation excavation for a residential building is. proposed. (2) No new roads are proposed and no changes will be made in the grades of the existing roads. (3) No new drainage structures or alteration of existing structures are proposed. Yours truly, Arlene Marvin � -- E gat Marvin `�rE.tm,s ^^"• I. 96dY ..-.._-VR'�'—"".^'R�y�.4 .G�Tj�-:.:J�aX�•GNaup � + low i i14 a 0 ,. . February 10, 1978 • Richard Crori,. Esq. t ,<" , , Main Ciatchogixe;` New, York' 11935.' Dear, Nix•': ,,Cron. ;r.:'a, ''. : Thy .foll®wing `�iction was taken by the Southold Town Planning Board at" �6::-re gular,-m6 et ing held •January 30, ,1978. RESOLVED to grant approval.,'to the map of the subdivision of land of 'which Arlene Marvin.:is :the, :contract vendee, located at Mattituck,, New York, subject: 1'.,.-Provision being made ' to control erosion on the lots ,facing;'Mill• Road. 2:"' `''Covenants'. and restricti®'ras ; being filed in ,the Suffolk County _Clerk''s Office as .to no further subdivision. Yours truly, Mur3e1':brush,. Secretary Southold fiovm .I?l'anning'. board 1 y 7ir I V ,,t I '•1 I •.1 �y}��°.,UF{h 1' al ,�. r e: .1 + F ^ �r'r tt - r , 1 , r t N F SUPREME COURT—STATE OF NEW YORK 7( SPEC1 tERM,PART I SUFFOLK COUNT Present: ' lionL STFR . . GFRART) MOTION DATE April 20th �g87 Justice . I MD J fLTF'S/PET'S ATTY: ' In the Matter of the- Application'of ' . CYD .BRANCIFORTE., For a Judgment Pursuant to Article 78 of the Civil Practice Law :and Rules, See Memorandum Decision, Petitioner, against- DEFT'VRESP'S ATTY: SOUTHOLD -TOWN ,BOARD OF APPEALS, GERARD ' P. GOEHRINGER, -CHAIRMAN, CHARLES GRIGONIS, JR. , SERGE DOYEN, JR. , ROBERT J. DOUGLASS and JOSEPH H. -SAWICKI , Respondents. Upon the following papers numbered 9 .to Dead on this motion to annul rlPtPrmi nati nn -- Notice of Motion/GYdeY--W UM and supporting papers 1 -6 Notice of Cross Motion and supporting papers ; Answering Affidavits and supporting papers 1-6 Replying Affidavits and supporting papers Other memo of law ; x hex�Pk" Skx ' Rx�El� x4 it,is, ORDERED that this petition is decided to the extent indicated in the Memorandum Decision (Gerard, J. dated June 17, 1987. CO U I•;TY COY, f I1.ED �� YOUR ENTRY DATE,'.." .{. �VVED69 ' 1E�E A• Y,i;�SE.LIA )u� Sv`tolk County Dated: . June 17, 1987 LESTER "'L RARD 11•tsr: f°ft •'• MWORANDUM SUPREME'COURT,-.ZUFFOLK CC JTY SPECIAL I M pgRT � In the Matter of the Applicatio 10Y GERARD, J. S. C. of CYD BRANCIFORTE, For a Judgment Pursuant to Article 78 of the Civil Practice .Law and DATED June 17th )987 Rules, • Petitioner, INDEX 87-6035 -against- . ' MD SOUTHOLD TOWN BOARD OF APPEALS, ' GERARD P. GOEHRINGER ' ,i PERRI CAROL .FITTERMAN, .ESQ. 'SMITH, . FINKELSTEIN, :LUNDBERG, ISLER Attorney for Petitioner and YAKABOSKI, ESQS. 39 Old Coach -Road Attorneys for Respondents East Setauket, N.Y. 11733 456 Griffing Avenue Riverhead, New York 11901 Petition is dismissed: This proceeding pursuant to Article 78 of the CPLR seeks an order of: this Court annulling a determination of the Zoning Board of Appeals of the Town of Southold dated January 8, 1987 which granted a special exception pursuant to Article III, Section 100(30) (B) (15) of the Zoning Code to Michael and Joyce Mattes. The special exception allowed the Mattes to utilize their premises located at 50 Luthers Road, 'Mattituck as a "bed and breakfast" establishment. The petitioners are property"owners adjacent to the western boundary of the Mattes ' premises. Initially, the respondents contend that the petitioners did not properly effectuate service of the papers and therefore the Court lacks personal jurisdiction over the respondents. CPLR 312 .provides that "personal ' service upon a board or commission having a chairman or other presiding officer, secretary or clerk, by whatever official title he is called, may made by delivering the summons to him. " (The Court notes that CPLR 311 is inapplicable to the facts of this case) . The Courts of this state have consistently required strict compliance with the statutory procedures for- the institution- of claims against the .-State and its governmental subdivisions and where the legislature has designated a particular public officer for the receipt of process, the Courts are without authorization to substitute another, even if the petition is later re.delivered to the proper person. (See,Franz v. Bd. 'of Ed. of •, � � ra�e L .Elwood Union (Free School 1 trict, 112 A.D.2d 934, 49_ _:.Y.S:2d 452 (2nd Dept. , 1985) ; Heinisch v. Goehringer, 221 A.D.2d 721 (2nd Deprt. , 1986) ; McDonald v. Ames Supply Co. , 22 N.Y.2d 1119 114-115) . In this case, the petitioner served the papers on Judith'T. Terry, the Town Clerk and Mary Ann :Cybulski, Clerk on -March 20,�.1987 in an .effort to obtain personal jurisdiction over the Southold Town Board of Appeals. Clearly, the Town Clerk is not an individual authorized to receive service for the Town 'Board of Appeals pursuant to the .statutory requirements of CPLR •312. The Clerk for the Town Board of .Appeals .'is Linda Kowleski and Mary Ann Cybulski -is a part- time clerical employee of the Town .of Southold. In her affidavit, , which is not contradicted, Mary Anny Cybulski stated to the petitioner's process server that the Clerk for the -Board of Appeals was out to lunch and that she was not authorized to receive service for the Board of Appeals. It appears that rather than wait for the return of Linda Kowleski , the process server left. the papers with Mary Ann Cybulski and there is no proof that the Clerk or any of the -Board Members were served with the petition thereafter. Based upon the foregoing, the Article 78 proceeding 'is dismissed for, lack of personal jurisdiction over the respondents -due to the failure to comply with the statutory requirements for service set forth in CPLR 312. The case of Shedlin v. State Tax Commission, 62 A.D.2d 8061 406 N.Y.S.2d 596 (3rd Dept. , 1978) cited by the petitioners in support of their claim of effective service is inapplicable to this proceeding since it is distinguishable on the facts. .COUNTY CLERK FILED DATE.} J.S.C. 1S DATE, .`-� ---- ..� ;. YOUR ENTRY .�. �,..,.•- -� .� ti 'Jug �9 )�1L�[TiC Ci��h of Suliu�h Coy^ty AFFIDAVIT OF SERVICE BY. MAIL STATE OF NEW YORK ) ss • COUNTY OF -SUFFOLK ) _ KAREN M. RAFFEL being duly sworn, deposes and says: I am not a party to this action and am over 18 years of age. I reside .at Main Road, Agtiebogue, New York . 11931 On June 30 , 19 871 I served the within ORDER AND MEMORANDUM DECISION WITH NOTICE. OF ENTRY upon the following attorney (s) for the party or parties indicated at the address designated by said attorney(s) for that purpose by depositing a true copy thereof, enclosed in a postpaid properly addressed envelope, in ,an official depository under the exclusive care and custody of the United States Postal Service within the State of New York: Nar.e of Attorney (s) Served Representing Address PERI CAROL FITTERMAN, ESQ, Petitioner 3'9 Old Coach Road East Setauket, NY 11733 KAREN M. RAFFEL ..Sworn to before me this 1st day of July , 1987 . 1� Notary Public KELLY N. MCGANN NOTARY PUBLIC,State of New York No.4875248-Suffolk County�p Commission Expires Nov.3, 19.J� OFFIC �`_ ORNEY ROBERT W.TASKER T D TELEPHONE Town Attorney d (516) 477-1400 425 MAIN STREET • P.O.BOX 697 GREENPORT,L.I.,NEW YORK 11944 March 31, 1987 Town of Southold Zoning Board of Appeals Town Hall, Main Road Southold, New York 11971 Attention: Ms. Linda Kowalski Re: Branciforte v. Southold Town Board of Appeals, et al. Dear Linda: Enclosed herewith is a copy of a Notice of.Petition and 'Verified Petition, together with a copy of my letter to Frank Yakoboski relative to the same. Yours very truly, ROBERT W. TASKER RWT/jr Enclosure ,; 1•���,\ C;'� ad PCs Nr- OFFIC � tk ;AT ��� �ORNEY ROBERT W.TASKER TQ�?V t Q ,�„J, . ' D TELEPHONE Town Attorney �l��tt�p (516) 477-1400 425 MAIN STREET • P.O.BOX 697 GREENPORT,L.I.,NEW YORK 11944 March 31, 1987 Francis J. Yakoboski, Esq. 456 Griffing Avenue Riverhead, NY 11901 Re: Branciforte -v. Southold Town Board of Appeals et al. Dear Frank: Enclosed herewith is a copy of a Notice of Petition and Verified Petition which was received by me by ordinary mail on Saturday, March 21 . There may be a question of service upon the wrong person; since the Board of Appeals, as far as I know, has not been served with this Notice and Petition. Yours very truly, ROBERT W. TASKER RWT/jr Enclosure cc: Town of Southold Zoning Board of Appeals J _ P 399 Requtst for"ludidal Iniervenllon,3;NYGRR 2026,1046 JULIUS�jBLUMBER$ INC.. PUBLISHER ' ,i ; • ��2 WHITE STREET NEW YORK N•Y.10013 ' For`Clerk Only Su reme lk Court, Sul : ; County Index:Nor Full title of action . Date Purchased In the Mat ter-.of. .the- Application PursuanaRAoCAr¢icle .,78rof' Judgment to ... the Civil IA$entry date.. Pr,actice .L'aw' .& Rules ," „ Name of assigned judge RE t ,, . . . . QUEST FOR JUDICIAL Petitioners) SOUTHOLD TOWN .BOARD "OF a INTER�uENTI®N Date of assignment against .. PPEAL'S , GERARD P . G,OEHRINGER ,` ..CHAIRMAN , `7 L ' .. CHARLES GRIGONIS., JR,..., SERGE'` `DOYEN ,' ,JR , ROBERT J , 'DOUGLAS.S an ( { l Q ( :,.. ) (check f applrcable) 'JOSEPH H, SAWICKI , su ' teed date ,.: �ilb, particulars served (check if applicable) Irl:09 qi Y,of,,NevrhYorl only;. The of`Iy 'York is a:party to this action_ I � )x ;`� nsiC` thorty(or MA13ST.OA) is a party to this`actlon ,. iS -Respondent(s) � NATURE OF JUDICIA .yINTPRV�NTION (check) ❑ Request for preliminary conference ��J{'O r ex paste application" zp� `❑ Note of issue and/pucertificate of readiness I`1�Afice of petition"(teturn date -..;A.R.p x] .., .Q..>~..:,]. ..d.-7-.......) ❑ Notice.of motion(return date ...... ..... ) '., belief sought .An:nml .:d.q.C�x:m.�:�a.k;�.Azt .:Q:� ::SQ.u:t;.l�o: Relief sought .....: l owt�....l;o.d.r.d ..a.X....AF.R.tra.ls,.,. f ................................................:..... ......................... . ... Notice of medical malpractice action p Order to show cause Cl`Notice,of dental malpractice action:. (Clerk will enter return date ......................................... . ,.....) l7 Statement of s et worth Relief sought.._ ....... ......: `..:..- 0 ,Writ of habeas corpus ........ ................ :,..-: .. .... 0 Other(specify) ...::. .....-. ...... NATURE OF ACTION OR PROCEEDING (check) Tort Special Proceedings ❑.Motor vehicle p Tax.certiorari C7.Medical malpractice = ❑ 'Condemnation ❑ Dental malpractice O Foreclosure'. ❑ Seaman .. ❑ .Incompetency or conservatorship O.Airline ;: Other special proceeding, including but not limited to D Other 'tort,'including but not "limited to personal, in}tiry, [7'Article.75(arbitration) property damage,slander or libel(specify) O Article 77(express trusts) .. .... � ::[.Article 78 1.7 [7 Other(specify) OTHER ACTION p Matrimonial(contested) J O Cc►ntract ' p Matrimonial(uncontested) „ ❑ Other(specify) Instructions:` Attach rider:sheets if necessary to provide require d.information;�. If any party is appearing pro se (without.an attorney), the,required information concerning such party is to;be entered in.the space ;. provided for attorneys., Attorney(s)for platntiff(s)[petitioner(s): Address Phone Name PERRI CAROL: F.ITTERMAN •" 39 O;ld Coach Road 5- 6 689 6770 East: Se•tau.ke,t , NY 11.733 Attorneys)for defendant(s)�respondept(s) Address Phone :Name ROBERT W TAS`K,ER m. Str:.eet ,; P 0', Box 697 425 `Mai < 515 477 140•;0 t G.reenp;ort ,. NY 1194"4:. r _ x Name of insurance carriers_(if applicable and available) RELAT)✓D CASES(if none,write'-' below) Title Index i1 Court_ Nature of relationship :None, related I affirm under penalty of perjury that,to my knowledse.gther.tbaa ws Aoted above,here are tad b=vs bee4 no pi►q *+nor A u reow t AWNew per *been ,filed in tlds action or procerdirg. Dated ......X, :.:.. + �gnatuse type name..elow. •� P; CAROL� FITTERMAN , ESQ: "' + "Attorney(s)tor PERRI,"`CAROL„FTTTERMAN ERRI Petitioner once&P.O..Address' :. 39 Old' Coach Road Ea&t Setauket NY '11733 S SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ---------------------------------------X In the Matter of the Application of CYD BRANCIFORTE , 'for a Judgment Pursuant to Article 78 of the CPLR , Petitioner , - against - AFFIDAVIT OF SERVICE SOUTHOLD TOWN BOARD OF APPEALS , GERARD P . GOEHRINGER , CHAIRMAN , CHARLES GRIGONIS , JR . , SERGE DOYEN , JR . , ROBERT J . DOUGLASS and JOSEPH H . SAWICKI , Respondents . ---------------------------------------X STATE OF NEW YORK ss . : COUNTY OF SUFFOLK I , Lynn Cavalla , being sworn , say : I am not a party to the action , am over 18 years of age and reside at Middle Road , Bayport , New York 11705 . On March 19 , 1987 I served the within Request for Judicial Intervention by depositing a true copy thereof in a post-paid wrapper , in an official depository under the exclusive care and custody of the U . S . Postal Service within New York State , addressed to the attorney for the Respondents herein as follows : ROBERT W. TASKER , ESQ 425 Main Street P . 0 . Box 697 Greenport , NY 11944 LYNN CAVALLA Sworn to before me on March 19 , 1987 . Notary &FIRAR:001 FITTERMAN RY PUBLIC Slolo of Now York �No. 4860935, Suffolk CaNRly Term Expires May 5, 1988 s • S SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK -------------------------------------X In the Matter of the Application of CYD BRANCIFORTE , For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules , NOTICE OF PETITION Petitioner , Index # against - Judge Assigned : SOUTHOLD TOWN BOARD OF APPEALS`, GERARD P . GOEHRINGER , CHAIRMAN , CHARLES GRIGONIS , JR . , SERGE DOYEN , JR . , ROBE.RT J . DOUGLASS and JOSEPH H . SAWICKI , Respondents . -------------------------------------X Upon the annexed Verified Petition of CYD . BRANCIFORTE verified on the 19th day of March , 1987 , the undersigned will move before a Special Term of this court located at Griffing Avenue,, Riverhead , New York on the 20th day of April , 1987 at 9 : 30 A .M. "in the forenoon , or as soon thereafter as counsel may be heard , for an order annulling the determination of the Zoning Board of Appeals of the Town of Southold entered with the Town Clerk of the Town of Southold on February 23 , . 1987 , and for such other and further relief as this court may deem necessary , just ,, and proper Dated : March 19 , 1987 East Setauket , New York PERRI CAROL FITTERMAN , ESQ . Attorney for Petitioner 39 Old Coach Road East Setauket , NY 11733 516-689-6770 J SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK -------------------------------------X In the Matter of the Application of CYD BRANCIFORTE For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, VERIFIED PETITION TO REVIEW AND ANNUL Petitioner , THE DETERMINATION OF THE -SOUTHOLD TOWN against - BOARD OF APPEALS SOUTHOLD TOWN BOARD OF APPEALS , GERARD Index # P . GOEHRINGER , CHAIRMAN , CHARLES GRIGONIS , JR. , SERGE DOYEN , . JR . , ROBERT J . DOUGLASS, and JOSEPH H . SAWICKI , Respondents . ----------------------------------- ---X Petitioner , CYD BRANCIFORTE , as and for her petition in this proceeding under and pursuant to Article 78 of the CPLR to review the determination of the Respondents herein , alleges the following : 1 . Petitioner is , and at all times hereinafter mentioned has been, the owner of certain real property in the Town of Southold , County of Suffolk , State of New York , more specifi- ca11y known as 49 East Marlene Lane (also known as Mill Road) , Mattituck , New York . 2 . Respondents ; GERARD P . GOEHRINGER , CHARLES GRIGONIS , JR . , SERGE DOYEN , JR . ; ROGERT J . DOUGLASS and JOSEPH H . SAWICKI , at all times hereinafter .mentioned were and now are members of and constitute the Zoning Board of Appeals of the Town of Southold , thereto appointed as required by law . As used in this Petition , J , C unless otherwise expressly stated , the term "Board" means and is intended to mean said Zoning Board of Appeals of the Town of Southold . 3 • The Town of Southold adopted Article III § 100(30)(B) ( 16 ) Of its Town Code , allowing special exceptions to its zoning ordinances in order to facilitate the establishment of "bed and breakfast" establishments . 4 • Upon information and belief , on or about October 26 , 1986 , Michael Mattes and Joyce Mattes , his wife , as alleged owners of premises known as 50 Luthers Road , Mattituck , New York , and designated as District 1000 , Section 113 , Block 03 and Lot 7 , and adjacent to the west of premises owned by Petitioner herein , applied to the Zoning Board of Appeals of the Town of Southold for a special exception pursuant to Article III §100 ( 30) (B) ( 16) of the Southold Town Code . 5 • The said matter designated as application number 3572' came on for a public hearing before the Board on or about November 20 , 1986 . At the hearing , Mr , and Mrs . Mattes appeared on behalf of the application , and adjoining homeowners appeared in opposition thereto . 6 • ' Upon information and belief , the hearing was thereafteer adjourned to December 11 , 1986 . 7 • Upon information and belief , the hearing was there- after again adjourned until January 8 , 1987 . 8 • At the close of the public hearings , .the Board voted to grant the application of Mr , and Mrs . Mattes for the special exception requested . - 2 ti L 9 . , Petitioner is aggrieved by the decision of the Board rendered January 8 , 1987 and entered with the Town Clerk on ,February 23 , 1987 . 10 . The real property of Petitioner has been , is being , and will continue to be permanently injured and damaged by the granting of a special exception to ' the applicants herein. 11 . Attached hereto and made part hereof as Exhibit "A" is a survey of Petitioner ' s property dated April 13 , 1985 . As the survey indicates , Petitioner ' s only access to her property is via a 25 foot right-of-way off Luther ' s Road . This 25 foot right-of-way was a prerequisite of the original subdivision plan involving the four homes now off Luther ' s Road , including the home of the Petitioner and ?the applicants , Mr . and Mrs . Mattes . Use of this right-of-way and the 25 foot right-of-way south of the subject parcel giving access to Mattituck Creek are deeded to applicants and all other adjoining property owners . All adjoining owners are responsible for maintenance of both rights-of-way . 12 . Petitioner is unable to obtain insurance to cover use of these rights-of-way when they are used as public access roads , rather than private roads . The granting -of the Mattes application necessarily invites the public to use these hereto- fore limited rights-of-way . 13 . While the grant of the Board states that ingress and egress shall be from Luther ' s Road only fifteen feet away from the northerly line of the right-of-way , such contention is unrealistic in that the Mattes ' circular driveway intersects 3 - and overlaps the 25 foot right-of-way ., Furthermore , the Board ' s grant makes no mention of the right-of-way to Mattituck Creek . Petitioner contends that this right-of-way invites use by the potential guests of the bed and breakfast establishment . Needless to say , if any of these guests were involved in an accident as a result of the use of either right-of-way , Petitioner would be named as a party to any litigation brought by such guest . 14 . Petitioner ' s home has been appraised at $350 ,000 . 00 , which appraisal is based on the residential location of the subject parcel . The change of use of the adjoining property to commercial , rather than residential , is tantamount to a rezoning of the property to commercial , resulting in the dimunition of Petitioner ' s property value . 15.. The Board granted the special exception despite the fact that the record is void of any testimony clearly proving that the applicants met the requirements of the Southold Town Code . The Board ' s findings and decision attached hereto as Exhibit "B" state in conclusory terms that the proposed use of the applicants ( 1 ) does not prevent the orderly and reasonable use of the ad- jacent property , ( 2) does not adversely affect the safety , welfare and comfort , convenience and order of the Town , and ( 3) is in harmony with and will promote the general purposes and intent of the Town zoning . These conclusory statements fly in the face :of the testimony given at the hearing and evidence given on behalf of adjoining property owners . 16 . The granting of the special exception was not warranted _ 4 _ by the facts , was illegal , unjust , arbitrary , capricious , unauth- orized and not supported by substantial evidnece , contrary to the provisions of the ordinances of the Town of Southold and not in harmony with the general purpose and interest thereof . 17 . The decision of the Board does not secure the public health , safety and general welfare . 18 . Thirty days have not elapsed since the filing of, the decision of the Board with the office of the Clerk of the Town of Southold . 18 . No previous request .for the relief herein has been made . WHEREFORE , it is respectfully requested that this court annul the determination of the Southold Town Board of Appeals granting special exception to applicants Mattes for use of premises adjoining Petitioner ' s property as a "bed and breakfast" establishment , together with such other and further relief as to this court may seem necessary , just and proper . Dated : March 19 , 1987 East Setauket , NY PERRI CAROL FITTERMAN , ESQ . Attorney for Petitioner 39 Old Coach Road East Setauket , NY 11733 516-689-6770 ' TO : ROBERT W . TASKER , ESQ . 425 Main Street P .O . Box 697 Greenport , NY 11944 516-477-1400 5 - N /O/F ARLENE MARVIN rj N. C gyp.. In r m o D r n tn tv In a v Z Jv,, 9' P ♦a.t m r• ' �.'t.,�b.•rmq � M. t ./tie � n 20 � Oc � 2 Q 4 0 C7 t �ls e \ p ZOI �S.07•44'E. •yl. � . ?G f.20' I r 4,.q0 - hi ILL liQ°�'�AV A' 41.1o' c� N S.b7°yq'E. 2J.13 �«.. 1 In `.. 1 v vacant 90 oni I 2c AR£A =g3,4g5 50.FT. �\ p v SURVEY FOR - t ,. g o CYD D,BRANCIFORTE Q MA GOT„ PURSLEY, AT MATTITI/CK S�OF NE{y A _ TOWN OF SOUTHOLO .. 41p aT rpq r wW� SUFFOLK COUNTY N,Y. 0�f r GUARANTEED To:2S.3I' t Q, a Pt)'<RLfSX,,'A/Srwacr COIRP,', M4TT T SCALE$ I•ogo' I TUCK CREEK APRIL /3, 1985 4EA(AND 9Va� i, ..1'., :' 'LAND SURVEYDR 1V.V.S.LIC.NO.2a7'p1 RIV RN AD N.Y. i EXHIBIT A I COUNTY OF SUFFOLK Michael A. LoGrande In 1 ,old SUFFOLK COUNTY EXECUTIVE �l DEPARTMENT OF PLANNING 360-5206 LEE E.KOPPELMAN DIRECTOR OF PLANNING February 28, 1987 Town of Southold Zoning Board of Appeals Pursuant to the requirements of Sections 1323 to 1332 of the Suffolk County Charter, the following- application(s) which,have been referred to the Suffolk County Planning Commission are considered to be a matter for local determination. A decision of local determination should not be construed as either an approval or a disapproval. Applicant(s) Municipal File Number(s) Michael & Joyce Mattes 3572 Robert E. Johnson 3587 Very truly yours, Lee E. Koppelman Director of Planning S/s Gerald G. Newman Chief Planner GGN:mb VETERANS MEMORIAL HIGHWAY HAUPPAUGE,L.1.,NEW YORK 1 1788 (516)360-5192 DECLARATION OF COVENANTS AND RESTRICTIONS KNOW ALL MEN BY THESE PRESENTS, that the Declar- ants., HENRY HAAN and MARY, REGINA HAAN ( hereinafter, the Haans" ) , and DOUGLAS SHAW AND VALERIE SHAW (hereinafter, "the 'Shaws" ) , and MICHAEL F. MATTES and .JOYCE MATTES (hereinafter, "the Mattes" ) , do hereby. declare _and file. this agreement as, a blanket encumbrance on the real property- owned by. the Haans and further described in .Schedule "C . WHEREAS , the Declarants, -the Haans, are the owners of record of certain real propertylocated at Mattituck, in the Town of Southold, County of Suffolk 'and State ."of New York, as described on the attached Schedule -"A", . _ and :WHEREAS-, the Declarants , the Shaws , are the owners _of record of certain real property located at . Mattituck, . in - the Town of Southold., County of Suffolk and State of New York,- as described on the attached Schedule "B", ; and WHEREAS , . the Declarants , the Mattes , are the owners- .of record of certain real property located at Mattituck, in the Town of Southold, County of Suffolk and State of New York, as described on the attached Schedule "C and WHEREAS , the above-mentioned parcels were created as a result of a subdivision approved by the Planning Board of the Town fo Southold on April 17 , .1978 , a map of which is attached as Schedule "D", and. WHEREAS , the Declarants , - the Mattes , have applied to . the .Z.oning Board of .the .Town of Southold for a special exception to operate a bed and breakfast facility. , pursuant to Article 3 §100-30(B) 16 of . the Code of the Town of- Southold in the dwelling located on -the premises . owned by them and described in the attached Schedule and, - WHEREAS , as a condition of ..said: special --exception_, the Declarants must file certain covenants arid- restric- _ tions in the office of the Clerk of the County of Suffolk, . NOW THEREFORE , the Declarants declare-as, follows : (1 ) That the off-street parking area provided for the transient residents of the rented rooms and for the use of the Mattes family or any subsequent. owner; located on the premises described -in Schedule "C11 sha11 be screened by a contiguous and uninterrupted row of evergreens not less than six.. (6 ) feet in height and not less than .ten ( 10 ) feet in width to be located along the entire length. of .the ,northerly boundary line of the premises owned by the Mattes and described in Schedule and which line forms. the boundary between the premises owned by the Mattes and described in- Schedule "C" and .the premises owned by the Haans and described in Schedule "A" . (.2.)" Ingress and egress by both -the transient residents of the rented rooms and 't.he Mattes family, and any subsequent owner of the premises described in - Schedule "C" , shall be- solely by way of the driveway depicted- in Appendix "D" which gives access to. the - . premises from Luther 's Road at the Southwesterly corner- of the premises owned by the Mattes. (3) Neither the transient residents' -of the rented rooms nor the -Mattes family nor any subsequent owner of the premises described in Schedule , "C" shall have access over the 25-foot right of way depicted . in Schedule "D" nor _over -any portion of the Haan property described in Schedule "A" . ( 4 ) None of the transient residents of the . rented rooms on the Mattes ' premises described in Schedule "C" shall be permitted to use the right of way over a. 25-foot strip of land running from. the southerly side of Mill Road to Mattituck Creek', more particularly bounded and described as follows: Beginning at the northwesterly corner of the property owned by the Haans, described in Schedule "A" distant the fol.lowing-• three courses and -3-- distances from a Monument situate at the intersection of the southerly line of Mill Road 'and the westerly side of Jackson ' s Landing ; (a) North 88 degrees 02 minutes 20 seconds west 41 . 20 feet ; (b) South 69 degrees 04 minutes 40 seconds west. 3 . 0 -feet ; and (c ) North 87 degrees 44 minutes west. 297 . 0 feet , thence from said point of beginning - running easterly along the southerly side of Mill Road 25 feet to a -point and lands now or, formerly of Marvin; thence. running South_ 03 de-grees 39 minutes . east 115 . 0 feet, more or less, - to- the. ordinary high -water mark of Mattituck Creek; thence is a westerly- direction along the ordinary high water mark .of Mattituck Creek, 25 feet , -more. -- -or less, to the lands - now or 'formerly of Sullivan, thence along said -last-mentioned lands north 03 degrees 39 minutes west 115 . 0 feet to the point or place of beginning- ( 5 ) No sign located- on the Mattes '_ property described in Schedule "C" , shall make reference .to the commercial or "bed and breakfast" use of the dwelling on those premises . Such sign shall not exceed feet in width and feet inheight and shall be of a type and style in conformance with the hi"storical ' nature of the dwelling. The sign shall in no way be lighted. ( 6) The length of stay, of the transient residents of the rented rooms at the Mattes ' premises described in Schedule "C" shall not exceed, under any circumstances, two consecutive weeks - in any 12-month period. -4- ( 7 ) The covenants and restrictions contained herein shall .be deemed to run with the land and shall be binding on and shall inure to the - benefit of all subscribing hereto, their successors, grantees, heirs and . assigns , -and all claiming under them. If .any -party hereto, his or her successors , grantees , heirs or assigns shall violate or -attempt to violate. any of the covenants or restrictions herein, it shall _ be -the right and. duty of any other party hereto, his or -her successors, grantees, heirs and assigns to - _ prosecute any actions or proceedings in law or in equity against the corporation, person or persons violating or attempting to violate any_ such covenant or restriction either to prevent it, him, her or them from so doing, to abate the act of any violator, or to collect damages for such violation. NOW, THEREFORE ,_ IN WITNESS WHEREOF, the parties hereto have set their respective hands and seals on the_ day .of December, 1986 . MARY REGINA HAAN HENRY HAAN VALERIE SHAW DOUGLAS SHAW JOYCE MATTES' MICHAEL F. MATTES -5- STATE .:OF NEW YORK), ss : _ COUNTY OF SUFFOLK) On the day of December, 1986, before me personally came ' HENRY HAAN and MARY REGINA °HAAN. to me known to _ be the individuals •described in and who , executed the foregoing instrument. .and acknowledged to me. that they executed the . same . Notary Public STATE_ OF NEW YORK) = s :. COUNTY OF SUFFOLK) , - .On the = day of :December, ..1986 , -before me personally came DOUGLAS SHAW AND VALERIE SHAW, to me known to be the - individuals described in and who executed the foregoing instrument -- and acknowledged to -me * _ that- they_ executed the` same. Notary Public STATE -OF :NEW YORK) ss : COUNTY OF SUFFOLK) On the day of December, 1986 , .before me - personally came .MICHAEL F. MATTES AND JOYCE MATTES, to me known - to be- the individuals described in and who _ executed the foregoing instrument and acknowledged to me - that- -they executed the . same. Notary Public APPENDIX "A" All that certain plot, piece or parcel of land, with the buildings and improvements thereon erected, situate lying and being at Mattituck, Town.,of .Southold,', County of Suffolk and State of New York, being. more particularly bounded and described' as follows: ,: . BEGINNING at a point on the easterly line ,of Luthers :Road distant 267.20 feet• northerly from the corner formed by the intersection of the. easterly line of Luthers Road with the northerly line 'of Mill Road; thence North 24 degrees 07 minutes ,00 seconds West j along the easterly side of Luthers Road ,150 feet to land nor, or formerly of, Sledjeski; thence South 72 degrees 17 minutes 00 seconds East . along last mentioned land 188.50 feet; thence North ,0 degrees 28 mniutes. 30' seconds West along last mentioned• land 278.00 .feet' to land now or formerly of Bergen; thence 'South 81 degrees 13 minutes 20 seconds East along last mentioned land 165.00 feet to..a' point and . land now or formerly of Marvin;: thence•'South' 2 degrees 34 minutes. 20 'seconds East' along land now or ,formerly of. Marvin',' 345.20 feet to land now or formerly of. Marvin later;of Matte's;" thence North 87 degrees '34 minutes '.40 seconds West.' • • along .last mentioned land, 294.79 feet •to a point on .the easterly side ofi.Luthers Road and the point or place of BEGINNING. TOGETHER WITH; and SUBJECT to a right•' of ingress and egress in common with, others to and from Luthers Road over a '25 foot right' of way the southerly line' "of which is .the ,northerly line of premises now or, •formerly of Mattes,, ;and which line runs. the � following course, and distance from the southeasterly -corner of the premises herein described ,to wit: North 87 degrees.• 34 minutes 40' . seconds West 294.79 feet. - TOGETHER WITH a right of way over a',25, foot strip of land" running from ,the •southerly side of, Mill Road to Mattituck Creek, more particularly bounded and described as follows: BEGINNING at. the northwesterly corner" of the parcel herein described distant the following three .(3) courses and distances from a monument situate at. the intersection of the southerly •line of Mill Road• and the westerly line• of Jackson's Landing; . 1) North 88 degrees 02 minutes 20 seconds. West 41.20 feet; - 2) South 69 degrees 04 minutes 40,' seconds West 3.0 feet; and 3) North 87 degrees 44 minutes West 297.0 feet; thence from said point of beginning running easterly along the southerly side of Mill Road 25 feet to a point and lands now of- Marvin; thence running South 3 degrees 39 minutes East 115.0 feet-, more- or less, to the ordinary. high .water of Mattituck Creek/ thence in a westerly direction along the ordinary high. water mark of Mattituck Creek 25 feet, more or less, to lands nor- or formerly of ,Sullivan; thence, along—said last mentioned lands North 3 degrees 39 minutes-West 115A feet .to ,the point or 'place of, BEGINNING. APPENDIX "B" A11 that certain plot, piece or' parcel of land, with the buildings and improvements thereon erected, situate lying and being at Mattituck, Town of Southold, ' County. of Suffolk`and, State of New -York,, ,being more particularly bounded and described as follows:.. * BEGINNING at a. point on the southerly, side of a 25 foot wide right-of=way distant 294:79 feet, easterly of the:corner ,formed by the, intersection of'. the southerly side of the 25 foot wide right-of-way- and the easterly* side of Luther's Road, said point of beginning also being the northwest c,orner .of other, lands now or formerly of,•Marv.in; ' running thence along land now or formerly: of Bayley, North 2 degrees 34 minutes 20 seconds West,345.20 feet; thence along land. now or formerly of Bergen, South 81 degrees 13 minutes 20 seconds East 180.50 feet; thence along ',land.on the "Map of Jackson's landing", Map No. 5280, South 2 degrees 11 minutes 10. seconds East 313.00 feet; thence along land 'now or formerly of •Marvin, South 88 degree's :30 minutes 40 seconds, West 174.89 feet to the point or place of, BEGINNING. SUBJECT to and TOGETHER with an easement in common with others for the purpose of ingress and egress over a twenty-five (25' ) .foot right-of-way westerly to Luther's Road. TOGETHER with a right-of-way over a 25 foot strip of land running from the southerly side :of Mill Road to Mattituck Creek, more particularly bounded and described as follows: BEGINNING at the northwesterly corner of the parcel herein descirbed distant the following three (3) courses and distances from a monument situate at the intersection of the southerly line of Mill Road ,and the westerly line of Jackson's Landing; . (1) North 88 degrees 02 minutes 20 seconds West 41.20 feet,; (2) South 69 degrees 04, minutes, 40' seconds West 3.0 feet; and (3) North 87, degrees 44 'minutes West 297.0 ,feet; , thence from said point of beginning running easterly along the southerly side of Mill Road 25 f.eet to. a point and lands of, Marlin; thence running 'South 3 degrees 39 minutes East 115.0 ..feet, more or less,. to, the ordinary high, water; mark' of Mattituck Creek; thence in,-a westerly direction, along the, ordinary high , water mark 'of Mattituck Creek 25 feet, more or less, to lands now or ,formerly, of Sullivan; thence 'along said last mentioned lands, North. 3 degrees 39 minutes West 115.0 feet to the point, pr ,place of,. BEGINNING. APPENDIX "C All that certain plot, piece or parcel of land, with the buildings and improvements thereon erected situate, lying and being at Mattituck, in the Town of Southold, County of Suffolk and State of New 'York, bounded and,described as follows: BEGINNING' at the corner formed by the intersection of,' the northerly side of Mill :Road with the easterly side of Luther's Road and from said point of beginning; RUNNING THENCE along the easterly side of Luther's Road, j North 5 degrees 37 minutes West, 267.20.,feet; , THENCE South 86 degrees, 49 minutes 20 -seconds East 295..00 .feet; THENCE South 01 degrees ,37 minutes 50 seconds West, ; 260.00 feet to the northerly side.,of Mill Road; THENCE North, 87 ,degrees• 44 minutes' 00 seconds' West 'along the northerly side of Mill Road, 261.20- -feet to the corner at the point or place of BEGINNING. TOGETHER with aright of way over a 25 foot strip of ,land running from the southerly side, of Mill Road, •to Mattituck Creek,, .more particularly bounded and:.described as follows: BEGINNING at the ,northwesterly' corner .of: the 'parcel herein described distant the following three, courses and distances from' a monument situate at 'the intersection of the southerly line of Mill Road and the westerly side of Jackson's Landing,; 1. North 88 degrees 02 minutes 20 seconds West, 41.20 feet; 2. South 69 degrees 04 minutes 40 'seconds West, 3.0 feet; 3. North 87 degrees 44 minutes West, 297.O feet; THENCE from said point of beginning running along the southerly side of Mill Road South 87 degrees 44 minutes 00 seconds East, 25 feet to a point and lands now of Marvin; THENCE RUNNING 'South 3 degrees 39 minutes .East,', 115.0 feet more or less to the ordinary' high water mark of Mattituck Creek; THENCE in a westerly direction along the ordinary high water mark .of Mattituck Creek, 25 feet more or less -to' lands.'now or formerly of Sullivan; + THENCE along said last mentioned 1,ands,, North.'3 degrees 39 minutes; West, 117.69 feet to the point•. and' place of 'BEGINNING. TOGETHER'-with: a.,,right of ingress and egress„in common with others to and from Luthers Road over., a, 25 foot 'right ,of• way the. southerly line of ',which, is the northerly line o.f •the premises ,her.ein- described, and which ,line •runs the following course and distance, to wit: South 86 degrees .59 minutes 20 s:econds East 295.,00 feet: