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HomeMy WebLinkAbout3955 APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. James Dinizio, Jr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOTT L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 ACTION OF THE BOARD OF APPEALS Appl. No. 3955: Upon Application for DOMINICK SBLENDIDO & A. AURICHIO for an Interpretation requested regarding second kitchen facilities and its relation to single-family verses two-family uses, and a variance for addition with an insufficient frontyard setback. Location of Property: 185 Inlet Lane, Greenport, NY; County Tax Map Parcel ID No. 1000-43-04-037. WHEREAS, Application #3955, is made under the Zoning Ordinance of the Town of Southold, Chapter 100, for: (1) an interpretation of Article IIIA, Section 100-30A.2(A1), referring to Article III, Section 100-31A(1), and with reference to the Town Building Inspector's issuance of a Notice of Disapproval dated May 29, 1990 for a permit to construct an addition to existing one-family dwelling on the following grounds: "...Under Article IIIA Section 100-30.3 and under Article XXIII, Section 100-230(A) construction has insufficient front yard setback; Also under Article IIIA, Section 100-30A.2A(1) {100-3iA}A, Permitted Uses (1) One-Family Detached Dwelling Not to Exceed One (1) Dwelling on Each Lot {A Two-Family Dwelling Is Not A Permitted Use.} Action Required by the Zoning Board of Appeals..."; and (2) an area variance for the construction of approximately 17' wide x 15.5' long (radius of 8'6") front entry {open and unenclosed}, extending 15.5 feet (along a tie line) from the front of the dwelling structure to the front property line along Inlet Lane, as shown on both building construction plans prepared by Argyle Architectural Services; WHEREAS, said application makes specific reference to property of DOMINICK SBLENDIDO AND OTHERS situated along the West Side of Inlet Lane (House #185) in the Hamlet of Greenport, Town of Southold, County of Suffolk, and more particularly page 2 ~ Appl. No. 3955 Decision Rendered 1/11/91 Matter of SBLENDIDO & AURICCHIO WHEREAS, members of the Board viewed the property and are familiar with the current zoning designation of "Low-Density R-40 Residential"; WHEREAS, after due notice, public hearings were held by the Board of Appeals on July 25, 1990, September 26, 1990, Novem- ber 1, 1990, and November 29, 1990, at which time the verbatim portion of the record was concluded; (the written portion of the record concluded January 11, 1991); WHEREAS, at said hearings all those who desired to be heard were heard and their testimony recorded; and WHEREAS, the record and all testimony have been carefully considered, and the following pertinent facts noted: 1. The subject premises comprises an area of 12,289 square feet with 125.71 ft. frontage along the westerly side of Inlet Lane, in the Hamlet of Greenport. 2. The premises prior to early 1989 was improved with a 29' wide x 25' deep 1-1/2 story frame house set back 30 feet from the front property line along Inlet Lane. Also existing during this time period were 5' x 6' front and rear stoops which under the provisions of the zoning regulations {Section 100-230C(2)} were excluded from the building area and setback requirements provided each unenclosed entry remained at 5' x 6' or less in size. (See survey dated November 7, 1977 prepared by Roderick VanTuyl, P.C.) 3. On March 14, 1989 an application for a building permit was received by the Building Department; and on March 16, 1989, a building permit was issued for "an addition to an existing one-family dwelling." Although the permit was issued for a proposed addition, the dwelling structure was completely reconstructed and an entire new second floor added with new basement construction. The addition was being constructed as a "mirror image" of the initial dwelling unit. The building plan with mirrow unit included: (a) a second kitchen, (b) a second dining room, (c) a second full bath, (d) a second living room, (e) a second foyer and stairway to the upper and lower levels, (f) second, separate heating utility systems and separate fuel tank hook-ups, (g) separate passageways and separate front entrances/doors, (h) plumbing systems for the utilization of two separate kitchen areas, (i) vertical party walls and separate entrances similiar to that of a duplex or townhouse. 4. On December 5, 1989, a stop work order was issued by the Building Department on the following grounds: Rage 3 ~ Appl. No. 3955 'Decision Rendered 1/11/91 Matter of SBLENDIDO & AURICCHIO (a) No foundation inspection (b) No second survey (c) Not being built as per plans submitted (d) Appears to have insufficient front yard setbacks (e) Cannot build a 2-family dwelling in a R-40 Zone, and the conditions under which work would be permitted to be resumed were: 1. Submit a new survey showing all setbacks and houses within 300' - same side of street. 2. New plans showing all details-"Stamped." 3. Eliminate 2-family dwelling. 4. Pay the new fee. 5. On December 6, 1989, the amended building plans changing the words "kitchen," "dining room" and "living room" ~e~l~,a~r~g~i~m~~ ~t~u~d~n~n~e~~tto~ether~, with payment of an additional filing fee of $293.40 (total paid 535.10); on December 11, 1989 a survey map showing setbacks of structures within 300 feet of the subject premises was received by the Building Department. 6. On December 12, 1989, the Building Department was furnished with a signed statement from the builder, Argyle Construction by James B. Argyle, indicating that it agrees to stop all work on the front steps "until a variance has been approved," and on December 12, 1989, this Stop Work Order was lifted at 9:30 p.m. (See Building Department inspection record.) 7. On December 19, 1989, the Building Department inspected the damp-proofing of the foundation and chimney footing, and required a survey. 8. On May 25, 1990, an inspection request was made but the building inspector did not have access. Inspections were made on May 7, 1990 and on May 14, 1990 and the inspection record denotes "...plumbing installed for a second kitchen --not on plan .... " 9. On May 29, 1990 the subject Notice of Disapproval was issued by the Building Department; and on June 1, 1990, a Stop Work Order was issued on the following grounds: (a) Construction has insufficient front yard set back. (b) Not being constructed as per plans submitted. (c) Plumbing installed for second kitchen, and P.age 4 ~ Appl. No. 3955 Decision Rendered 1/11/91 Matter of SBLENDIDO & AURICCHIO the conditions which work would have been permitted to be resumed were: 1. Approval from Zoning Board of Appeals for kitchen and front yard setback. 2. OK from Principal Building Inspector. second 10. On June 22, 1990, this application was filed with the Board of Appeals for an interpretation concerning the construction plans submitted and rejected by the Building Inspector, and for the above-mentioned front yard variance(s), The hearings were held and extensive testimony and documentation submitted, both pro, con and otherwise. 11. It should be noted that during this appeal proceeding, a letter dated October 2, 1990, was forwarded to the Building Inspector's Office from Mr. Cardinale, attorney for the property owners of the subject parcel, indicating that the owners would remove the plumbing from the wall of the "great room" if this would allow the lifting of the Stop Work Order, pending the outcome of the Z.B.A. determination. As of this date, the Stop Work Order has not been lifted, and the plumbing has not been removed. ZONING INTERPRETATION 12. During 1987 and on several occasions prior thereto, the issue of plun~bing and electrical facilities to a secondary kitchen area was considered by the Board of Appeals, as well as the Town Attorney's Office and Town Board. A written request was made by the Executive Administrator/Inspector of the Building Department as to what restrictions there would be for kitchens, dining rooms, bathrooms, etc. and for a definition of "one dwelling unit" under the Southold Town Zoning Code, with copies of this request being furnished to the Town Attorney's Office. It is noted that by letter dated October 23, 1987, Special Town Attorney Francis J. Yakaboski advised the Building Department to abide by the intent of the zoning code of the Town of Southold that there are to be no two-family homes constructed (except as may be authorized by special exception or in certain zone districts), and that the Building Department must act vigorously to prevent two-family construction by disapproving plans indicating the presence of two kitchens under the provisions of the zoning code. 13. On January 8, 1988, an Interpretation was made by the Board of Appeals of the term "one dwelling unit." The interpretation provides as follows: SECTION 100-12 - DEFINITIONS. "Any building, or portion thereof, forming a Rage 5 ~ Appl. No. 3955 Decision Rendered 1/11/91 Matter of SBLENDIDO & AURICCHIO single habitable unit and containing not more than one kitchen and/or cooking facility shall be deemed a "dwelling unit" under the Southold Town Zoning Code. This definition under the "...Code precludes more than one kitchen and/or cooking facility in a one-dwelling unit, and accordingly, a plan submitted through your office which shows intent to install plumbing facilities for a second kitchen area must be denied .... " 14. Based upon the purpose and intent of the zoning code provisions, and this interpretation and clarification, an application to the building inspector with plans showing intent to install facilities for a second kitchen area must be, and in this instance had been, disapproved. Although a remedy may be available to the applicant by way of an application for a variance requesting permission to install the subject facilities for a second kitchen in a principal dwelling structure, the applicants herein made it clear that they chose to request an interpretation, and not a variance to install the subject plumbing facilities and/or second kitchen. (This was the reason the legal notice was modified during publications in the official newspapers.) 15. This interpretation and clarification still remains in effect and has not been modified by this board. 16. It should be noted that the building, as shown on the plans, also does have vertical party walls and separate private entrances to two separate areas of the building construction, similar to that of a duplex or townhouse (which may contain more than one dwelling unit and are not uses permitted in this R-40 Low-Density Residential Zone District). 17. It is the position of this Board that although the use of the dwelling structure may be proposed for single-family occupancy, the physical layout of the new dwelling construction is for a duplex or additional living unit with separate utilities, entrances, facilities, etc. It is the intent and purpose of the zoning ordinance in the Town of Southold not to permit a second kitchen or separate living quarters, or separate plumbing and heating utilities for separate living quarters, without an application to the Board of Appeals to consider the purposes and intent of the separate connections or units under question, to review the construction plans, and determine whether the construction plans meet the requirements for single-family or two-family construction. Page 6 ~ Appl. No. 3955 Decision Rendered 1/11/91 Matter of SBLENDIDO & AURICCHIO FRONT-YARD SETBACK CONSIDERATION 18. This consideration is concerning that portion of the application requesting approval of the front entry with a reduction to 18.4 feet from the front property line. 19. By survey map prepared December 11, 1989 by Peconic Surveyors, P.C., it is determined that the set-backs of the principal buildings within 300 feet of the property are 31.4 feet, 30.0 feet, 18.0 feet and 34.4 feet (exclusive of the subject parcel and exclusive of entry with steps containing less than 48 sq. ft. in area, or 6' x 8' in size). The average of the above-referenced principal building setbacks is 28.5 feet. The unroofed front entry as proposed herein is approximately 210 sq. ft. in area (inclusive of three possible steps) and appears to be more than 24 inches above grade. The set-back reduction of 18.4 feet is with steps along the side, rather than the front of the entry. 20. Section 100-230(A) of the Zoning Code permits relief in the front yard setback to be that average of those estab- lished within 300 feet of the property on the same side of the street. In this instance, the principal building set-back would be permitted at 28.5 feet (plus a step area up to 30 sq. ft., or 5' x 6' in size). The normal front yard setback for a new principal dwelling for the subject parcel would otherwise be 35 feet (without neighboring nonconforming front yard setbacks within 300 feet) for this nonconforming lot. 21. It is noted for the record that the dwelling structure before its removal, as indicated by the 1977 survey map, was set back at 30 feet from the front property line, and the dwelling consisted of a size 29 feet wide by 25 feet in depth. 22. The amount of relief requested as to the front yard provision of the zoning code for a principal building in this Residential Zone District is 10.1 feet (variance from the required 28.5 feet, to 18.4 feet (with side steps). 23. It is the position of the Board that the variance is substantial in relation to the requirements with a percentage of 36% (10.1 feet less than the requirement); however, under Article XXIII, Section 100-230C, permits an unenclosed entry not more than 6' wide by 8' out from the front wall of the building, and such portico shall be ignored in computing the average setback. Since this is an unenclosed entry, the relief needed is of a lesser degree. Rage 7 ~ Appl. No. 3955 Decision Rendered 1/11/91 Matter of SBLENDIDO & AURICCHIO OTHER CONSIDERATIONS 24. In considering the requested set-back relief, the Board determines: (a) that although that area of front entry is not excessive in size from the normal 48 sq. ft. entry permitted by code and those entries generally existing on the same side of the street, the set-back as a whole is substantial in relation to the requirements; (b) the practical difficulties are self-created and are not unique to the property; (c) there is no alternative for appellant to pursue other than a variance; (d) that the grant of the front-yard set-back for this entry is not adverse to neighboring properties. 25. In considering the physical construction of the dwelling structure, the Board determined that mitigation measures were necessary to convert the structure to single- family construction by structural alterations, as noted, infra. RESOLUTION OF THE BOARD ACCORDINGLY, on motion by Mr. Dinizio, seconded by Mr. Doyen, it was RESOLVED, that the plans, as disapproved by the Building Inspector, are interpreted to be of "two-family construction" and the following structural modifications shall be made to comply with single-family construction: 1. In order to comply under the zoning code concerning single-family construction, the entrances must have one common door unit. Existing front doors must be removed and replaced with either one single front door or two doors side-by-side, with one fixed (or both opening) to a common foyer open to both stair wells; 2. Second floor deck (south side) may not have access to first floor by way of a stairwell; 3. Existing oil tanks situated in the rear of the dwelling must be shielded (screened) by a fence of non-chainlink type material on three sides; 4. The basement divider must have free, open access from both stair wells by way of unlocking doors or open doorways; 5. Basement divider (block wall) must contain unlocked opening/unlocked door (standard size with a minimum of 32 inches in width) so as to gain access to either side of the basement area. This access door must remain unlocked; Rage 8- Appl. No. 3955 Decision Rendered 1/11/91 Matter of SBLENDIDO & AURICCHIO 6. Hallway walls must remain open without benefit of doors or partitions for all rooms (except the bathroom area and lavatories); 7. No pocket doors (or walls without access to a room, except for closets); 8. Not more than one kitchen area or cooking area shall be permitted in dwelling; 9. No structural partitions or barriers that will separate different portions of the house between rooms (such as different living areas similar to two-family or duplex-type construction, including the basement). Also, area between Great Room and Living Room, including both stair wells, shall remain open at all times free of any closures; 10. Screening be provided for outside fuel tanks on all sides; and BE IT FURTHER RESOLVED, to grant a variance for the construction of the front entry with a setback of not less than 18.4 feet, inclusive of steps, and as shown on the December 6, 1989 survey prepared by Peconic Surveyors, P.C. SUBJECT TO THE FOLLOWING CONDITIONS: 1. The subject entry area shall remain unroofed and not enclosed; 2. No new construction or steps shall be built reducing the requested front yard setback to less than 18.4 feet - (The 18.4 ft. front yard setback is inclusive.); 3. Screening and appropriate landscaping must be provided, with one to three ft. high bushes, on both sides of the front entry. Vote of the Board: Ayes: Messrs. Goehringer, Dinizio and Doyen. (Member Grigonis was absent due to hospitalization). This resolution was duly adopted. GERARD P. GOEHI~INGER,~RMAN APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. Joseph H. Sawicki James Dinizio, Jr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOTT L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 NOTICE OF HEARINGS NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Tow~ Law and the Code of the Town of Southold, the following hearings will be held by the SOUTHOLD TOWN BOARD OF APPEALS at a Regular Meeting, at the Southold Town Hall, Main Road, Southold, NY 11971, on THURSDAY, NOVEMBER 29, 1990 at the following times: 7:30 p.m. Appl. No. 3972 - PETROL STATION LTD. Hearing continued from November 1, 1990. 7:35 p.m. Appl. No. 3985 - HERBERT AND CATHERINE LINDTVEIT. Variances to the Zoning Ordinance, Article XXVIII, Section 100-239.4B and Articl9 XX~V, Section 100-244B for proposed one-story and second-story additions with two-foot over-hangs (cantilevers) Portion of additions will be less than 75 feet from bulkhead along Corey Creek and will reduce both side yards to less than the minimum required at 10 and 15 feet. The dwelling as exists has nonconforming side yards, and the lot area and width are also nonconforming in this R-40 Zone District. Location of Property: 625 Windy Point Lane (Private Road #12), Southold, NY; County Tax Map Parcel 1000-87-4-7. Page 6 - Legal Notice Hearings to be Held November 29, Southold Town Board of Appeals 1990 and conches to be delivered for off-premises consumption or sales. Zone District: Agricultural-Conservation (AC). Location of Property: 1575 Lower Road, Southold, NY; County Tax Map Parcel No. 1000-69-5-13.2. Continued from November 1, 1990. The Board of Appeals will at said time and place hear any and all persons or representatives desiring to be heard in each of the above matters. Written comments may also be submitted prior to the conclusion of the subject hearing. Each hearing will not start before the time allotted. Additional time for your presentation will be available, if needed. For more information, please call 765-1809. Dated: November 9, 1990. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER CHAIRMAN By Linda Kowalski FORM NO. 3 TO¥iN OF SOUTIIOLD BUILDING DEPARTMENT TOWN CLERK'S OFFICE SOUTItOLD, N.Y. NOTICE OF DISAPPROVAL Date HAY 29, ,19 90 To DOMINICX SBLENDIDO & ORS. RUNTINGTON, N.Y. 11763 PLEASE TAKE NOTICE that your application dated SURVEY 12/I I/89 3 ! 1/~089 for permit to CONSTRUCT AN ADDITION TO EXISTING ONE FAMILY DWELLING LocationofProperty 185 INLET LANE GREENPORT H~so '1~0. Street Hamlet County Tax Map No. I000 Section 63 ' . Block 006 Lot 37 Subdivision ................. Filed Map No ................. Lot No ........ ' .......... is returned herewith and disapproved on the following grounds Under Article IIIA SECTION 100-30.3 and under ARTICLE XXlII SECTION 100-230(A) CONSTRUCTION RAg INSUFFICIENT FRONT YARD SETBACK. ALSO UNDER ARTICLE Ilia SECTION 100-30A.2 A(I) (IO0-31A) A PERMITTED USES (1) ONE-FAMILY DETACEED DWELLIN(; NOT TO EXCEED .O.N.E .(.17 DWELLING ON EACR LOT (A TWO FAMILY D. 't;.ELL!Ng ACTION REQUIRED BY THE ZONING BOARD OF APPEALS. .~u J-ldi~~ Inspect:or ..... TIIOMAS J. FISHER RV 1/80 '' ............ 19..L Permit No..]. 7.?.~'/.?~..~' Disapproved a/¢ ..................................... FORM NO. 1 TOWN OF SOUTHOLD BUILDING DEPARTMENT TOWN HALL SOUTHOLD. N.Y. 11971 TEL.; 765-1802 (Building Inspector) APPLICATION FOR BUILDING PERMIT INSTRUCTIONS BoJ of HEALTH J SURVEY . ,,'~.~.".~...'~Y~'.. .......... CHECK . . · ; .................. SEFTIC FORM ................ NOTIFY CALL MAIL a. This application must be completely filled in by WI~ewriter or in ink and submitted to the Building Inspector, with 3 sets of plans, accurate plot plan to scale. Fee according to schedule. b. Plot plan showing location of lot and of buildin-s on premises, relationship to adjoining premises or public streets or areas, and giving a detailed description of layout of l~roperty must be drawn on the diagram which is part of this appli. cation. ¢. The work covered by th/s application may not be commenced before issuance of Building Permit. d. Upon approval of this application, the Building Inspector will issued a Building Pcrmit to the applicant. Such permit shall be kept on the premises available for inspection throu-_hout the work. e. No building shall be occupied or used in whole or in part for any purpose whatever until a Certificate of Occupancy shall 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 Building Zone Ordinance of the Town of Southold, Suffolk County, New York, and other applicable Laws, Ordinances or Regulations. for the construction of buildings, additions or alterations, or for ~:emoval or demolition, as herein described. Tine applicant agrcca to comply ,,"'~, _.. · ,,l,.. all applicable t-,v~, ordinances, building code, housing code, and regulations, and to admit authorized inspectors on premises and in building for necessary inspectigns~...~- ~, · (Signature ot applicant, or hame, k'fco;~d;irldd)' ' ' i~;i adresso?;;' ' ' State whether applicant is owner, lessee, agent, architect, engineer, general contractor, electrician, plumber or builder· · . -oa ................... Name of owner of premises .... ...~.... ...i ....... (as on the tax roll or latest deed) If applicant is a corporation, signature of duly authorized officer. (Name and title of corporate officer) Builder's License No ..... / .~-~.~. }..~-'7.'' ..... Pi tuber s License No ......................... Electrician's License No ....................... Other Trade's License No ...................... / '. Location of land on which proposed work will be done...'~... '~' ~.. ~l'~...:...~ tlouse Number ...... ft.~ ,'n'll ~ ........... ' .... eS..' ....... ............ ........... Subdivision ..................................... F. ilcd Map No.. (Name) , .............. Lot..:L ............ 2. State existing use and occupancy of premises and intended use and occupancy of proposed con'traction: ..... ,.....'.... ' a. Existing use and occupancy ....... "'i.' . ' ..... b. Inttnded use and occupancy · ... 3. ature at work (check which applicable): New Building . ' Addition ....~ ,'d/oration N ' Repmr .............. Removal .............. Demolition .............. Other Work .............. ~. , .~.. (Description) 4. Estimatc'd Cost ....... ~ ................. Fee .,. $. If dwelling, number of dwelling units .... (to be paid on filing this application) If garage, number of cars ........... Number of dwelling units on each floor. ' If business, commercial or mixed occupancy, specify na ............................................... . t. ura and extent of cache. ?e of, use ........ ! .. 7. Dimensions ofbxisting structures, if any: Front '7~ ~-' Height .~.'7~.. ........ NUmber of~;t~,.~,,o ''1~'~' ,'T ...... Rear . ..~ · .~.... Depth .~.~.. Dimensions of same stru,-t.,, ,.,',, . . g ./( .z--, ............. 4 ............ -- I no,th -'7.~4- ....... ],- mterattons or add'ifions- Front ~ · ~ ,~ ~3-' ;~ ........ ---r, ..... ~cO ......... l'[ '--- ~'~.~ ...... ,-.~:~--..,.~ ........ /lear ~.~., ~7'~- · . · ...... eight ..... ! · · .~ ........ S. Dlmens,ons of entire new construe,:- - '~'~f~fd=~, .... t ........ Number of Sto~es .. ?_. I.]...~.. ~i~'~tf'' ~r~t' :::: 7~-. ,,~n: front ......... Rear..· ~ .'.'.~./.... Dep/th-:i'' 7' ....... ........ 9. lot: bet of Stories... ..: .................... ............. Rear ..... /~"/ ........... Dcpth ...ZOO... ' ........... 10. Date of Purchase II. Zone or use distric; ;~ ~;ii;t'~':r;;nises are situated Name of Former Owner ' Does proposed construction violate any zoning law, ordinance or regulation: . 13. Will lot be regraded ~,[ .(~ ............... N~ ......................... Address ' ' ~ ~ ' ' *If yes, Sour:hold 'Po,an 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 comer lot. :O. UNTY OF -;/ S.S · " '~ .............. being duly sworn, deposes" ' -x (Name of indi4idual signing contract) ' nt above named. : i, (Contractor, agent, corporate officer, etc.) of said OWner or owners, ~d'is duly authorized to perform or have perfo~ed the said Work and to m~e and file this a~plication; that all statements contained in this application are true to the best of his knoxvlcdge and belief; and that the '~VOrk will be perfo~ed in the m~ner set forth in the application Hied therewith. ~wom to before mc this :Ota~, Public, ' ' tYtlNDA k HOWARD ~ ' ilo, 4711511 * · . . ........ ec~iEcd in S~falk Co~ ~ amre of~pplic C~i~:ica E::~res a~ember 31, 1~ ~t,). TOWN OF SOUTHOI.~,~I~I~'J ~ APPEAL FROM DECISION OF BUILDING INSPECTQI~. TO THE ZONING BOARD OF APPEALS, TOWN ~ J~. APPEAL NO. Dominick and Ann M. Sblendido 1, (We) ....and. Aru:j~L~.~ur.i~chi~) ...................... of ...$.J~.~...I..q~.~.~....LD...n..e. .............................................. Name of Appellont Street and Number .................. .~.~.~[~P~'.~, ............................................................. ~,.Y., ............... HEREBY APPEAL TO Municipality State THE ZONING BOARD OF APPEALS FROM THE DECISION OF THE BUILDING INSPECTOR ON APPLICATION FOR PERMIT NO. Q1..7_9..:~.~....~. .................. DATED ..... ~.~....2.9.,....1. B.cJ.Q .................... ( ) ( ) (x) WHEREBY THE BUILDING INSPECTOR DENIED TO Dominick and Ann M. Sblendido ................ ~a~..Ang.a~a..&ur£cc2~im ................. Name of Applicant for permit of ..... 1.{~. ~...TmJ,~t,. L~a ........................... ~r~e~t ........... ,t~.~...l:c~J~ ....................... Street and Number Municipality State PERMIT TO USE PERMIT FOR OCCUPANCY required action by the Zoning Board of Appeals 1. LOCATION OF THE PROPERTY ..1.,.8.~....I.ql...e.t....~..a.,q.e. .......... .g.[.e.?.po....[.t. ........... ...I~... ........................... Street /Hamlet J Use District on Zoning Map District 1000 Section43 Block 4 Lot 37 12.-r~-~ Dominick + Ann H. Sblendido ................................................................................... U[ I=11~,Owner' ~.~ AT~g~lm A,~-~I~ Mop No. Lot No. Prior 0wnerKenneth + Katharine Roqers 2. PROVISION (S) OF THE ZONING ORDINANCE APPEALED (Indicate the Article Section, Sub- section and Paragraph of the Zoning Ordinance by number. Do not quote the Ordinance.) ArticlexxIII Section]00-230(A~ and Art. TTTA s~a.lO0-30.3 (~nsufficient front yard)and Article IIIA sec. 100-30Aa 2A(1) (100-3IA) re interpretation to permit second kitchen 3. TYPE OF APPEAL Appeal is made herewith for (please check appropriate box) (x) A VARIANCE to the Zoning Ordinance or Zoning Map ( ) A VARIANCE due to lack of access (State of New York Town Law Chop. 62 Cons. Laws Art. 16 Sec. 280A Subsection 3 (x) Interpretation of ordinance section reaardlna second k~tchen in one family dwelling 4. PREVIOUS APPEAL A previous appeal ()~J~ (has not) been made with respect to this decision of the Building Inspector or with respect to this property. Such appeal was ( ) request for a special permit ( ) request for a variance and was mode in Appeal No ................................. Dated ...................................................................... REASON FOR APPEAL ) A Variance to Section 280A Subsection 3 A Variance to the Zoning Ordinance ) requested for the reason that Jeorrn ZBI (Continue on other side) REASON FOR APPEAL ~ ~ ¥ I ~ ~ ! IIC°ntinued 1. STRICT APPLICATION OI~I~NCE would produce practical difficulties or unneces- sary HARDSHIP because the plans were already approved by the Buildinq Dept. and a building permit w~s is~~g~ construction has been basically completed, and betitioners have alread~-~nq~i~-~cess of $175.000 to complete the work as oriqinally approved by the Building Dept. 2. The hardship created is UNIQUE and is not shared by all properties alike in the immediate vicinity of this property and in this use district because the parties have owned the property since 1977. The work already done under the original building permit upgrades a suraner house to a year-round home to conform to the area- As far as front yard setbacks go/ the one here conforms to those of the three neiqhbors to the north and the three neighbors to the south on the same side of the street- This is an older Dre-e×istinQ home which is beinQ rsnovated, hence the lot itself is Dre-exist~n~ and undersized. 3. The Variance would observe the spirit of the Ordinance and WOULD NOT CHANGE THE, CHARACTER OF THE DISTRICT because the setback rec~ested would conform to the rest of the neighborhood and as set back a~ove the house would remain a one family dwelling, with substantial renovation includin~ a second kitchen as proposed to enable the co-owners to better en~ov their use of the home. STATE OF NEW YORK ) ) ss COUNTY OFSUFFOLK ) Sworn to this ........ ...~...~.. ............................. day of ................... .3...t~...e. ............................. 19 90 Notary Public LAURIE E, GRAEB Notary Publ~ State of New York No. 4821818, Suffolk County~ ) / / ,l~,N 1'7 1991 MA NHANSE T AVE. N/O/F JOHN C. BIDDULPH owstlJ~ ~c°~°c~°~,~ A7' OA' ~" E fO0. O0' AREA = 12,289sqft. §~57' N/O/F EDWARD P. TOBER & MARIE TOBER BAY ROAD SURVEY OF PROPER T Y A T GREENPORT. TOWN OF SOUTHOLD SUFFOLK COUNTY, N Y. 1000 - 43 - 04 37 Scale I" = 20' Dec. 6, 1989 JAN. 23, 1990 (set monuments] VE N YS LIC ~ ~ YORS, PC ' MAIN ROAD 89 - 459 SOUTHOLD~P OPER1 TOWN OF i VILLAGE =~ '~RECORD CARD OWNER STREET o ~. LOT COMM.' lIND. DISTRICT SUB. ACREAGE. ' ' TYPE Of BUILDING CB. I MISC. o///~/_ SEAS. VL. IMP. ,~' 0 (~ 0 ES. ~/D FARM TOTAL DATE '-//_ o_o ,. Iloo NEW Farm Ti~able 1 NORMAL BELOW Acre Value Per Acre ABOVE Volue Tillable 2 Tillab e Vccdland Swampland Brushland House Plot COLOR TRIM M. Bldg. 2z~ ~(5~ : i~K)7_. 5,5-0 7(D5'~ Foundation Bath ~) Dinette ~.r,~t,^? ~ Z X ~ ~ [I ~ ~ 2 ~ 2,50 ~ Basement CR*W~ Floors ~e v~ ;~ Kit. ExtensmoJ ~ ~ ~ = ~ j ~ ~;LAB Extension Ext. Walls Interior Finish L.R. Extension Fire Place ~ I Heat ~[['k ~,~ D.R. Patio W°°dst°ve BH. m ~ porch Dormer Fin. B. Deck ~tO ~ ~0 ,~' Z~ Attic Breezeway Rooms 1st Floor Garage Driveway Rooms 2nd FJoor O.B. Pool I _..__ 600 ?,600 210 SO0 5,600 210 R-40 R-80 HD HD APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairmaix Charles Grigonis, Jr. Serge Doyen, Jr. James Dinizio, Jr. Robert A. Villa Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOTt L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 July 3, 1991 Mr. Edward P. Tober 128 Inlet Lane Greenport, NY 11944 Re: Appl. No. 3955 Sblendido and Auricchio Interpretation and Frontyard Setback of Porch Area Dear Mr. Tober: We are in receipt of your recent inspections by the Building Inspector modifications and alterations. inquiry concerning recent in the above project's Condition No. 9 of the Board's decision states that there shall be no partitions or barriers that will separate different portions of the house between rooms and such habitable areas shall remain open free of any closures. It is our understanding from the Building Inspector that the wall separating the two stairways has been modified to allow access to each room and is not a fully enclosed wall. The Board of Appeals does not have authority to limit the number of rooms or room partitions in a home. Neither is authority given to the Board to limit the number of stairways. We have been advised after speaking with the Building Inspector that the second kitchen/cooking area plumbing facilities have been removed and that there are no walls fully enclosing either part of the house without openings for access. Since our office is not authorized by law to have direct involvement in enforcement or questions concerning inspections under the building permits, we must ask you to refer your inquiries directly to the Building Inspector as the enforcing officer. FOUtlDA TI O:I ¢lst) FOUNDA TIO:I 1 2nd ) 2. ROUGH FRAHE 'PLUMBING I~SULATIO~ PER N. y. STATE ENERGy?~-~ CODE FI~AL 76S-1802 BUILDING DEPT. INSPECTION FOUNDATION 1ST []ROUGH PLBG. FOUNDATION 2ND []INSULATION FRAMING []FINAL INSPECTOR~ 765-1802 BUILDING DEPT. INSPECTION [ ] FOUNDATION 1ST [ ] ROUGH PLBG. FOUNDATION 2ND [ ] INSULATION [ ] FRAMING REMARKS: ]~FINAL 765-1.802 BUILDING DEPT. INSPECTION 4~A Y ROAD MAP OF SETBACKS, ., WITHIN 300' OF ~ PR O PER T Y A T GREENPORT TOWN OF SOUTHOID SUFFOLK COUNTY, N. Y. 1000 - 43 - 04 - 37 .' Scale I" = 60' Dec. 11, 1989 CaroCnafe ~ Garo~nafe 722-4817 January 7, 1991 Zoning Board of Appeals Town of Southold Main Road Southold, NY 11971 Attention: Linda Kowalski Re: Appl. No. 3955 - Sblendido & Auricchio Dear Members of the Board: Enclosed herewith are the two sets of building plans, the survey print by Roderick Van Tuyl dated 11/7/77 and copy of three Court decisions as requested by the Board. In its deliberation prior to its decision, I would request that the Board review carefully the full text of the Supreme Court Appellate Divi- sion decision of May 12, 1975, In the Matter of Aharan Baskin, Respondent, v. Zonin8 Board of Appeals of the Town of Ramapo et al., Appellants (copy attached as Exhibit 1) and note particularly the dissent of Justice Shapiro. The New York State Court of Appeals in its November 18, 1976 decision in this matter, (copy attached as Exhibit 2) adopted Justice Shapiro's reasoning in reversing the Appellate Division's decision. It is urged that the standard to be utilized by the Board in regard to the issue of a second kitchen is as set forth by Justice Shapiro "not design or potential use, but actual use". This standard was reiterated much more recently in the Memoranda decision In the Matter of John Di Milia et al., Respondents v. Roger Bennett, et al. (copy attached as Exhibit 3). Therein in April 1989, the Appellate Division, citing Baskin stated "the standard to be applied is the actual use of the building in question not its pos- sible future use" and added "to prohibit the house based on a possible future illegal use was arbitrary and capricious". I would also request that the Board consider carefully the fact that the Jananry 8, 1988 interpretation of the term "one dwelling unit" (produced by the Town for the first time at the November 29, 1990 Zoning Board of Appeals hearing) pre-dated the extensive revision of the Town Zoning Board of Appeals January 7, 1991 Page 2 Zoning Code on January 10, 1989 and hence, is neither legally nor logi- cally dispositive of the interpretation issue confronting the Board as it seeks to analyse and interpret the Town Code as of the March 16, 1989 application date for the Building Permit involved herein. Other factors that I urge the Board to consider carefully are as follows: 1. The fact that Petitioners are and have been co-owners and co-occupants of this property since 1977.; 2. The approval on March 16, 1989 by the Building Department of initial plans which clearly indicated two kitchen areas as well as all other design features which objectants now seek to place at issue.; 3. The approval ia December 1989 of revised plans (specifically at the request of the Building Department) incorporating changes in design more fully interrelate the addition and the pre-existing structure. to 4. The fact that, unlike in the Baskin case, here a renovation/ addition was involved, and accordingly, the determination of design was significantly affected by this fact. For example, there already existed a basement, a small boiler and small oil tank. Therefore, it made good, logical sense to utilize, wherever possible, the existing facilities which would result in a lesser expenditure rather than discarding these existing facilities which would result in a greater expenditure (e.g. utilizing the existing small boiler and tank required purchasing only a new small tank and boiler rather than purchasing a much larger tank and boiler and junk- ing the existing tank and boiler. Similarly, leaving the existing base- ment as it was avoided the expense of demolishing an already existing wall). It should be noted that one electric heater and one hot water heater service the premises. It should also be noted that, although two stair- cases exist, the down stairs area is interrelated and the upstairs area includes one continuing hallway connecting all bedrooms and bathrooms. Further, retaining and utilizing the pre-existing staircase once again reduced costs.; 5. The extent of time (March 16, 1989 to date) and the extensive sums spent ($176,000) by the Petitioners in reliance upon the Building Depart- Zoning Board of Appeals January 7, 1991 Page 3 ment's approvals noted above, particularly in light of the now vested rights of Petitioners and the liability to the Town this implies.; 6. The fact that Petitioners have signed at the request of the Town Building Department ia December 1989 a covenant assuring that the house would be used only as a one-family dwelling.; 7. The limited interpretation issue presented to the Board and the Board's limited authority and jurisdiction in regard to this matter.; 8. The statements of Chief Building Inspector, Victor Lessard, to the Board at the November 29, 1990 !neeting defending the propriety of the issued permit and the legality of the structure as it exists with the exception only of (A) the interpretive issue as to the kitchen area and (B) the set-back issue as to the porch or stoop area. (It should be noted that this set-back issue became an issue only after the amended plans added the porch or stoop area and a set-back survey of parcels within 300 feet (first requested by the Building Department in December 1989) dis- closed a variance of approximately 8 feet would be necessary); and 9. The good-faith consistently evidenced by the Petitioners during this disheartening saga which has now lasted nearly two years. Finally, in addition to the above, file and thank the Board on behalf of careful attention and prompt decision I refer the Board to the entire the Petitioners for its anticipated in this matter. Sincerely PHILIP J.' CARDINALE PJC/lg Enclosures cc: Marie Ongioni, Esq. Sblendido/Auricchio Post. It~M brand fax transmittal memo 7671 ~o~ pages~'~"--~ APPEALS BOARD MEIVlBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. James Dinizio, Jr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOTT L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 January 24, 1991 Philip J. Cardinale, Esq. Jamesport Center P.O. Box W - Main Road Jamesport, NY 11947 Re: Appl. No. 3955 - Sblendido & Auricchio Dear Mr. Cardinale: Please substitute the attached "page 3" of the above determination forwarded yesterday to you. Thank you. Yours very truly, GERARD P. GOEHRINGER CHAIRMAN By Linda Kowalski Copy of Enclosure to: Building Department Suffolk County Department of Planning Marie Ongioni, Esq. Pag~ 3 ~ Appl. No.~55 Decision Rendered~ll/91 Matter of SBLENDIDO & AURICCHIO (a) No foundation inspection (b) No second survey (c) Not being built as per plans submitted (d) Appears to have insufficient front yard setbacks (e) Cannot build a 2-family dwelling in a R-40 Zone, and the conditions under which work would be permitted to be resumed were: 1. Submit a new survey showing all setbacks and houses within 300' - same side of street. 2. New plans showing all details-"Stamped." 3. Eliminate 2-family dwelling. 4. Pay the new fee. 5. On December 6, 1989, the amended building plans changing the words "kitchen," "dining room" and "living room" to "library" and "great room," (with plumbing ~in --~' these rooms), were received by the Building Department together with payment of an additional filing fee of $293.40 (total paid 535.10); on December 11, 1989 a survey map showing setbacks of structures within 300 feet of the subject premises was received by the Building Department. 6. On December 12, 1989, the Building Department was furnished with a signed statement from the builder, Argyle Construction by James B. Argyle, indicating that it agrees to stop all work on the front steps "until a variance has been approved," and on December 12, 1989, this Stop Work Order was lifted at 9:30 p.m. (See Building Department inspection record.) 7. On December 19, 1989, the Building Department inspected the damp-proofing of the foundation and chimney footing, and required a survey. 8. On May 25, 1990, an inspection request was made but the building inspector did not have access. Inspections were made on May 7, 1990 and on May 14, 1990 and the inspection record denotes "...plumbing installed for a second kitchen --not on plan .... "' 9. On May 29, 1990 the subject Notice of Disapproval was issued by the Building Department; and on June 1, 1990, a Stop Work Order was issued on the following grounds: (a) Construction has insufficient front yard set back. (b) Not being constructed as per plans submitted. (c) Plumbing installed for second kitchen, and Pag~ 3 ~ Appl. No.~55 'Decision Rendered~1/'91 Matter of SBLENDIDO & AURICCHIO (a) No foundation inspection (b) No second survey (c) Not being built as per plans submitted (d) Appears to have insufficient front yard setbacks (e) Cannot build a 2-family dwelling in a R-40 Zone, and the conditions under which work would be permitted to be resumed were: 1. Submit a new survey showing all setbacks and houses within 300' same side of street. 2. New plans showing all details-"Stamped." 3. Eliminate 2-family dwelling. 4. Pay the new fee. 5. On December 6, 1989, the amended building plans changing the words "kitchen," "dining room" and "living room" ~. to "library" and "great room," (with plumbing ~~n --A~, 5~ these rooms), were received by the Building Department together ~! with payment of an additional filing fee of $293.40 (total paid ' 535.10); on December 11, 1989 a survey map showing setbacks of structures within 300 feet of the subject premises was received by the Building Department. 6. On December 12, 1989, the Building Department was furnished with a signed statement from the builder, Argyle Construction by James B. Argyle, indicating that it agrees to stop all work on the front steps "until a variance has been approved," and on December 12, 1989, this Stop Work Order was lifted at 9:30 p.m. (See Building Department inspection record.) 7. On December 19, 1989, the Building Department inspected the damp-proofing of the foundation and chimney footing, and required a survey. 8. On May 25, 1990, an inspection request was made but the building inspector did not have access. Inspections were made on May 7, 1990 and on May 14, 1990 and the inspection record denotes "~..plumbing installed for a second kitchen --not on plan .... " 9. On May 29, 1990 the subject Notice of Disapproval was issued by the Building Department; and on June 1, 1990, a Stop Work Order was issued on the following grounds: (a) Construction has insufficient front yard set back. (b) Not being constructed as per plans submitted. (c) Plumbing installed for second kitchen, and Page 8 - Appl. NO.l~l15? Decision Rendered 91 Matter of SBLENDIDO & AURICCHIO 6. Hallway walls must remain open without benefit of doors or partitions for all rooms (except the bathroom area and lavatories); 7. No pocket doors (or walls without access to a room, except for closets); 8. Not more than one kitchen area or cooking area shall be permitted in dwelling; 9. No structural partitions or barriers that will separate different portions of the house between rooms (such as different living areas similar to two-family or duplex-type construction, including the basement). Also, area between Great Room and Living Room, including both stair wells, shall remain open at all times free of any closures; 10. Screening be provided for outside fuel tanks on all sides; and BE IT FURTHER RESOLVED, to grant a variance for the construction of the front entry with a setback of not less than 18.4 feet, inclusive of steps, and as shown on the December 6, 1989 survey prepared by Peconic Surveyors, P.C. SUBJECT TO THE FOLLOWING CONDITIONS: 1. The subject entry area shall remain unroofed and not enclosed; 2. No new construction or steps shall be built reducing the requested front yard setback to less than 18.4 feet - (The 18.4 ft. front yard setback is inclusive.); 3. Screening and appropriate landscaping must be provided, with one to three ft. high bushes, on both sides of the front entry. Vote of the Board: Ayes: Messrs. Doyen. (Member Grigonis was absent due This resolution was duly adopted. Goehringer, Dinizio and to hospitalization). GERARD P. GOEHI~INGER, C~RMAN / ./ APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. James Dinizio, Jr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOTt L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 ACTION OF THE BOARD OF APPEALS Appl. NO. 3955: Upon Application for DOMINICK SBLENDIDO & A. AURICHIO for an Interpretation requested regarding second kitchen facilities and its relation to single-family verses two-family uses, and a variance for addition with an insufficient frontyard setback. Location of Property: 185 Inlet Lane, Greenport, NY; County Tax Map Parcel ID No. 1000-43-04-037. WHEREAS, Application #3955, is made under the Zoning Ordinance of the Town of Southold, Chapter 100, for: (1) an interpretation of Article IIIA, Section 100-30A.2(A1), referring to Article III, Section 100-3iA(i), and with reference to the Town Building Inspector's issuance of a Notice of Disapproval dated May 29, 1990 for a permit to construct an addition to existing one-family dwelling on the following grounds: "...Under Article IIIA Section 100-30.3 and under Article XXIII, Section 100-230(A) construction has insufficient front yard setback; Also under Article IIIA, Section 100-30A.2A(1) {100-3iA}A, Permitted Uses (1) One-Family Detached Dwelling Not to Exceed One (1) Dwelling on Each Lot {A Two-Family Dwelling Is Not A Permitted Use.} Action Required by the Zoning Board of Appeals..."; and (2) an area variance for the construction of approximately 17' wide x 15.5' long (radius of 8'6") front entry {open and unenclosed}, extending 15.5 feet (along a tie line) from the front of the dwelling structure to the front property line along Inlet Lane, as shown on both building construction plans prepared by Argyle Architectural Services; WHEREAS, said application makes specific reference to property of DOMINICK SBLENDIDO AND OTHERS situated along the West Side of Inlet Lane (House %185) in the Hamlet of Greenport, Town of Southold, County of Suffolk, and more particularly APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. James Dinizio. Jr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOTT L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 January 23, 1991 Philip J. Cardinale, Esq. Jamesport Center P.O. Box W - Main Road Jamesport, NY 11947 Re: Appl. No. 3955 - Sblendido & Auricchio Dear Mr. Cardinale: Transmitted for your records is a copy of the determination concerning the above application rendered by the Board of Appeals at our January 11, 1991 Regular Meeting Please be sure to return to the Building Department and any other agency which may have jurisdiction for appropriate permit approvals as noted by the Board's decision. A copy of this decision has simultaneously been transmitted to the Building Department for their file and update. Yours very truly, GERARD P. GOEHRINGER CHAIRMAN By Linda Kowalski Copy of Decision to: Mr. Victor Lessard, Principal Building Inspector Mr. Thomas Fisher, Building Inspector Suffolk County Department of Planning Matthew G. Kiernan, Assistant Town Attorney Marie Ongioni, Esq. APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. James Dinizio, Jr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOTT L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 ACTION OF THE BOARD OF APPEALS Appl. No. 3955: Upon Application for DOMINICK SBLENDIDO & A. AURICHIO for an Interpretation requested regarding second kitchen facilities and its relation to single-family verses two-family uses, and a variance for addition with an insufficient frontyard setback. Location of Property: 185 Inlet Lane, Greenport, NY; County Tax Map Parcel ID No. 1000-43-04-037. WHEREAS, Application #3955, is made under the Zoning Ordinance of the Town of Southold, Chapter 100, for: (1) an interpretation of Article IIIA, Section 100-30A.2(A1), referring to Article III, Section 100-31A(1), and with reference to the Town Building Inspector's issuance of a Notice of Disapproval dated May 29, 1990 for a permit to construct an addition to existing one-family dwelling on the following grounds: "...Under Article IIIA Section 100-30.3 and under Article XXIII, Section 100-230(A) construction has insufficient front yard setback; Also under Article IIIA, Section 100-30A.2A(1) {100-3iA}A, Permitted Uses (1) One-Family Detached Dwelling Not to Exceed One (1) Dwelling on Each Lot {A Two-Family Dwelling Is Not A Permitted Use.} Action Required by the Zoning Board of Appeals..."; and (2) an area variance for the construction of approximately 17' wide x 15.5' long (radius of 8'6") front entry {open and unenclosed}, extending 15.5 feet (along a tie line) from the front of the dwelling structure to the front property line along Inlet Lane, as shown on both building construction plans prepared by Argyle Architectural Services; WHEREAS, said application makes specific reference to property of DOMINICK SBLENDIDO AND OTHERS situated along the West Side of Inlet Lane (House #185) in the Hamlet of Greenport, Town of $outhold, County of Suffolk, and more particularly ~age 2 - Appl. No. Decision Rendered '91 Matter of SBLENDIDO & AURICCHIO WHEREAS, members of the Board viewed the property and are familiar with the current zoning designation of "Low-Density R-40 Residential"; WHEREAS, after due notice, public hearings were held by the Board of Appeals on July 25, 1990, September 26, 1990, Novem- ber 1, 1990, and November 29, 1990, at which time the verbatim portion of the record was concluded; (the written portion of the record concluded January 11, 1991); WHEREAS, at said hearings all those who desired to be heard were heard and their testimony recorded; and WHEREAS, the record and all testimony have been carefully considered, and the following pertinent facts noted: 1. The subject premises comprises an area of 12,289 square feet with 125.71 ft. frontage along the westerly side of Inlet Lane, in the Hamlet of Greenport. 2. The premises prior to early 1989 was improved with a 29' wide x 25' deep 1-1/2 story frame house set back 30 feet from the front property line along Inlet Lane. Also existing during this time period were 5' x 6' front and rear stoops which under the provisions of the zoning regulations {Section 100-230C(2)} were excluded from the building area and setback requirements provided each unenclosed entry remained at 5' x 6' or less in size. (See survey dated November 7, 1977 prepared by Roderick VanTuyl, P.C.) 3. On March 14, 1989 an application for a building permit was received by the Building Department; and on March 16, 1989, a building permit was issued for "an addition to an existing one-family dwelling." Although the permit was issued for a proposed addition, the dwelling structure was completely reconstructed and an entire new second floor added with new basement construction. The addition was being constructed as a "mirror image" of the initial dwelling unit. The building plan with mirrow unit included: (a) a second kitchen, (b) a second dining room, (c) a second full bath, (d) a second living room, (e) a second foyer and stairway to the upper and lower levels, (f) second, separate heating utility systems and separate fuel tank hook-ups, (g) separate passageways and separate front entrances/doors, (h) plumbing systems for the utilization of two separate kitchen areas, (i) vertical party walls and separate entrances similiar to that of a duplex or townhouse. 4. On December 5, 1989, a stop work order was issued by the Building Department on the following grounds: ' 'Pag~ 3~ Appl. No.~15? Decision Rendered '91 Matter of SBLENDIDO & AURICCHIO (a) No foundation inspection (b) No second survey (c) Not being built as per plans submitted (d) Appears to have insufficient front yard setbacks (e) Cannot build a 2-family dwelling in a R-40 Zone, and the conditions under which work would be permitted to be resumed were: 1. Submit a new survey showing all setbacks and houses within 300' - s~me side of street. 2. New plans showing all details-"Stamped." 3. Eliminate 2-family dwelling. 4. Pay the new fee. 5. on December 6, 1989, the amended building plans changing the words "kitchen," "dining room" and "living room" to "library" and "~reat room," (with plumbing ~in --~'5~L. these rooms), were received by the Building Department together with payment of an additional filing fee of $293.40 (total paid 535.10); on December 11, 1989 a survey map showing setbacks of structures within 300 feet of the subject premises was received by the Building Department. 6. On December 12, 1989, the Building Department was furnished with a signed statement from the builder, Argyle Construction by James B. Argyle, indicating that it agrees to stop all work on the front steps "until a variance has been approved," and on December 12, 1989, this Stop Work Order was lifted at 9:30 p.m. (See Building Department inspection record.) 7. On December 19, 1989, the Building Department inspected the damp-proofing of the foundation and chimney footing, and required a survey. 8. On May 25, 1990, an inspection request was made but the building inspector did not have access. Inspections were made on May 7, 1990 and on May 14, 1990 and the inspection record denotes "...plumbing installed for a second kitchen --not on plan .... 9. On May 29, 1990 the subject Notice of Disapproval was issued by the Building Department; and on June 1, 1990, a Stop Work Order was issued on the following grounds: (a) Construction has insufficient front yard set back. (b) Not being constructed as per plans submitted. (c) Plumbing installed for second kitchen, and Page 4 - Appl. No. }5 Decision Rendered /91 Matter of SBLENDIDO & AURICCHIO the conditions which work would have been permitted to be resumed were: 1. Approval from Zoning Board of Appeals for second kitchen and front yard setback. 2. OK from Principal Building Inspector. 10. On June 22, 1990, this application was filed with the Board of Appeals for an interpretation concerning the construction plans submitted and rejected by the Building Inspector, and for the above-mentioned front yard variance(s), The hearings were held and extensive testimony and documentation submitted, both pro, con and otherwise. 11. It should be noted that during this appeal proceeding, a letter dated October 2, 1990, was forwarded to the Building Inspector's Office from Mr. Cardinale, attorney for the property owners of the subject parcel, indicating that the owners would remove the plumbing from the wall of the "great room" if this would allow the lifting of the Stop Work Order, pending the outcome of the Z.B.A. determination. As of this date, the Stop Work Order has not been lifted, and the plumbing has not been removed. ZONING INTERPRETATION 12. During 1987 and on several occasions prior thereto, the issue of plumbing and electrical facilities to a secondary kitchen area was considered by the Board of Appeals, as well as the Town Attorney's Office and Town Board. A written request was made by the Executive Administrator/Inspector of the Building Department as to what restrictions there would be for kitchens, dining rooms, bathrooms, etc. and for a definition of "one dwelling unit" under the Southold Town Zoning Code, with copies of this request being furnished to the Town Attorney's Office. It is noted that by letter dated October 23, 1987, Special Town Attorney Francis J. Yakaboski advised the Building Department to abide by the intent of the zoning code of the Town of Southold that there are to be no two-family homes constructed (except as may be authorized by special exception or in certain zone districts), and that the Building Department must act vigorously to prevent two-family construction by disapproving plans indicating the presence of two kitchens under the provisions of the zoning code. 13. On January 8, 1988, an Interpretation was made by the Board of Appeals of the term "one dwelling unit." The interpretation provides as follows: SECTION 100-12 - DEFINITIONS. "Any building, or portion thereof, forming a Page 5 - Appl. No. ~15 Decision Rendered 1 /91 Matter of SBLENDIDO & AURICCHIO single habitable unit and containing not more than one kitchen and/or cooking facility shall be deemed a "dwelling unit" under the Southold Town Zoning Code. This definition under the "...Code precludes more than one kitchen and/or cooking facility in a one-dwelling unit, and accordingly, a plan submitted through your office which shows intent to install plumbing facilities for a second kitchen area must be denied .... " 14. Based upon the purpose and intent of the zoning code provisions, and this interpretation and clarification, an application to the building inspector with plans showing intent to install facilities for a second kitchen area must be, and in this instance had been, disapproved. Although a remedy may be available to the applicant by way of an application for a variance requesting permission to install the subject facilities for a second kitchen in a principal dwelling structure, the applicants herein made it clear that they chose to request an interpretation, and not a variance to install the subject plumbing facilities and/or second kitchen. (This was the reason the legal notice was modified during publications in the official newspapers.) 15. This interpretation and clarification still remains in effect and has not been modified by this board. 16. It should be noted that the building, as shown on the plans, also does have vertical party walls and separate private entrances to two separate areas of the building construction, similar to that of a duplex or townhouse (which may contain more than one dwelling unit and are not uses permitted in this R-40 Low-Density Residential Zone District). 17. It is the position of this Board that although the use of the dwelling structure may be proposed for single-family occupancy, the physical layout of the new dwelling construction is for a duplex or additional living unit with'separate utilities, entrances, facilities, etc. It is the intent and purpose of the zoning ordinance in the Town of Southold not to permit a second kitchen or separate living quarters, or separate plumbing and heating utilities for separate living quarters, without an application to the Board of Appeals to consider the purposes and intent of the separate connections or units under question, to review the construction plans, and determine whether the construction plans meet the requirements for single-family or two-family construction. ~a~e 6 - Appl. No. J5 Decision Rendered 1/1~1/91 Matter of SBLENDIDO & AURICCHIO FRONT-YARD SETBACK CONSIDERATION 18. This consideration is concerning that portion of the application requesting approval of the front entry with a reduction to 18.4 feet from the front property line. 19. By survey map prepared December 11, 1989 by Peconic Surveyors, P.C., it is determined that the set-backs of the principal buildings within 300 feet of the property are 31.4 feet, 30.0 feet, 18.0 feet and 34.4 feet (exclusive of the subject parcel and exclusive of entry with steps containing less than 48 sq. ft. in area, or 6' x 8' in size). The average of the above-referenced principal building setbacks is 28.5 feet. The unroofed front entry as proposed herein is approximately 210 sq. ft. in area (inclusive of three possible steps) and appears to be more than 24 inches above grade. The set-back reduction of 18.4 feet is with steps along the side, rather than the front of the entry. 20. Section 100-230(A) of the Zoning Code permits relief in the front yard setback to be that average of those estab- lished within 300 feet of the property on the same side of the street. In this instance, the principal building set-back would be permitted at 28.5 feet (plus a step area up to 30 sq. ft., or 5' x 6' in size). The normal front yard setback for a new principal dwelling for the subject parcel would otherwise be 35 feet (without neighboring nonconforming front yard setbacks within 300 feet) for this nonconforming lot. 21. It is noted for the record that the dwelling structure before its removal, as indicated by the 1977 survey map, was set back at 30 feet from the front property line, and the dwelling consisted of a size 29 feet wide by 25 feet in depth. 22. The amount of relief requested as to the front yard provision of the zoning code for a principal building in this Residential Zone District is 10.1 feet (variance from the required 28.5 feet, to 18.4 feet (with side steps). 23. It is the position of the Board that the variance is substantial in relation to the requirements with a percentage of 36% (10.1 feet less than the requirement); however, under Article XXIII, Section 100-230C, permits an unenclosed entry not more than 6' wide by 8' out from the front wall of the building, and such portico shall be ignored in computing the average setback. Since this is an unenclosed entry, the relief needed is of a lesser degree. P~ge 7 - Appl. No. 55 Decision Rendered t91 Matter of SBLENDIDO & AURICCHIO OTHER CONSIDERATIONS 24. In considering the requested set-back relief, the Board determines: (a) that although that area of front entry is not excessive in size from the normal 48 sq. ft. entry permitted by code and those entries generally existing on the same side of the street, the set-back as a whole is substantial in relation to the requirements; (b) the practical difficulties are self-created and are not unique to the property; (c) there is no alternative for appellant to pursue other than a variance; (d) that the grant of the front-yard set-back for this entry is not adverse to neighboring properties. 25. In considering the physical construction of the dwelling structure, the Board determined that mitigation measures were necessary to convert the structure to single- family construction by structural alterations, as noted, infra. RESOLUTION OF THE BOARD ACCORDINGLY, on motion by Mr. Dinizio, seconded by Mr. Doyen, it was RESOLVED, that the plans, as disapproved by the Building Inspector, are interpreted to be of "two-family construction" and the following structural modifications shall be made to comply with single-family construction: 1. In order to comply under the zoning code concerning single-family construction, the entrances must have one common door unit. Existing front doors must be removed and replaced with either one single front door or two doors side-by-side, with one fixed (or both opening) to a common foyer open to both stair wells; 2. Second floor deck (south side) may not have access to first floor by way of a stairwell; 3. Existing oil tanks situated in the rear of the dwelling must be shielded (screened) by a fence of non-chainlink type material on three sides; 4. The basement divider must have free, open access from both stair wells by way of unlocking doors or open doorways; 5. Basement divider (block wall) must contain unlocked opening/unlocked door (standard size with a minimum of 32 inches in width) so as to gain access to either side of the basement area. This access door must remain unlocked; P~ge 8 - Appl. No. Decision Rendered t Matter of SBLENDIDO & AURICCHIO 6. Hallway walls must remain open without benefit of doors or partitions for all rooms (except the bathroom area and lavatories); 7. No pocket doors (or walls without access to a room, except for closets); 8. Not more than one kitchen area or cooking area shall be permitted in dwelling; 9. No structural partitions or barriers that will separate different portions of the house between rooms (such as different living areas similar to two-family or duplex-type construction, including the basement). Also, area between Great Room and Living Room, including both stair wells, shall remain open at all times free of any closures; 10. Screening be provided for outside fuel tanks on all sides; and BE IT FURTHER RESOLVED, to grant a variance for the construction of the front entry with a setback of not less than 18.4 feet, inclusive of steps, and as shown on the December 6, 1989 survey prepared by Peconic Surveyors, P.C. SUBJECT TO THE FOLLOWING CONDITIONS: 1. The subject entry area shall remain unroofed and not enclosed; 2. No new construction or steps shall be built reducing the requested front yard setback to less than 18.4 feet - (The 18.4 ft. front yard setback is inclusive.); 3. Screening and appropriate landscaping must be provided, with one to three ft. high bushes, on both sides of the front entry. Vote of the Board: Ayes: Messrs. Goehringer, Dinizio and Doyen. (Member Grigonis was absent due to hospitalization). This resolution was duly adopted. lk GERARD P. GOEHI~INGER,~H~RMAN APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. James Dinizio, Jr. Telephc~ne (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOTI' L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 ~ 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: XX Variance from the Zoning Code, ArticleIIIA, SectionlO0-30.3 and -- Article XXIII Section 100-230A, Article IIIA Section 100-30A.2 A(1) Variance from Determination of Southold Town Building Inspector. Special Exception, Article , Section Special Permit Appeal No.: 3955 Applicant: Dominick Sblendido and A. Auricchio Location of Affected Land: 185 Inlet Drive, Greenport, NY County Tax Map Item No.: 1000-43-4-37 Within 500 feet of: Town or Village Boundary Line Body of Water (Bay, Sound or Estuary) State or County Road, Parkway, Highway, XX Boundary of Existing or Boundary of Existing or Other Recreation Area Proposed County, Proposed County, Thruway State or Federally Owned Land State or Federal Park or or 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, Within One Mile of a Nuclear Power Plant Within One Mile of An Airport. COMMENTS: Applicant is requesting Y~Ye~ ~Ob interpretation and frontyard variance Copies of Town file and related documents enclosed for your review. Dated: January ~.~, 1991 DEPARTMENT OF PLANNING COUNTY OF SUFFOLK PATRICK G. HALPIN SUFFOLK COUNTY EXECUTIVE ARTHUR H. KUNZ February 7, 1991 Mr. Gerard Goehringer, Chairman Town of Southold Zoning Board of Appeals 53095 Main Road Southold, New York 11971 Re: Application of "Dominick Shlendido & A. Aurichio" (3955), Town of Southold (SD-91-2). Dear Mr. Goehringer: Pursuant to the requirements of Sections A14-14 to 23 of the Suffolk County Administrative Code, the Suffolk County Planning Commission on February 6, 1991 reviewed the above captioned application and after due study and deliberation Resolved to disapprove it because of the following reasons: Structural modifications to the dwelling indicate use for two (2) family purposes; It contravenes the purpose and intent of the Town Zoning Code in prohibiting separate additional living quarters in single family residences; It would only tend to undermine and circumvent the effectiveness of the zoning ordinance; and, It would establish an undesirable precedent for the continuance of such a practice throughout the Town of Southold. Very truly yours, Arthur H. Kurtz Director of Planning Chief Planner GGN:mb APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. James Dinizio, Jr. Robert A. Villa Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOTT L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 February 8, 1991 Philip J. Cardinale, Esq. Cardinale and Cardinale P.O. Box W Jamesport, NY 11947 Re: Appl. No. 3955 - Auricchio & Sblendido Dear Mr. Cardinale: Transmitted herewith for your information and file is a copy of the determination received today from the Suffolk County Department of Planning in response to our referral under Section A14-23 of the Suffolk County Administrative Code. Very truly yours, Enclosure Copy also to: Marie Ongioni, Esq. Linda F. Kowalski 9:25 p.m. EXECUTIVE SESSION: The Board members discussed updates on the following litigated matters: Inland Homes Matt-A-Mar. COUNTY PLANNING OVEP/~IDE: Appl. No. 3955 - DOMINICK SBLENDIDO and A. AURICCHIO. The Application before the Board of Appeals, as decided January 11, 1991 was for: (1) the interpretation regarding second kitchen facilities and 'its relation to single-family verses two-family uses, and (2) variance for addition with an insufficient front yard setback. Location of Property: 185 Inlet Lane, Greenport, NY; County Tax Map Parcel No. 1000-43-4-37. WHEREAS, the Board of Appeals rendered a two-fold determination in the Matter of Appl. No. 3955 on January 11, 1991, requiring modifications and alterations to the building construction plans for a single-family dwelling; and WHEREAS, pursuant to SeCtion A14-23 of the Suffolk County Administrative Code, a referral was submitted on January 23, 1991 to the Suffolk County Department of Planning, which has jurisdiction within 500 feet of an estuary or creek extending from Peconic Bay, and in this instance, within 500 feet from Gull Pond Inlet and Sterling Creek; WHEREAS, at its February 5, 1991 meeting, the variance application was disapproved by the Suffolk County Department of Planning for th~ ~easons noted in its letter dated February 7, 1991; and WHEREAS, at a Board of Appeals Meeting held on March 22, 1991, new Board Member Robert A. Villa confirmed that he has become familiar with the premises and building areas under consideration and has personally visted the subject premises, that he has read the entire record, including the verbatim and written portions of the hearing record, and that he is fully familiar with the subject application and its record before the Board of Appeals; and WHEREAS, the disapproval with four reasons adopted by the Suffolk County Planning Commission were reviewed and discussed at length by all five members present, consisting of the entire board; WHEREAS, it was determined by the Board of Appeal~ to override the disapproval of the subject application by the Suffolk County Department of Planning., and to reaffirm the Board ,/ DEPARTMENT OF PLANNING COUNTY OF SUFFOLK PATRICK G. HALPIN SUFFOLK COUNTY EXECUTIVE ARTHUR H. KUNZ February 7, 1991 Mr. Gerard Goehringer, Chairman Town of Southold Zoning Board of Appeals 53095 Main Road Southold, New York 11971 Re: Application of "Domtnick Sblendido & A. Aurichio" (3955), Town of Southold (SD-91-2). Dear Mr. Goehringer: Pursuant to the requirements of Sections A14-14 to 23 of the Suffolk County Administrative Code, the Suffolk County Planning Con~isston on February 6, 1991 reviewed the above captioned application and after due study and deliberation Resolved to disapprove it because of the following reasons: Structural modifications to the dwelling indicate use for two (2) family purposes; It contravenes the purpose and intent of the Town Zoning Code in prohibiting separate additional living quarters in single family residences; It would only tend to undermine and circumvent the effectiveness of the zoning ordinance; and, It would establish an undesirable precedent for the continuance of such a practice throughout the Town of Southold. Very truly yours, Arthur H. Kurtz Director of Planning /,~. Newman Chief Planner GGN:mb VETERANS MEMORIAL HIGHWAY HAUPPAUGE, L.L, NEW YORK 11788 (516) 360-5192 APPEALS BOARD MEMBERS Gerard P. Goehringe'r, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. James Dinizio, Jr. Robert A. Villa Telephone (516) 765-1809 . BOARD OF APPEALS TOWN OF SOU~OLD SCOTF L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 July 3, 1991 Mr. Edward P. Tober 128 Inlet Lane Greenport, NY 11944 Re: Appl. No. 3955 - Spblendido and Auricchio Interpretation and Frontyard Setback of Porch Area Dear Mr. Tober: We are in receipt of your recent inquiry concerning recent inspections by the Building Inspector in the above project's modifications and alterations. Condition No. 9 of the Board's decision states that there shall be no partitions or barriers that will separate different portions of the house between rooms and such habitable areas shall remain open free of any closures. It is our understanding from the Building Inspector that the wall separating the two stairways has been modified to allow access to each room and is not a fully enclosed wall. The Board of Appeals does not have authority to limit the number of rooms or room partitions in a home. Neither is authority given to the Board to limit the number of stairways. We have been advised after speaking with the Building Inspector that the second kitchen/cooking area plumbing facilities have been removed and that there are no walls fully enclosing either part of the house without openings for access. Since our office is not authorized by law to have direct involvement in enforcement or questions concerning inspections under the building permits, we must ask you to refer your inquiries directly to the Building Inspector as the enforcing officer. Very truly yours, GERARD P. GOEHRINGER lk CHAIRMAN I~. Gerard Goehringer Chairmen, Zoning Board Town of $outhold ~ain Road Southold, E.I. 11971 of Appeals Gentlemen: By Certified ~'~ail 7/26/91 ~1.ro i~Ca. tt JCiern~n Town &ttorney Town of So~thold ~,iain Road Southold, L~ I. 11971 ~ Your 1/91 ruling (#3955) required modifications for the Sblendido/Auricchio project to conform to Code. The ZBA~s~specified changes seemed mod ~ : structure, the so-called "ad~ io~,, ~+ ..... ' e~t. a 2~ story _t ...... em in ~he 3/89 construction, permit apolication~now replaces the l~ story the ~2,300 sq. ft. site. But I chos house formerly on ing ~ince its lan~a~e ~+~-~ ..... e not to appeal the ZBA's rul- osrtions o~ ~o~=,~ ~na~ "there ma not ....... ~ ~n~ separa~edi£feren~ ~ortio~ 'any structural of the ho.use!,. Last week the Stop Work Order was lifted and work resauned. ~. met Inspedtor Tom~ Fisher on the si ~o~ understood him to say ~a=t the wall running most of the wayt the front to the rear of the house~, separating the central tw' dividing the house, did ncc .~.~ ~n stairways and thus effectively .......... ravene the ZBA resolution. · ~n my view, it does. If the wa . znterpretat~on of the landman, ~e +~ ~.ll ~ands, ~t means an structure that is (or can easily be made) a two-family house. ~ '~ ...... = ~A ru±~ng that a~llow As your files will attest, and the Chairman re,harked at the 7/90 ZBA meeting, he had received many letters from s~ea residents objecting to the structure. AS the hearing, an addition~l 20 Sandy Beach home owners petitioA $1so objecting, was submitted by my attorney, In the light of the above, may I urge yow to review the wording of the l~91 resolution and let me have your opinion as to the appropriateness of the wall that seoarates the parts of the Sblendido/Auricchio Construction~ I would only ask that-this be done promptly as the work is now underv~ay to Complete the house. Sincere!y, Edward P' T°ber ~'F 128 Inle~ Lane ~- '~ I Greenport, I~, 11944 cc~Nr. ~om Fisher, Building Inspector, Southold. 7/26/91 N~. Gerard Goehringer Chairman, Zoning Board of Appeals Town of Southold MainRoad Southold, E,I. 11971 Nr. Natt Y~ernan Town Attorney Town of Southold Nain Road Southold, L~ I. 11971 By Certified Nail Gentlemen: Tour 1/gl rulir~ (#3955) required modifications for the Sblendido/Auricchio project to conform to Code. The ZBA"s specified changes seemed modest; a 2~ story structure, the so-called "ad~tion" cited in~ the 3/89 construction, permit application, now replaces the l~ story house formerly on the 12,300 sq. ft. site. But I chose not to appeal the ZBA's rul- ing since its language stated that "there may not be any structural pa~rtions or barriers that separa~edifferen~ portions of the ho~se:'. Last week the Stop Work Order was lifted and work rea~nned. I met Inspedtor Tom~ Fisher on the site. I understood him to say tha~. the wall r~uuning mos~ of the way from the front to the rear of the house, separating the central twin stairways and thus effectively dividing the house,~ did not contravene the ZB,A resolution. In my view, i~ does. If the wall stands, it means an interpretation of the language of the EB-A ruling that allows a structure that is (or can easily be made ) a two-family house. As your files will attest, and the Chairman remarked a~ the 7/90 ZBA meeting, he had received many letters from area residents objecting to the struct~ure. AI~ the hearing, an additional 20 Sandy Beach home owners petition $1so objecting, was submitted by my attorney. In the light of the above, may I urge you, to review the wording of the 1/91 resolutio~ and let me have your opi~on as to the appropriateness of the wall thzt seoarates the two parts of the Sblendido/Auricchio construction.. I would only ask that this be done promptly as the work is now underway to complete the house. Sincerely, Edward P. Tober 128 Inlet Lane ~ Greenport, ~, 11944 ¢c-~r. ~om Fisher, Building Inspector, So~thold. ~r. Victor .Lessard Chief Buildzng Inspe¢$o~ Southol~ ~own Hall (To be hand delivered 6/li) Dear Nr. Lessard: ~han~ you for taking the time this morning to discuss the plans submitted for the lifting of the Stop Work Oder on the Sblend- ido/Auric chi structure. , As you~ requested, attached is a xerox of the first page of a lettmr(2/12/91) out ~]itnin~ the modificalions specified by the ZBA's resolutio~ to bring the structure into compliance with a one family dwelling. I was relieved to learn that plumbing leading to a 2nd kitchen or "wet harM would be removed. But it seems to me that the new plans do not comply witt~ the Board's specifications,in ~wo important respects ~Items 2) and 10)in the att~3~ched letter. Item l0 bars an~ structural partitions ...separating different portions of the house. The new plan shows the wall runmi~g virtually inZact from the fror~t to the rear of the house~divLding the twin stairways. The 3' openings separating the wa~l from the front and rear of the house do no~ I submit, elhimin~te the t~vo-family character the Board wanted changed. A~ odds with the Board,'s intent are the stairways. As I noted irz my previous letter and discussed with~ yom today, the fact o~ the stairs, as I recall, come within 2'~ of the fron~ent~ance.. Though you indicated a ~Ommon foyer' (item~ 2 in the a~tached) some 3' in width~ and ~engl~hI ~ven, a "foyer" o~ such. modest dime~sion~ wou~d. be made impossibl~;~the present stairways would protrude into it despite the new plans showing otherwise. If an inspection of ~he actual distance of the stair- way to the front entrance proves the abo~e paragraph incorrect, please accept my apologies, but I wil~ be surprised by any such~ finding. Let me be clear. I'm not objecting t~ two families living in~ one house.. I simply point out that the wall dividing the houae i~ two stands essentially, in, act. Further, that the stairways extend~ down so closely to the front entrance that a commo~ foyer any rea~ meaning of that word is imp~ssible. Way I say theft I am extremel~ uncomfortable in being involved ir~ this matter; I thought the wording of the Board"s resolution would bmr a two-family structure. In any case, I thank you~ for the courtesies sh~wn~ me this morning and fervently hope the ma~ter may be speedily settled consistent with the ZBA's finding. · O cc~ Town. Al~t'y Natt ~ierna~ Chairman,. Zoning Board of. Appeals. . a letter dated 2/12/91 from the art's7 representing me Sincerely a~ the ZBA hearing. MARIE ONGIONI ATTORNEY AT LAW I [ ~ ~. 218 FRONT STREET, GRE£NPORT. NEW YORK ' Iq: .- 150 West 79th Street ~ New York, New Yo~k 10024 ~ O%~ ~ Dear Moura and Ed, 31~'~'' '' I enclose tho resolution of the 7. onin~ Board of Appeals regarding the Sblendido/Aurichio application for your review. Essentially, the Board found the plans to be those of a two family house and imposed, structural modifications to bring the structure into compliance with a one family dwelling. The following structural modifications were specified: 1. The two doors in the front entrance must be one. 3. floor by 4. 5. 6. 7. 8. There xaust be a common foyer. The second floor deck may not way of a stairwell. Existing oil tanks must be screened on all sides. Basement must be open. -2 Basemen% block wall must be open. Hallway Walls must be open without doors or partitions. There mffy not be any pocket (conceaie~) doors. have access to the first 9. There m~¥ he only one kitchen or cooking area. 10. There may not be any structural part(tions or barriers that separate different portions of the house between rooms. 11. The area between the great room and the living room shall remain open and free of any closures. 13. of the The frorrt stoop variance was granted .inclusive of steps. Screening and landscaping must be provided on both sides front entry, with one to three foot high bushes. Nr. Victor Chief Building Inspector ~Outhold Towr~ PRell (To be hand delivered 6/10) Dear Mr. Lessar~: Ms. Santacroge ~oday informed me that you~ office would be reviewing the Sblendldo/Aurichio filing whom the plans were released by the Engineering Dept. She sugg~ste~ I call you Monday Morning. As you know~ the 2/91 ZBA reso~utiori~m mandates certain changes. The resolutiom's wording would seem to assure the structure's one-family character but I'd appreciate your comment~ om the new plans and the modifications specified by the ZBA. The resolution states: The two front entrance doors must be ons snd there must be a commom foyer. Does your Department regulations cite a minimum foye~ size~ If so what are the dimensions and does the new plan~ meet~ or exeeed the regs? In re, the twim stairways~ if i recall, star~. some two feet from the front doors. A wall separating the stair- ways (and effec~tively dividing the house in two) ran from the rear of the house to the foot of the stairs. Does the new plan show thio wall eliminated? The basemen~ must be open as does the basement wall. The latter r~n from front to rear being in~ fact the found- ation of the old house's south wall. Does the new plan show it removed? There were other modifications soecifying removal of doors and oartitions which seem quite clAar but there is one last point that, the reoolution~ dealt with which seems to define a one family-hou~e...on~ kitchem. During the firs$ (7/90?) ZBA hearing on~ thio matter~ the owners' lawyer described~ the additional plumbing as i~ended for a '~et ~ar". Does the new plan show thio "convenience" eliminated? I rAgret pu~ting you to this trouble an~ I certainly do not want to hold up completiom of the work. But I'm sure you'll understand my 'concern~ that a t~v~ f~mily ho~se does not neighbor my own. Sincerely Edward P. Tober 128 Inlet Lane Greenport, L.I. 11944 cc Tow~ Attorney Matt Kiernam Chairman, Zoning Board of AppeaDs. I~' 'om 197,1. ~,,)n r ~., BASKIN v. ZONING BD. OF APPEALS OF RAMAPO 829 Looking elsewhere, we see that section 1261 (subd. 14) of the Public ,les Law defines a transportation facility aa "any * * * omnibus * * * facility * * * used for service in the transpor- tstion of passengers * * * as a common carrier for hire * *" The words "omnibus" and" o · c mmon carrier for hire", baaed upon what · . have seen from the Public Service Law and Transportation Law, . do not include charter ami .~cbool buses. In 1967, in approving the ::'extensive legislation which created the Metropolitan Transportation Author ty ami strengthened the powers of local governments to aid :' maas transportation, Governor Rockefeller noted that the legislation '!'was directed at such tnass transportation prelects as "commuter railway, rapid transit, bus line, waterway and airport improvements developments" (eml)hnsis supplied; see Legis. Ann., p. 288, Gover- nor's memoran,ium on nl)l)roving L. 1967, ch. 715, McKinney's Session :~ Laws of New York, 1967, I). 1541). lie slti(I nothing about charter and iochocl buses. · ~ What all this background recognizes is that charter and school buses ~re really not wbat ~e refer to as public maas transportation. To conclude, as Special qerm dM, that school children are commuters, is i stretching the point. There is something essentially "private" about . charter and school bt,scs. They are a type of specialized service, much like taxicabs aed airport limousines. They do not stop for everyone, ~, only I)y apl)ointment, as it were (see Matter of Recreation Lines v. .Public Servicc (,~ n n. of State of N. Y., 7 A.D.2d 20, 179 N.Y.S.2d 1001, mot. for Iv. to app. den. 7 A.D.2d 952, 182 N.Y.S.2d 348). To allow defendanCs to take over and operate charter and sehocl buses on that these servlccs are "related" or "incidental" to com- i,muter servlee wouhl, sbnilarly, require or permit defendants to take over and operate everything from taxis to airlines. I do not think the ever intended that local governments might go,so far. In u,snaran BASKIN, R~pondent, v. ZONING BOARD OF APPEAled, OF the TOWN OF RAMAPO et al., Appellant& ; . i~upreme Court, A_lfl~.ellate Division, Second Department. 78 proceeding was brought to review :. board o! granted a variance ~tsl{ a second kitchen in one-family ~o;,lence he was {or~mself and his son ami daughter-in-law on a plot located in ~ ~ea Zoned for one-family residences, The Supreme Court, Rockland 830 367 NEW YORK SUPPLEMENT, 2d SERIES County, annulled such det~qn ami revoked build th~ zoning board appealed. The Supreme Court, Appellate held that judgment would be affirmed. Affirmed. ,~ Shapiro,.J., filed a dissenting opinion. ~.~iz.~' Zoning ~=~ 749 ~;: Judgment of Supreme Court, which annulled determir zoning board of appeals granting a variance permitting install a secom! kitchen in one-family residence he was for himself and ]lis son and daughter-in-law oo a plot area zoned for one~family residences, and which revoked permit, was afl 'ned CPLR 7801 et seq. ~ Kenneth H. Resnik, Town Atty., Town of Ramapo (Andrew~ ~'i;~ Deputy Town Att),., Town of Ramapo, of counsel), for Greenberg & Wamlerman, Spring Valley (Carl L. Wan Spring Valley, of counsel), for respondent; Before MARTUSCEIA~o, Acting p. j., ami LATHAM, CHBIST and SIIAIqI~.O, jj. MEMOP..ANDUM BY THE COURT. In a proceeding pursuant to CPLR article 78(1) to review a nation of the appellant Zoning Board of Appeals, rendered 1973, approving an application for a use variance ami (2) to ~ building permit issued by the appellant Building Inspector, th~ ~ is from a judgment of the Supreme Court, Boekland County, May 31, 1974, which annulled the said determination and said Imihling permit. Judgment nffirmed, wittmut costs. No opinion. MARTUSCELLO, Acting p. J., and LATHAM and COHA~ ' COnCUF. SIIAPIRO, j., dissents and votes to reverse the the petition, confirm the determination and reinstate the permit, with the following memorandum, in which curs. This Court is affirming the judgment of Special Term, hulled a determination of the respondent Zoning Board of That ~ard, after a public hearing, granted a Variance t0 ~ L~a, permitting him to install a second kitchen in the' residence he was constructing for himself and his uon anti law ou u plot hu (,w~ud, which was located in un area ,~ permit, alii rate Divisio~ rmination ¢~ c(mstructir~ h)cated in ked buihli~ drew Stolid, .r appellan~ Wandern'am~ . COtlAIA~ IIALAN. Ill. i~', ment, the hui~ m, which I of o one M~ ;m one*f~ dau~h~ ea zoned ¸1; BA.qKIN v. ZONIN~I BD. OF API'EAL.Cl OF RAMAPO 831 one-family residences. | believe that the board's action should be aastained and, consequently, I dissent from the determination of this ~ourt. ! At tile public hearing held by tile Zoning Board of Appeals on Landa's~lication for a~vvariance, tile petiti0pgr respondsn~appaared in p~-r~iin aaa I)y co~n~el ~i voice{q his objection to the granting of the variance, The Zoning Board nf Appeals granted the variance · fter fimling that (1) differences in tile degree of religious observance between tl,(~ al)l,licant and his son anti daughter-in-law required that the applicant have a kitchen separate ami apart from that used by his ~on, (2) the structure being built had a single entrance, a single boiler and only eno utility roam, (3) tile staircase separating the upstairs and downstairs consisted of an ()pen staircase and (4) there was a single entrancc to tire premises. The hoard also f(mn(l that the applicant had consented to a living arrangement with his son and daughter-in- law in order to permit his son to continue to attead school ami had agreed to remove the secnnd kitchen when it was no longer required for his personal use. Thus, the nmjor issue posed by this appeal is whether the fact that a house which is to be occupied hy what would clearly qualify as one family under the zoning ordinance (a father ami mother and their son and his wife) becomes a two-family I.mse under that zoning ordinance merely hecaose it contains two kitchens. The majority says it does. I Although tire Justice :it Special Term, citing Matter of Stafford v. Incorporah. I Vii. of San(Is Point (200 Misc. 57, 102 N.Y.S.2d 910), set forth as the test of "whether a dwelling is a one-family or two-family residence ' * ' the design uf the h(,nse and a finding that it was ~ be occupie(I by the owner and his family", he nowhere dealt with question of whether the house under examination is "to ~ ~c. pie(I hy the owner and bis family", but predicated bis finding on bb conchmion that "the hnuse (tesigo clearly indicates tbat a two-fam- Imuse is conteml)lated" and thnt "it is clear that there was an attempt hm'c to er(mt a two-faniily house in a one-family R 35 zone" (emphasis SUl)plicd). But, in Stafford, upon which Special Term ~lied, tim courL said: ,' "As might be expected, neither the design of the house nor the natore of its occupancy standlnE alune controls. The combination ~ of the design of the house and the nature of the occupancy is tbe :: two-fohl test. The word. 'design' in ~he definition need not ~ ~ commented upoo. In suying that, I am not unmindful of the fact :( that respondent leans heavily, I would say entirely, ul~n design for its objection tu petitioner's h.ihling. I consider that comment on Um word 'rurally' will more [han suffice. Taking respondent'a objection at face wdue, it considers that the design, including two ki~hens and other possible uses for r~ms labelled in plans to 832 367 NEW YORK SUPPLEMENT, 2d SERIES the contrary, together with the presence on the premises of er's mother and sister, render petitioner's dwelling into used as a two-family house, * * * The using of a dwelli living purposes by a sou, his family * * * ami his moth~ sister, iu the absence of evidence ~ the contrary, may not ~ be the setting 'up of two separate family units who are livi~ under a single head or management for the purpose of denyi~i certificate of occupancy in a one family district" (supra, pp, 102 N.Y.S.2d p. 913). Thus, that ~se not only does not support Special Term's but, rather, requires a ruling aKM~etiti~mndent The oceupan~ of the residential housing which is the subject of instant nppeal are clearly all membe~ of one family. The fact they will have separate kitchens arisiog out of the need for daughter-in-law to have ~~ cannot serve to what is one family living in one house in shared heating, utility entrance facilities, and without seg,'egation within the house the npen stairway between floors), into a two-family home because it could be altered into a two-family home. nances, which are enacted nnder the police power to I~ health, welfare and metals, shouhl not be used to lmr the ~ legal occupants of a ooe-fam~y benin a one-family zone from available space to provide thems~es with such luxuries as an tional sitting room, kitchen, bathroom or extra be~[room~s~mh~ catlsc, In oth~~ ~hl l~ ~m~L f~r mai~na~ a two~mily home. It is clear that the existence of a mere op~ ty foFTi~ evasion or violation ef law does not raise a presum~ that such violatien in fact actually presently exists (llnlt v. U~ States, 218 U.S. ~L~, 251, 31 S.Ct. 2, 54 I,.l~d. IO21). There time enough for tim m~titioner rcsl.mdent neighbor to take actJ~ end a violatioo of the zoning ordinance when and if it occu~; should not receive the aid of th~ court to fend off thc mere evan~ possibility of future violation Insofar as the petitioner is his contention'is that, since~the residence i~ question is so, that it conld be transformed into a two-family residence beeau~ a duplication of kitchen ami other facilities, it is in fact a ;reMdence, despite the fact that the residence will occupied by what is clearly one family. Special Term ac~p~ novel ceneept in law enforcement and struck down the determ .of the Zoning Board of Appeals as "arbitrary, capricious and In my view, Special Term's conclusion was wholly I do not believe that the zoning nrdinanee was intended ~ s ngle families residing in a one-family house from ~aci~ homes with more than o~ e kitchen, more titan one bathreom al living rimms and extra I~drooms, if they couhl afford ~ do'l BASKI ZONING BI). OF APPEAI^q OF RAMAPO 833 ~did so, for reasons of religious observance. Zoning ordinances are not enacted Lo enforce procrustean conformity on a residential area limit- ~ ~ one-family homes hy allowing only one ki~hen to a house, but rather "~ promote the public safety ami welfare and ~ do substantial justice" (Matter of Kasten v. 7~ning Bal. of Appeals of Town of Brookhaven, 47 A.D.2d 766, 865 N.Y.S.~ 254 [~ Dept., dec. Mar. 17, 1975]) by preventing nveruse of homes in such a~as by avoiding 0vererowding. ~he standa~herefore, is not designed or potential use, but actual uae. Jr, in fact, a large--with addiffonal amenl- t~ch as those the owner-builder here sought ~ include m order~~ meet the deair,,s aud religiot, s ueeds of his wife, son ami daughter, n- law is to be burred because i~. might, at some future time, ~ssibl~ ~ used by later owners or occut,ankq for a use which violates the existing one-family limitation, the effect wouhl be to visit on the present lawful users and ~cupiers of the home anticipatory punishment f~ future wrongdoing by another, a eoncept contra~ to the b~ic princi- ples of Angln-Saxon law. A second reason why the conclusion of Special Term and of the here should be set aside is that both apparently fail to recognize that they are dealing with an effort to overturn a decision of the Zoning l~tmrd of Appeals. ttere, the attack is on a variance ~anted by the board in the exercise nf its discretion. Finding that, ~lthough h(~¢ were two kitchens ami apparently sufficient other dwelling facilities to permit the owner-buihler and his wife to have dwelling futilities within the structure separate from those of his son and daughter-indaw, th( Zontng Board of Appeals noted that there is but a single enlrance te the huilding, a single boiler and nne utility ~,n for the <'ntiro s/ructm.o, and only :tn open staircase separating the upsta ra ami downstairs, n,'~atiug, iu their view, and mine ton, the ~nclasiou thai the structure b iu fact being occupied aa a two-family ~use. Cert ~ ~Iv, ti e existence of these f:wtors justified, if it did not · ~mle, thc oxorciso of dis,'retion I,y the appellant Zoning Board of Appea s iu dehwnl ng that the use ~aa to be a one-family use ami the need G*r a voriance allowing thc nsc of a second kitchen in · e house was sapported by a sufficient showing of practical difficul- ~ To ov~z~ prcm.np~ reguhtrilv which at.l~uch ] determlnatio~ th~ Z.,i,,g I~ of Ap?~ (Matter of Falvo~. 222 App.1)iv. 2a~), 225 N.Y.S. 747) it is. necessgr~9~ the mmplaining party te negative this presumption (Matter of Revorg ~alty Co. v. Walsh, 225 App. Div. ?Td, affd. 251 N.Y. 516, 168 N.B. 410, mot. for Iv. to rearff, den. 251 N.Y. 557, 168 N.B. 426). The ',]~en of proof rests wiHl the party seeking LO overturn a decision of · e board (3 Anderson, American Law of Zoning, ~ 21.16, p. 684) and ,'~he courts, siuce the earliest years of zoning, have recognized that ~inances whk. h create bnards nf adjustment delegate LO such admin- ktrative ageucies broad discretionary powers" (id., p. 586). ~ 834 367 NEW YOItK SUPPLEMENT, 2d SERIES This court has consistently heht thaL where a decision of a Board of Appeals ou a matter within its jurisdiction is made,~l~ rational basis, the courts may not substitute their judgment fort ef the board (Matter of Kropf v. Brooks, 17 A.l).2d 829 N.Y.S.2d 62, 63; see, also, Matter of Davison v. Segur, 24 263 N.Y.S.2d 724, 725). Here, Special Term erred when its judgment for that of the board and reversed the board'z (Matter of Fort Greene Assoc. v. Mnrdock, 249 Al,p. Div' 622 N.Y.S. 886, affd. 273 N.Y. 506~ 6 N.E.2d 426), since "It]he before the board was ufa character that afforded a basis foe determination at which it arrived" (Matter of Streit v. Murdoek, App. Div. 791, 292 N.Y.S. 456). Thc Court of Appeals expre~u~l views in the same fashion when it said that "lilt ia axiomatl¢ tl~ co,rt will not substitute its judgment for that ef the board aside unless it clearly appears to he arbitrary or contrary (Matter of Fiore v. Zoaing Bd. of Appeals nf Town of Southa~l~ N.Y.2d 393, 396, 288 N.Y.S.2d 62, ~1, 235 N.E.2d 121, 123).~ It is noteworthy, in this connection, that the two decisions Special 'Perm to suppurt its conclusion that the I use desi indicates that a two-family house ia contemplated" and that ~ qucntly, the determinatio,i of the Zoning Board of Appeals found to be arbitrary, capricious und unrcasennl,le" both efforts to reverse Zoning Board of Appeals' denials o£ applicati~l~, install a second kitchen (see Matter of Williams v. Adami, 70 702, 334 N.Y.S.2d 539 and Matter of Owens v. Michaelis, 22 107, 202 N.Y.S.2d 554). In my opinion, thc action of the Zooing Board of Appeal~{I va r. rianee. was s,.,l,Orte ,y tho '~ discretion; it wits not arbitrary, capricious or unreasons i~Y~aent appealed from should therefoce be reversed, tile '~/~'~&be dismissed, the board's determination should be ~ Y~-%uihling permit shouhl be reinstated. I I tile SuI determin si h E, etc., Plaintiff, v. Alice CRIMMINS, Defendank~ tort, Appellate Division, Second Department.' D, May 14, 1975. '~ continue stay of execution of 'cna County, ami to continue bail 'm~ order of the Snl,.cn.~ Court, A 942 40 NEW YORK REPORTS, 2d SERIES In the Matter of AUARA~ ~, Respondent, v Zo~:INO BOARD OF APP~A~ OF THE ~ OF RAMAPO et ~., Ap~l. lants. HELEN LANDA et al., Intervenors-Appellants. Argued October 20, 1976; decided November 18. 1976 Municipal corporations -- zoning -- variance. Matter of Baskin v ~oning Bd of App~Js of To~ of Ramapo, 48 AD2~ 667, APPEAL from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered May 12, 1975, which, by a divided court, affirmed a judgment of the Supreme Court at Special Term (W~LL~AM A. W~azn, JR., J.), entered in Rockland County in a proceeding pursuant to CPLR article 78, (1) granting a petition to annul a determi- nation of the Zoning Board of Appeals of the Town of Ramapo which approved an application for a use variance, and (2~ revoking a building permit issued by the building inspector. Following a hearing the board granted a variance to one Martin Landa, for the purpose of allowing him to build a second kitchen in a one-family house he was constructing for t~teaSelf and his son and daughter-in-law, on a lot located in au zoned for one-family residences. In its decision the board d that differences in degree of religious observance be- ween ihe applicant and his son required a separate kitchen for applicant; that the applicant had agreed to remove the second kitchen when no longer required for his personal use, MEMORANDA 943 and that there was a single entrance to' the premises, with a single boiler and utility room, and with an open staircase separating upstairs and downstairs. Supreme Court deter- mined that there was an attempt to erect a two-family house in a one-family residential zone and that therefore the board's determination was arbitrary and capricious. The dissent at the Appellate Division concluded that the action of the board was~s~upperted b.~kthe~dd;ence and was within ~~n, and hence was not arbitrary, capricious or unreasonable. Kenneth H, Resnick and Andrew R. Stol/er for appellants. Donald J. Ross for intervenors-appellants. Carl L. W~nderman for respondent. ~, with costs, petition dismissed and the deter- mination of ~-h~e zoning board of appe_als coned on the disser~ting ~mrandum by Mr. J_ustic~~~'IAPIRO S~ the Appellate Division (48 AD2d 667). Concur: Chief Judge ]~REITEL and Judges JASEN, GAeRmLL~, Jolts, WAC~rL~R, FtJCnSBrJ~U and COOK~. 592 149 APPELLATE DIVISION 2d sERIF,~ [! a_ ...... ,' ~/ 39 In the Matter of JO~N DI MIL~A et al., Respondents, v Ro~zR B~NN~Tr et al.:/Constituting the Board of Standards and Appeals of the City of New York, Appellants.--In a proceeding pursuant to CPLR article 78 to review a determi- nation of the Board of Standards and Appeals of the City of New York, dated December 8, 1987, which affirmed a by the Department of Buildings to certify the petitioner~' building plans, the members of the Board of Standards and Appeals appeal from an order of the Supreme Court, Queen~ County (DJ Tucci, J.), entered April 18, 1988, which granted the petition, annulled the determination, and remitted the matter to the Board for reconsideration. Ordered that on the court's own motion, the appellant's notice of appeal is treated as an application for leave to appeal, the application is referred to Justice Thompson, and leave to appeal is granted by Justice Thompson (CPLR 5701 IbiS; and it is further, MEMORANDA, S~cond Dept., April, 1989 §93 Ordered that the order is affirmed, with costs. The New York City Department of Buildings originally approved plans for two two-story, single-family houses to be built in Queens. After this approval, the petitioners sought to amend the plans by adding a full bathroom, a private en- trance and dividing a large room into two on the houses' first ~' floor. The amendment was denied. The petitioners appealed to/ t~e respondent Board. of Standards and Appeals which ~r~ __/grmed the. .determinat~°n based, on the finding that the pr posed build,ngs would be read,ly convertible into illegal, nPorn-~ conforming, two-family homes. The Supreme Court annulled ~ the Board's determination stating, inter alia, that to prohibit [ the houses based~o~a~a4x~ssible future illegal use Was arbitrary [\ and capricious.,.~Ve agr~ae.~ ~ ~ '- --~--.- ~ -..~Tbe s~'~'~-'g~ar~bt~be-aP'lbiied herein is the actual use of the ~ buillti~g in question, not its possible future use (see, Mutter o~ Baskin v Zoning Bd. of Appeals, 40 NY2d 942, revg 48 AD~d 667 on dissent of Shapiro, J.; see also, Jewish Bd. v Zoning Bd. of Appeals, 73 NY2d 734). Thompson, J. P., Lawrence, Eiber and Spatt, JJ., concur. MARIE ONGIONI ATTORNEY AT LAW FRONT STREET, GREENPORT, NEW YORK 11~44 (516) 477-2048 FAX (516) 477-891 g November 26, 1990 Town of Southold Zoning Board of Appeals 53095 Main Road Southold, New York 11971 Re: ADDlication of Sblendido and Auricchio Dear Mr. Goehringer and Board Members: Much has been said about the above application and the record before this Board is replete with facts and law which dictate a finding against the application. I have a few final comments to add to the voluminous record previously submitted. 1. The decision of the Riverhead Zoning Board of Appeals relied on by applicant does not set precedent for the Southold Zoning Board of Appeals. Precedent can only come from the courts of this jurisdiction who have the power to review decisions of the Zoning Board of Appeals. Under limited circumstances, the Southold Zoning Board of Appeal's own decisions can serve as precedent for subsequent decisions. 2. The Southold Code defines a one-family dwelling as that which contains one dwelling unit and conversely a two family dwelling contains two dwelling units. The code further defines a dwelling unit as a minimum area of 850 square feet containing complete housekeeping facilities for one family and having no enclosed space in common with any dwelling unit. The question is what constitutes complete housekeepinq facilities for one family? They would be, among other things, electric entrance heat lay-out kitchen bathroom Here even without a second kitchen there are undoubtedly two complete housekeeping facilities and certainly with two kitchens there can be no doubt. MARIE ONGIONI ATTORNEY AT LAW 218 FRONT STREET. GREENPORT. NEW YORK 11944 November 26, 1990 Town of Southold Zoning Board of Appeals 53095 Main Road Southold, New York 11971 Re: APPlication of Sblendido and Auricchio Dear Mr. Goehringer and Board Members: Much has been said about the above application and the record before this Board is replete with facts and law which dictate a finding against the application. I have a few final comments to add to the voluminous record previously submitted. 1. The decision of the Riverhead Zoning Board of A[~eals relied on by applicant does not set precedent for the Southold Zoning Board of Appeals. Precedent can only come from the ~rts of this jurisdiction who have the power to review decisions of the Zoning Board of Appeals. Under limited circumstances, the Southold Zoning Board of Appeal's own decisions can serve as precedent for subsequent decisions. 2. The Southold Code defines a one-family dwelling as that which contains one dwelling unit and conversely a two family dwelling contains two dwelling units. The code further defines a dwelling unit as a minimum area of 850 square feet containing complete housekeeping facilities for one family and having no enclosed space in common with any dwelling unit. The question is what constitutes complete housekeepinq facilities for one family? They would be, among other things, electric entrance heat lay-out kitchen bathroom Here even without a second kitchen there are undoubtedly two complete housekeeping facilities and certainly with two kitchens there can be no doubt. 3. The request to revoke the Building Permit is not a piggy back on the present application as applicant contends. It is merely a request that, based on the evidence adduced at these hearings, the Board exercise its statutory power to revoke an illegally granted permit. The permit was illegal when granted for the following reasons: a. an area variance was always required. b. a two family house was never permitted. Thus, these applicants should have been before this Board before they started construction and a building permit should never have been issued. Additionally, once it was discovered that the building was proceeding in an unauthorized and illegal manner by creating a two family house, this Board has again the power to revoke the Building Permit just as the Building Inspector could issue a stop work order for unauthorized activities. 4. Finally, while applicant has referred to "cases", he has never cited cases in support of his position. Accordingly, if he should cite cases now, I respectfully request a reasonable time to review the cases and take whatever steps are deemed appropriate. Applicant states that this is not a two family house. But the applicant has also stated, only to be re-stated at a later date, that there would be two kitchens; then there would be one kitchen; then there would be one kitchen and a wet bar; and finally that there would be two kitchens. The applicant has stated that the house is not within 300 feet of tidal wetlands (but the tax map shows that it is). The applicant has stated there would be two totally separate dwelling units; then there would be interrelational space. The applicant has stated the renovation would be an addition to a 1 1/2 story, 900 square foot house with a $80,000.00 estimate cost; then the applicant states that it is a $175,000.00 construction project aggregating 3,500 square foot. When the trees were cut down the applicant stated they were removed by mistake by the builder. Which statements are we to believe. The pattern of making statements and then re-statements makes it apparent the applicant is stating whatever meets the exigencies of the situation at any particular moment in time. This case, in its totality, is a flagrant disregard for the rules which apply to all Southold Town residents and in fact 4eries common sense. It is incumbent on this Board to make the difficult decision against the applicant. Thank you for your careful and deliberate review of the facts and the law. Very truly yours, MO/jb MARIE ONGIONI APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. Joseph H. Sawicki James Dinizio, Jr. Telephone (516) 765-1809 BOARD OP APPEALS TQWN OF SOUTHOLD SCOTI' L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 .Fax (516) 765-1823 Telephone (516) 765-1800 _S.E.Q.R.A. July 25, 1990 TYPE II ACTION DECLARATION Appeal No. 3955 Project/Applicants: D0minick Sblendid0 & A. Auricchi0 County~ax Map No. 1000- 43-4-37 Location of Project: ]85 Inlet Lane, Greenp0rt, NY Relief Requested/Jurisdiction Bef6re TB&s Board in ~ Project: Construct addition to existing one family dwelling insufficient front yard setback and permission to have a two family dwelling 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. An Environmental Assessment (Short) Form has been submitted with the subject application indiceting that no significant adverse environmental effects are likely to occur should be project be implemented as planned. It is determined that this Board's area of jurisdiction concerning setback, area or lot-line variances determines this application to fall under the established list of Type II Actions. Pursuant to Section 617.2jj, this Department is -excluded as an involved agency. This determination shall not, however, affect any other agency's interest as an involved agency under SEQRA 617.2jj. For further information, please contact the Office of the Board of Appeals, Town Hall, Main ~oad, Southold, NY 11971 at (516) 765-1809. mc APPEALS BOARD MEMBERS Gerard P. Goehringcr, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. Joseph H. Sawicki James Dinizio, Jr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOTI~ L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 TO: FROM: DATE: SUBJECT: Building Department Attention: Vic Board of Appeals November 26, 1990 Appl. No. 3955 - Sblendido and Auricchio Building Permit #017923 Just a reminder that your appearance is necessary as part of the record, as requested by the attorneys for the parties involved. The hearing has been advertised for Thursday, November 29, 1990 at 8:55 p.m. Attached is an extra copy of the questions prepared by Marie Ongioni, Esq. for your convenience. lk Enclosure PROPOSED QUESTIONS FOR VICTOR LE$SARD, BUILDING INSPECTOR FOR SUBMISSION TO ZDA AT CONTINUATION HEARING OF APPLICATION OF SBLENDIDO AND AURICCHIO NOVEMBER 1. 1990 1. When building permit was originally issued did plans include a second kitchen? 2. When building permit was originally issued did plans indicate an increase in size for the non-conforming structure. 3. Did building department at any time note that the original structure no longer existed, a new structure was being built and that this was therefore not an "addition" as had been applied for? ~-~ When building permit was originally issued did the plans indicate there would be an insufficient front yard set-back? Why was the application not referred to the ZBA at that time for variance to set-back requirement? Why was the foundation not inspected as note~ on the stop work order dated 12/5/8~? Does the building department always accept just a signed letter from an applicant that they will not "use" the premises being built as a two family ho~se as sufficient grounds to alleviate that problem? ~o~~ If the stop work order of 6/1/90 mentions some of the same problems noted in the stop work order of 12/5/89, why was.work . allowed to continue from December to June? ~ //9%~6~ )~/L~4 When building permit was originally issued, did plans show two heating systems, two electrical systems, two entrances, two stairways? ~% -~ ~30 What w~s square footage of original structure? ~~-~ What is square footage of new structure? C~c~k ~ Prepared By: MARIE ONGIONI Attorney for Challengers Edward and Marie Tober 218 Front Street P. O. Box 562 Greenport, N. Y. 11944 ~tatement by E, ~ober to 11/29/90 Z~ ting ~,~k~ ! a~k the Be~'s i~dulgenee to let me recap brieflT; the eve~s t~at followed the star~ of construotion ne~ door to me late last year. ! asked the ~Ailding Dept. whether they were aware_ of_it: Th.e2__ were ~.'at~ ama promptly issued a ~op Wo. rk O.rder,. me t~ ~l~til~er igmored i~ despite a~ xn.pec.~.or s..wa~.Xn.g.__x?~ work. ~p~. -actually ha~ to send a policeman ~o ~ne sx~e ~o na~ ~ne W~e~ t~e ~er w~s lifted, ! ~ired At~'y ~ony ~ohi~to ~ell ~o~ A~e~ey ~ha~ I fea~a a ~we-f~ily house sit~tion. I repeat- edly expre~e~ t~ fe~ ~o ~he ~ep~. ~ t~e ne~ fo~ mo~. ~ways ~he respo~e ~...WThey were ~ ~img i~"'. on-'the ~':aori=;let-li~ ~o .m~i_ .-:.~de,tt£?n t.o t.h.e moaes~ eo~? ~_n~w ~ now va~hed, ! had At~"70ngion~ ma~e ~ne reprosen~a~zo~s n 033 Pinally, perh~t~.,~ aea result.of the Town'S a~ounced inves$igati.on into past Dep~.'~etivi,~y, a ~ Stop ~ork Order w~ issued, epe. c if3~lag cerSain ~de ~iolatio~. Nm 0ngio~i ~a~ slate specifiea owners file for & varxa~oe, wh~l.~ey exu, ]L~auE~ ~A~ ~ ~1, I too plead hardship.. _Aw~oae seeing th~ ~x bedroom, twin- entice ho~e will ~roe~ i~ ~ a ~wo ~ily ~e, ~ossly out of o~cter on for U ho~e ~ for W Woo~ ~e let he,nd the n~ st~ct~. I've bet~ ~ as ~Ye ~ ~et ~e ~ei~bo~. I ask the Boam~ to make us whole mad te/-~e~peot Respectfully, for the ~own Building OOde -- APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jn Serge Doyen, Jr. Joseph H. Sawicki James Dinizio, Jr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD ScoTr L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephooe (516) 765-1800 TO: Building Department Attention: Vic FROM: Board of Appeals DATE: November 26, 1990 SUBJECT: Appl. No. 3955 - Sblendido and Auricchio Building Permit #017923 Just a reminder that your appearance is necessary as part of the record, as requested by the attorneys for the parties involved. The hearing has been advertised for Thursday, November 29, 1990 at 8:55 p.m. Attached is an extra copy of the questions prepared by Marie Ongioni, Esq. for your convenience. lk Enclosure PROPOSED OUESTIONS FOR VICTOR LESSARD. BUILDING INSPECTOR FOR SUBMISSION TO ZBA AT CONTINUATION HEARING OF APPLICATION OF SBLENDIDO AND AURICCH~O NOV BE 0 .. When building permit was originally issued did plans include a second kitchen? When building permit was originally issued did plans indicate an increase in size for the non-conforming structure. Did building department at any time note that the original structure no longer existed, a new structure was being built and that this was therefore not an "addition" as had been applied for? e When building permit was originally issued did the plans indicate there would be an insufficient front yard set-back? Why was the application not referred to the ZBA at that time for variance to set-back requirement? Why was the foundation not inspected as noted on the stop work order dated 12/5/857 Does the building department always accept just a signed letter from an applicant that they will not "use" the premises being built as a two family house as sufficient grounds to alleviate that problem? If the stop work order of 6/1/90 mentions some of the same problems noted in the stop work order of 12/5/89, why was work allowed to continue from December to June? When building permit was originally iSs6ed, did plans show two heating systems, two electrical systems, two entrances, two stairways? 9. What was square footage of original structure? 10. What is square footage of new structure? Prepared By: MARIE ONGIONI Attorney for Challengers Edward and Marie Tober 218 Front Street P. O. Box 562 Greenport, N. ¥. 11944 66!.3 661.& -10- Section 661.3 .~.plicability This Part shall apply to any tidal wetland the final bounds of which have been established by an order cf the commissioner p,~sua~t to section 25-0201 of the Act and co any adjacent area. Any such ord~er shall become effective on the date it is filed in the office~f the clerk of the county in ~'hich such wetland is located. %~nese regulations shall be applicable in the follo%W_nE areas: Suffolk county, Nassau count-y, all borouEhs of the cit7 of New York, Westchester county and Rockland county. Section 661.4 Definitions. The following terms when used Ln this Part shall have =he fol!o%-ing meanings: (a) "Act" shall mean the Tidal We~!a~nds Ace (Article 25 of the enviror~en:a! conservation law as from tL~e to time amended). (b) "Adjacent area" shall mean a.ny land {mmediateiy adjacent to a tidal wetland wi=bin whichever of ~he follo%*-ng limits is closest to the mos= land'.-ard tidal wetland boundary, as such most landward tidal wetlands boundary is shown on a_n inventory map (see explanatory figures 1-6): (1) 300 feet la.ndward of said most !a~ndward bout. defy of a ~ida! wet!and, provided, bo',ever, that '~ithLn the boundaries of the city cf l~ew York =his distance shall be 150 fee: (see figure 1); or 661.4,  to the seaward edge of the closest la-~fully and pres existing (i.e., as of the effective date of this Par~), functional and substantial man-made structure (including, but no~ limited to, paved streets and h/ghways, railroads, bulkheads and sea walls, and rip-rap walls) which lies generally parallel to said most landward tidal ~e~land boundary and which is a minimu~n of 100 feet in length as measured generally parallel to such most landward boundary, but not including individual buildings (see figure 2); or (3) to the elevation contour of 10 fae~ above mean sea level, except when such contour crosses the seaward face of a bluff or cliff, or crosses a hill on which the slope equals or exceeds the natural angle of repose of the soil, then =o the topographic crest of such bluff, cliff, or hill (see figures 3 and 4). Pending the de~e_rm/~nation by the cc~tssioner in a particular case, the most recent, as of the effective date of this Part, topographical maps published by the United States geological survey, department of the interior, having a scale of 1:24,000, shall be rebu~tab!e presumptive evidence of such 10 foot e!eva~ion. Adjacent area shall not include any area lying landward of an imaginary line dra-~-~ bet-~een ~he seaward edges of exis~in~ subs~s-~±al man-made st.~-actures wklch constitute ~ke landward l~_mi~ of an adjacent area, as provided in paragraph (2) of This subdivislcn, %-here the area land;zard I~D! YOR~,$TATB DEPARI~:.qD'fOF ~,.~IROI~iE~AL CONSERVATI~ P~2ulatory Affairs Unit S~ony Brook, ~ 1179~ (516) 751-7900 Door A revie~ has been made of your proposal to: Location: York State Department of Enviromental Conservation has found the parcel project to be: _~Creator than 300' from inventoried tidal wetlands. .,A/ Landvard of a substantial man-made structure. .. greater than 100~ in length conatructad prior to September 20, [P~i ~andward of 10' contour elevation above mean sea level on a gradual, ~aturel slope. Landward of topographical crest of bluff, cliff or dune in excess of 10' in elevation above ~e'an asa level. Therefore, no permit under Article 25 (Tidal $?etlande of the Environmental Conservation Les) is required at this tine Since the current proposal is beyond State~umdetad Jurtadictionpursuant to this acc; Hmmver, any additional ~rk or modifications to the project may require a pemtt. It is your responsibility to notify this office, in 9tiring, if such additional work or modifications ara contemplated. Alternate Permit Administrator October 2, 1990 Victor Lessard, Building Town of Southold Main Road Southold, New York 11901 Inspector Re: Auricchio and Sblendido with Town of Southold Dear Vic: As you know, pursuant to the request of the Building Department, my client is before the ZBA regarding the above to request a front yard variance and an interpretation as to whether a second kitchen is necessarily precluded from an acknowledged one-family residence. As the matter has been extensively delayed since the May 29th notice of Disapproval and the June 1st Stop Work Order, and since my clients are very anxious to get at least some work completed before the cold weather sets in, they have determined to remove, pending the final decision of the ZBA, the plumbing pipes from the wall of the great room in order that the Stop Work Order may be lifted as discussed between us in June. Please advise as to when you will be able to schedule the inspection. Sincerely PJC/tg PftILIP J. /gARDINALE 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 STATE OF NEW YORK : COUNTY OF SUFFOLK BOARD OF APPEALS. m ~ ~, ~0~;I~ OF SOUTHOLD. REGULAR i~IEETING Town Hall 53095 ~dain Road Southold, I.~ew York November 29, 1990 8:05 P.~. 119'7i BEFORE: GERARD P. GOEHRINGER, l{earing Officer ORIGINAL RAM Court Reporting Servlee East Main St., Rlverhaad~ N.Y., w9o1 (SI&) 7~7-~168 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A P P E A RAN C E S: Charles Grigonis, Jr. Serge Doyen, Jr. James Dinizio, Jr. Linda Kowalski o0o RAM Court Reporting Service 653 Eost M~in St., Rlverheml, N.Y., LI~OX (Sl~J 727-31# 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 53 gentlemen. Ail those in favor say aye. BOARD MEMBERS: Aye. HEARING OFFICER: Thank you very much for your courtesy and for coming in. (Whereupon, the above-mentioned Hearing concluded at 9:45 P.M. and at 9:50 P.M. another Hearing commenced.) HEARING OFFICER: We would like to reopen the Hearing at this time of Dominick Sblendido and Auricchio, Number 3955. Would you like to state something for the record? MR. CARNELLI: Yes. I would like to complete as quickly as I can the remarks that I had begun on the last Hearing and I understand that Mr. Victor La Sarde is here. One of the three reasons for the extension to the November 1st date was to speak to Mr. La Sarde. The purpose as I understand the adjournment to November 1st, was to provide additional information to the Board as requested by the Board, specifically the Wilmott case decision which I entered last RAM Court Reporting 8ervlee 639 East Main St., Rl~rhea~ NS, ~oI ~1~ 7~7.~ ( ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 54 time which I would ask the Board to very carefully look at not just the determination which, of course, goes our way, but also the technique of looking at the definition of the one family dwelling, definition of family and then concluding as to the Riverhead Town or neighboring town that there is nothing about eating arrangements for kitchen in either definition and hence, one or two kitchens is irrelevant to the determination of a one family dwelling. As I now know, you have inspected the property as a Board. That was one of the other items of information, so I'm sure you are familiar with the layout as well as its plans. The information you requested about the square footage of the stoop area and the interrelationship of the kitchen and the great room as shown on the second set of plans I know is now available to you because you have seen the place. The second purpose of the three of the extension as I understand it, was to obtain the presence of Mr. La Sarde for inquiry from the Board and to confirm, for RAM Court Reporting Service 6~3 r4st Main ~., Ri~rhea~ N.Y., U~I (S1~ 7~7-~I~ ( ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 55 my purposes at least, the sequence of events related by me on behalf of the Petitioner to the Board at the Hearing pride of November 1st about how we came to be before this Board and specifically, about those issues which concerned Mr. La Sarde in his Notice of Disapproval and in his June 1st stop work order. They were clearly defined, and, in fact, I believe I offered it ~he last time, a letter that I had sent to Mr. La Sarde on October 2nd which indicated that as the matter had been extensively delayed since the Notice of May 29th, letter of disapproval, since my clients were anxious to get going on this work before the cold weather sets in, they were planning removing,, pending final decision of the Board, the plumbing pipes from the wall of the great room in order to have the stop work order lifted. Even at that time, Victor indicated that was, in fact, the problem here, that it stopped the work in May and has been stopping it for the last five months, that he was concerned that the piping in the great room, which we had indicated would be used for RAM Court Reporting Service 633 East Main St., Riverhead, N.Y., 11~o1 (SIS) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 56 a wet bar and that might be converted to a kitchen, but that if we took the piping out, the stop work order would be listed. The final purpose, as I understand, the extension was to allow me to review and reply to the memo, supplemental memo and subsequent letter 10/22/90 of Ms. Ongioni, which quoted a number of cases and I think you have the text of the cases in regard to that. I indicated last time I don't want to beat this particular area to death in light of time and other factors, but Ms. Ongioni, on behalf of the neighbor told or asked that you consider their opposition as an application to revoke this permit, declare this two family wi~h or without a kitchen and essentially tear down half of the house. I don't think you are going to do that. I have offered to you the position that under the applicable statutes, which interestingly enough, we both quote, State Law and Town Law under 100-271 of the Town Law. I don't think you have the authority to revoke the permit. I think the purpose RAM Court Reporting Servlee 633 East M~n St. Rl~rhea~ N.Y. ~O1 (Jl~ ~7'~ 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of this ZBA Hearing, Hearing by bringing 57 since we commenced the the petition, is to review the Notice of Disapproval and to give us the interpretation we sought in regard to the second kitchen and give us the determination on the front yard variance and I pointed out further that, yes, the neighbor could have brought a petition to you, but if she had brought a petition to you, the burden of proof would have been on her, whereas here it is on me to convince you I'm entitled to a variance and also to ask you for this interpretation favorable to us. You can't piggyback, as I said, the two applications. Either she brings it or I bring it. Since I'm bringing it, it is for the purposes to find in the petition. I'm going to leave it at that. There is a number of cases on it, but I think I'll leave that for you and the Town Attorney. In any event, I'll be brief. Even if you had the authority, you can't revoke a permit that was legally granted in the first place. It is our position now and it has been RAM Court Reporting Service 633 Eoat Main St., Rl~rhaml, N~, ~1 (Jib) 7a7.31~ ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 58 our position that every single argument which has been advanced for the premise or the principal that we have an illegally issued permit is not valid. Just to review the ones that I recall, first we were told the lot coverage was excessive. That was dismissed. The lot coverage i's not excessive. It's 13.5. It can be as much as 20% with the new house or expanded house. Second, we were told watch out for the wet land violations. I handed up to you last session an indication that there is 300 feet Ms. Ongioni speaks of, has following a series of exceptions one of which is a manmade structure more than 50 feet in width which is the definition of the road which is intervening between the water and our premises. Again, sure there is 300 feet in there, but there is also an exception. The exception essentially occurs from the exhibit I gave you right after the 300 feet. So I submitted to you to show you that that is also not accurate. The bed area was the contention that we RAM Court Reporting Servlee 633 K~at Main St. Rlverhead, N~, ~901 (516) 727-31~ 1 2 3 4 5 7 9 10 11 12 13 14 15 17 18 2O 21 22 23 24 25 59 need a front or rear or side yard variance because of the expansion. That is simply not true. Interestingly enough, again, we quote 100-242 of your code. She quotes the same thing. You have to read it. What it says, as I understand it, is if a non-conforming dwelling is expanded as long as the degree of conformance is not increased, there is no problem. It isn't. We built no further front, nor any further back, nor anywhere near the side lines. The only thing that expanded further is the stoop and we are speaking here, as you know, an area variance for the stoop only. In regard to that area for the variance for the stoop, I would point out that~ we are seeking on interpretation an area variance. We have not now nor do we ever seek a use variance and I saw the Board for, finally, the notice for this meeting, getting the issues correctly stated in the notice and an interpretation is requested regarding a second kitchen facility and its relation to single family versus two family use and a variance for an addition with an insufficient RAM Court Reporting 8ervlee East Main St., Rlverhemd, N.Y., ll~0Z 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 60 front yard set back with the stoop. That is what we seek. That is not a use variance, small area variance for a stoop only and for an interpretation. In regard to the argument to the area variance, we are arguing that there is an unnecessary hardship which would result if you did not give it and practical difficulty requires you to give it and the summation of those arguments is that this is a preexisting, nonconforming smaller lot. The neighboring pieces is an 18 feet set back which is what we seek and we seek it for a stoop, not for a building line. The average within the 300 feet is 26 feet. Our house is 27 on one end'and 30 on the other and back. So the only thing that would exceed that would be the surrounding stoop entrance area. The area that we are in, what we seek is consistent with that area as evidenced by a series of photographs that I will submit with our comments and let you review. I am pretty sure you are familiar with this area because you have been over there and I believe that makes the RAM Court Reportlnf 8erviee J35 E~st Mdn ~., ~l~Fheml, N.Y., ~ol ~16) ~?-~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 61 case for practical difficulty or unnecessary hardship and consistency with community standards. In regard to the arguments that are advanced through Ms. Ongioni, as to bad faith, self-imposed hardship, I think that you don't believe that and I think it is not credible in light of the facts. If anything, there has been complete good faith on behalf of these individuals, but with a little more light, they probably would not have had the problems they had. They certainly have made good faith attempts as I think Mr. La Sarde will attest to to comply. They applied twice and got approvals twice per plans submitted. The final comment I would like to make is in regard to the cases that are in the supplemental brief and in the letter, I do not think the cases are correctly summarized or correctly characterized. I cannot stand here and make a three hour argument because I would suggest you take it up with the Town Attorney, but I also asked to submit two cases that are relevant, one a Court of Appeals case and I RAM Court Reporting Service 633 East Main St., Rlverhaml, N.Y., LI~I (Jl(~) ~7-3168 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 62 think I can make this very Straight forward in about one minute. One of the cases, the principal case in this area of kitchens appears to be Baskin, which is a 1976 ultimately Court of Appeals case. It is quoted by Ms. Ongioni and the Court of Appeals case is not quoted. It is the Appellate Division case that is quoted. What happened here was that the Board of Zoning Appeals, the Supreme Court and the Appellate Division were all involved. It got to the Court of Appeals. HEARING OFFICER: The point you are trying to make -- MR. CARNELLI: The point I'm trying to get across is that in the final decision, unquoted in the paper you got from Ms. Ongioni, the decision was reversed and confirmed on the descending memorandum of Justice Irwin Shapiro. Shapiro's memorandum is exactly supportive of our position, not of the adversary's position and impertinent parts he says, "Zoning ordinances should not be used to bar owners and legal occupants of a one family home in a one family zone from RAM Court Reporting Service 633E~t M&lnSt.,RJverhea~ N.Y. ~VOl(S16) 7~7-3168 ( ( 1 2 3 4 5 6 7 8 9 I0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 63 using available space to provide kitchen for themselves with such subsidiaries as additional kitchens, sitting rooms, et cetera, simply because in other hands such facilities could be used for the maintenance of a two family house. It is clear that the existence of a mere opportunity for a future evasion of violation of law does not raise a presumption that such presently exists. There will be time enough for the petitioner and neighbor to take action to end the violation when and if it occurs, should not receive the aid of the Court to fend off a mere possibility of future violation." In 1989, in another case, Bennett, which is the last case I will indicate to you, and this is the whole point of this. The quote which is in the Shapiro case, the '76 Court of Appeals case concludes by saying, "A standard is not designed for potential use, but actual use." In the later April '89 case of Bennett, the language is as follows, "To prohibit construction based on a possible future illegal RAM Court Reporting Service &3~ K]mt Main St., Rlvorhea~ N.Y., ~1 ($16) 72741~ 1 2 3 4 5 7 9 10 11 12 13 14 15 17 18 19 20 21 23 24 25 64 use was arbitrary and capricious." In that case, the Board did this, they based a finding not to permit upon the reasoning that the place would be readily convertible into a nonconforming two family house. The point I'm trying to make, it's use is what you have to look at, not what it could be. That's about all I have to say. Thank you for listening. HEARING OFFICER: I do not think in the structure of the four Hearings we have had on that particular application that we actually had given you an interpretation that was done by our Board at the request of the Building Inspector, which is possibly one of ~he reasons and I will ask him in a minute. There was a request on October 21, 1987. We rendered a decision on 1/8/88 concerning the fact of a one dwelling unit requires one kitchen and this is for you. Could you also afford us a copy of the survey of the original dwelling when it was purchased, if you have an old survey? MR. CARNELLI: I will look for it. I RAM Court Reportins Service 633 F.4st Main ~., Ri~rhaad, 1 2 3 4 5 7 8 10 11 12 13 14 15 17 18 2O 21 22 23 24 25 65 believe I may. HEARING OFFICER: MS. Ongioni, I would like to speak with Mr. La Sarde. We thank you for coming down at this late hour. Is there anything you could shed as to the light on the subject here that would help us understand this application a little bit better without getting into any specifics? MR. LA SARDE: The house as it was originally applied for, was altered to the point where we had no choice but to issue a stop order and have the owner or the contractor resubmit plans for what he really wanted to do. That's probably what constituted the first stop order on top of the fact, the contractor never bothered to call for any inspections. When he submitted the second drawings, we saw then that it was now being converted to a brand new dwelling as opposed to an addition. So the necessary fees had to be adjusted and the whole plan had to be reevaluated. At that point in time, we had seen that he had put an entirely different porch or stoop, if RAM Court Reporting Service 633E~stMalnSt.,Rl~rhead, N~,~Ol(f16)~7.31~ ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board take a bad habit of looks like a skunk it smells like one, it probably is. 66 you wish to call it that, than what was originally submitted. Now, the fact that the new stoop exceeded 30 square feet had to be now looked at as part of the setback problem. If he had stayed at the 30 feet, there would have been no problem. It is not considered part of the set back requirement. I don't suppose it is a secret that the contracto~ was a very arrogant sort of individual and further down the road when we asked him about the plumbing in the so called great room, innocent of temper, he made enough remarks that I said Whoa. I would rather the Zoning look at that because I have a looking at something and if it it acts like a skunk and it's a pretty good bet The pipes in their design would indicate a rapid conversion to a second kitchen. At that point I recall that the ZBA made a decision on that and I understand that the ZBA doesn't set policies for the town, but because of the remarks that the contractor made, RAM Court Reporting Servlee 633 East M~ln St., Rlverhead, N.Y., Zl~OX (516) ~7.$168 1 2 3 4 5 6 7 8 9 I0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 67 I guess none of your business what are they going to do with the second part of it, gave me the authority to stop everything again and bring it before this Board for their determination. As far as the height is concerned, or the set back on this building outside of the stoop, there is nothing wrong with it. It is not a nonconforming building. It is not a nonconforming building outside of the fact that the stoop is an encroachment in the front yard. The contractor or the owners indicated that should the Board of Appeals not grant the variance, they would be more than glad to knock it down and go back to where they belong. The original blueprints ind~icated a square entrance four feet off the building with two entrances on the side. The new one, of course, is a half round -- I don't know. On sight dance hall as far as I'm concerned, but that is my opinion. So that's where we're at. I would like an interpretation on the visibility of a second kitchen. I don't see anything in black and white that says it's prohibited. The fact RAM Court Reportlns 8eFvlee 633 E~t Mdn St., Rlverbead, N.Y., 11~ol (J16) 7~7-3160 1 3 4 6 7 8 9 I0 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 68 that the ZBA made a decision on it, I felt that's the way I would go to see how this Board would like to address this. HEARING OFFICER: At this time, do you feel this building, as it presently exists, has been increased by more than 50%? MR. LA SARDE: Probably 90%, but I don't understand. It's a permitted use and it meets the requirements. HEARING OFFICER: In reference to size? MR. LA SARDE: Yes. HEARING OFFICER: Certainly, for the record, Victor, we went over there and the applicant showed us the entire dwelling and we did go through it. I will mention for the record that it certainly was interesting to see two separate heating systems and so on and so forth as is the case in this particular dwelling and you know we are going to do the best we can in dealing with this application. It's not an easy one. How to understand it and deal with it to the best of our ability. MR. LA SARDE: I would also say there is nothing in the law that does not perrait two RAM Court Reporting 8ex*ylee Main St., Rived'head, N.Y., 11~01 (S16! '717-$160 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 69 furnaces. I suppose when people get up to my age, they get eccentric. I'm certainly not about to design the houses for them. Again, while I'm on my feet, I apologize for not having a jacket on. This is probably the fourth meeting I have been to since 4:00. If you would excuse me on that, I appreciate it. MR. DINIZIO: Before you sit down, Victor, this is not a problem with it, but you see buildings and plans for the buildings and you probably see thousands of them in the course of your business and I am just wondering if two stairways, the configuration of the upstairs, the two bedrooms and the bathrooms, the separate basements so to speak, the separate stairways to the downstairs, two doors in the front, would you consider that unusual? MR. LA SARDE: ~e probably have about 15 of the same similar designs. It's like takin~ a piece of paper and fo!din~ it in half and both sides are equal. Again, to answer your question, I haven't got the luxury of RAM Court Reporting Service 633 Eut Main St., Rlverhaad, N.Y,, UgOl {ix6) ~27-3168 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 70 assuming what will happen after the CO is obtained. The best I could do with that is I could be highly suspicious, I could keep an eye on the place and if a violation occurs, hopefully I will catch it. Until that happens, I can have all the thoughts in the world, and I keep them to myself because I don't like to go to court. What I'm trying to say, Al, is you can't assume, something is going to happen. MR. DINIZIO: I was wondering, two stairways within six inches of each other -- ~R. LA SARDE: And a solid wall between. I know what you are saying. HEARING OFFICER: Is that unusual or something you would see? MR. LA SARDE: No. The law is very ambiguous as far as family is concerned, as far as blood relation is concerned and God, if the Supreme Court of the United States would design a family, I'la not about to. I'll tell you right now, that's the best I can do on it. HEARING OFFICER: Ms. Ongioni? RAM Court Reporting Service 633 East M~n ~., Rlvorh0md, N.Y. ~Ol (!16) 7s?.3168 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 71 MS. ONGIONI: I am not going to belabor the point with the Board at this time. I believe that the record is more than adequate in favor of my client's position and our position to this application. Both the law and the facts clearly dictate a finding against the applicant. I know it's a very difficult decision to make because of the fact that the building is close but notwithstanding that, it is to completion, apparent that the law has been violated and that it has come before you at this late date a year and a half after construction began because of the opposition that was being imposed by my client. I have one final submission for the Board which recounts very briefly all of the facts relating to this. (%~hereupon, a document was handed to the Hearing Officer.) i4S. ONGIONI: I have a few things. First of all, the applicants has relied on very little law in support of its application. The primary case that it has relied on is a Riverhead Zoning Board of Appeals case which RAM Court Repo~:lns Set*vlee 1 2 3 4 5 6 7 8 9 I0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 72 has no precedent setting value for the Zoning Board of Appeals. The only precedent setting jurisdiction is the Supreme Court or any other court. A neighboring jurisdiction or a neighboring municipality does not set law for the Zoning Board of Appeals. I'm sure you are aware of that. Secondly, the Southold Code defines a one family dwelling is that which contains a one dwelling unit and conversely a two family dwelling unit contains two dwelling units. The question is what is a dwelling unit. The code further defines a dwelling as a minimum area of 850 square feet containing complete housekeeping facilities for one family and having no 'enclosed space in common with any dwelling unit. Now, what is a complete housekeeping facility; electric, heat, kitchen, entrance, layout, a bathroom. Whether or not there is a second kitchen is irrelevant. This particular structure has two complete housekeeping units. That is the inescapable conclusion. There is no other alternative. The question whether or not this is piggybacking onto the application that RAM Court Reporting Service 633 Kaot Main St., Ri~rhead, N.Y., ~1 (11S) 72~-~ ¢ ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24. 25 73 is pending before the court, is adequately addressed in all of the papers before you and I will not belabor that point. I think that when you look at the entire history of this project, you have had statements and restatements by the applicant. Now the applicant is saying that this is not going to be a two family house. However, the applicant has also stated in the past, to be restated at a later date that there would be two kitchens, that there would be one kitchen, that there would be one kitchen and a wet bar and finally now we are back to two kitchens. The applicant has also stated that the house is not within 300 feet of the wet lands. Notwithstanding the DEC violations, that the fact is that the application for the building permit stated that the house was less than -- was not less than 300 feet for the wet lands. That was a misrepresentation. The applicant also stated that there would be two separate dwelling units. Now they are characterizing it as an interrelational state. What does that mean? The applicant has stated RAM Court Reportins Service 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 74 on the application that this was a renovation to a one and a half story house. It turns out to be totally new construction and enlarging a house from approximately eight or 900 square feet to approximately 3500 square feet. The applicant stated that the renovation would cost about $80,000. Now they are claiming it's about $175,000. When the trees were cut down, the applicant said that it was a mistake by the builder. Which statements are we to believe. Basically, it appears that this is a flagrant disregard for the rules of the town and I think it is an encumbrance on the Board to take a very hard look at everything that is before it, the facts, the history, the law and make the tuff decision to revoke the building permit which I contend was illegally issued because there was a substantial degree of an increase in the nonconformity of the building. The building was a nonconforming structure on this lot because it did not comply with the code requirements. That degree of nonconformity was increased from a 900 square foot house to a RAM Court Reporting Service 633 E~t Mdn ~., Rlverhoad, N.Y., UWl (fl6) 7~?-3168 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 75 35 square foot house. In my opinion, that is a substantial increase in nonconformity and for that reason they should have been here a year and a half ago seeking permission to build. I thank you very much for your time and your careful deliberation. MR. CARNELLI: I have rebuttal on one or two things. One is that I would present to the Board the full texture of the Baskin case, that is the Court of Appeals case, it's on point. It supports our position as does the Bennett case. Also a conception of which you are familiar with vested rights, we had a building permit here. We had two of them issued, one in March of '89 and a reissue in Dece~er of '89. Everything we built, which is $176,000 advance was advanced on a buildin~ permit which was granted by the Building Department. Your Building Inspector stood before you this evening and disagreed with Ms. Ongioni and one very, very important matter. The house he maintains is now legal as it stands. If it is legal and there is no RAM Cour~ ReporCins Serviee 6~ Em~ M~n St., ~l~rheml, 1 2 3 4 5 6 7 8 9 I0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 76 legality in any building permit, a part from the arguments that I don't think that you have the authority to revoke the permit, the fact is that you would have no reason to. Your building inspector has indicated to you, available to question, this building as it stands now is legal. As to the issue of the staircases, I want to clarify this. This is a home where we were working around an existing home. So you asked me last time and I wanted to answer the question that there are here two staircases. There was one which was left and an additional staircase was put in. There are here two oil tanks. There was one that was there for 250.' If you want a 500 gallon oil tank, the one way to do it is by putting another 250 gallon in. There was a heating unit there because we were doing essentially an addition very much like the existing home. You cQuld pull out the existing heating unit or put in one to handle the whole house or put in an additional unit, a smaller unit. That was what was done. There was a basement. You RAM Court Reporting Service 6~3EaatMalnSt.,Rl~rhead, N~,~X(SX6)';27.31~ 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 77 could make a big basement or leave the existing basement and have a second basement. The interrelationship is apparent to you if you saw the house. There is an interrelationship between both floors. The explanation I just offered for the two boilers and two tanks, I think is quite reasonable. I point out to you, as I understand it, there is one electric meter going in this house and there is one hot water heater in this house, not two. The fundamental thing I would like you to consider very carefully here is Number one, get by the issue of your authority. Even assuming you think you did have the authority, think of the issue of investment when someone spent $176,000 which your inspector told them then and now. Think about the fundamental of substantial justice which you are here to do. If you elect grant this variance for the front yard conditionalizing it on some other actions, I would urge you to conditionalize it on those actions which the applicant can take in fairness, not by ripping out things, but by the noncompletion of their construction, RAM Court Reporting Service 633KastMmlnSt.,Rl~rhead, N.¥.,~901(S16)~?.31~ ( ( 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 78 adding or substracting. That and the entire scenario here of a year and a half, of a lot of money, they never built what they didn't have a permit for. I would like you to consider that and as to the law, please speak to Mr. Arnoff. I will give you a copy of Baskin which is a Court of Appeals case and a copy of Bennett which supports my argument that you cannot look at an art construction in your eyes for its potential future use. The same people who bought the house in 1977 are going to live there. They continue to live there and it's the same family and whether an alteration may be made, is not fair game for your consideration. One other thing, the decision that you gave me from the town which indicates that, if I read it correctly, that any building containing more than one kitchen and/or kitchen facility shall be deemed a dwelling unit. This concludes more than one kitchen and/or kitchen facility in a one dwelling unit. This is a January '$8 decision which I wasn't aware of. This is a better interpretation. If you are RAM Court Reporting Servlee 633 East Main at., Rl~rhaad, N~, ~I (!161 ~27-31~ 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 79 interpreting the same language that we are interpreting, I don't see it says that. More important than that, the fact that, I'm sure the Board is aware, that there are numerous, numerous places in this town that have two kitchens. HEARING OFFICER: We are religious purposes. MR. CARNELLI: are second kitchens. You have kitchens coming in off the water and coming upstairs. HEARING OFFICER: I know of only one house that was built that way. I know of one &nd that was the Hardy house. MR. CARNELLI: I know of another. HEARING OFFICER: It must have been put in after the CO or overlooked, but unless it is for religious purposes, that is the only way we are addressing the issue. MR. CARNELLI: Also, in this regard, we have offered two covenants that we would not use this as a two family house and one final note, we initially said we wouldn't put in a second kitchen, but we want to put the piping in RAM Court Reporting Service &35 East Main 0t,, Ri~rhead, N.Y. u~z (SI6) 727-31~ say saying that the We allow a second kitchen. But you are aware that there 1 2 3 4 5 6 7 8 9 I0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 80 for a wet bar. I would assume that a variance not necessary to put a wet bar in in the great room. In your decision, I would ask you to direct the issues of whether or not the wet bar and the great room as configured is permissible because that is actually what started this entire thing. HEARING OFFICER: If there are no further questions or comments -- MS. ONGIONI: My client had sent me a letter which he would like me to submit. He is still recuperating from a heart attack. HEARING OFFICER: I just want to say that we are, of course, going to be receiving something from Mr. Carnelli. We will afford you ~ copy of that. I would appreciate if you would come down in a couple of weeks and find out if we received it. We will recess the Hearing tonight in reference to the verbal testimony and close the Hearing pending receipt of other information. Also, a survey we are looking for, the original survey and that is basically what I am going to do at this point. If there are no further comments, I make a RAM Cour~ Reportlns Serviee ~3 Kait Main St., Ri~rhoad, NS, u~x (Sx~ 727-~xe8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 81 motion to close this Hearing, the verbal testimony pending receipt of some additional data from Mr. Carnelli. We will close the Hearing in total at the next meeting. Ail those in favor say aye. BOARD MEMBERS: Aye. (Whereupon, the above-mentioned Hearing concluded at 10:35 P.M. and another Hearing commenced at 10:40 P.M.) HEARING OFFICER: Mr. Wagner? HR. WAGNER: John Wagner from Esseks, Hefter and Angel in Riverhead for Sun Refining and Marketing Company. We are here this evening as a continuation of the Hearing that was commenced on November 1, and I represented at that meeting that I would have an expert come in the next time who would present testimony on two issues. The first is whether a canopy is accessory structure to Southold Town Code called convenience an assessory use or an a gasoline station under and whether or not a so store is an accessory use RAM Court Reporting Service East Main St., Rlve~head, N.Y., 119o1 (SI6) ~?-3168 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TOWN OF SOUTHOLD ZONIHO BOARD OF APPEALS COUNTY OF SUFFOLK : STATE OF NKM YORK - .................................... x .................................... 53095 ~n Road P.O. Box Southold, November 1, 1990 7:30 P.M. BEFORE: BOARD MKMB~ItS: GERARD P. (',OEHRINOKR, Chairman. CHARLES ORIOONIE, JR. SERGE DOYEE, JR. JOSEPH H. SA#ICHI - Absent JAHES DIEIZIO, JR. ALSO PRKS~N?: LINDA KOWALSKI, Board Secretary C 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE CHAIRMAN: All in favor? MR. ORIOONIS: Aye. MR. DINIZIO: Aye. MR. DOYEN: (Time noted: THE CHAIRMAN: Aye. 10:07 p.m.) The next hear~ng~ is 105 in behalf of Dominick Sblendido and A. Auricchio, Appeal Number 3955, continuing from September 26, 1990, and I will ask Mr. Cardinale if he has anything he would like to add. MR. PHILIP CARDINALE, ESQ: Yes. Members of the Board, I will try to be as brief as possible in view of the late hour. It is our understanding that the purpose of the adjournment of the hearing was to -- was three-fold. One is to enable the applicant to provide certain additional information to the Board required by the Board. I have in my possession -- I had cited at the last hearing the Wilmott case recently decided by the Town of Riverhead -- identical circumstances to the 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 106 application before you, which in effect states that two kitchens do not a two-family home make. I have a copy of that decision provided to me by the Town of Riverhead in my possession. I would like to hand that up as an exhibit. (Applicant's counsel handing above- mentioned document to the Board.) MR. CARDINALE: The second purpose, as I understand it, for the hearing was to obtain the presence of the Building Inspector, Mr. Lessard, for inquiries by the Board and to confirm the sequence of events I related to the Board in behalf of the petitioner at the last hearing. ! do not see Mr. L~ssard preseRt. I will cormaent upon that in a moment. I will have an exhibit on that, as well. The third purpose was to permit myself and my clients, who are here this evening, Mr. and Mrs. Sblendido and Mrs. A. Auricchio, again to address the supplemental memo which was submitted and subsequent letter in your file dated 10/22/90 from 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 107 Marie Ongioni, attorney for neighbor Tober. Taking the first purpose first, to provide certain additional information to the Board, the Wilmott case which you have in front of you now is relied upon very heavily. I would suggest to the Board that this is an identical case recently decided by a sister town and not only is the determination I think intelligent and fair but it is also not just the determination but the entire approach and mechanics I would ask the Board to consider following seriously in this case. What this decision does -- if you look at it, it is very brief -- is they find that' the'code if the Town of RiVerhead defines a one-family dwelling as such, and as such the definition does not mention kitchen or kitchens. They look to see what the code of the Town of Riverhead defines as family. They conclude that the definition does not mention eating arrangements. They indicate that, as in this case, the dwelling had a second kitchen installed 1 2 3 4 5 6 ? 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 108 as part of the family room and they conclude that because of these findings that the code of the Town of Riverhead does not address the number of kitchens a single-family dwelling may have or the eating arrangements of the family and therefore, they determine that two kitchens do not make a two-family home and permitted the continuation of the kitchen. I ask the Board to approach this problem which you must after all of the data given to you which is voluminous -- in a simpler fashion, look at your own code, Section 100-13, your definitional section, the applicable or relevant provisions of the definitio~ of a one-f~mily dwelling, the definition of dwelling units and the definition of family. ! alluded to this argument last time I was here, but I just want to flush it out based upon the Wilmott decision. A one-family dwelling is defined as a detached building containing one dwelling unit only, a dwelling unit -- defined as a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 109 building or entirely self-contained portion thereof consisting of minimum square footage containing complete housekeeping facilities for one family. The entirely self-contained building, or entirely self-contained portion thereof, is very critical to this case since in both the logical and actual sequence of events here, what principal Building Inspector Lessard did was ensure that both floors of the structure, which you will in fact be inspecting this weekend, are interrelated. The hallway upstairs where the bedrooms are is one long hallway. Downstairs there is an interconnection between the kitchen area and the great room area' where we seek to place another kitchen. The final definition is that the family which in your code is defined as one or more persons occupying the dwelling unit as a single, nonprofit housekeeping unit. More than five persons 18 years of age or older, exclusive of domestic servants, not related by blood, marriage or adoption, should not be considered a family. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 110 It is our contention that the utilization of this property by the two owners, the sisters and the husband of one sister, since 1977, which will remain the same, fits into the definition of family and that the definition of dwelling unit is consistent with what we are seeking since it is -- there is only one dwelling unit here, since it is, it must be an entirely self- contained unit and the only thing that is self-contained here in view of the interrelationship between the two parts of the home is the entire structure. In other words, there is no wall between the first -- within the first floor. within the second floor. There is no wall And to get ahead just for the minute at the end of a few minutes when I conclude, it is clear that what you are supposed to be doing under the Court of Appeals case -- a recent case which I will cite, is consider the actual use, not the potential use of this house. If we get into the situation where we are saying we could put a wall here I 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 111 and we could put a wall there and make this into a two-family house, madness lies that way because that could be done in any house in this town. According to the case which I will cite, the Court of Appeals case, you must consider the actual not potential use. Indeed, to consider the potential use would be arbitrary and capricious. When you consider your definition, when you consider the Wilmott case and the actual use of the house by the sister owners of the house for some 13 or 14 years, I think the analysis in Wilmott could be followed by you. In the Wilmott case they insisted on the covenant that this house would not be used' as a two-iamily. We suggested a covenant to the Building Department in December of last year, which got us going on the second start of the building permit and we would certainly be willing to put it in a recordable form because there is no intention to use it as anything but a single-family house. THE CHAIRMAN: Is there any 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 112 anticipation to put a second kitchen in? MR. CARDINALE: Yes, because what we are here for is the variance of the front yard stoop and an interpretation that, contrary to what Mr. Lessard indicates, a second kitchen does not make a two-family dwelling. So we seek to have a second kitchen in the two-family dwelling identical to the Wilmott situation and identical to some of the cases like Baskin (phonetic spelling), cited to you by various -- by myself and Ms. Ongioni. The second item the Board asked me to provide was the availability of the home for inspection. As ! understand it, the home is available! %0 you -- (~naudible). The third area of inquiry was the square footage of the stoop area and evidence of interrelationship of the kitchen and great room. Unfortunately, you have the only set of plans. You have the set of plans approved in March of 1989 for the original building permit and you have the set of amended plans which I handed up at 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 113 the first hearing in July, which reelects the amended plans insisted upon by Mr. Lessard to further interrelate the two floors of this house. Bo I would refer to you that, and if ! can be of any further help I certainly will be. To get to the second purpose, the second purpose was to obtain the presence of Mr. Lessard for any inquiry from the Board and confirm the sequence of events which I related. I understood he would be here. I understood that based upon a letter I sent on October 20th to him, which I know he received, which I am handing up as an exhibit, and concerning which I discussed -- I' discussed the letter with him on October 19th and conferenced with him in his office at which time he said he would be here, and in that letter I indicated that since this matter has been delayed and that since my clients are anxious to get going, they are considering removing, pending the ZBA final decision, the offending plumbing pipes from the wall of the great room in 6 7 8 9 10 1'~ 12 13 14 ~5 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 114 order so that the stop work order may,be lifted -- seeking thereby to define, as I indicated at the last meeting, that the only argument with the Building Department in this matter from the petitioner's standpoint was that: 1) The area survey shows an average setback of 26 and we have an 18-foot setback with the stoop, 30 with the house. Therefore we needed to get the front yard variance if we included the stoop in the plans; and 2) Victor Lessard's concern, as he legitimately had a right to be, about whether this was a one or two-family home, insisting! that even with the interrelation- ship between the -- within the floors of the home, that we could not pipe for a kitchen or even a wet bar in the great room and I am seeking, as you know, an interpretation. Under the law, I am permitted to put a second kitchen as long as it is a one-family home. I spoke with him about this letter, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 1.6 17 18 19 2O 21 22 23 24 25 115 indicating that request to lift the stop work order, if we removed the pipes, which he indicated he would do in June. He indicated to me October 19th there would be no problem with -- if we removed that he would have an inspection made and that would alleviate that problem, remaining therefore, only the problem as to the front yard stoop. This is the letter of October 2nd. (Applicant's counsel handing above- mentioned document to the Board.) THE CHAIRMAN: Thank you. MR. CARDINALE: I don't know if the Board has heard from Mr. Lessard in any other capacity, but he willingness to speak. THE CHAIRMAN: MR. CARDINALE: indicated a He is ill tonight. And to confirm the sequence that -- he couldn't do it -- he is not here -- but to confirm the sequence of events I indicated and the issues he was upset about that led to you. THE CHAIRMAN: If Mr. Lessard was here tonight I would conclude this hearing 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 116 on the 15th based upon the fact that we are inspecting it this weekend. I will take full responsibility for my timeliness in asking our assistant here to call you last Friday. I should have asked her to call you last Wednesday and then we would have been able to schedule it. MR. CARDINALE: You are anticipating keeping it open to the 15th? THE CHAIRMAN: Yes, and with Ms. Ongioni's permission, I -- there are specific questions that she has. I would like to give these questions to the present Building Inspector that's here, and have him carry them back to Mr. Lessard so he would be able t%' answer the'questions at the next regularly scheduled hearing. MS. ONGIONI: That is fine. THE CHAIRMAN: And, of course, there may be issues that we may have. I have two or three questions that I would like you to think about between now and the next meeting, that ! don't understand the purpose of the two front doors. That is one 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 117 question. And the other question I don't understand is the separate tanks for the heating system. And the third question I have is, is there a meter or an interrupt between the existing electric meter and that of the second -- and I can't call it a dwelling unit -- so I will call it a second interrelated apartment. MR. CARDINALE: The first part -- THE CHAIRMAn: The question is: What is the purpose of the two front doors if they are interrelated structures? The second question is the purpose of the two heating systems, two oil tanks. And nu~er thre~, t~ey have -- you have already stated to me that there is only one eletric meter. My question is, is there an interrupt meter between the two so as to calculate the electricity use in the second dwelling structure? In other words, the opposite side -- is the wiring segregated from one side to the other side in some manner or fashion of which -- to -- of which the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 118 applicant could calculate the electric uses in the second apartment structure? MR. CARDINALE: I'll get you those answers. Rather than give them to you now, let me give them to you in writing. THE CHAIRMAN: There is no reason to hit you cold with these things. That is the purpose of continuing the hearing. HR. CARDINALE: To sum up and get these exhibits out of my hand and into yours, since the second reason for the meeting will be deferred until Victor Lessard can answer questions. The third reason for the meeting was to allow me to address the supplemental argument and letter of Octobe!r~ 22 which h~s since appeared in your file. ! would like to spend some time studying both the cases and the essential arguments of the neighbor Tober, and ! don't -- I think you suspect, and rightly so, that there -- since this house is a big house, it is a two-story house. If not a two-family house, it is certainly a two-story house and 6 7 8 9 ~0 11 12 13 14 ~5 16 17 18 '19 2O 21 23 24 25 may have, objection. Ms. she would 119 Mr. Tober has a piece directly behind this piece and the -- a lot, and therefore his view will necessarily be somewhat affected. Aside from whatever personal objection he I want to address the lega! Ongioni, for the opponent, says like you to consider that this -- her opposition as an application to revoke the permit. She would ~- and then she would like you to have the house scaled down or preferably torn down. She would also ask you to declare this a two-fa~ly house with or without a kitchen. ! have constantly stated that ! had reservations, and ~ow'~ state ! am convinced that the Board in this particular instance does not have the authority to do that -- the jurisdiction -- and it is a little bit complex but here it goes. We both cited the Town haw, Article 216, Section 267, and the Southold Town Zoning Code, Article 27, 100-271 -- the same section. We have the appeal and review I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 powers. with the Board to reach any issue other the stoop variance and the issue of 120 conclude that jurisdiction is not interpretation of two-family or not. even looking at by Ms. Ongioni, quarter, so to speak. this application. you, than a second kitchen making a The reason I say this is the cases that are recited you cannot -- it is my I think it is $160, This application, as I stand before have the burden of proof as the applicant in establishing to you that I am entitled to the variance and I am asking you essentially to interpret a code section. If Ms. Ongioni, on behali of Mr. Tober, wishes to make an application, she may have the status to do that but she cannot do it on my application because ii she were to make that application the burden of proof would switch to her. For that reason alone you cannot allow a piggy-back of her request or application to consider this motion or revoke the permit and tear down the house. In the cases she cites, it was the neighbor 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 121 who was making the motion, the petition to the ZBA, not the subject owner. The second issue I want to address is this: I don't believe that you will in fact tell these people to tear down their house. I don't also believe, as you have heard, that the neighbors who have appeared on the first meeting even wanted that. They all indicated that would not be a fair conclusion. I argue that you do not have the jurisdiction to do that. However, even if you did -- you could not because the building permit was not improperly or illegally granted in the first place. Although that was repeated numerous times, it is just not true. The argument advanced is that this building permit is not legal. They are really quite straightforward. There are about four of them. First she argues lot coverage. Then she withdraws lot coverage because she says it is 26. It turns out to be 13.5. Then she says that we need front, rear or side yard variances we have never 1 2 3 4 5 6 7 8 9 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 122 applied for because it was never necessary to apply for any variance except for the stoop. Ne never applied for the use variances. The only thing we ever applied for was an area variance for the stoop. The reason for this is we did not need any other variances. The Building Department agrees with us here. Ny analysis concludes we don't. We see the same section, 100 -- for opposite purposes -- 100.242 of the code which says -- I hate to quote the code to you -- basically what it says is that as long as you do not increase the non- conformance you can go ahead. We did not increase the nonconformance. If you look at the surveY, you will see our setbacks remain the same; front, with the exception of the front stoop, remains the same; back remains the same; side yard we don't need any relief. The only relief we needed was the stoop. That is the only relief we sought. The other argument she brought up is the tidal wetlands violation, New York Rules and Regulations 6614B. First of all, if you 1 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 123 look at the map and calculate the 50 Eoot Eot the street, it is more than 300 Eeet. But even iE it were not, again we have a halE-presentation. In the section she quotes, Ms. Ongioni, defining adjoining areas under the DEC Rules and Regs, one, it says 300 Eeet landward; two says there is an exception as evidenced by both a copy of the regulations themselves, I am handing up, and the DEC Eorm that everyone who deals with the DEC has seen, including this Board, that a review has been made. New York DEC doesn't have jurisdiction because it is landward oE the substantial manmade structure greater than 100 feet in length constructed prior to September 20, 1977. That is Inlet Lane. So it is more than 300 Eeet. Even iE it wasn't, the DEC is not involved because oE that section which incidently is directly behind the section that was quoted to you. (Applicant's counsel handing above- mentioned document to the Board.) THE CHAIRNAN: I just want to ask you 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 124 a favor, Mr. Cardinale, and as well Ms. Ongioni. We would like to conclude -- wrap it up a little bit so that we have a final hearing and I would dearly like to see us get out of here by 11:00 tonight. MR. CARDINALE: What I am going to do in this case, and it is perfect timing, is to conclude at least this presentation and I'll have another chance to speak to you on the 15th. The fifth point is very important to understand. Maybe you do. The only variance we ever sought here is the area variance for the step, period. And it was the result of that 300-foot setback survey requested! By Mr. Less~rd in December of 1989, six months, nine months, excuse me, after the issuance of the building permit. The code section justifies 26 feet without the relief of this Board. We are seeking 18. No other variance was ever sought. The only other thing we sought is that interpretation. We had -- we make the argument that practical difficulty, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 125 unnecessary hardship and consistency with the neighborhood surroundings. Only in regards to the stoop, that is the only variance we are applying for. What is happening in a lot of the responsive papers, when we are getting into things like self- imposed hardship, lack of good faith, we are talking about the house. We are not asking for a variance for the house. Our position is the house is legal. It doesn't require variances. The Building Department never said to us to get this. All that we are requesting, all that is relevant to the areas of hardship, imposed or otherwise, or practical diffkcui~y or consistency with the neighborhood, is the stoop. All of the other case law has to do with convincing you that the proper interpretation of the second under the case law, is to permit kitchen, it. I have a nun~er of cases I was going to quote. I am going to stop right there, because I can conclude the next time we meet 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 126 by giving you those cases. THE CHAIRMAN: We are continuing this Noven%ber 29th, not on the 15th. MR. CARDINALE: November 29th. Okay. THE CHAIRMAN: Mr. Fisher, would you take this and hand-carry this back to Mr. Lessard, and ask him please to he available on the 29th. We will when we get to that. sir. afford you the time Thank you so much, (chairman handing above mentioned document to Mr. Fisher.) THE CHAIP/~AN: Ms. some forbearance on your part if waive any discussions tonight to Ongioni, ! request you could -- ! have to admit %~ you what ~he situation is. will do it on the record. !f we go past 11:00, we must pay the Court Reporter much, much more money. It only makes sense in this fiscal economy not to do that. MS. ONG!ON!: THE CHAIP/~AN: MS. ONGIONI: May ! say two words? Certainly. I will defer to your request this evening because it is very 6 7 8 9 10 11 12 13 14 ~5 ~6 17 18 19 2O 21 22 24 127 and I will reserve my or to submit them to MR. GRIGONIS: Aye. MR. DINIZIO: Aye. (Time noted: 10:40 p.m.) (Presiding Chairman, Mr. James Dinizio, in the matter of Village Marine, said hearing cor~nenced outside the presence of a Court Neporter due to circumstances late, but my only -- conu~ents till the next the Board in advance. My only concern is that there may be some participants here tonight who might like to make a few comments and they may not be available at the next hearing. I don't know if there are any. THE CHAIRMAN: Is there anyone here that may not make the next meeting? Seeing no hands, I make a motion recessing to the next regularly scheduled hearing. We thank everybody for their courtesy. MR. DOYEN: Second. THE CHAIRMAN: All in favor? MR. DOYEN: Aye. 1 2 3 4 5 6 7 8 9 ~0 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 CERTIFICATION I, GAlL ROSCHEN, do hereby certify that I am an Official Court Reporter and that the foregoing constitutes a true and correct transcript of the Town of Southold Zoning Board of Appeals hearing of November 1, 1990, according to my stenographic notes. GAIL ROSCHEN Official Court Reporter 14§A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 TOWN OF SOUTHOLD ZONING BOARD OF APPEALS COUNTY OF SUFFOLK : STATE OF NEW YORK TOWN OF SOUTHOLD : ZONING BOARD OF APPEALS HEARING : Town Hall 53095 Main Road P.O. Box 1179 Southold, New York September 26, 1990 7:32 P.M. 11971 BEFORE GERARD P. GOEHRINGER, Chairman. BOARD MEMBERS: CHARLES GRIGONIS, JR. SERGE DOYEN, JR. ( OSEPH H. SA. ) JAMES DINIZIO, JR. ALSO PRESENT: LINDA KOWALSKI, Board Secretary ! 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Excerpt Board of Appeals hearing, 1990. ) (Time noted: THE CHAIRMAN: appeal, Number 3955. of Southold Town Zoning September 26, 8:22 p.m.) The second to last It is a recessed appeal from the last regularly scheduled hearing. It is in behalf of Dominick Sblendido and A. Auricohio. We ask Mr. Cardinale if there is something he would like to add to this. do want to address a specific problem we had, that we never had before. Mr. Cardinale, are you familiar with the problem we have from the prior hearing? MR. PHIL CARDINALE: Yes, I am. THE CHAIRMAN: Are you ready to address the Board? MR. CARDINALE: Yes. Good evening, gentlemen, and the female member of the Board as well. of advise me my remarks were not able to be I am aware of the problem because one the secretaries of the Board called me to 1 2 5 6 7 8 9 10 11 12 13 "/4 15 16 17 18 19 20 21 22 23 24 25 transcribed, because not here and I guess 3 the Court Reporter was the machine didn't work. Therefore, I will have to be somewhat more complete than I would otherwise be then in today's representation. The applicants, Dominick and Ann Sblendido are present here, as is Angela Auricchio. You want to stand, please? (Applicants standing.) MR. CARDINALE: As ! indicated last time, Dominick and Ann are husband and wife. Angela and Ann are sisters. They have owned the residence involved here since 1977. As a little bit of background, they are in their early sixties and they are anticipating using the house, which they have used as a second home, as a year-round home at some point and that is why the extensive renovation was commenced. Another note is that during this saga I am about to address, between March 16, 1989 and today, some 18 months later, they have been unrepresented up through 8/1/90 1 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 which, as I go through this, you will see was the point at which I entered the situation and asked Mr. Lessard to issue a disapproval so we could come before this Board. I hope that this presentation this evening will shed more light and less heat on this matter than the original hearing did. My representation to you is based upon a review of the Building Department and ZBA files. Incidentally, I reviewed your file this afternoon. There is apparently going to be a supplemental memorandum submitted by Marie Ongioni, the attorney for the adjacent neighbor Mr. Tober, which I have not had the opportunity to respond to since I haven't read it. So I would like that opportunity to respond in writing a few days after this. I also consulted, of course, with my clients, with the builder, with the Building Department personnel, with the surveyor, as you requested I do, and I have that survey for you showing the lot coverage. I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 consulted with the Town Attorney, Mr. Arnoff, in regards to some of the remarks I am going to make tonight. I reviewed at length the applicable code provisions since the last time we were here. I think that was on July 25th. The presentation I am going to make, and the good news is I believe I can do this in 10 minutes, is in four parts. One is a brief recitation of the facts that got us here which I don't think are greatly in dispute. The second is a more interesting part, and that will address the questions or issues properly before this court, and the law regarding that. You recall, Mr. Goehringer, that one the things that did get transcribed was of remark that I was surprised by the opposition and that I believed it to be very wide-ranging and I had serious questions as to what the court could in fact do in this instance under its authority, under the statute. I am going to address that in the second part of my remarks. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 6 The third part will be a rebuttal of the inaccurate statements of the opposition, specifically the neighbor adjacent, Mr. Tober, through Ms. Ongioni. As a preview of that I have and will submit, in a moment, the lot coverage surveys. As I suspected -- last two months ago -- the lot coverage according to the surveyor is now 13 1/2 percent which is far below the 20 percent permitted of this lot. So Ms. Ongioni's allegation that it was 28 percent is wrong, as a number of her other allegations are. Finally, I would like to briefly review the equities involved here. In regards to the facts, November 25th, 1977, Ann, her sister Angela, and her husband, Dominick, purchased the property. There was a husband involved of Angela hut he had passed away. They have resided weekends, vacations, summers, as I indicated earlier, up to March of '89. On March 16, '89, more precisely a few weeks before that, they retained Argyle Construction to obtain a building permit in regards to this matter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 16 17 18 19 20 21 22 23 24 25 7 and to build a renovation which would include essentially doubling the size of this house. Construction commenced sometime after March 16, '89. I think it was in June or so on the plans, which were submitted, which were accepted, where a building permit was issued and which were in your file as Exhibit Number 1 and which clearly show two kitchens which, incidentally, it could and will be argued does not necessarily mean that was an error on the part of the Building Department, to issue a building permit, even showing two kitchens. THE CHAIRMAN: What date was this? MR. CARDINALE: March 16, 1989. Thereafter, construction commenced, as I indicated, without incident until 12/5/89 when a Stop Work Order was issued. The Stop Work Order of 12/5/89, which is in your file, indicates to the owner "You are notified to suspend all work at the location." The basis of the Stop Work Order is "No foundation inspection, no second 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 8 survey, nothing built as per plan submitted, appears to have insufficient front yard setbacks, cannot build a two-family dwelling zone." conditions under which the work in an R-40 The may be resumed: One, submit a new survey showing all setbacks and houses within 300 feet on the same side of the street, which would be relevant to Section 100-230 which provides for relief automatically for, as you know, lots where the setback within 300 feet is less than that which would otherwise be required. The second condition was to -- now this, mind you, was nine months after the initial permit -- new plans show all details stamped. The third condition for resumption eliminates the two-family dwelling. Fourth, pay the new fee. Failure to remedy same may constitute an offense. The builder, according to your file, met on December llth with the Building 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 Department personnel. Incidentally, Victor Lessard got a lot of grief last time. Victor Lessard is not really much on the file. Much of it is other members of the Building Department; Mr. Fischer (phonetic), Mr. Horton (phonetic), Mr. Lessard. There is a number of people involved in this file. They met and there is a notation, on 12/12 the Stop Work Order was lifted and permission to resume construction was given. That was not given just for the fun of it or for no reason. It was given because in the file, Building Department, clients a statement, at the request of the was submitted by my which is in Marie Ongioni's papers, that they would not use the residence and had no intention of using it as a two-family residence. That they in fact did submit plans, which you have as Exhibit 2 from the last hearing, which did something more than simply restate the original plans. It interrelated this house, in a very meaningful way because the Building Department was legitimately 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 10 concerned that this house should be interrelated since it had some indications of a two-family structure. They insisted apparently that there be an interrelation of each floor between the two parts of this home -- hallways, in other words, and most significantly, if you walk through this home now with these plans they insisted the bedroom -- all the bedrooms in the upstairs area are all interrelated. There is just a big hallway, and this was required as was the exclusion of the kitchen which had already been approved. As a condition of going forward, my clients agreed to this, presumably. Remember, they were unrepresented because the contractor urged them to do so, and they gave the statement of non-use to family. They changed their plans to interrelate both floors and they addressed the other issue, which was the issue of setback, by indicating that they would provide the setback survey, showing the setbacks of the 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 38 19 2O 21 22 23 24 25 11 home within 300 feet, which survey they did in fact obtain, and it did in fact establish that they needed in order to get this big round stoop, which you will see on the plans, approved to get a variance because the big round stoop was 18 feet from the front line. The average, depending on how you calculate my clients' setback, at 18 as proposed or at 26, is either 26 or 28 for the other houses. If you notice the plans, the house simply stayed on the same line as the existing or renovated portion of the home. So that actually, with the exception of the stoop, they do not need a setback from the front yard because they were not, under Section 100-242, increasing any nonconfor- mance. We were building on the same line except for the stoop. So it was agreed they would submit this setback survey, and if necessary, they would seek the variance and they would not do any further construction on the stoop. And they lived up to that. Nothing happened much between 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 December 12, when the Stop Work Order was lifted on the condition just indicated, until May, except that; clear that the setback, 12 one, it became the smallest setback possible for the stoop would be 26 to 28 feet, not 18. So they would need a variance for that, for the stoop. And also in the file there is a January 5 stop appearance ticket indicating that they should come to court on January 5th, which is referred to in Marie Ongioni's paper work, for failure to obey a Stop Work Order. It was never signed. It was never issued and, apparently, what it was was sitting in the file because if they hadn't gotten together on the 12th -- llth or 12th -- to agree to lift the Stop Work Order, it would have been issued. So to say there was no compliance between 12/12 and the next Stop Work Order on 5/29 is inaccurate, based upon what I have seen in your file. In any event, we are now at 5/14 which is, I believe, Mr. Horton comes out make an inspection. Incidentally, we are to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 13 now around $176,000 into this construction. Mr. Horton notes that at the point where they pulled out the second kitchen, and if you look at the plans, the whole back of the house was going to be a kitchen with the exception of two bathrooms in between, that when they agreed to make the second kitchen into a great room, in December, they -- according to Mr. Horton, which is a reasonable observation, when he got out there on the 14th he was suspicious because there was plumbing in the wall in the great room facing out towards the backyard which could be utilized for the sink and/or for a It was the plumbing set up for the kitchen. sink. Mr. Horton discussed it with the builder and with the clients -- with the builder, ! know at least -- and the clients came to me after that discussion and they said to me in about "We need a variance that's what we want to put in. We want put a sink in and a bar overlooking the late in May, early June, for a wet bar because to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 14 window, looking out into the backyard." So, I said, "Well, unless something has changed in Southold Town, you don't need a variance to put in the sink for the wet bar," meaning a bar with running water. Under the circumstances, I didn't doubt the Building Department had good cause to be concerned that they might be permitting this and that it may thereafter illegally be made into a kitchen. the gist of it was, when I spoke I said, "Victor, what are we So to Victor, doing?" He said, "Number one, you've got to get a setback anyway because the variance shows 26 or 28. Number two, go to -- I am not getting any further into this -- go to the Board and find out if you can have a wet bar." I said, "Victor, I am not going to the Board and asking them if I can have a wet bar with a sink because I know I can have a wet bar with the sink in the great room, but I will ask them to interpret 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 whether a second kitchen originally proposed necessarily makes this a two-family dwelling." There is some law on this which I will get to in a moment. The gist of it is, now we are at 5/29 on the facts, and I asked him to please issue a notice of disapproval so I can get going on the variance. He did. It is in your file and it indicates the following: Under Article 3A, Section 130.3 and Article 23, Section 100-230A, construction has insufficient front yard setback. Also, under Article 3A, Section 100-30A2,A1 (100- 3iA), a permitted use one-family detached dwelling not to exceed one dwelling on each lot. (A two-family dwelling is not a permitted use.) Action required by the Zoning Board of Appeals. Hence, we are here. We needed the setback. We knew that since late in December, when we got the setback survey. We just didn't go in for it because we were not working on the stoop. We agreed not to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 16 work further. Now we are in here and, in fact, Victor I think really, I would add, was going to permit the construction to continue if we pulled out the plumbing on that wall. Instead of doing that, because of this second Stop Work Order and the back and forth, we elected to come in to put two questions before this Board: 1) May we please have a variance for the stoop, because it is 18 feet from the line instead of 26 to 28 feet of the neighbor's. 2) May we have an interpretation of the indicated section from this Board as to whether a second kitchen necessarily means that a house which is interrelated on both floors and which is now and has been used for the last 15 years by two sisters, does that necessarily mean it is two family? When we finally got to the hearing, on 7/25, my clients were quite surprised at the confusion about what it was we were seeking. My first remarks were we are not seeking a permit for the two-family home. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 17 We were not seeking an accessory use for an apartment. We are seeking a variance for the stoop and we are seeking an interpre- tation of an interesting legal question which I had already discussed, by this time, with Mr. Arnoff. The issues that I believe are properly before the Court are, I believe, the following: The questions which the Board properly made -- has before it. You may be relieved or you may not. You may believe me or you may not, but I believe if you consult with your Town Attorney, he will agree that despite what the revoked -- building permit, tear down the house, cut it in half, contingent urges that it is not within the purview of the Zoning Board of Appeals, under these facts which I indicated, to do that. If you look at have just Section 100-271, which is the empowering portion of your zoning statute, the indication there, as you are well aware of, is that the Board's power and 6 8 9 10 11 12 13 14 16 17 18 19 20 21 22 23 24 25 18 authority is to hear and decide appeals from and review any orders, requirements, decisions or determinations made by the Building Inspector; to grant variances, as the ones we are seeking; to grant exception which we are not seeking; and to interpret any order, decision or determination of an administrative officer by determining the meaning of any prevention or of any condition or requirement under the chapter. The point I am really desperately trying to make clear to you is that we have no real problem to speak of with the Building Department. We are asking you to give us a variance or not give us a variance, as you see appropriate under the law as I will address it in a moment, and to give us an interpretation positively that we may put that kitchen in or negatively that we may not, and in doing so I believe you must reach the issue of whether a second kitchen necessarily makes a home a two- family dwelling. Now, the logic, the way I approach 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 19 this logically is -- and incidentally, the notice of disapproval from the Building Department which was requested by me, and which is dated May 29, and the Stop Work Order that followed the next day, defines our problem. Our whole problem is that after this whole saga which you know about, we requested on 5/29 the long awaited and the not surprising order to get our stoop variance and that this one-family detached dwelling has to have only one dwelling unit, and there was an interpretation of the Building Department that putting a wet bar in on that wall where the original kitchen had first been approved would be not proper -- much less a kitchen. It is our position, which I will advance further, that a kitchen itself is proper. How are we going to get out of this Stop Work Order which indicates, inci- dentally, the June 1st order, construction has insufficient front yard, not being constructed as per plans, plumbing installed for second kitchen? We have to get your 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 20 approval for the second kitchen or take out the plumbing. Incidentally, if you don't give us a second kitchen, would you please let us know that we can put a wet bar in there, which I am defining as a bar with a sink in it with running water which many, many great rooms have in many houses; and finally, an okay from the principal Building Inspector, in other words Victor, to look at it and to make sure he would be happy with what we are doing. If we decided not to go forward with the stoop and if we decided further not to challenge on the kitchen or the wet bar, we could have continued construction. Now I am sitting here in October. That may have been the wiser choice, since we have been held up four or five months. The petitioner's application, incidentally, indicates as you know and should know that what I was seeking was a variance for insufficient front yard and an interpretation to permit second kitchen, interpretation of ordinance sections 1 2 3 4 5 6 7 8 9 10 1'~ 1;' 13 14 15 16 17 18 19 20 21 22 23 24 25 regarding second kitchen in one-family dwelling. If you look at your two notices, would probably explain to you why everyone is in an uproar. We seeking a permit for a two-family 21 that to some extent are not dwelling. We never have been. I believe that is part of the reason why everybody is so upset, in addition to the fact they don't like the way the house looks and it will we put some trees around it. nor have we ever permit. We do seek the following, and here is the case: a variance. You know that we have to establish for the front yard look better when We do not seek sought the two-family inconsistent with the neighborhood. It is our position that practical difficulty standards is met by the fact that this is a pre-existing nonconforming lot. That is we are dealing with a small allotment of space in an undersized lot, that the next-door variance practical difficulty, unnecessary hardship, and that the relief would not be 1 2 3 4 5 6 7 8 9 ~0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 neighbor has in fact are seeking the same average within 300 setback -- that we an 18-foot setback. setback, that the feet is 26 to 28 foot are not even seeking a setback here for the line of the house. are seeking a setback for the circular stoop, so that it is less offensive, so to speak, and the house actually remains back at the 28-foot level. Secondly, in regards to unnecessary the unnecessary hardship, is the whole saga which I hardship, argument We 22 We the best delineated in the first part. This whole saga of $146,000 worth of expenses and constant cooperation with the Building Department to do whatever they ask us to do, I believe established unnecessary hardship. Finally, unlike what is indicated in Marie Ongioni's paper work, please take a ride and look at the house. In fact, if you want to see the house, please ask for the key. We will be glad to let you go inside, something the architect never did although he wrote a three-page letter to you. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 23 The new houses in that area, particularly on the bay side and the renovations are quite lovely, are quite large, and if you look at the house I want you to realize that that house has 1,400 square feet on each side of it, so to speak. This whole house is 2,800 square feet. This is not a big house. I have been in it. It looks pretty big sitting there because there is nothing on this lot but this house and some construction debris, but 2,800 square feet is not a big house. Incidentally, Marie Ongioni argued this was an illegally issued or improperly issued permit. I believe that is inaccurate. So that is the argument on the variance. If you look at the community, they have larger homes than 2,800 square feet on lots of similar or lesser size, although the picture you have from Ms. Ongioni are smaller homes which also exist. There are some very nice big homes on the bay side -- across from them. Now let's get to the question of 1 2 3 4 .5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 24 interpretation. Why do I think you ought to interpret that the second kitchen does not necessarily make a two-family dwelling? Well, for one thing, it would help I think if you looked at the definition of "dwelling units" in your code. That is interesting. It says -- and this indicates ! believe that Victor Lessard and the Building Department were in fact doing their job in indicating that a dwelling unit is defined as a building or an entirely self-contained portion thereof .... you can look at 100- 13. The point is that this is not a building or an entirely self-contained portion thereof, this second dwelling. It is a totally interrelated home. Who is going to build a two-family dwelling, with interrelated bedrooms with one big hallway? Who is going to build a two-family dwelling, with a connection on both floors which people walk through? If you want to get in, as the opposition suggests, to how this could easily be made an illegal two-family 1 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 dwelling, then we will have to have the Town Building Department police all over town because you can do that with any building. In fact, as you know, if they just put a door, and then two doors when the got inside, this whole entire problem would not be before your Board because that generally people who want to be sneaky do is the way it. The point is, this is an interrelated building on both floors, by direction of the Building Department when we filed our new plans. So despite the fact that these two older sisters, who want separate heat and separate water and separate electric, if they can get it put in that doesn't make it a two-family dwelling. That is one thing I would ask you to look at. I also bring to your attention the Riverhead Zoning Board of Appeals decision in the case of Wilmont (phonetic) issued in July of this year. What happened there, Mr. Wilmont had a house in which there were two kitchens with the pre-existing use. He 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 requested, as CPU. The Building Department has to to see. They see the second kitchen. say no, we can't give you a CPU for a single-family dwelling when you have two kitchens. They go to the Zoning Board of Appeals to get an interpretation of whether they can or cannot do that. The decision, Pat told me, of that Board was the following: That a second kitchen does not automatically mean a two-family dwelling. Issue the one-family Certificate of Pre- 26 I am doing, a single-family go in They we want now Occupancy. never have. Finally, a one-family Certificate of We don't want a two-family. We I would like to mention that it seems on a matter of law and equity that all of you sitting here and standing here know that there are one-family homes sitting in this town which legally have two kitchens. There are kitchens off the bay, on Nassau Point. There are kitchens off of existing Use. We got it in '77, a one- family Certificate of Pre-existing Use, and 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 Yet not the inaccuracies in the paper work from Mr. Tober. However, I cannot resist. I will submit, at this time, the survey from Peconic Surveyors demolishing the argument advanced that this new renovated dwelling has 20 percent or more pools. There are rec room kitchens. these houses are nonetheless one-family, two-family homes, because they are interrelated. My point, of course, is that Mr. Lessard and the Building Department correctly insisted on interrelationship of this house. That they were connected. That the bedrooms were all together. That there was one hallway and that is the indicator, not whether or not there are two kitchens. The third thing I wanted to do -- technically, ! do not have to do this. You are limited to considering what I am requesting and considering what I am asking you to interpret, and you can't start taking down buildings on me. If you are convinced on that, technically I do not have to rebut 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 28 lot coverage. It just isn't so. It is wrong. Ms. Ongioni, I believe, is also, on behalf of Mr. Tober, whose motivation I leave to your consideration, but I note this Board can sufficiently differentiate what some boards call, quote, religious objection as opposed to real project. There is I don't know why. objection to a particular a motion involved here. She is wrong on that point. The tot coverage is 13 1/2. As to the argument about setback, attached to my application, petitioner's application, here is the setback survey. What happened here, and what happened properly under 100-242, quoted in Ms. Ongioni's own paper work, is that the Building Department correctly permitted my to simply extend the existing line front and back on this adding a second clients setback residence by sufficiently part to it. If you look at 100-242 carefully, it supports that. and read it Nothing in this article shall be deemed to prevent the 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 ' 17 18 19 20 21 22 23 24 25 29 of remodeling, reconstruction or enlargement the nonconforming building containing a conforming use provided that such action does not create any new nonconformance or increase the degree of nonconformance with regards to the regulations pertaining to such building. If you look at the old survey in Marie Ongioni's papers, if you look at the new survey you will see that we don't do anything but simply -- and, incidentally, if this is wrong and I for one know of many instances where exactly the same thing happened -- we simply extended our front line and extended our back line. We have not run into any sideline problems. Therefore we stayed within the same envelope as we were originally in. is particularly so, with the exception of building And this not of 50 feet -- not of 30 feet, but of the average within 300 feet. So on that issue she is, I believe, also wrong. the stoop. We consider that under that particular section, 230. We have a setback 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 30 On the side of this house, this house is smaller than it would be. Significantly smaller than it could be. It is 2,800 square feet. So they are wrong on that, too. There is in your file, the only notification I saw was a letter dated August 25th, from George Yorkey (phonetic), a New York City architect, who admits he was never in the house -- presumably saw it either from the street or trespassing on the property, and yet presumes to advise you to tear it down. If Marie Ongioni is simply wrong, as I have indicated, and you believe this to be true, this man is simply ridiculous and I am sure you will treat that letter with the care that it deserves. None of that is important if you believe, as I believe you will, that your authority under the statute is limited. Even if these arguments have had some merit, which they do not, the permit for the reasons indicated was never improperly issued. There was no lot coverage issue, no 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 setback issue, other than the stoop, and no oversize issue. As to other remarks about whether we met the standards for the variance, believe we have as I indicated earlier. The confusion in the papers, as I studied them, is simply this: She is talking about a variance for a two-family house. We have not wanted a two-family house. standards for the setback As to the question of the codes, I leave it to your consideration. reached that standard because we never We reached the on the stoop. of interpretation Finally, I have introduced you to the applicants. They are real simple, down-to- earth people, trying to retire out here. The saga has been 18 months. I believe that is a hardship. They had enormous expenses. The kindest thing you recall said about them earlier here was their house was a monstrosity and they were animals for having torn down the trees in front of it. They heard it. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 32 The use is going to be the same as it has been since 1977. The title is in a family of two sisters and a husband. The house is totally interrelated on the new plans, both floors. The size is as indicated; 2,800 square feet. They have acted in good which is what them to do. $167,000 in faith in the last 18 months, the Building Department told We have spent a lot of money, the process. To suggest that this is a self-imposed hardship, as suggested by some of the opposition, although some of them tempered it with, "It is really the Building Department's problem," to suggest my clients created a self-imposed hardship is totally outrageous in the facts. Thank you for listening to me. THE CHAIRMAN: The only thing that confuses me about this application is that it actually looks like a two-family house, because of the two doors. I want you to thin]; of that, Mr. Cardinaleo I am going to ask you about it at the end of this hearing, 1 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 33 what you can do about that particular architectural view. MR, DINIZIO: Can I ask a question? Because you explained to us just exactly what we are supposed to be considering here, I just want to make it clear that I am considering that we are supposed to make a determination on the determination that Victor Lessard for the Building Department has said, by looking at these plans and inspecting that house, that they interpret this to be a two-family dwelling. MR. CARDINALE: I am glad you stated that. That is not what they said. If you would speak to your Building Department and Mr. Lessard, you tonight. plan as he will confirm what I said to They have no problem with the it exists so long as we did what we promised to do, which was interrelate these two floors. They have no problem except they do not want plumbing, as you walk in what is now called the great room, on the baok wall. The contractor put plumbing in there, and 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 34 they don't want plumbing in there. Our response is, it is not a kitchen. It is a wet bar. Victor has been around long enough to respond to that, "Right. Tell it to the Zoning Board of Appeals." He is concerned, legitimately, if you permit plumbing on that line it can be altered later to a kitchen. you took that stance Building Department, a wet bar -- that is The point is that if on every case in the you would never permit a bar with a sink -- in any great room, have a wet bar in unfair. THE CHAIrmAN: phrase "great room" and to deny my clients to their great room is Would we use the to mean then also? MR. CARDiNALE: Yes. I do encourage you and I am sure my clients would be glad to have you get inside. THE CHAIRMAN: By raising that question that Mr. Dinizio just did, I am afraid it appears that we are not going to be able to close this hearing because we might have to get Mr. Lessard back again and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 discuss it with him on the record. Certainly conversations with the Building Department concerning this hearing are not germane to everyone in the audience who is here for this hearing. problem is. MR. CARDINALE: question, I asked Mr. reach him this was in here at road. The other thing I am sure you will confirm, 35 him -- and this really is a problem because we haven't been able to build since June 1st, that we are coming into cold weather. and I said, "What the the Stop Work The house is unprotected. heck do I have to do to get Order lifted?" He said, "What you've got to do is don't work on the stoop until you get a decision, and pull out the plumbing." I said, "If I pull out the plumbing I get approval for the kitchen and wet So that's where the In anticipating that Lessard -- tried to afternoon without success. 4:30. He was out on the will state, which is that I said to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 bar, I just wasted a few So my point is, I 36 hundred dollars." don't want to get my clients in a bigger jam than they already are. If I withdrew this application, I could go back to the Building Department and tell them, "I am taking out my kitchen -- my kitchen plumbing -- for my wet bar, which you are concerned about this kitchen, and I will forget this circular stoop." My position is we have complied in every other way, and the Building Department believes we have complied. I believe he will verify that. THE CHAIRMAN: In answer to your question, Jim, what we had was the exact updated plan, which there was only one copy from the Building Department. It was lent to us from the Building Department's file from the last meeting, and our prior secretary had returned it to the Building Department the morning after the hearing. So we don't have the exact, most updated plans. That's possibly it. Maybe you can 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 37 furnish us a better copy of the plans. MR. DINIZIO: Our plans don't indicate that the upstairs is separate, in that it has a wall. wall. MR. CARDINALE: looking at, submitted? It appears to be a Which plans are you Number 1 or Number 2 I MS. KOWALSKI: Number 2. MR. CARDINALE: That is the one that shows the great room on the lower floor. THE CHAIRMAN: Yes. .' MR. CARDINALE: There is, in fact, an interconnection between all the bedrooms, 1 ~nd if those plans d~ not show,t?at, they Lshould. I am ~urpri~ed. I dian t look at them carefully. You may be correct. There was one other thing I wanted to mention, which is that Victor indicated -- well, in regards -- I guess I stated what he indicated. So I'll just leave it at that. I thought I was going to advance, Mr. Dinizio, you are correct that the confusion that brought out the neighbors i believe was ! 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 38 plumbing in that wall. He wanted it out. I said to him, "Couldn't I put a wet bar even?" He said, "No, not even a wet bar unless you get the Zoning Board of Appeals to approve it." I said, "That's ridiculous. I'll go for a kitchen and see what THE CHAIRMAN: Ms. to my discussion with Mr. they ~ " ~ay. Ongioni, pursuant Cardinale, you did read rather a lengthy memorandum. Are you prepared to do that again? MARIE ONGIONI: I am not. I am making that a part of the record. I don't want to take the Board's time once again tonight. In view of the lost time, last greater anger than necessary, and what concerned this Board, is if you look at -- not my application but the notice of disapproval of May 29th, Victor indicates the section why you can't have the two- family. He doesn't indicate his underlying reason for stopping the work. I am telling you the underlying reason is because of the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 39 time, I am not going to go through the entire memorandum with you. THE CHAIRMAN: We do appreciate it. MS. ONGIONI: Since it is part of the record, I don't think it is necessary to go through it once again. I have a supplemental memorandum I would like to submit now. It is much shorter than the previous one. (Above-mentioned memorandum submitted to the Board.) MS. ONGIONI: make a few points. I would just like to Hopefully, I will hold to the ten minute parameter that Mr. Cardinale suggested before. First I would like to advise the Board that my clients are not present tonight, as Mr. Tober took ill last week. He had a heart attack and he was hospitalized in the middle of last week, in Manhattan, in St. Luke's Hospital. That is why their presence is not here tonight. However, I do believe there is quite a bit of community opposition and I believe 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 they are not know 40 in the audience, and although I do them by name I would like to remind the Board of petitions submitted by various community members at the last hearing. I will not reiterate the points made in the earlier memorandum submitted in July. I will say though that in response to one of Mr. Cardinale's points, there was an error in the calculations regarding the lot coverage and I withdrew the application that the lot coverage exceeds 20 percent. It does not. The multiplication was based upon the building, 58 by or thereabouts. So allegation in the withdrawn. still 56, instead of 56 by 24 the lot coverage earlier memorandum is However, I believe that the Board needs to review the totality of the circumstances here and the building in its entirety in determining what this really is. As one of the opponents indicated at the last meeting, there is every indication that this is a two-family dwelling. I know that this is not before the Board now. The only 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 41 two issues which are before the Board are: 1) whether or not a second kitchen should be allowed; and 2) the front yard setback. In my opinion, I urge the Board to reach that conclusion that both these requests are secondary to the project as a whole. In viewing the site, you have two entrances. You have two fuel tanks. You have duplicates of so many essential services that are in the dwelling. I submit that the conclusion is that this is, indeed, a two-family dwelling. I would also like to point out, it is within this Board's jurisdiction and, in my opinion, to revoke the building permit. I refer to the Board, to the same section with which Mr. Cardinale referred the Board to, which is a section of the Town Law, a section of the Southold Town Cede, Section 100-271, and it states that this Board has the power to hear and decide appeals from and review any order requirement decision or determination made by the Building 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Inspector. I submit this to the Board, the determination made by the Building 42 that Inspector can, indeed, be reviewed and that reviewal could indeed result in annulling his decision to issue a building permit and to, in fact, annul the building permit. So, contrary to what Mr. Cardinale has advised the Board, it is my opinion that this Zoning Board of Appeals according to New York State Town Law, has the power to make such determinations. And in the memo I submitted tonight, I refer you to two cases: 1) Second Department Case, Matter of Village Green Center, Inc. versus Reidy, 249 NYS 2d 440 (2nd Department 1964). This case indicated that a Zoning Board of Appeals is empowered to revoke a building permit issued to an applicant and the Board possesses such authority. There is another case, which is a Third Department case. So based upon %hat case law, power of such a decision. it is my belief it is within the the Zoning Board of Appeals to make As a matter of fact, 1 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 believe that this Board has building permit in the past. Now, as far as whether or not a two-family residence, the applicant indicates that is not before this Board. Well, that may not specifically be before this Board, but the inescapable conclusion 43 indeed revoked a this is one-family dwelling. The hallway could have easily been closed. There are two front entrances, which clearly indicate there are two totally separate dwelling units. Once again, the case law has indicated that the test of whether a dwelling is a one or two-family residence is its design, and I refer to the case of Matter of Stafford versus Incorporated It has two dwelling units which are mirror images of each other. While Mr. Cardinale may indicate there is an interrelationship between the two dwelling units, if it is an open hallway that, in my opinion, was an accommodation to give the appearance of a is that this has all of the elements of a two-family dwelling. It has six bathrooms. 1 3 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 44 Village of Sands Point. Justice Shapiro, in this case, believes one must consider both design and nature of occupancy as a twofold test and he did not believe that the case before him met that test. I would submit to this Board that similar facts exist in this application. Here we have a two-family unit, although sisters; two heating systems, two electrical systems; two entrances and stairways. Whether or not a second kitchen should be added to this dwelling is really irrelevant, because it is a two-family dwelling. THE CHAIRMAN: Could I just ask you to give us copies are stating? MS. ONGIONI: to, I will do that. memo. THE CHAIRMAN: tomorrow. MS. ONGIONI: office, and I will There is those cases that you If you would like me They are cited in the It doesn't have to be I have copies in my get them to you. one new issue which I would 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 like to bring to the Board's attention. There is a possible violation of the statute here. It appears that Environmental Conservation Law been violated. I don't have an exact dimension between this property and, I believe, it is Gull Pond Inlet. I have it attached to the memorandum. Pond Inlet. 270 45 It appears that this property may be feet within the inlet, and if that is so the Department of Environmental Conserva- tion's approval should have been sought because the Environmental Conservation Law, Article 25, Title 4, requires that the excavation and removal, either directly or indirectly, o~ soil, sand or the dumping, filling, or depositing, either directly or indirectly, cf the same substances or the erection of any structures within or immediately adjacent to wetlands that is within 300 feet. The areas immediately adjacent to the wetlands are regulated by 6 NYCRR Part 661 and in Section 661.4(b), Yes, it is Gull wetland the could have 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 46 has requested. I would like the Board to consider this as a formal request by Mr. and Mrs. Tober that the building permit be revoked. If the Board indicates that it wishes to have a specific application requesting that relief, I will submit such application to the Board. Finally, I understand that this application is being reviewed by an attorney who has been appointed to investigate specific Building Department files. I believe the attorney is Barry Warren {phonetic), and I understand that he is investigating the facts of this file, and I stating that adjacent area is defined as within 300 feet landward of a wetland. This adds to the totality of the circumstances involved in this application since its inception. There have been numerous violations of numerous parts of the Town Law and the State Law and I believe it is incumbent on this Board to look very carefully at this application, and to perhaps even go beyond what the applicant 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 47 would suggest to the Board that it may wish to hold a decision in abeyance pending a finding of that particular investigation. I am not sure if such a deferral would be mandated, but it might be advisable to do so at this time. THE CHAIRMAN: }~S. ONGIONI: THE CHAIP~AN: Order, Mr. Cardinale, MR. CARDINALE: out the plumbing which done four months one issue. That you are aware, between, Thank you. Thank you. So the Stop Work is still in effect. It is, unless I pull think ! should have ago. Let me leave you with is the DEC'thing. I think as I am, that if there is a the Department of Environ- street mental tion. Conversation loses their jurisdic- There is a street in between here. The second thing is, I have been before the Zoning Board of Appeals for the last ten years for relief for my clients. appreciate it if you believe you guys have the right to revoke this permit, that you let me ]:now because I will be doing worse I 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the record? pro or con, hearing, or group? 48 with you than I am doing with the Building Department, and the whole purpose of going to you is because I wasn't happy with the Building Department. The Zoning Board of Appeals is a relief agency, to seek relief when someone is hurting from an administrative order. If they want to do what they want to do, they shouldn't piggyback on this application. I think they would have the right to bring an Article 78 against the Building Department. I suppose we are going to have to give you some law on this, and I will do so. THE CHAIRMAN: Is there anyone here that will not be here for the October meeting that would like to say something for Anybody in the audience, either concerning this particular is the any spokesperson for a Yes, Mrs. Sblendido. MRS. SBLENDIDO: You are saying you will not have the meeting until the end of October? 1 2 3 4 5 6 7 8 9 10 11 13 14 15 16 17 18 19 20 21 22 23 24 25 sort house? here. 49 THE CHAIRMAN: That is correct. MRS. SRLENDIDO: Could we get some of temporary extension to winterize the I mean, we have got a big investment MR. CARDINALE: This is the issue I was referring to earlier. I am aware of the Board's problem. I assume you want to speak to Mr. Lessard. THE CHAIRMAN: We have to get Mr. it with Mr. Arnoff, on the record and in the interim who is Lessard have to discuss the Town Attorney. MR. Sblendido, home? MRS. SBLENDIDO: Yes. ruling as soon as possible. CARDINALE: Right. Mrs. do you wish to winterize the would like a .h_~ is four months now. That's all I ask, a ruling from someone -- anyone -- because, you ]:now -- because I cut down my trees -- MR. CARDINALE: The only suggestion I would have, that the Board obviously wants to keep it open so I can submit a memorandum 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 on the supplemental brief, is take Mr. Lessard's deposition THE CHAIRMAN: I would rather not do to what degree are we 5O it possible to instead? That is the question. that. My question is talking about winterization? Are we talking about the erection of walls, the installation of heating elements? MRS. SBLENDIDO: Can I put one kitchen in? THE CHAIRMAN: I believe there is Stop Work Order on the premises at this time, Mrs. Sblendido, and that is the problem that exists. SBLENDIDO: HOW do I go about lifted, or should we just bomb MRS. getting it the place? MR. suppose what Lessard about CARDINALE: They have not been able to use it this summer. That aside, I I have to do is speak to Mr. what he would permit, as he indicated earlier, the house as long plumbing. to permit construction in as we pull out the 1 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 51 THE CHAIP~AN: Hearing no further comments, ! recess this hearing to the next regularly scheduled hearing. In the interim we will discuss it with the Town Attorney and in concert Mr. Cardinale will discuss it with Mr. Lessard and see if the Stop Work Order is to be lifted or not lifted. In reference to the question, before I continue with the motion, Ms. Ongioni, I discussed that issue concerning an investigation of this particular permit, and I think you are perfectly correct, that the Building Department file has made its way up to Hauppauge, or wherever Mr. Warren's office is, because I believe we requested a copy of that most updated set of plans and they were non-existing because they were not in the building. The Town Attorney mentioned to me that he had specific questions. So you might want to contact him in regards to that particular request. I think it is a little lengthy to go into it, at this particular time. It will be mentioned in the decision 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 somewhere down the road, basically the situation point. to Mr. and that is as I know it at 52 this Also, Mr. Cardinale, when you speak Lessard afford him the notion we will recessing hearing. be discussing with him the possibility of coming to the next meeting so we might speak to him, not interrogate him, but speak to him as we did before regarding the questions that have arisen on this particular project. We thank everybody for their courtesy and for coming in again. I make a motion to our next regularly scheduled MR. DINIZiO: Second. THE CHAIRMAN: Ail in favor? MR. DOYEN: Aye. MR. GRIGONIS: Aye. MR. DINIZIO: Aye. THE COURT: Thank you very much. (Time noted: 9:27 p.m.) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 CERTIFICATION I, GAIL ROSCHEN, do hereby certify that I am an Official Court Reporter and that the foregoing constitutes a true and correct excerpt of the Southold Town Zoning Board of Appeals hearing on September 26, 1990, according to my stenographic notes, GAIL ROSCREN Official Court Reporter 52A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 SOUTHOLD TOWN ZONING BOARD OF APPEALS q~ ~>V~z~C? COUNTY OF SUFFOLK : STATE OF NEW YORK SOUTHOLD TOWN ZONING BOARD OF APPEALS: HEARING, : Town Hall 53095 Main Road P.O. Box 1179 Southold, New York July 25, 1990 9:00 P.M. BEFORE: GERARD P. GOEHRINGER, Chairman BOARD MEMBERS: CHARLES GRIGONIS, JR., Absent SERGE DOYEN, JR. JOSEPH H. SAWICKI, Absent J~ES DINIZIO, JR. ALSO PRESENT: DOREEN FERWERDA, Secretary GAIL ROSCHEN Official Court Reporter 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 2 (Continuing hearing of Applicant Number 3955, in behalf of Dominick Sblendido and A. Auricchio) THE CHAIRMAN: I need a motion to reconvene. MR. DOYEN: Second. THE CHAIRMAN: There is a gentleman in the center of the room that would like to speak DR. ROCHE: Dr. Marvin Roche, 480 Inlet Lane, oorner house. I don't understand all these legal terms I am not so smart. I don't think that I can cast any light on these issues. I feel very emotional about the whole deal, and I hope that an expression of emotion might help the committee reach a proper conclusion. I live on Inlet Lane, and everybody coming to visit me feels the same. Half the houses are waterfront. Each house has a beautiful lawn full of trees and shrubs, and the trunks of the trees cast shadows in the day and in the night from the street lamps. There are 10,672 birds, and we all love them. Into that country atmosphere comes 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 this, what is going on now. It is a house right on top of the street and, hard to believe, they cut down every blessed tree front and back. Could there be a human being that hates trees and birds? No. Why were these trees cut down? Well, if they are going to have a two-family house, how many people live in each one of these two families? Two people? Don't you believe it. There is going to be many more. eight, there. in Inlet Lane. on the beach? their lawn. trees. There is going to be six, God knows how many cars parked out Well, you cannot park in the street Where are they going to-park, No. They are going to park on They have to get rid of their Well, I just spent $300,000 renovating my house because I love the area, because I can't find any area I would rather be in. But I don't want to live in this house, which is quite a gorgeous house, block. Not multiple dwelling. house made into two families. you believe it. in a multiple dwelling It is just one Well, don't If I want to sell my house 1 2 3 4 5 6 7 8 9 10 11 12 13 14 ~5 16 17 18 19 2O 21 22 23 24 25 because I don't want to live there now, is the way the streets are going to be, 4 if tha~ you can't sell houses now. I would have to take a heck of a loss, if I sold it now. Well, I have a way out, just like the people across the way from me took a way out. They rented their house. Well, if I was going to rent my house because I want to get out, I would never make enough money to cover any- thing in the house. But I sure would better my situation if I made it a multiple dwelling. I don't know the difference between multiple dwelling and two-family, but I do know I have a very large beautiful library, as big as this room -- not the whole room -- well, I could convert that libary into a kitchen, a living room, and a bedroom. It would be gorgeous, and I have many other rooms in the house. I could twist that around and take a lot of people in and call it a two-family. I would request a variance. What right have you to give them a variance and not me? You do not have such a right. It would be discriminatory to everybody. Those that are 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 5 disgusted with what is happening in. Inlet Lane and want to get out would request a variance. So this Board is being asked to give anyone on Inlet Lane the right to a variance to change their house to a money-making situation. So I say that it would be a terrible mistake, but I also see that these people who built this house are having a hardship. They went ahead and built a monstrosity right on top of the road and now what are they going to do? Should we say you can't live in it? Shoul we say you have to tear it down? I think that would be a terrible hardship. Do you? 'The original mistake was why on earth were they given permission to do it from scratch? When they first started to build that house and I saw two doors, two entrances, two hallways, obviously a two-family house regard- less of what the legal definition is. So I went to the builder and I asked him, "Is this going to be a two-family house?" He So going to be a two-family, but it sure said, "Absolutely not." I said to my neighbors it is not is clear 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 6 Who needs two doors in one hall exactly alike? Any way you twist it, with the kitchen or without a kitchen, that house is a two-family house and there should be some way that this Board prevents two families from living in that house. THE CHAIRMAN: Thank you, Doctor. Is there anybody else that would like to speak in opposition? Sir? MR. TASKER: Arthur Tasker. I live at 17 Beach Road, Greenport, where I have spent the summers there for the last 45 years in a little cottage colony of about 100 -- 15'0. As I say, I have spent the last 45 su~u~ers there and it is a place we love very well. and although I Association, residents in I am also the Vice President of the Property Owners' Association there, an informal group, do not speak tonight for the I know I have the support of many Sandy Beach as the area is known. I don't think I can add anything specifically in addition to what Ms. Ongioni said and Dr. Roche spoke of. I just want to add that I am very strongly opposed to the project as it was 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 proposed and it was permitted, and as it was demonstrated. I make the distinction because each is different. This project has been led down the garden path every step of the way. I think tha' has to present a couple of questions we need to look at. First of all, why was zoning actually -- construction should be checked for conformity with the site plan and on the construction drawing. Why weren't the various aspects of the house, where it clearly indicate. it is a two-family house -- why weren't these factors noticed and questioned at the time the Building Department inspected the layout or inspected the foundation or inspected the framing, or the rough wiring or the plumbing? After all, if these were evident to people who are not in the construction, they should have been evident to the Building Department. If the building does comply with the plans which were submitted, how is it that the Building Department approved these plans in the first place? Even to a lay person they are not in conformity with the Building Codes 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 t9 20 21 22 23 24 25 8 and zoning regulations of the Town. I suggest possible answers. First, what I call the Chinatown attitude. I am not sure how many of you recall the movie China- town, where Jack Nicholson was intending to investigate an incident that took place in Chinatown. Leave it alone. It is Chinatown. I suggest the situation here might be, well, leave it alone. It is Greenport. Possib the Building Department is so preoccupied with its war with Mr. Zahra with issues of question- able vacant land certificates, occupancy, and erroneous building permits on land which is invalid, in which is involved a relative of the Building Department and also the issue of construction permits on another road on Main Street which flies in the face of the master plan and zoning ordinances. I suggest that in this application, on Inlet Lane, the Town will again be in a no win situation, which ever way this is decided. The loser will file another Article 78 proceeding and we residents will once again shoulder the burden of financing another lawsuit arising from the Ly 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 9 alleged malfeasance of the Building Department. I think Mr. Tober, in his remarks, said obviously the Board cannot undo everything that was done. In fact, the Board can undo what has been done. Ms. Ongioni cited a Situation in which the building was required to go down when it was not in confirmation. I suggest that at least the permit or the application should be denied, and further I would strongly urge this Board to require that the building be brought in confirmation with the building zoning in all respects. Thank you. THE CHAIRMAN: Thank you. Is there anybody else that would like to speak? DR. MACY: Joseph Macy, 129 Inlet Lane. We have been there for over 20 years. A year ago we completed the extension and building of our house and conformed with all the building requirements that the Town of Southold asked for. it is upsetting to us. what Dr. quite obvious this is very I would just like to echo Roche has said. I would like to say 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 agree with all of his statements. I believe Mrs. Macy would also like to speak. MRS. MACY: I am Mrs. Macy. I reside at the same address, 129 Inlet Lane. I would like to address the Board this evening, personally, because during the period of time our home was being constructed by Richard Siata (phonetic), and his brother, Robert who is here this evening, I was the one that actually did most of the overview of the project. During that period of time several things were very evident: 1) I am astonished that something like this can happen on the basis of my own experience. I have to say that when we started th~s project, we had completely different plans that evolved to the house we finally built. The reason the plans changed was because the Town of Southold came in and said, no, I couldn't do that. There were changes in the Department of Environmental Conser- vation rulings. There were all sorts of things that had to be complied with, and the Town of 1 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 Southold was extremely strict with us and we complied and we complied willingly because we love the area. We intend to be there, or had intended to be there, for many years and we wanted to do things the right way. Now when we did evolve to the second plan, the second plan was extremely costly and it involved a need for further financing of the project. We went to the Bank of New York, one of the primary banks we deal with, and requested additional financing. We sub- sequently had an inspection of the premises and of the plans and of what we were going to do. We were granted the monies we needed to do this, no problem. The reason I bring this up is because something very interesting happened, at that time, when we spoke to a gentleman at the bank. He informed me that the banks were so happy to come to the Town of Southold. They felt very secure giving financing to projects that were done within the Town of Southold, unlike many of the projects that were being initiated on the South Fork. They felt the Town of Southold was 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 extremely vigilant and they were doing a good job, and that the bank was doing good business by putting their monies in community projects, building homes, in the Town of Southold. I ask you then, please, could someone explain to me how we have a Building Department that's been investigating all of the allegations being made here tonight, which obviously many of them can be substantiated, and how is it that we can be witness to something like that happening less than a year later across the street? What has happened to the Town of Southold, or was this another Town of Southold I was dealing with? It doesn't make any sense to me. I find it very upsetting. I have to agree with Dr. Roche, because we, too, have poured several hundred thousand dollars into our project with the intent our family would enjoy for many years. It has been soured. We are bitter, and we are deeply concerned about all of the things that have been discussed here tonight. This is like cancer. It will not stop. 1 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Believe me, it will not reason why these people 13 stop. There is no should be allowed to build this house. Now I am not going to minimize what I am saying. I said "build this house" and I meant it. The plans speak for themselves. When it looks like a duck and it walks like a duck and it quacks like a duck, it is a duck. That is a duck, folks; that house with its double stairway up and down to the basement, the double entrances and all of the above; its trees that were raped off the land to make room for God knows what, parking cars? Good thought, Doctor. That speaks for itself. Now I don't know how this plan went through. I don't know how this plan was inspected. I spoke to Gary Fish (phonetic) myself months ago. I called the Town of Southold and spoke to him, and said, "Gary, what is happening here? I am living through this. I can't believe what I am looking at." He said, "No way. It will comply with everything." I have a problem with this. I think 1 2 3 4 5 6 7 8 9 10 11 '12 13 14 15 16 17 18 19 2O 21 22 23 24 25 we are all here because we this. I ask you please to 14 have a problem with consider that we are very serious about going to go away. and let's get this we have a problem. Thank you. THE CHAIRMAN: this. This is not Think about this, please, straightened out because All of us. Thank you. MR. ZAHRA: Charles Zahra, from Mattituc I am not going to speak for or against. What I have to say I hope will be for the benefit of the entire Town. As I stated many times before, that at the early work session, August 8, 1988 was a work session. I, myself, brought many files before the Town, the Town Board, and I went over all these instances such as what is happening here this evening. Nothing was done. I have been pressing for three and a half years to get the Town Board -- it took me three and a half years to get the Town Board to realize I was not going to go away and that ~n investigation was necessary. Hence it is here. I can understand the L 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 neighbors' feelings and I can understand the Applicant's feelings. I am on tonight for a similar situation Precedent has already been set in the Town, I am afraid. There are a number of projects like this that have been approved and, again, I want to stress that I am not for or against. I feel in this case the problem lies with the Building Department. Step One was never gone through. All of this would not have been necessary had these people gone in with this plan, which I have looked at tonight for the first time, and the Building Department'doing their job the way they should would have viewed that plan and realized the problem with it and would have given them a disapproval and sent them to your office, the Zoning Board of Appeals, for a variance. Maybe they would not be here tonight asking, "Can we do it," and maybe these people would not be here tonight saying, "We don't want it." As a matter of law, maybe they could have gotten it. Maybe they couldn't have. But it would have been finished. $200,000 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 would not have been spent. would not be mad at these neighbors. I am not surprised she said, 16 These neighbors Mrs. Macy said she was surprised. I am not surprised. That's the way it has been for years here. I have looked at thousands of files. I have two hundred files here now. If you want to sit here, I will go through them with you and show you the inconsistencies, the abuse of the law. Hopefully, it will be confirmed by an unbiased party. I am going to hand up three files. I don't have enough time to review all my files, because I have to review a few myself and I am not going to mention names. I am going to give numbers. If someone wants to access them, that's their business. They are public records. I hold no animosity towards the people to whom the permits were given. The first item: 16078, existing use and occupancy application intended -- excuse me. Intended use and occupancy owner and sister. I think that's what we have here, a sister, and owner, both sisters, intended use and occupancy, the care and shelter of elderly 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 17 commenced June 15, Mr. disabled mother. It was 1987. It was approved June 15, 1987. Lessard approved it. Building permit construction and addition to the existing one dwelling as applied for, deja vu. The plan clearly shows a kitchen, bathroom, handicapped room, wash- room. They call the bedroom an office computer room. Sounds circumvented to me. Dining room, living room, and I have a plot plan that shows it. Also I show you a Fire Underwriter Certificate for the installation of a separate meter. No Zoning Board approval This file was given to the Town August 8, 1988. The answer was rendered by Mr. Schondebare, not you. It was not given to you. And I won't go into his answer. It is a matter of public record. THE CHAIRMAN: Let the record show we never saw it. MR. ZAHRA: File Number 14359, appli- cation home for owner. Now the Building Department has what they call a road file and an office file. Obviously one stays in the 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 office and one is taken out on the road to inspect the jobsite. On this one, the one application where it says "intended use and occupancy," it says, "same," meaning home for owner. Yet on another application, which I presume to be the road file, says, "same," and then in another individual's handwriting, "two-family." I happen to know who the indi- vidual's handwriting is, but I am not a hand- writing expert. So I am not going to expose. That application was signed by Mr. Lessard, and it was commenced October 15, 1985 by Mr. Lessard and approved October, same day, October 15, 1985. I would like to see how many people got approval for their permits on the same day. Of Course they belong to the network. On the rear of the application, "Number of units, one," meaning one family. Building permit, "Renovate existing one-family dwelling and to construct two-deck addition as applied for. Mr. Lessard issued that. Worksheet/inspection sheet, which is carried around on the road file, final inspecti shows "Okay for Certificate of Occupancy for a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 two-family dwelling, Certificate of Occupancy - "Renovate existing two-family dwelling and construct two decks," signed by Mr. Horton. It started out as a one-family, wound up two- family. The inception and creation was con- doned by the Building Department. I am not a lawyer, but this looks like fraud to me. I could be wrong. THE CHAIRMAN: You are affording us copies of this. Is that correct? MR. ZAHRA: Yes. The other file I am reluctant to give and I think I will hold back, unless you think there is need for more'to show a pattern. THE CHAIRMAN: MR. ZAHRA: is when does this It is up to you, sir. What I would like to know Town realize enough is enough How many times do you shoot yourself in the foot before you don't have any more feet? Then what do you do? THE CHAIrmAN: I have spoken to you several times, Mr. Zahra. As an individual of this Board, I have found that frustrating. I find it frustrating. That is the statement I 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 make. 20 MR. ZAHRA: I don't hold this against the Board, what happened. It is unfortunate. You people have to sort through this. I think I said it before. You people have been asked to go beyond the scope of your duties. This is not the purpose of the Zoning Board of Appeals. Your purpose is to deal with hard- ships and variances of sort, not to continually put Band-Aids on the Building Department's mistakes or abuses of the law. I don't want to go into any more. I think it is obvious. THE CHAIRMAN: Thank you. I would like to ask Mr. Cardinale a question. If you wouldn't mind, sir. MR. CARDINALE: Yes. THE CHAIRMAN: I will ask if you have any rebuttal? The question I want to ask is there appears to be, from visual evaluation here, two oil tanks or two tanks somewhere affixed to the property on the ground -- above the ground. I don't know where they are. Are there two separate heating systems in this dwelling? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 all? MR. CARDINALE: I don't know. Is there any heating system in MS. SBLENDIDO: THE CHAIRMAN: systems at all? MS. SBLENDIDO: one electric service, 21 it at Yes. Are there any heating Yes, two heating systems two fuel tanks in the back. like to have quarters. THE CHAIRMAN: There is no problem. We like to share the house, but we also separate expenses and separate I just asked a question. Would you just sta~e your name for the record, please. MS. SBLENDIDO: MR. CARDINALE: which I want to clear up, survey in front of you, I Ann Sblendido. Relevant to one point, if you look at your might be missing something but it has been alleged that our lot coverage is excessive. I thought it was about 10 or 15 percent, not even close to 20. I don't know if you it appears you have on a 12,000 and change lot. just look at the survey, lot coverage of 1~,334 feet That doesn't sound 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 22 to me like 20 percent unless my arithmetic is screwed up. THE CHAIRMAN: We will review it and the Building Department and ask send it to them. MR. CARDINALE: The other thing I would like to point out is, I have real doubt as to the extent of the jurisdiction of what the Board can do here. The way that it was, this procedure -- the Applicants who, incidentally, were at all times operating as laymen, the building review permit review procedure, which they have complied with, and they have ~ollowed I think the way the thing is laid out, as you know, you can't get to you people until the Building Department says no. So the Building Department did not say no here until $167,000 was spent by my clients. Also, the issues that are brought before this Board are quite limited. They are to interpret whether two kitchens necessarily indicate a two-family dwelling and a variance for rear yard/front yard setbacks. Indeed, if they don't want to put the stoop in and 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 23 we were willing to pull out the piping that had already been involved in the great room area, we would not have to be in front of this Board. So I have some question as to the accuracy of the lot coverage issue and the jurisdiction of the Board which I would like to address, and therefore I would like to review Ms. Ongioni's documents. So I think that I am going to request a recess of this to allow me to do that. THE CHAIRMAN: MR. CARDINALE: No problem. I would like to discuss this with my clients, as to her options. THE CHAIRMAN: I wish you would rather than having the Building Department recite the lot coverage issue, and then you can send it back to the surveyor and ask him or her to do so. I mean, is it Mr. Metzda (pho~e~ic)? MR. CARDINALE: Yes. I can do that, Mr. Chairman. I can do that and I will. THE CHAIRMAN: The only other question I have is, does the electrical service exceed 200 amps in the dwelling? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 me ? MS. SBLENDIDO: THE CHAIRMAN: 24 I don't know. Can you find that out for MR. CARDINALE: Among other problems is the 167,000 spent on a 180,000 contract, which the contract was abandoned. I was the one that had Mr. Ladderman (phonetic) from the Consumer Affairs come to the site. It is difficult to find out what this I have had a local contractor it. I will give you that, Mr. guy has done. take a look at Chairman. THE CHAIRMAN: Thank you. Is there anybody in the audience? Let me say this first, are you a relative of Dr. Roche? A VOICE: Yes. THE CHAIRMAN: Would you just tell him we will personally photocopy the activities that went on at this meeting and give it to you, so that he can review that? Please do that. Is there anybody at this meeting tonight that will not be able to come to the next rescheduled meeting, which will be some 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 time in the latter part of August, concerning this hearing that would like to make a response tonight? Anybody here, because we are going to recess? MR. TASKER: I just would like to further request, along with Mr. Cardinale, to narrow the issues to the determination of what makes a two-family house as having two kitchens. I would like to ask the Board to make the determination of whether or not severa exterior entrances, two fuel tanks, two internal staircases between the first and second floor, four or five fireplaces constitutes a two- family house? In other words, what is a two-family house? I am sure that could be defined by law. I don't think this Board needs to make that determination, but we ought to get an answer. THE CHAIRMAN: further comments at Thank you. Hearing no this particular time, what we will do is recess this to the next regularly scheduled meeting. We will advertise it along with all the other hearings that will be adver- tised, which we don't necessarily have to do 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 but we will so everybody is aware of the next hearing. I realize some of you are weekenders or summer people. So we will make every attempt to have that while you are all still here, and I want to apologize for the mishap tonight with extending this hearing longer than it probably should have been extended. I appreciate everybody's courtesy and we thank you very much for coming in. I will offer that, gentlemen, as a resolution. MR. DOYEN: Second. THE CHAIRMAN: All in favor? MR. DOYEN: Aye. MR. DINIZIO: THE CHAIRMAN: We will recess five minutes. Aye. Thank you again. I make a motion to recess for MR. DINIZIO: THE CHAIRMAN: five minutes. Second. Ail in favor? MR. DOYEN: Aye. MR. DINIZIO: Aye. (Recess taken at 9:40 p.m. and hearing resumed at 9:45 p.m.) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFICATION 27 I, Gail Roschen, an Official Court Reporter, do hereby certify that the foregoing is a true and accurate transcript of my stenographic notes taken on July 25, 1990. GA~L ROSCHEN DEPARTMENT OF' PLANNING COUNTY OF SUFFOLK PATRICK G, HALPIN SUFFOLK COUNTY EXECUTIVE (- ARTHUR H. KUNZ DIRECTOR OF PLANNING February 7, 1991 Mr. Gerard Goehringer, Chairman Town of Southold Zoning Board of Appeals 53095 Main Road Southold, New York 11971 Re: Application of "Dominick Sblendido & A. Aurichio" (3955), Town of Southold (SD-91-2). Dear Mr. Goehringer: Pursuant to the requirements of Sections A14-14 to 23 of the Suffolk County Administrative Code, the Suffolk County Planning Comission on February 6, 1991 reviewed the above captioned application and after due study and deliberation Resolved to disapprove it because of the following reasons: Structural mod~fications to the dwelling indicate use for two (2) family purposes; It contravenes the purpose and intent of the Town Zoning Code in prohibiting separate additional living quarters in single family residences; e It would only tend to undermine and circumvent the effectiveness of the zoning ordinance; and, It would establish an undesirable precedent for the continuance of such a practice throughout the Town of Southold. Very truly yours, Arthur H. Kunz Director of Planning  . Newman anner GGN:mb )~65-1802 BUILDING DEPT. BUILDING DEPT. INSPECTION INSPECTION 1ST [ ] ROUGH PLBG. ~/FOUNDATION 1ST [ ] ROUGH PLBG. ]FOUNDATION J[ ] FOUNDATION 2ND [ ] INSULATION ,/~\] FOUNDATION 2ND [ ] INSUL ] FRAMING [ ] FINAL [ ] FRAMING [ ] FINAL R EMAR !~ S = ~~~~:~ REMARKS~ ] INSULATION ~TF~~//~C~ INSPECTO~ DATE IN-.( VICTOR LESSARD PRINCIPAL BUILDING INSPECTOR (516) 765-1802 FAX (516) 765-1823 OFFICE OF BUILDING INSPECTOR TOWN OF SOUTHOLD Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 STOP WORK ORDER TO: ARGYLE CONSTRUCTION (OW/IER, OWNER'S AGENT OR PERSON PERFORMING WORK) BOX 871, Sayville, N.Y. 11782 YOU ARE HEREBY NOTIFIED TO SUSPEND ALL WORK AT: 185 INLET LANEr GPdZENPORTr N.Y. 11944 TAX MAP NUMBER 1000-043-4-37 Pursuant to section CH100-283 of the Code of the Town of Southold New York you are notified to immediately suspend all work and building activities until this order has been rescinded. BASIS OF STOP WORK ORDER: 1. Construction has insufficient front yard set back. 2. Not being constructed as per plans submitted. 3. Plumbing installed for second kitchen. CONDITIONS WHICH WoRK MAY BE RESUMED: 1. Approval from Zoning Board of Appeals for second kitchen and front yard setback. 2. O.K. from Principal Building Inspector. o Failure to remedy the conditions aforesaid and to comply with the applicable provisions of law may constitute an offense punishable by fine or imprisonment or both. DATED: June 1, 1990 ~~~ ~ T~oma~//O. Fisher /~ui~ng Inspector · -. -*'. '~'*~Y "~ BUILDING DEPT. -~~ ?,~~-~--~,-~ii "~/~*~ INSPECTION ' -- ' ~~' ~~ ~ ~ [ ] FOUNDATION 2ND [ ] INSU~TION ' MARIE ONGIONI ATTORNEY AT LAW 218 FRONT STREET, GREENPORT, NEW YORK (516) 477-2048 FAX (516) 47"7-8919 June 27, 1990 Town of Southold Zoning Board of Appeals Southold Town Hall 53095 Main Road Southold, New York 11971 Dear Mr. Re: Property of Sblendido and Auricchio Inlet Lane - 1000-43-4-37 Buildin~ Permit #017923 Z - 3/16/89 Goehringer and Board Members: I am the attorney for Mr. & Mrs. Tober who own the property adjacent to the above property where a new home is being built. The owner of said property have filed an application for a variance under Section 100-30.3, 100-230(A), 100-30A.2A(1) 100-31(A) The Tobers have a strong objection to the requested relief and have a legitimate complaint against both the Town and the adjacent property owners with regard to the construction now in progress and the building permit issued for that construction. The relief now requested of this Board is untimely in that it should have been made prior to the issuance of the Building Permit. The house being built, despite the removal of a second kitchen, is quite obviously a two family home in a one family district. In addition, a non-conforming building (which the original structure was as it did not meet the set back requirements) cannot be remodeled, reconstructed or enlarged if it thereby increases the degree of non-conformance (Town Code 100- 242). This structure does significantly increase the degree of non-conformance. The fact that a building permit was erroneously issued does not add to the rights of the adjacent property owners with regard to conformance with the Town Code. I would like to discuss this matter with the Town in an attempt to mediate the problem without the necessity of taking further action on behalf of my clients. I have written to the Town Attorney and am awaiting a response. In the interim, I request that this Board inquire as to the failure of both the Building Department and the owners from seeking Board Approval prior to the commencement of construction and hold this application in abeyance pending the conclusion of the inquiry. I appreciate your cooperation in this matter. Very truly yours, /MARIE ONGIONI MO/jb cc: Edward and Marie Tober Harvey Arnoff, Town Attorney BY HAND , ~ . - ,.Z~ FOU~DATION ( 2nd ) ~OUGH FRAME & -PLUMBING '. FINAL , , ADDITIONA'L CO,U. ME~TT~: P 077 474 774 RECEIPT FOR CERTIFIED ~.'tAIL i~ICK SBLENDIDO ~,"~t~' s~T .25 6~4~90 .... VICTOR LESSARD PRINCIPAL BUILDING INSPECTOR ($ 16) 765-1802 FAX (516) 765-1823 Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 OFFICE OF BUILDING INSPECTOR TOWN OF $OUTHOLD STOP WORK ORDER TO: ARGYLE CONSTRUCTION (OWNER, OWNERS'S AGENT OR PERSON PERFORMING WORK) BOX 871, Sa!rville, N.Y. 11782 YOU ARE HEREBY NOTIFIED TO SUSPEND ALL WORK AT: 185 INLET LANEt GREENPORT, N.Y. 11944 TAX MAP NUMBER 043-4-37 Pursuant to section CH100-283 of the Code of the Town of Southold, New York you are notified to immediately suspend all work and building activities until this order has been rescinded. BASIS OF STOP WORK ORDER: 1. No foundation inspection. 2. No second survey. 3. Not being built as per plans submitted. 4. Appears to have insufficient front yard set-backs. 5. Cannot build a 2 family dwelling in a R-40 zone. CONDITIONS UNDER WHICH WORK MAY BE RESUMR.~: 1. Submit a new survey showing all setbacks and houses within 300' same side of street. 2. New plans showing all details-"Stamped". 3. Eliminate 2 family dwelling. 4. Pay the new fee. -Failure to remedy the conditions aforesaid and to comply with the applicable provisions of law may constitute an offense punishable by fine or imprisonment or both. DATED: DEC. 5, 1989 Curtis W. Horton ' ~ Building Inspector/ Code Enforcement Officer TO: TOWN OF SOUTIIOLD BUILDING DEPARTMENT SOUTHOLD, NEW YORK YOU ARE HEREBY NOTii~iED TO SUSPEND ALL WORK AT: / / ~,su:nt to sectiooC~./~ ~ ~ F,~ o[ ~he Code or ~h~ Town o[ Southold, New York you are notified to immediately s~pend ~1 work ~d buil~ng acti~ties ~til this order h~ been rescinde& B^~S ~-~ s~o, woRK O~DER: /. ~ ,/*~/--,,2;~A ..~,,~/~..~__--_~ . or~ Co r~m~d~ ch~ c6ndkio~ n[or~s~id ~nd ~o comply wJ~ ~ ~pplic~bl~ pro~io~ ~ ' law may co~titute an offe~e punishable by fine or imprlzonmcnt or both. BUILDING INS?ECTOR / CODE ENFORCEMENT OFFICER 'VICTOR LESSARD PRINCIPAL BUILDING INSPECTOR {$ 16) 765-1802 FAX {$16} 765-1823 OFFICE OF BUILDING INSPECTOR TOWN OF SOUTHOLD Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 STOP WORK ORDER TO: ARGYLE CONSTRUCTION (OWNER, OWNER'S AGENT OR PERSON PERFORMING WORK) BOX 871, Sayville, N.Y. 11782 YOU ARE HEREBY NOTIFIED TO SUSPEND ALL WORK AT: 185 INLET LANEr GREENPORTr N.Y. TAX MAP NUMBER 1000-043-4-37 11944 Pursuant to section CH100-283 of the Code of the Town of Southold New York you are notified to immediately suspend all work and building activities until this order has been rescinded. BASIS OF STOP WORK ORDER: 1. Construction has insufficient front yard set back. 2. Not being constructed as per plans submitted. 3. Plua~bing installed for second kitchen. CONDITIONS WHICH WORK MAy BE RESUMR.~: 1. Approval from Zoning Board of Appeals for second kitchen and front yard setback. ..2. O.K. from Principal Building Inspector. Failure to remedy the conditions aforesaid and to comply with the applicable provisions of law may constitute an offense punishable by fine or imprisonment or both. DATED: June 1, 1990 T~.oma~//U. Pisher ~ui~ng Inspector ! ~rln! your name, alddf~l ~lnd Z~P · Complete Iteml 1, 2, 3, ind 4 on the TO ~ Print Sender's name, eddress, and ~P Code In t~ apa~ ~low. SOU~H. TN BLD DEP~ C. HOR~ON BOX 1179 .. SOUTHOLD, N.Y. 11971 [ ] F:OUNDATION I,ST [ ] ROUGH [ ] FOUNDATION ,2ND [ ] INSULATION [ ] FRAMING REI~; [ ] FINAL .., , ,,---'-;~/~..,- _? ~...r.' ,.:,>'; ?j:" ..~/~.~ · / BUILDING DEPARTMENT, TOWN OF SOUTHOLD Southold, New York 11971 APPEARANCE TICKET-NO: 22 Issued to: commission of the offense of: Lasl Name F,rsl Name M I YOU ARE HEt(EI::Y directed to appear at the ,Justice Court. Town of Soutbold (Town I hall) 53095 Main Road (State Route 25), S.utbold, New York 11971. On the fff-~ dayof~19 ~ at ~, ~, ~D o'clocki.a the /t~ ~ M. in connection with your alleged contrary to the provisions of Sec. tion [~'~- 2.-~'~ of the code of the Town of Southold Dated: Issued and Subscribed by: Building Inspector, Town of Southold IF YOU FAIL TO APPEAR ON THE DATE AND TIME INDICATED. A CRIMINAL SUMMONS OR WARRANT FOR YOUR ARREST MAY BE ISSUED. 077 47~ 773 981-0288 FOR CERTIFIED ~'~IAIL ~GEM A~IC~IO ~ 118~ ~ 74 950 087 ~¢w~W Fee ~PT PO~ ~T~O ~A~L Sent tO .... ~0~ 1186 ~ ~ 6/4/90 ' v' Postage 15 '-, ' ;~;~"~ ~ I .25 ~=.~>ao;~ I ~ I ~nelurnnecefl I . Iii / = ~' ~ OI ~ ~ I /Oa~e,and~ '. I i ~t / ~ ~ ~J ~ ~ ~ ~ Postmarko nn. ' , ~' / . xc~?2¢?.,~¢x:i".;,~;.~¢,~.).'2;''} -;~,~.'.~55;:4r. ~ . NO~OH ' 3 APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. Joseph H. Sawicki James Dinizio, Jr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCO'FF L. HARRIS Sul~wisor Town Hail, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 December 10, 1990 Philip J. Cardinale, Esq. Cardinale & Cardinale P.O. Box W Jamesport, NY 11947 Re: Appl. No. 3955 - Sblendido & Auricchio Dear Mr. Cardinale: This will confirm that as of today the Board of Appeals has not received the original print of a survey showing the structure(s) as existed at the subject premises prior to demolition (as per our November 29, 1990 hearing). The survey print should be filed as soon as possible together with the first and second sets of building plans which were loaned from our file and which were being duplicated by your office. Very truly yours, GEP~%RD P. GOEHRINGER CHAIRF~AN Linda Kowalski ~EOR~E YOURKE, fEST 74TH ST. NEW YO~K, N.Y. 10023 212-799-3693 m I ail oot. 26. 1990 Mr. ~nett Orlowski Chairman, Zoning Board of Appeals Town of Southold Main Road Southold, L.I. 11971 Re; Property owned by Ann Sblendido and Angelo Auricchio, 131 Inlet Lane, Greenport Tax Map 1000, Section 43, Block 4, Lot 37 Dear Chairman Orlowski. We have just come back from an extended vacation and found my brother-in-law, Ed Tober, had in the meanwhile sustained a heart attack and quadruple by-pass surgery, and the resolution to the problem of his adjacent two-family house postponed to Nov. 1 I can sympathize having to make such a difficult decision. I urge you, however, to consider the number of violations that I believe are inherent in the construction~nd applications, the originally incorrectly filed plans(no a'~cident, this) and the incredible fact of cutting down all the trees on the property. One of the owners even asked Mrs. Tober if she would mind having the property line trees cut and on being told no, remarked, "oh, you're one of those who likes trees". There is an on-going pattern here, as I see it, of a complete disregard of the law and the intent of the law. Unfortunately, it is now up to you and your board, at this late date, to order demolition. These violations are too major, too numerous, too consistant and I strongly believe, knowingly self-imposed to be allowed a variation. V~truly~rs, cc: Mr. Edward Tober Ms. Marie Ongioni, Esq. GEORGE YOURKE, ARCHITECT ..... / L~.. I~ Mr. Patrick G. Halpln ~ : Suffolk County Executi[~. Riverhead County Center ............. 2 Riverhead, L.I.N.Y. 11901 245 WEST.74TH ST. NEW YORK, N.Y. 10023 212-799-3693 Oct. 26, 1990 Dear Mr. Halpin; I am a registered architect in the State of New York, and as such, I want to inform you of what I consider a blatant flaunting of local and State zoning laws in the Town of Southold. I would appreciate it if you, upon review, direct these letters to the appropriate agencics in the County ~o help resolve this. I am enclosing a copy of my letter, dated August 25, 1990, written to Ms. Marie Ongioni, Esq. at the request of her client, Mr. Edward Tober. It provides the details that I summarize below: 1. The two-family house in question was buiit in a one-family zone. 2. The house was not built according to the filed plans, resulting in the first stop-work order. 3. The stop-work order was lifted on the promise of an appeal to the ZBA for non-compliance and the refiling of correct plans. I hold that the stop-work order should have remained in effect until the ZBA resolution. 4. The refiled new plans indicate a considerably expanded building, thereby increasing the adverse effects of non- compliance. The building department approved the plans. 5. When Mr. Tober, the neighbor immediately adjacent to the new two-family house, engaged a lawyer, a second stop- work order was issued. 6. All the trees on the property were cut down at the direction of the owners after the stop-work order. I believe %his is a violation. 7. Tidal marine wetlands are appaently within the 300 feet of the new construction that would require filing for seperate permits that was not done in this case. My observations are based on a quick, first review of the filed plans and applications in the Building Department of the Town of Southold. The local ZBA is apparently having a problem resolving this difficult decision and has postponed the decision twice, now to Nov.1. I am hoping you and your County Agencies can help clarify it. I personally believe that these violations are all:calculated and the resulting "hardship" knowingly self-imposed. It therefore should not be condonned in any way. V~ruly ,y~s, Mr. Edward Tober Ms. Marie Ongioni, Esq. Mr. Bennett Orlowski, Chairman, County Attorney George Yourke, R.A. ' TEC~ GEORGE YOURKE, ARCHI 245 WEST 74T~ ST. NEW YOlk, N.Y. 10023 Oct. 26, 1990 212-799-3693 County Attorney Suffolk County Veterans Memorial Highway Haupauge, L.I. N.Y. 11788 Dear County Attorney, I am a registered architect in the State of New York and as such, I am asking for your review and opinion of a matter that I consider a blatant violation of local and State.zoning laws. So that I do not repeat myself, I am enclosing a copy of two letters I wrote. One, dated August 25, 1990, to Ms. Marie Ongioni, Esq. and the other, dated Oct. 26, to County Executive Halpin. Both letters were written at the request of Mr. Edward Tober. It pertains to an unfortunate situation wherein the lack of proper enforcement by the local building department at the appro- priate time has placed a heavy burden on the local ZBA to resolve the multi-variences required in order to give a Certificate of Occupancy to an almost finished building. I believe that this building is the result of a series of blatant and knowingly taken violations. It should not be condonned but demolition orders given. Whatever hardships exist, I believe were self-imposed. George Yourke, R.A. CC: Mr. Edward Tober Ms. Marie Ongioni, Esq. Mr. Bennett Orlowski, Chairman, ZBA, Mr. Patrick Halpin, County Executive Town of Southold PLANNING BOARD MEMBERS Bennett Orlowski, Jr., Chairman George Ritchie Latham, .Ir. Richard G. Ward Mark S. McDonald Kenneth L. Edwards Telephone (516) 765-1938  Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 PLANNING BOARD OFFICE TOWN OF SOUTHOLD Fax (516) 765-1823 October 30, 1990 George Yourke, Architect 245 West 74th Street New York, New York 10023 RE: Property owned by Ann Sblendido and Angelo Auricchio SCTM~1000-43-4-37 Dear Mr. Yourke: Your letter of October 26, 1990, regarding the above-noted property named the Chairman of the Planning Board as the Chairman of the Zoning Board of Appeals. In the interest of saving time, I have taken the liberty of forwarding all your correspondence to Mr. Gerard P. Goehringer who is the Chairman of the Zoning Board of Appeals. Very truly yours, Town Planner cc: Marie Ongioni, Esq. Gerard P. Goehringer Bennett Orlowski, Jr. APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, .Ir. Serge Doyen, Jr. Joseph H. Sawicki James Dinizio, Jr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOTF L. HARRIS Supervisor Town Hall. 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 INTER-DEPARTMENTAL MEMORANDUM TO: FROM: DATE: SUBJECT: Victor Lessard, Principal Building Inspector Building Department Board of Appeals ~ October 11, 1990 Building Permit No. 01793Z - Angela Auricchio CTM #1000-43-04-037 This will additionally confirm (in writing) that during the Z.B.A. hearing on September 26, 1990 concerning the above matter, it was agreed that you be requested to attend our November 1, 1990 hearing (expected to commence about 8:15 p.m.) in order to ascertain answers to questions relative to the building department. If you would like to review the written transcript of the hearing of September 26, 1990, please feel free to do so. We appreciate your cooperation in this regard. lk 245 West 74th Street New York, N.Y. 10023 August 30,1990 Mr. Chairman, Zoning Board of Appeals Town of Southold Main Road Southold, L.I. 11971 Re: Property owned by Ann Sblendido and Angelo Auricchio, 131 Inlet Lane, Greenport TaX Map 1000, Section 43, Block 4, Lot 37 Dear Chairman Orlowski, I am enclosing a copy of a letter, dated Aug. 25, that I sent to Ms. Ongioni, at her and Mr. Tober's req6est. As a licehsed NYS architect, I went through the files at the Southold Building Dept. last week and also looked at the two-family house on 131 Inlet Lane. My enclosed letter covers what I found after a quick first viewing. It is sufficient, in my judgement, to warrent the issuance of a demolition order for one of the two halves of the two-family house. You have a difficult decision to make, but I believe the "hardship,, to be self-imposed and th%t it not the result of a series of unfortunate "errors" Sincerely, George Yourke Registered Architect New York, N.Y. No. 8401 Cc: MS. Marie Ongloni, Esq. Mr. Edward Tober 245 West 74th Street New York, N.Y, 10023 August 25,1990 Ms. Marie Ongioni 218 Front Street P.O.Box 562 Greenport, N.Y. 11944 Property owned by Ann Sblendido and Angelo Auricchio, 131 Inlet Lane, Greenport. Tax Map 1000, Section 43, Block 4, Lot 37 Dear Ms. Ongioni, As a licensed New York State architect, I am appalled at the blatant flaunting of the Southold Building and Zoninq Code as exhibited by the new residential building owned by S~lendido and Auricchio. The residence is obviously a two-family house. It has a continuous dividing wall through its center, from attic to cellar. Each half is a virtual mirror image of the other. It ~as two symmetrical front doors, two internal stairs, two kitchens as indicated on the original plans, two identical exterior fuel tanks, two boilers with two separate flues at each end of the house, two separate water mains, two .cgllar egresses. The only passage between the two separate buildings is now an archway, as indicated on the "amended" First Floor Plan (easily enclosed in the future) between the Living Room and the now renamed "Great Room". The total floor area is apparently considerably over ths allowable. The building permit (No. 179237) is filed as an addition. The plans are titled "Proposed Renovation and Addition". Since the original .1½ story 28'-6" by 24'-0" house has been demolished and the "addition" is now a completely.new 2% story 56'-6" by 28'-0" two-family house, it should be refiled as demolition and new constructio~ and to comply with all the regulations applicable. The front yard setback requirements for a R-40 zone, originally 30 ft. and now 50 ft., is violated in either case. The two front door entries with a bathroom upstairs, projects four feet into the old 30 ft. setback. Since the zoning code definition requires the front yard to be "unoccupied area open to the sky between the street line · ..and a line drawn parallel thereto", then the roof overhangs and the bay windows also project into the old 30 ft. setback line as well. A new, accurate ~urvey would identify these encroachments. The height of the building is also questionable. The code limits the height to "the vertical distance measured from the average elevation of the eXistinq natural grade adjacent to the building, befor~ any alteration o__r fil_~l~to the ... mean height between the eaves and the ridge...". The section on the drawings indicates a height of 34~-0'' without reference either to the previous or existing elevations, nor does the survey indicate this pertinent information. I am given to understand that the excavated material from the expanded cellar has been used to regrade the site, although the permit indicates no grading to be done. This also should be verified by a new survey. The $outhold Building Department has exhibited a disturbing lackadaisical approach in policing and enforcing its own regulations. Although the work has been stopped twice, it was allowed to continue the first time on the basis of an appeal to the ZBA and a notarized note indicating that this was not to be used as a two-family house. The plans clearly indicate its use as a two-family house and nothing presently precludes the sale of such a residence and its future use as a two-family house by others. The burden of enforcing, ot accepting, all these violations has been shifted to the ZBA rather than delt with, as they should, by the Building Department. Just the filing an appeal allowed construction to continue, placing.the ZBA in the difficult position of requiring them to consider demolition after the fact rather than ruling on the proposed variations while the plans were only on paper, or, at worst, ruling on the violations when the work was stopped. The most blatant violation was that the construction was not proceeding according to the filed and approved plans dated March 16, 1989. The "amended" plans, filed Dec.7,1989, increased the total building area by now projecting the second floor two feet along each of the two sides of the long axis of the house, increasing the number of bedrooms from 5 to 6 and converting the two upstairs powder rooms into full baths, including3 a bidet, for a grand total of 4 full bathrooms and 2 downstairs powder rooms. The area and setback violations were thereby increased, without comment by the Building Department. Also not commented upon by the Southold Building Department~ was that the construction was not an addition without demolition as indicated on the permit application, but full demolition and new construction. No site or plot plan is included in the files, outside of a survey that does not indicate theproper and existing outline of the projections. Although the plabs are filed by a licensed engineer (Melvin Lindner, P.E. No. 25~288) as a "Proposed Renovation and Addition" by the Argyle Architectural Services of 791-3 Koehler Ave,, Ronkonkoma, N.Y. 11779 (any connection to the General Contractor, Argyle Construction Box 871, Sayville, L.I. 117827), there is no structural framing plan and a lack of identification of the size and specification of the structural members, nor are there any construction details. In my view, these drawings are only preliminary working drawings. The septic field, for four full bathrooms and two powder rooms and six bedrooms is simply no6ed "as Required". The approach, as manifested by the recent clear cutting of all the existing and substantially sized trees on the property by the owners and the contractor~towards their neighbors, their community as well as the Southold Building Department by filing "amended"plans that increase the original violations, indicates a continuous crassness and blatant disregard of regulations. Although I did not enter the building, I suggest a thorough inspection be made concerning the structural, plumbing, electrical and general construction code equlrements. I would not be surprised to find plumbing connections for a second kitchen, that was deleted on the "amended,, plans, behind the gypsumboard walls. The lack of resolve by the Buildin De ar town's ' g p tment to enforce the regulations even after being notified by neighbors, has placed an unnecessarilly heavy burden on the ZBA. It is my strong recommend- ation that ' ' . illegalities should not be condonned because of self- imposed hardships, no.matter what stage of construction the building happens to be. It is also my strong recommendation that if the violations are established, then these be corrected before the issuance of a Certificate of Occupancy. The worst violation, in my opinion, is the obvious two-family construction in a one family zone. It can easily be resolved, fortunately for the community, by taking down one of the buildings along the central "party wall". Very truly~ours, George ~Yourke Registered Architect New York State No.8401 cc: Mr. Edward Tober APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. Joseph H. Sawicki James Dinizio, Jr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD ScoTr L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 A~,gust 28~ 1990 TO WHOM IT MAY CONCERN: Our Regular Meeting of September 6, 1990 has been cancelled, we will be rescheduling another meeting date sometime in the middle of September. If you have any questions please call this department at (516) 765-1809. Yours very truly, Gerard P. Goehringer Chairman By Doreen Ferwerda Statement to ZBA ~?s Ongioni has dealt with the Bosrd to consider the conte~:t. aspects; T ask the T~king to neighbors, I saw unifo!vn resentment, even anger. This outsiZed building, shorn of its many pro- tective oaks, disfigured in~t Lance Here was still another instsmce of the Town and our area confronted and being asked to acca~pt a non-conforming str~.cture-- too big and out of place for its site smd neighborhood, too close t~. the street, tw,'o-family in appesmance~ and off-putting to those seeking a nearby ~'ooded one-fs.m- i!y home or site. The Tov~ did stop the ~'ork early in December after excav- ation and foundation work had been done without permiss- ion~ My attorney in person and in writing told a Town Attorney back then ~f my concerns re a two-family house. The Buildin~ Department repeatedly sssured me, Dec. to gay, that they were watching it. Well, "it" got built, a much bigger non-conforming struct- ure of the original, a h~se..~O~ b$~g~a than that allo~¥ed pro~ec~zons - by code, whose window~ ~n6. roof o~erh~g, measured out from the orign~ wall far exceed ~ode. ?nase and other violations h~ve led me_ny residents to send letten~ to the Roe. rd. Tonight w~e've submitted e ~etitio~ ~i~ne~ by 20 edd~tione! residents. ~ious!y, the Boar~ c~r.~ot umdo al! that's been do~e, ~ut ~'~ the ~oa_'m c~.lm~ ~ o~ ~- ~ ~.-~ ~.~ ..... c ~ e~o..~ kitchen, fsmily etc. Of le.~ser importance. ,~erh~.r.s the Statement to ZBA (pa, ge 2) 7/25/90 Ky such order,, the Board would' ease the area"s ar~ziet.i, es about mult~-fs~.~ily dwellings, begin to he~l Inlet Lan~ "s appearance, and above all send a clear message thr:Jugh- omt the To~nship---no more attempts to get after-the- fac~ ~ariances for construc%ion, which violates Code° Laws must be obeyed" *In !ezsening the number of potenti[~i buyers, this structure has reduced the market dems,md, i.e., the vatlue of my properties ~ tho~e of my neighbors. t~he Building Codei~ spe~ks to this point.,. It to "Pk~otect the established character of the adjoi~ting properties...'-~r~d of the neighborhood in ,,,hich they ~re located". Statement to ZBA ~s Ongioni has dealt v:ith the legal aspects; Bosrd to consider the context~ the Talking to neighbors, I say:-omiform resentment, even anger. This outsiZed building, shorn of its many pro- tective oaks, disfigured ~nt~t L~ne~ Here was still ~uother instem~.ce of the Town and our area confronted and being asked to accept a non-conforming st-~o, cture-- too big and out of place for its site s~d neighborhood, too close t~ the street, two-family in appesmance, ~ud off-putting to thosa seeking a nearby wooded one-fsm- ily home or site. The Tov~ did stop the ~'ork early in December after excav- ation and foundation ~ork had been done without permiss- io~ ~y attorney in person and in writing told a Tov~ Attorney back then mf my concerns re a t~o-family house. The Building Department repeatedly sssured me, Dec. to Eay, that they were watching it. Well, "it" got built, a much bigger non-conforming struct- u~e of the original, ap¢8~t~ ~g~ea th~u that allowed by code, whose windowz ~ud roof o~erh~ng, measured out from the orignal wall far exceed ~ode. These and other violationz h~ve led m~uy residents to send !ettens to the Roard. Toni~nt ~'e've submitted ~ retit~o~ signe6 by 20 ~d~itiona~ residents~ Oviously, the Boar8 cgr~_ot ~,do al_ that's been done. Put the Board fsmilv etc. Of lesser imeortance, ~erhses the Town could Statement to ZBA (page 2) 7/25/90 By such order,~ the Board would' ease the area"s ana:ieties about multi-family dwellings, begin to heal Inlet appear~uace, and above all send a clear message throu~- out the Township---no more attempts to get after-the- fac~ variances for construction~ which violates Code. La¥~s musZ be obeyed2 *In !ezsening the number o£ potentis% buyers, this structure has reduced' the msrket demand, i.e., the va~lue of my properties~ those of my neighbors. ~he Building Codei~ spe~ks to this point.,, It sachs to "Protect the established character of the adjoi~ing properties...and of the neighborhood in ~',hich they are located". Statement to ZBA k"s Ongicni has dealt with the legal aspects; Board to consider the context. ?/2~/90 I ask the Talking to neighbors, I saw uniform resentment, even ~uger. This outsiged building, shorn of its many pro- tective oaks, disfi~ared.~_nA~t L~ue~ F~re was still another instance of the Tow and our area confronted and being asked to accept a non-conforming structu~e-- too bigiand out of place for its site e.nd neighborhood, too close t~ the street, tv,'o-family in appearance, off-put~ing to those seeking a nearby wooded one-fam- ily hom~ or site. The Tovm did stop the work early in December after excav- ation ~and foundation work had been done without permiss- ior~ My attorney in person and in writing told a Tovaa Attorney back then ~f my concerns re a t~o-f~mily house~ The Building Department repeatedly assured me, Dec. to May, that they were watching it. Well, 4it" got built, a much bigger non-conforming struct- ure of, the original, ap~t~sb~g~a than that allowed by code, whose windowz ~nd roof o~erh~ug, measured out from the orignal wall far exceed ~ode. These and other violations h~ve led many re~_dent_ to sene !ettens to the Roard. we've submitted ~ ~etit~o~ sia~ned by 20 additions! ' Ovio~fty~ the Boar~ cannot ~udo al! that's been e. But Tonight residents¢ to On..:: kitchen, cn¢- · etc. Of lesser amoortance, ~er'h~ms t::e To'~:'n could Statement to ZBA (page 2) 7/25/90 By such order,~ the Board. would' ease the area"s a~.ieties a~out multi-family dwellings, begin to heal Inlet Lane"s appear~a~ce, and above all send a clear message through- out the Township---no more mttempts to get after-the- fact variances for construction, which violates Coda. Laws musZ be obeyed2 *In lezsening the number o£ potentia% buyers, this structure has reduced the market demand, i.e., the vz~ue of my properties~ those of my neighbors. ~he Building Codei~ spe~ks to this point.,, It seeks ~o "Protect the established character of th~ adjoip~ng properties...and of the neighborhood in z'hich they are located'% Mr. and Mrs. Edward Tober 128 Inlet Lane Dear Neighbor: You may have noticed the STOP WORK ORDER posted by Southold Towu, halting construction on Inlet Lane's large new house. The work violated the Building Code. The new structure seems to be a two family house. .It wil,1 be if the Board okays a 2nd kitchen. H~u~e eize ~nd set-back rules may also be involved. She owners are seeking variance (s). This matter is now on the agenda for the Zoning Board of Appeals July 25th, evening Meeting. Our area is an R-40, light density, one-family zone as defined by the Town Code. A variance could set a precedent and lower property If you are concerned, you may want to write to the Board which weighs the views of the neighbors. Letters sent to the address below should reach them well before the 7/25 Meeting: Zoning Board of Appeals Town Hall Main Road Southold, N.Y. 11971 Mrs. John J. Morris 230 Inlet Lane, Box 393 ®reen?orf, Ne__w York L!-944. ~:. : 119 ~f /990 J~ly 20, ]990 Zoning Board of Appeals Town Hall Main Road Southold, N.Y. 11971 Gentlemen: As a summer resident of Sandy Beach for over 50 years I am horrified to see what appears to be a two f~nily house being constructed on Inlet Lane. A two family home in the area would certainly set a precedent and eventually lower property values. In addition the house is situated on what was a beautiful heavily treed lot. Last weekend I discovered that every one of the beautiful oak trees had been cut down. How can this be allowed? Please deny any and all variances that the owner or builder apply for. ~cere~ly, Marjorie ~ ~rene~/ / Sandy ~Beach/R~d SCOTT L. HARRIS SUPERVISOR FAX (516) 765 - 1823 TELEPHONE (516) 765 - 1800 OFFICE OF THE SUPERVISOR TOWN OF SOUTHOLD Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Pages to follow: / Additional Comments: IF ALL PACES ARE NOT RECEIVED. PLEASE CALL SOUTHOLD TOWN HALL at [516) 765- ! 800 SCOTT L. HARRIS SUPERVISOR FAX (516) 765 - 1823 TELEPHONE (516) 765 - 1800 OFFICE OF THE SUPERVISOR TOWN OF SOUTHOLD Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Pages to follow: ~ Additional Comments: IF ALL PACES ARE NOT RECEIVED. PLEASE CALL SOUTHOLD TOWN HALL at J516) 765-1800 July 16, 1990 Town of Southold Board of Zoning Appeals Main Road Southold, New York 11971 Attention: Board Chairman Re: Board of Zoning Appeals Variance Applications by Dominick Splendldo, et.al. · ~e~nq Date: ~uly~25, t990 Dear Sir: It is the purpose of this letter to register my opposition to the granting of a variance for two-family use to Splendido. While I do not usually wish to oppose any of my neighbors' applications for building permits or variances, in this case I am afraid that I must do so because of the nature of the request and its probable adverse effect upon the nature, character and property values in the entire surrounding neighborhood. My Greenport home is across the street from the applicant and next to Dr. Joseph Macy, and is known as 130 Inlet Lane. I sincerely feel that the granting of this application for a two-family use in this neighborhood would be totally out of character and would seriously and substantially reduce the values of all the homes in the neighborhood. Two-family use would obviously increase traffic and traffic hazards to children and others who walk to the public beach at the foot of Manhassett Avenue. With two-families and with future owners and occupants, there is a probability of such residents and occupants owning and using more cars that could not be accommodated on the property, cuastng hazardous and unsightly street parking on this very narrow street. With all others in the neighborhood being restricted to one- family occupancy, I submit that it would be entirely unfair and detrimental to the neighbors to.burden th~m.wlth s~ch a qse while they were willingly complying with the exlslng zoning ora~ance. Town of Southold Board of Zoning Appeals July 16, 1990 Page Two I have further been authorized to r_glster the opposition of my client, John Racanellt, whose home is located on Inlet Lane, two houses south of my home, to this application. Again, while I am sorry that I must register my objection to this application possibly contrary to the interests of Mr. Splendido, with whom I have had and hope in the future to have a friendly personal relationship, I feel it..j~my duty in this case to step forward, and do so. ,/~/ J ,./'/ Ve~/~trulyyo~ ~MV: k e ~ . sahell a., rianc. - la5 Inl.t t,an. ~reenport, N. Y. To The &oning Board of Appealss As an adjacent property owner, we are opposed to grantingANY variance which would permit the installation of a second kitchen. We feel that the building code of Southold Town should be strictly enforced. In the event that a Certificate of Occupancy should be obtained by the present owners and then the property be immediately put up 'For Sale'l the size of the house would attract more than several families to purchase it. Inlet Lane has been a lovely residential section for one family homes for more than thirty five years. We also feel that it was a great injustice to our neighbors, that ~his matter was permitted to go beyond th first "Stop Work Order' la~ February. What protection are we getting from Southold Town and the Building Inspectors??? Very truly yours, ~ohn C. Biddulph Isabelle C. Biddulph 265 Inlet Lane Greenport, N. Y. 11944 13,80 Beach Road Greenport, N.Y. 11944 To The Zoning Board of Appeals, As a property owner on Beach Road I am opposed to granting a variance which would permit construction of a second kitchen or any other alteration of the Building Code for the building currently under construction on Inlet Lane. Our area would like to remain an R-40, light-density, zone as defined by the Town Code. Thank You, one family ~.~.'=1 I~n ~ · ~, ~ York 11~..~. Ju,~ 16, 1990 Town Hall Main Road Sou.~hold, N.Y. 11971 Re: SCTM#I000-043-4-56 'Fo gra..~ a .O, uo ~ .a~, . and/or zero £o.t ~e ~e on Z~ b~, ~ ~o obu~ a ~ ~ ~ ~ ~ ~ ~b ~'~ no~e ~ o~ zo~ ~de, ~e ~ b~ ~ R-40, ~ de~ one ~ zone Zoning Board of Appeals Town of Southold Town Hall Main Road Southold, ~.Yo 11971 185 Bay Road Greenport, 11 Y 11944 July 1_~5, 1990 To The Zoning Board of Appelass I am a property owner located on Bay Road adjacent to Inlet Lane and I am writing in opposition to the request for any verience permitting installation of a second kitchen or any other changes of the building code for the building under construction on Inlet Lane. This area is listed as R-~O, light density one family homes on the town map. Your approval of this varienoe can only result in future .' request as a precedent will already have been set. The home now under construction appears to be of two family constrect- ion as two entrances are side by side with two stairways leadir~g to the second floor. This type of construction could easily lead to a four family unit in the future. This area is a community of retired and semi-retired people. To set precedest will open the door for future conversions lowering property values and deterioating the present quality of life. I am requesting that no varience be granted to parmit continued construction of this two fami,,~ house. Very truly yours PETER N. DE SANCTI$, M.D., F.A.C.S., P.C. 101 FORT WASHINGTON AVENUE NEW YORK. N. Y. 1OO32 7O L~,~ne, Greenport, New York 11944 July 15, 1990 Chairman moning Board of Al Town Hall Nhin Road Southold., New York JUL I 11971 tie: Proposed v'ri~.noe for new home~ Inlet L~ne~ Groenport~ on agenda for July 25th We ::,re o:posed to ~:tny ¥ari:nces bein~ granted for the new structure on Inlet L ne which has the :ppear-,nce of being a two-family house. ,Ye are the owners, since 1971, of a one-family home at 70 Wood L:ne, Greenport. T]~is property is in close proximity to the new building on Inlet ,,,;e feel tlN.t ~ precedent could be set t~,,,~ ~.,ould ch:~nge the ~tmr. ch~r,~cter of ~:ke current R-~O Light Densl~ One-F~]~ily Zone in this ,:~-e~.. If possible, we will attend the July 2~ ~- _ptn meetir, g. }towever~ we are expre~'sin~ OUr o~o~c~=n~' in t is' l~oter~ co,,~__ er~tion. 3incerely }~ouPs~ icl:son, Jr. Eil:::e:., ......... b !:icks on July 13, 1990 r7 oonlng Board of Appeals Town of Southold Town Hall Main Road Southold, N.Y. llg?l To the Zoning Bosrd of Appeals~ We are property owners and residents at 1240 Inlet Lane. We wish to register our opposition to granting any variance to the large home under construction on Inlet Lane. The area is a one family zone and we feel the look, size and possible future use would not enhance our neighborhood. How the house, as it stands~ received a building permit and why it was not stopped before it reached its present state is a matter of great concern as to how the tow~ is resoonding to these situations. Years ago I purchased a 80' wide lot and asked for a variance to solit it and build two one family houses. At that time over 80% of the homes in a five block square area was on less than 40'.. I was told the zoning at that time called for 50' frontage and as I purchased it that way I would have to live with it. Uhy do I now, when I built my home according to the town code, have to see a two family house built and then they ask for a variance. Yours truly Ray, nd E. Clemon~r Mr. & Mrs, Raymond E. Clemoner 1240 Inlet Lsne Box 671 GreenDort, New York 11944 BEATRICE A. JENSEN 45~ Inlet Lane Greenport, N.Y. 11944 July 13, 1990 Zoning Board o£ Appeals Town of Southold Town Hall, Main Road Southold, N.Y. 11971 Gentlemen: I am writing to express opposition to the granting o£ a variance to allow a second kitchen to be built in the building now under construction on Inlet Lane. I believe the area is zoned for one family use only. It is not in keeping with the other houses in the area. Therefore, I urge you not to grant this variance. Thank you. Sincerely, /~ m e.atrice A. Jen~n MARIE ONGIONI ATTORNEY AT LAW 218 FRONT STREET. GREEI {5161 477 FAX {516) 477-8919 YORK 11944 June 27, 1990 Town of Southold Zoning Board of Appeals Southold Town Hall 53095 Main Road Southold, New York 11971 Re: Property of Sblendido and Auricch~o Inlet Lane - 1000-43-4-37 Building Permit #017923 Z - 3/16/89 Dear Mr. Goehringer and Board Members: I am the attorney for Mr. & Mrs. Tober who own the property adjacent to the above property where a new home is being built. The owner of said property have filed an application for a variance under Section 100-30.3, 100-230(A), 100-30A.2A(1) 100-31(A) The Tobers have a strong objection to the requested relief and have a legitimate complaint against both the Town a~d the adjacent property owners with regard to the construction now in progress and the building permit issued for that construction. The relief now requested of this Board is untimely in that it should have been made prior to the issuance of the Building Permit. The house being built, despite the removal of a second kitchen, is quite obviously a two family home in a one family district. In addition, a non-conforming building (which the original structure was as it did not meet the set back re~4irem~nts) cannot be remodeled, reconstructed or enlarged if it thereby increases the degree of non-conformance (Town Code 100- 242). This structure does significantly increase the degree of non-conformance. The fact that a building permit was erroneously issued does not add to the rights of the adjacent property owners with regard to conformance with the Town Code. I would like to discuss this matter with the Town in an attempt to mediate the problem without the necessity of taking further action on behalf of my clients. I have written to the Town Attorney and am awaiting a response. In the interim, I request that this Board inquire as to the failure of both the Building Department and the owners from seeking Board Approval prior to the commencement of construction and hold this application in abeyance pending the conclusion of the inquiry. I appreciate your cooPeration in this matter. Very truly yours, MO/jb cc: Edward and Marie Tober P Harvey Arnoff, Town Attorney ~IE ONGIONI BY HAND EXHIBIT 5 VICTOR LESSA P,D PRINCIPAL BUILDING INSPECTOR. (516} '/65-1802 FAX (516I ~65'1823 Town Ilall. 53095 Main Road I'.O. Box 1179 Southold, New York 11971 OFFICE' DF BUILDING INSPECTOR TOWN OF SOUTIIOLD STOP WORK ORDER TO-. ANGELA AURICIIIO {OWNER, OWNERS'S AGENT OR PERSON PERFORMING WOILK} BOX 1186, Melville, N.Y. 11747 YOU ARE HEREBY NOTIFIED TO SUSPEND ALL WORK AT: 185 INLET LANE, GREENPORT, N.Y. 11944 TAX MAP NUMBER 043-4-37 Pursuant to section C11100-283 of the Code of the Town of Southold, New York you are notified to immediately suspend all work and building activities until this order has been rescinded. BASIS OF STOP WORK ORDER: 1. No foundation Inspection. 2. No second survey. 3. Not being built as per plans submitted. 4. Appears to have insufficient front yard set-backs. 5. cannot build a 2 family dwelling in a R-40 zone. CONDITIONS UNDER WHICII %{ORK MAY BE RESUMED: 1. Submit a new survey showing all setbacks and houses within 300' same side of street. 2. New plans showing all details-"Stamped,,. 3. 'Eliminate 2 family dwelling. 4. Pay the new fee. Failur~ to remedy the conditions af~resaid and to comply with the applicable provisions of law may constitute an offense punishable by fine or imprisonment or both. ~; ' Cu{tis W. Horton ' ~' "]-~/~'X~Bu~dtng Inspector/ Code Enforcement Officer EXHIBIT 6 BUILDING DEPARTMENT, TOWN OF SOUTHOLD .qouthold, New York 11971 APPEARANCE TICKET-NO: 22 Issued to: commission of the offense of: YOU ARE HEREFIY directed t. apl)ear at the Justice Court, Town of $outhold (l'o~ l Hall153095 Main Road {State Route 2.SL South. Id, New York 11971. at ~.;~0 o'ch,ck in thc /~ ', M. in connection with your alleged contrary to the provisions of Section /'~g9- ~_..~'~ of the code of the Town of Southold Dated: Issued and Subscribed by: Building Inspector, Town of Southold IF YOU FAIL TO APPEAR ON THE DATE AND TIME INDICATED, A CRIMINAL SUMMONS OR WARRANT FOR YOUR ARREST MAY BE ISSUED, EXHIBIT 7 PURl. lC, 47075/~. Su~olk I:oantYrJ I lxph~ M~rch EXHIBIT 8 'VICTOR LESSARD PRINCIPAL BUILDING INSPECTOR ($16) 765-1802 FAX (516) 765-1823 OFFICE OF BUILDING INSPECTOR TOWN OF SOUTHOLD H Town al, 53095 Main Road P.O. Box 1179 Southold, NcwYork 11971 STOP WORK ORDER TO: ARGYLE CONSTRUCTION (OWNER, OWNER'S AGENT OR PERSON PERFORMING WORK) BOX 871, Sa!rville, N.Y. 11782 YOU ARE HEREBY NOTIFIED %O SUSPEND ALL WORK AT: 185 INLET LANEr GREENPORT, N.Y. 11944 TAX MAP NUMBER 1000-043-4-37 Pursuant to section CH100-283 of the Code of the Town of Southold New York you are notified to immediately suspend all work and building activities until this order has been rescinded. BASIS OF STOP WORK ORDER: 1. Construction has insufficient front yard set back. 2. Not being constructed as per plans submitted. 3. Plumbing installed for second kitchen. CONDITIONS WHICH WORK MAY BE RESUMED: 1. Approval from Zoning Board of Appeals for second kitchen and front yard setback. ..2. O.K. from Principal Building Inspector. Failure to remedy the conditions aforesaid and to comply with the applicable provisions of law may constitute an offense punishable by fine or imprisonment or both. DATED: June 1t 1990 ~~~ t T~ma~//O. Pisher /~ui~ng Inspector EXHIBIT 9 EXHIBIT 10 / ii ,%/ EXHIBIT 11 Build Dept. Under Probe SOUTItOI.D The Town of Southold last week annoanced plaas to laaach an investigation into "irregnla~ities wilhin Ihe bull(ling l,a~mcnl" ~nd engaged Ihe services of speci~l cmmsel l~d~nr 1 lills 'at n tale Or ' i I" $125 ~r hour, effe*uve ~med ~ ~ - ~e inve~ttffatiOn wa~ ptomple~ by "allega0ons made lo lhe Town Board, [liscnveries Ibis office has made and rec- ommen(Inlions of Ihe Zoning Board of Ap~als," Snl~rvisor Scott llarris said Tu~day. Mr. llills decliae(I the assignment, Iowa nllorney lla*vey Amoff said thi~ ~veek, dae lo "l~maal scheduling prob- lems anti l~eaase his parln0r ha~ been ill." Mr. Amolf has "conlacl~d anmher allomey who h~q agreed lo undemke invesligalion," hal Ihe N~ard will have to approve that appoinlmcnt next week, he sai~l. Charlie Lahra has been a v~al critic of the baitding depat~enl nad has made several allegalinns of wrougdoing in lalion lo his consfruclion project in Malliluck. "Why ha~ it laken sn long?" he asked whea iufmmcd nf the impend- ing invesligalion."l asked for fl scrnb- I~ing of Ihe b,ilding department in Au- gast, 1988, and nolhing took place. We're talking two years, lhis has going on ~fote. dining and after," he said. 'I don't think the Town Board took long al all," Su~rvis~ Itaffis ~id. "It's ~en going on, ap~mnlly, for ycms. h~ard in February, and ~e [acts were present~ m him, he act~ ~dendy d~isively.' Bo~ Mr. tlards and Mr. Amoff stressed this week that, although Mr. Zahm's allegatim~ f~q ~mafily ~n two mem~rs or fl~e building dep~ent -- principal bnilding inspector Viclor l.essard and bailding insp~tor Curtis llo~on -- the i.vestigatio, will ~ di- rtied at no s~ific individual. "We will work ~oward establishing the integrity of Ihe bailding deparl- meat," Mr. llarris said 'raesday. Ruth Jetnlck SOUTHOLD TOWN ZONING BOARD OF APPEALS IN THE MATTER OF THE APPLICATION OF DOMINICK and ANN SBLENDIDO and ANGELA AURICCHIO for a Variance. MEMORANDUM IN OPPOSITION SUBMITTED BY ADJACENT PROPERTY OWNERS EDWARD AND MARIE TOBER PUBLIC HEARING July 25, 1990 The property for which the variances are requested is located at Section 43, Block 4, Lot 37. I represent Mr. and Mrs. Tober who own the property adjacent to the subject property located at Section 43, Block 4, Lot 38. This Memorandum is submitted in opposition to the relief requested by the applicant and it is further requested that this Board revoke the Building Permit issued and order that the building be scaled down to comply with the Code and refer the Building Department file for special investigation. The area within which both designated in Article IIIA of the Density Residential R-40 District". the purpose of that district is properties are located is Southold Zoning Code as "Low According to Section 100-30A.1 "to provide areas for residential development where existing neighborhood characteristics, water supply and environmental conditions permit full development densities of approximately one (1) dwelling per acre where open space and agricultural preservation are not predominate objectives." According to Section 100-30A.2 of the code "no building or premises shall be used and no building or part of a building shall be erected or altered which is arranged, intended or designed to be used, in whole or in part, for any uses as defined under subsection A" which designates the permitted uses as the same as those permitted in Section 100-3lA of the Agricultural-Conservation District. That section in turn states that "one-family detached dwelling, not to exceed one (1) dwelling on each lot" is a permitted use. In addition according to Section 100-30A.3 all buildings or premises located in the R-40 district must conform to the requirements of the Bulk Schedule which schedule provides, among other things, that a dwelling located in the R-40 district must have a minimum lot size of 40,000 square feet, a front yard set back of 50 feet, a side yard set back of 15 feet with both sides totalling 35 feet, a rear yard set back of 50 feet, and the maximum permitted lot coverage of 20 percent. BACKGROUND The applicants herein originally applied for and were granted a building permit on March 16, 1989. In the application they stated that they intended to make the premises a permanent home as opposed to its prior use as a vacation home (the building permit application is attached as Exhibit 1). The application reveals that the lot is approximately 12,500 square feet and originally contained a structure 1-1/2 stories high approximately 28.5 x 28.5 which represents a lot coverage of approximately 6% (Exhibit 2). The proposed addition almost doubled the size of the house from 28.5 x 28.5 to 56.5 x 56.5, increased the height to 2-1/2 stories and the lot coverage to approximately 26% of the total area (Exhibit 3). For a comparison of old and new home see Exhibits 3(a) and 3(m). The original structure according to the survey submitted by the applicants had a front yard set back of 30.6 feet and a rear yard set back of 45.0 feet. It is therefore obvious that from the time of submission of application for a Building Permit these applicants were seeking to renovate beyond permitted standards and should have been directed to appear before this Board to seek a variance. Instead they were issued a building permit which was clearly illegally granted (Exhibit 4). The applicants proceeded to compound this situation by constructing beyond the scope of the illegal building permit which eventually resulted in a stop work 1989. This order stated as follows: "BASIS OF STOP WORK ORDER: 1. 2. 3. 4. Se order issued on December 5, No foundation inspection. No second survey. Not being built as per plans submitted. Appears to have insufficient front yard set- backs. Cannot build a 2 family dwelling in a R-40 zone. CONDITIONS UNDER WHICH WORK MAY BE RESUMED: 1. Submit a new survey showing all setbacks and houses within 300' same side of street. 2. New plans showing all details-"Stamped". 3. Eliminate 2 family dwelling. 4. Pay the new fee." (Exhibit 5) The applicant never complied with the stop work order and did not in fact "stop work". They proceeded and were issued a summons for failure to comply (Exhibit 6). On December 11, 1989 the applicant delivered a statement to the Town that they would not use the premises as a 2 family residence (Exhibit 7). This statement, while appearing to alleviate the concerns of neighbors who had repeatedly objected to the construction, does not address the original problems presented nor those that are enumerated in the stop work order. For reasons not reflected in the Town's file the applicants were permitted to resume construction despite the fact that they did not comply with instructions in the stop work order (see Exhibit 5) and were eventually halted on June 1, 1990 when a second stop work order was issued (Exhibit 8). It is now over one year since construction was commenced by the authority of an illegal permit and applicants have completed a house which is by any standard out of character with the area and clearly intended to be an illegal two family dwelling that violates the code in may respects. See Exhibits 9 A-D which indicate two front doors side by side, destruction of the stately oak trees that previously surrounded the property, two fuel tanks, two alternate ground level entrances (front and side), two basement entrances. For comparison purposes photographs of neighboring properties are attached as Exhibits 10 A-F with a tax map showing their location in reference to the subject property. Part of the relief now sought by the applicants is a variance from the set-back requirement on the basis that they meet the average of those within 300 feet of the subject property. An informal calculation, (opponents herein are not privy to surveys for the respective properties), indicates an average set-back of approximately 28 feet for the houses in the vicinity. However, the applicants set-back with the new concrete foundation leaves applicant with a set-back of approximately 18 feet, far less than the average within 300 feet as called for by the code. I. BUILDING PERMIT WAS ERRONEOUSLY GRANTED IN MARCH, 1989 The subject property based upon the current zoning law was in violation of the code in terms of the size of the lot required in the district, 40,000 square feet versus 12,500 square feet, and the front and rear yard set backs, 50 feet versus 30.6 feet and 50 feet versus 45.0 feet (front and back respectfully). According to Section 100-242 such a building is designated a "nonconforming" building with a "conforming use". That section notes in subsection (A) that nothing in the section is to be deemed to prevent the remodeling, reconstruction or enlargement of a nonconforming building containing a conforming use provided that such action does not create any new nonconformance or increase the degree of nonconformance with regard to the regulations pertaining to such buildings. The provisions of this section apply to the applicants herein. Section 100-244 provides relief for nonconforming lots for lot coverage and front and rear set backs among other things but its provisions provide only for those owning such lots who wish to erect a building. The relief provided therefore does not apply to these applicants because in March, 1989 they were remodeling an existing structure not building an original structure. Therefore, the strictures of Section 100-24 mentioned above applied to these applicants. According to Section 100-281 of the code no building permit shall be issued unless the proposed construction or use is in full conformity with all the provisions of this chapter and any building permit issued in violations of the provisions of the code is "null and void". The code notes that any work undertaken or use established pursuant to the issuance of a permit in violation of the provisions of this chapter shall be invalid. It is well established that construction undertaken pursuant to a building permit which was issued in violation of the zoning ordinance vests no rights since a permit may not confer rights in violation of a zoning ordinance. In Cowqer v. Monain, 450 N.Y.S. 2d 81 (3d Dept. 1982), appl.dis, cert den 103 S. Ct. 712, a fence constructed pursuant to a permit which was issued in violation of the zoning ordinance was declared illegal and its removal required. In fact, it is not improper for a municipality in repudiating the improper prior actions of its building inspector to order the demolition of an extensive addition even when the building permit when issued was proper but a subsequent zoning amendment made it improper. Reichenbach v. Windward at Southampton, 364 N.Y.S. 2d 283 (1975) aff'd 372 N.Y.S. 2d 985 (2d Dept. 1975), appl. dis. 382 N.Y.S. 2d 757 (1976). (In this case a costly and extensive charged with restrictions. N.Y. 282. addition to a motel was ordered demolished) An illegally granted permit is without effect and it may be revoked although the holder has taken action pursuant to its terms. Smalls v. Board of Standards & ADDeals, 211 N.Y.S. 2d 212 (1961), affd 218 N.Y.S. 2d 1005 (2d Dept. 1961), affd 225 N.Y.S. 2d 765 (1961); People v. ADex Lumber at Greenlawn. Inc., 174 N.Y.S. 2d 990 (1958). The applicants herein cannot claim that they were without knowledge of the illegality of their permit because applicants are constructive knowledge of the applicable zoning Rosenbush v. Keller, 285 N.Y.S. 636 (1936), affd 271 The illegality of the building permit is separate and apart from the fact that applicants have violated the conditions of the illegally issued permit and now seek a variance for their deliberate improper and illegal activities. The applicants have established a pattern of conduct whose legalize an otherwise illegal structure. II. HARDSHIP IS NOT A BASIS FOR RELIEF specific purpose was to The applicants invoke hardship as a rationale for the requested variance. This justification fails on many grounds. First, even if the applicants could prove hardship and unique circumstances, the Zoning Board of Appeals power to grant a variance is still limited by the requirement that the permitted use not alter the essential character of the neighborhood DiBari v Board of Standards Ammeals, 152 NYS 2d, 30.2 (1956). people ex rel Fordham Manor Reformed Church v. Walsh. 244 N.Y. 280 (1927). The court found a Zoning Board of Appeals to have erred in granting a variance for a six apartment structure in a area with a four apartment limit because the owner had not: (1) come forward with "dollars and cents" proof that the property cannot yield a reasonable return under the permitted use, (2) show that the situation is unique and not shared by a others in the neighborhood, and (3) show that the proposed use will not change the essential character of the neighborhood. Bartholomoy v Zoning Board of ADpeals, 417 NYS 2d, 336 (4th Dept. 1976). The area wherein applicants house is located is and has been limited to one-story houses. Note the photographs attached hereto (as Exhibit A 1 - ) which depict other houses in the area. They are quite obviously one family dwellings, inconspicuous in appearance and establish the ambiance that the owners choose to reside in. A photograph of applicants house (Exhibit 2) clearly shows that it is not in keeping with those in the vicinity and to grant a second kitchen and create the illegal two family applicants originally intended is to compound the mistake. To grant the variances requested is to disrupt the neighborhood. The most damaging effect however of granting the variance is to set a precedent which could eventually destroy the established zoning plan. The Court of Appeals, New Yorks highest court, has held that one who knowingly acquires land for a prohibited use cannot thereafter have a variance on the ground of a "special hardship". Clark v Board of Zonina Appeals, 301 N.Y. 86, reh. den. 301 N.Y. 681, cert. den. 340 U.S. 933. See also: Compare Nika Realty CorD. V Horn 225 NYS 2d 70 (1962) revd 242 NYS 2d 365 (2nd Dept. 1962). While applicants may not have purchased this land to erect a two family dwelling, obviously by 1989 that is what they decided to do with the property. They knew, or should have known, that the area was zoned for one family dwellings. In fact, they must have known that such was the case as a second kitchen was to be added without obtaining a variance because they knew it was not permitted. This is the essence of a self-created hardship. The fact that a building permit was illegally granted does not foreclose denial of the variance. Freundlich v Town of Southampton, 422 NYS 2d. 215 (2nd Dept. 1975) aff'd 437 NYS 2d. A hardship is self created if constructed by the applicant with from which he/she seeks 664 (1981). it is created by improvements knowledge of the restrictions relief. Thomas v Board of Standards and ADpeals, 290 N.Y. 109. In fact, the court found that the denial of a variance for a second kitchen was proper when it was completed without a building permit where the applicant originally represented that he had no intention of installing the second kitchen. Ostroff v Sacks, 407 NYS 2d. 546 (2nd Dept. 1978). Zoning requirements serve the purpose of allowing the orderly development of a community based on extensive planning and the community's needs. The power to grant variances can be misused and effectively injure property owners and the community plan. Justice Benjamin Cardozo stated this quite succinctly when he stated "There has been confided to the Board a delicate jurisdiction and one easily abused". People v ex rel. Fordham Manor Reformed Church v Walsh, supra. The courts will uphold a use variance only where the applicant can prove that unnecessary hardship will result from strict application of the zoning regulation. If there is a hardship to be suffered by this applicant, which there is not, it is self-inflicted and the community should not have to pay the applicants herein have abused the system by proceeding outside which is permitted and now wish to compound the affiant to law and order by asking this Board to condone and legitimize their actions. III. SINGLE FAMILy DISTRICT/TWO KITCHENS · The Court of Appeals in New York has approved the creation of districts limited to one-family dwellings on the basis that zoning ordinances out of and are sustained by considerations of the health and welfare of the community. Baddour v Long Beach, 279 N.Y. 167 reh. den. 279 N.Y. 799, appl. dis. 60 S. Ct. 77. What constitutes single family use has been the source of difficulty but where a district is limited to single family occupancy the ordinance is violated by two-family occupancy although the second family does not use the kitchen facilities of the dwelling People ex rel Melia v Menacher, 222 N.Y.S. 2d. 550 (1961). To enforce this limitation by denying a permit to install a second kitchen is proper. Owens v Michaelis, 202 N.Y.S. 2d 554 (1960). In fact it has been held that it is not unreasonable for a Zoning Board of Appeals to determine that installation of a second kitchen will alter a single family residence and render it a two family residence where the entrances and physical arrangement of the rooms support such a conclusion. This conclusion is not altered by the fact that the persons who will occupy are related by blood Williams v Adami, 334 N.Y.S. 2d 539 (1972). The concept of establishing specific residential districts such as one, two or multiple family areas is to protect the public health, safety and welfare from infringement by industry. Wolfsohn v Burden. 241 NY 288 (1925). The value of the single family district was stated by Justice Douglas to be: "A quiet place where yards are wide, people are few, and motor vehicles restricted...It is ample to layout zones where family values, and the blessings of quiet seclusion, and clean air make the area a sanctuary for people." Belle Terre v. Boraas, 94 S. Ct. 1536 (1974) To permit this clandestine two-family to continue by granting a variance is to breach the residents sanctuary and set a precedent for future violations that are ultimately granted legitimacy by claiming hardship. IV. BUILDING DEPARTMENT INVESTIGATION PRECLUDES ISSUANCE OF A VARIANCE It has recently been reported that the Building Department of the Town of Southold is under investigation (Exhibit 11). Clearly the current matter is a case where irregularities in the Building Department are visible and require investigation. Aside from the sound basis in law noted in sections I through III above the current investigation should preclude a determination on the requested variance and should in fact mandate its denial. My clients have spoken to a representative of the Suffolk County Department of Consumers Affairs who was present at the site on June 5th who advised that the contractor's home improvement license had been suspended and he was present to attempt to determine the quality of the electrical and plumbing work as it was the departments belief that it had been performed by unlicensed tradespeople. This is but another instance of improprieties with regard to these premises. WHEREFORE, I respectfully request that this Board deny the requested relief, revoke the illegally issued Building Permit and order that the building be scaled down to comply with the Code. Respectfully submitted, DATED: July 25, 1990 Greenport, N. Y. MARIE ONGIONI Attorney for Edward and Marie Tober, Adjacent Property Owners 218 Front Street P. O. Box 562 Greenport, N. Y. 11944 (516) 477-2048 Approved ' 'J' .., 19~..~. Permit No .]..~..ti.Dc'..~..~. Disapproved ale ..................................... S~iRD OF 'HEA~TIt". / FOnM NO. 1 ' ' SURVEY , ~., ,-~ .... , ..... TOWN OFSOUTHOLD CHECK .,.~ .................. BUILDING DEPARTMENT SEPTIC ~'ORH ~ TOWN HALL ':' ' SOUTIIOLD. N,Y, 11971 HOT[F~ TEL.: 765-1803 CALL ....~,.;', ...... ~ ~.,.. (Building Inspector) APPLICATION FOR BUILDING PERMIT Date ~ ....... , .......... ~ 19,.. ........ kh;;,;;.;,;fi 't/ti; or coq, orate ofncer) Plutnber's License No ......................... Electrician's License No ............. Other Trade's License NO, ..................... i. L°ca"on ofland on wbich propose work will be done ,Subdivision ........................... ~ ~ ....... Filed Map ~ , ' No Lot State existing use and occupancy of premises and intended use and occupancy of p?p0sed cohitmcfloa: INSTRUCTIONS ' " a. This apPhcat~°n must be c°mpletely filled in by typewriter or in ink had submitted to the Building [ntPector, with ~ sets of plans, accurate plot plan to scale· Fee according to schedule. b. Plot plan showing location of lot and of btlildings on premises, relationship to adjoining premises or public street: or areas, and giving a detailed description of layout of property must be drawn on the diagram which is part of this appli cation. c. The work covered by this application may not be commenced befor~ issuance of Building Per'it. d. Upon approval of this application, the Building Inspector will issued a Building Permit to the aPplicant. Such permit shall be kept on the premises available for inspection throu~tout the work. e. No building shall be occupied or used in whole or in part for any purpose whatever until a Certificate of Occupancy shall have been granted by the Building Inspector. APPLICATION IS HEREBY' MADE to the Building Depnrtment for the issuance of n Building Permit pursuant to the Building Zone Ordlnnnce of the Town of 8outhold, Suffolk County, New York, and other applicable Laws, Ordinances or Regulations, for the construction of buildings, additions or alterations, or fo~; ~'emoval or demolition, ns herein described. The appl;cant agrees to comply with all applicable laws, ordinnnees, building code, hon~inR code, and regulations, and to admit authorized inspectors on premises and in building for necessqty inspecti~_.~.~~ I '' ..... t~gna'ture ot applicant, or hame, if g corporation) ' ' · :, · ' ~ ~ (Mailin{~ address of aPpli~afit) I State whether applicant is owner, lessee, agent, architect, engiheer, general contractor, electrician., plumber or builder. , Name of owner of premises ' ' ~ · · ' (as on the tax roll or latest deed) If applicant is a corporation, signature of duly authorized officer. 3, Naturq of work (check whic licable): NeW OuiMing ..... ' ... Addition . ;a!ion Repair .... , .... .............. Rumoval .............. Demolition ............ thcrWork ............ 4. EstimatEd Cost... :.'.'~..~)...~. i.... (Description) If garage, num her of cars ............................ (to be paii.ln filing this applicat.ion) 5. If dwelling, number of dwelling units ............... Nnmber o f dwelling units on each floor ........... 6. If business, Commercial or mixed occunancv $nccif .... ,.~, '~ ....... , ................................ 7. u~men~ons~px~stmg structures if any Front..~. ~.. . Rear . · ...... might .~ ..... ~.mb~roCSto~ {tT~ - · ~..~... D~pth..~ ... D~me~alon$ of same structure With alterations or a~t~ : trent o~s ~ ~ ,~ ........... ~-;.-I ......... Depth.,~... ' 8. Dtmcnslons of e-tire new const "~ ~'~ .... t ........ Number Qf Sto~es.. ~. . ~*, mcuon:rront .~ .. Rear ~-~/ ~ I:"Z~P ....... Height . ~.. . N' be ._ ' ~'~.. ..~.o.' DeOta .~ . . ~ ~ ....... ~n~n r o/5toiles -l~lo ~ ' ' ' '~. - . · · 9. size of Iot:~rbnt .. Io~ ' ' '~T~'..~ .~.~ ................. ... ' ' ' ~0. ~ oC~.~.~" '~ ............. ~"~ ..... I~/ ........... ~.t~ .~2~' .' ........... ............................. Name of Fe~er Owaer ' 1 1. Zone or uae district in which premisea ara situated ............................ 12. · ....................... Does proposed construction violate any zoning law, ordinance or regulation: .............................. 13. W~I lot be regraded , . .~ ~ ...... ~ ......... a~. · · Wi~excess fill b~ r mgve o premises: es N~ of Architect .~ M~ ~... ~ ....... .. · · ' Address '~. ~, ' ' · ' . ................ N~e of Contractor~~ '' rest' ~~' ~.'. Phone No~~ ' properEy .. · I~ yes, Sou~hold Town Truscee~ Permit m'ay be requi~ed. PLOT DIAG Locate cle~ly ~d dist~fly ~l build~s, whether cxislin~ or proposed, ~d. in~i~atc ~I set-back d~cnsions from propc~y hncs. ~ivc ~trec~ ~d block number or desc~pfion accordin~ to deed, ~d ~how slrccl n~cS and ~dica~c whcihcr inle~or or cOmer lot? t , :l~o]:lanllSliOa p;~sodold jo ~{auedl'~33o pne ash a uatu~ uc sas tt aJd jo Aaucdn33o puc ash ' ~ P P . P . . .... ' (atn~N) .......... ~.' ",' ' 3o~ ............... °N delq P~IY~ ..................................... uo~pqns · .., ....... ............ ......... .... ................ , .................................. ¢~ / ...................... oN osuaal~ EXHIBIT 2 '3 i EXHIBIT 3 AREA = 12,289sq. ft. i1 N ~7' Off' 00" W '~' I N/O/F EDWARD P. TOBER MARt~ TOB~ BAY ROAD SURVEY OF PR O PER T Y ' AT .GR~ORT. ., TOWN OF ~'~tTHOLO SUFFOLK COUNTY, N I'. 1000 - 43 - 04 ' 37 Scale 1" = 20' Dec. 6, 1989 JAN. 23, I990 (set monuments) NY. /~ 89 - 459 EXHIBIT 3(A) EXHIBIT 3(B EXHIBIT 4 TOWN OF SOUTHOLD BUILDING DEPARTMENT TOWN HALL SOUTHOLD, N. Y. BUILDING PERMIT (THIS PERMIT MUST BE KEPT ON THE PREMISES UNTIL FULL COMPLETION OF THE WORK AUTHORIZED) 017923 Z .. 1~lldlng Inspector Rev. 6/30/i~0 October 2, 1990 Victor Lessard, Building Inspector Town of Southold Main Road TOWN OF SOUTHO[D Southold, New York 11901 Re: Auricchio and Sblendido with Town of Southold Dear Vic: As you know, pursuant to the request of the Building Department, my client is before the ZBA regarding the above to request a front yard variance and an interpretation as to whether a second kitchen is necessarily precluded from an acknowledged one-family residence. As the matter has been extensively delayed since the May 29th notice of Disapproval and the June 1st Stop Work Order, and since my clients are very anxious to get at least some work completed before the cold weather sets in, they have determined to remove, pending the final decision of the ZBA, the plumbing pipes from the wall of the great room in order that the Stop Work Order may be lifted as discussed between ns in June. Please advise inspection. PJC/lg as to when yon will be able to schedule the Sincerely PJILIP J. ~ARDINALE (,.RHONE CALL) FOUNDATION {1st) FOUNDATION 2. ROUGH FRAME & .FLUMBING 3. INSULATION PER N. STATE ENERGY CODE FINAL ADDITIONA'L COMME~ITS: 765-1802 BUILDING DEPT. /~? INSPECTION FOUNDATION 1ST [ R~~OUGH PLBG. FOUNDATION ZND [ ] INSULATION FRAMING [ ] FINAL ~'6S-1102 BUILDING DEPT. INSPECTION ]FOUNDATION 1ST [ ] .ROUGH PLBG. FOUNDATION 2ND [ ] INSULATION FRAMING [ ] FINAL REMARKS: DATE IiNSPECTOR~ FORM NO. 1 TOWN OF SOUTHOLD BUILDING DEPARTMENT TOWN HALL SOUTHOLD. N.Y. 11971 TEL.: 765-'1802 Disapproved a/c ..................................... OF HEALTH ...... 3 SETS OP_PLANS . ~-.i,~;~,..e,~'""' survey · ,d~:../~....-~-.. ......... .....' CHECK ...~ .................. SEPTIC FORM ................ NOTIFY CALL ..................... ;V...-.~--~ //7,,7 y (Building Inspector) APPLICATION FOR BUILDING PERMIT Date ................... 19 ... INSTRUCTIONS a. Tiffs application must be completely filled in by tyl~ewriter or in ink and submitted to the Building Inspector, with 3 sets of plans, accurate plot plan to scale. Fee according to schedule. b: Plot plan showing location of lot and of buildings on premises, relationship to adjoining premises or public streets or areas, and giving a detailed description of layout of property must be drawn on the diagram which is part of tiffs appli- cation. c. The work covered by tiffs 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 permit shall be kept on the premises available for inspection throughout the work. e. No building shall be occupied or used in whole or in part for a~y purpose whatever until a Certificate of Occupancy shall 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 Building Zone Ordinance of the Town of Southold, Suffolk County, New York, and other applicable Laws, Ordinances or Regulations, for the construction of buildings, ad. ditions or alterations, or for removal or demolition, as herein described. Th~ applicant agrees to comply with all applicable laws, ordinances, building code, housing code, and regulations, and to admit authorized inspectors on premises and in building for necessary inspection~s...---- ~ (Si=na/ture o~ applicant, or hame, if ri corporation')' ' ' ( resso,'applic , ..... State whether applicant is owner, lessee, agent, architect, engineer, general contractor, electrician, plumber or builder. Name of owner of premises .......... /. : ........... (as on the tax roll or latest deed) If applicant is a corporation, signature of duly authorized officer. (Name and title of corporate officer) Plumber's License No ......................... Electrician's License No ....................... Other Trade's License No ...................... [ Location of land on which proposed work will be done...%..~. ~.. ~-[~... :~ ........... spc"f.... "'" ;;;.I. -'M. .......................................... }'iou se Number r Hamlet County Tax Map No. 1000 Section ............ Block ............... Lot .............. Subdivision ..................................... Eiled Map No., .............. Lot . .:~ .... (Name) ' . ' State existing use and occupancy of premises and intended use aud occupancy of p~oposed construction: a. Existing use and occupancy ... . ...................... b. Intended use and occupancy · · · .. 3. Nature of work (check which applicable): New Building ' Addition . .S~..T /alteration Repa/r .............. Removal .............. Demolition .............. Other Work .............. 4. Estimate'd Cost .. ~...~......~... ....... (Dcscr/ption) (to be paid on filing this application) .5. If dwelling, number of dwelling units ............... Nnmber of dwelling units on each floor.. If gara"e, hum bet of cars · · · 6. gibm;S~sn~ CoO;;~:/iCn:~ls~Lcm[~:eds,i~CaUnP;:n~rY~ specify nat, ur.p and extent of each tv,pc oPUse .......... !... 7. ' ........... ones ... '~ ' ' ........... ~ ................... 7Z ......... Heght ~.'7-~.'. NumberofSi nt..~..~"~. ..... Rear ...~...~..... Depth. Dimensions of same structure with alterations or a~_~(ions' Front Re Depth · - --~-~'.. ~ .... ar . . · ....J · { .......... e~umDcrotSto es...~-. ....... . . 8. J-J~mens:ons of entire ne~v construction. Front I ~ ~ Rear ~-'~-- ''~''~ ~, ~.~_"~'~4,,~P ...... 9. ~ze mtot Frbnt J.;/M~' ' ' ' -- T'"~-'o' ' ';.-'1 ......................... ,~ · 10. Date of Purchase ............................. N.~me of Fermer Owner .............. I I. 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 ...124 .q.. -, ............ .a~. · · WilLexcess fill be removed o premises: ,. _ es No 14. Name o f Owner o f premises ,~r...d~ ..L~._.~.~..~' Name of Architect ... ~~[~ '' --dd ---r- ,~' "'t' ' ~' - ~.. N .................. a ress ............ ?hone No -- ~e of Contractor ~~~ _,. j.. ~A~' '>~" -: ............ ' '"-' ..... ....... - ff 'd 7 IS.Is thxs property lbcated withxn~O0 feet ~[~ -, , ........ *If yes, Southold Town Trustees Permit may be required. PLOT DIAGRAM Locate clearly and distinctly all buildings, whether existing or proposed, and, indicate ail set-hack dimensions from property lines. Give street and block number or description according to deed, and show street names and indicate whether interior or comer lot. STATE OF NF/iV Y~RIG ,- CQUNTY OF~...~-~-~ $.S (Name of individual signing contract) above named. lie is the... ~'~. ~'(~__.~, ...................................... (C ............... ontractor, agent, corporate officer, etc.) ......... of said OWner or owners, and is duly anthorized to perform or have performed the said work and to make and file this application; that all statements contained in this application are true to the best of his knowledge and belief; and that the Work will be performed in the manner set forth in the application filed therewith. SWorn to betbre me this ............. ./.& ...... ' £? N~taV Public, St~t~ of HeW Y~I~ . . No. 4?11511 r~ ' ' ' ' ..... October 2, 1990 Victor Lessard, Building Inspector Town of Southold Main Road Southold, New York 11901 OCT - 4 ?3LD~. TOWN OF SOUTIHOLD Re: Auricchio and Sblendido with Town of Southold Dear Vic: As you know, pursuant to the request of the Building Department, my client is before the ZBA regarding the above to request a front yard variance and an interpretation as to whether a second kitchen is necessarily precluded from an acknowledged one-family residence. As the matter has been extensively delayed since the May 29th notice of Disapproval and the June 1st Stop Work Order, and since my clients are very anxious to get at least some work completed before the cold weather sets in, they have determined to remove, pending the final decision of the ZBA, the plumbing pipes from the wall of the great room in order that the Stop Work Order may be lifted as discussed between us in June. Please advise as to when you will be able to schedule inspection. PJC/lg Sincerely PHILIP J. ~ARDINALE the (.PHONE CALL JOHN ¢. BIDDULPH & WIFE S 87° 05' 00" E OUTSIDE AREA = 12,289sq. ft. 43.1 TO O.H. ~_1_ 45.1 TO HOUSE 91.57' ~00.00' ADDITION UNDER ~ 7JNI N 87' 05' 00" W N/O/F EDWARD P. TOBER & MARIE TOBER BAY ROAD SURVEY OF PROPER T A T .GREENPOR TOWN OF SOUTHc SUFFOLK COUNTY, 1000- 45 7 04--,$. Scale 1' =20 Dec. 6, 1989 OCT 29 '~90 1G:B6 TOHHAA~AAAAAAAAAAAAA 'FOWN OF RIVERHEAD TOWN }fALL 200 HOWELL AVII. NUE "' RIV~,RIII':AD, NEW YOI[K ) 1901.2596 ts ~ ~) ~.~oo P.1 (incl. cove: sheet): *Contact sender if you do not receive all pages or copy is no legible. OCT 29 '90 16:96 TOI~IMAA~AAAAAAAAAA P TOWN OF RIVERREAD ZONING BOARD OF APPEALS - DETERMINATION Appeal No. 90-76 In the matter of the application of David J. Willmott, Sr. LOCATION: Ostrander Avenue Riverhead, New York for an interpretation of Chapter 108, Section 108-15 of the Code of the Town of Riverhead the question being whether a one family dwelling is limited to the number of kitchens it may have MR. KOBYLENSKI~ In the matter of David J. Willmott, Sr., the Board has reviewed all information and evidence brought before it and has heard all parties who have appeared either in favor of or opposed to the granting of the variance. Members of the Board have made a personal inspection of the subject premises. In addition, they have relied on their personal knowledge. The following findings of fact have been made~ 1. The subject premises are located in a Residence C Use District; 2. Testimony was offered as follows~ a. The Code of the Town of Riverhead, Section 108-3, defines dwelling, one-family as: "A detached building designed for and occupied exclusively as a home or residence by not more than one (1) family"; b. The definition does not mention kitchen or kitchens; c. The Code of the ~own of Rlverhead, Section 108-3, defines family as* "One (1) or more persons occupying a single dwelling unit; provided, however, that not more than five (5) persons unrelated by blood, marriage or legal adoption, not more than two (2} such persons for each conventional bedroom~ shall be considered a 'family' and further provided that persons occupying group quarters, such as a dor~.itory, fraternity or sorority house or a seminar~, shall not be considered a 'family,.; d. The definition does n6t mention eating arrangements; e. The dwelling on the subject premises had a kitchen installed as part of a lower level family room and for use by the owlet of the premises and his family; 3. The Environmental Quality Review Board has recommended that this action be classified as Type I! Rnder the criteria of Section 617 of the State Environmental Quality Review Act. Therefore, I move that the appeal of David J. willmott, Sr., Ostrander Avenue~ Riverhead, New York, for an interpretation of Chapter 108~ Section 108-15 of the Code of the Town of Riverhead the question being whether a one family dwelling is limited.to the number of k~tchens it may hav~ be deemed not limited in accordanc~ with application together with sketch as filed with the Building Inspector subject to the following condition~ These premises shall not be used a~ a two-family dwelling without the expressed permission of the zoning Board of Appeals and a covenant to this effect shall be filed with the Clerk of the County of Suffolk. %ONING BOARD OF APPEALS DBTER/4INATION Appeal No. 90-76 - David J. Willmott, Sr. July 26, 1990 Page 2 Further I move that the recommendation of the ~nvironmental Quality Review Board that this action be considered to be Type II under the criteria of Section §17 of the State Environmental Quality Review Act be adopted. The appeal is granted for the following reasons~ 1. The Code of the Town of Rlverhead does not address the number of kitchens a single family dwelling may have or the eating arrangements of the family; 2. Based upon this Board's review of the environmental assessment form, the recommendation of the Environmental Quality Review Board, and its own analysis, it has determined that the application is Type II and it has no environmental significance. MRS. KUCERA= second the motion. MRS. TORMEY: May I have your vote, please7 MR. WELLS* Absent MR. KBLLER~ Aye MRS. KUC~RA~ Aye MR. KOBYLBNSKI~ Aye MRS. TORME~ Aye The motion was duly adopted by a roll call vote of all members present. I hereby certify that the foregoing is a true copy of a motion duly adopted on the 26th of July, 1990 and of the whole thereof. DATED, ZONING BOARD OF APPEALS SOUTHOLD TOWN ZONING BOARD OF APPEALS IN THE MATTER OF THE APPLICATION OF DOMINICK and ANN SBLENDIDO and ANGELA AURICCHIO for a Variance. MEMORANDUM IN OPPOSITION SUBMITTED BY ADJACENT PROPERTY OWNERS EDWARD AND MARIE TOBER PUBLIC HEARING July 25, 1990 The property for which the variances are requested is located at Section 43, Block 4, Lot 37. I represent Mr. and Mrs. Tober who own the property adjacent to the subject property located at Section 43, Block 4, Lot 38. This Memorandum is submitted in opposition to the relief requested by the applicant and it is further requested that this Board revoke the Building Permit issued and order that the building be scaled down to comply with the Code and refer the Building Department file for special investigation. The area within which both designated in Article IIIA of the Density Residential R-40 District". the purpose of that district is "to provide areas properties are located is Southold Zoning Code as "Low According to Section 100-30A.1 for residential development where existing neighborhood characteristics, water supply and environmental conditions permit full development densities of approximately one (1) dwelling per acre where open space and agricultural preservation are not predominate objectives." According to Section 100-30A.2 of the code "no building or premises shall be used and no building or part of a building shall be erected or altered which is arranged, intended or designed to be used, in whole or in part, for any uses as defined under subsection A" which designates the permitted uses as the same as those permitted in Section 100-3lA of the Agricultural-Conservation District. That section in turn states that "one-family detached dwelling, not to exceed one (1) dwelling on each lot" is a permitted use. In addition according to Section 100-30A.3 all buildings or premises located in the R-40 district must conform to the requirements of the Bulk Schedule which schedule provides, among other things, that a dwelling located in the R-40 district must have a minimum lot size of 40,000 square feet, a front yard set back of 50 feet, a side yard set back of 15 feet with both sides totalling 35 feet, a rear yard set back of 50 feet, and the maximum permitted lot coverage of 20 percent. BACKGROUND The applicants herein originally applied for and were granted a building permit on March 16, 1989. In the application they stated that they intended to make the premises a permanent home as opposed to its prior use as a vacation home (the building permit application is attached as Exhibit 1). The application reveals that the lot is approximately 12,500 square feet and originally contained a structure 1-1/2 stories high approximately 28.5 x 28.5 which represents a lot coverage of approximately 6% (Exhibit 2). The proposed addition almost doubled the size of the house from 28.5 x 28.5 to 56.5 x 56.5, increased the height to 2-1/2 stories and the lot coverage to approximately 26% of the total area (Exhibit 3). For a comparison of old and new home see Exhibits 3(A) and 3(B). The original structure according to the survey submitted by the applicants had a front yard set back of 30.6 feet and a rear yard set back of 45.0 feet. It is therefore obvious that from the time of submission of application for a Building Permit these applicants were seeking to renovate beyond permitted standards and should have been directed to appear before this Board to seek a variance. Instead they were issued a building permit which was clearly illegally granted (Exhibit 4). The applicants proceeded to compound this situation by constructing beyond the scope of the illegal building permit which eventually resulted in a stop work order issued on December 5, 1989. This order stated as follows: "BASIS OF STOP WORK ORDER: 1. No foundation inspection. 2. No second survey. 3. Not being built as per plans submitted. 4. Appears to have insufficient front yard set- backs. 5. Cannot build a 2 family dwelling in a R-40 zone. CONDITIONS UNDER WHICH WORK MAY BE RESUMED: 1. Submit a new survey showing all setbacks and houses within 300' same side of street. 2. New plans showing all details-"Stamped". 3. Eliminate 2 family dwelling. 4. Pay the new fee." (Exhibit 5) The applicant never complied with the stop work order and did not in fact "stop work". They proceeded and were issued a summons for failure to comply (Exhibit 6). On December 11, 1989 the applicant delivered a statement to the Town that they would not use the premises as a 2 family residence (Exhibit 7). This statement, while appearing to alleviate the concerns of neighbors who had repeatedly objected to the construction, does not address the original problems presented nor those that are enumerated in the stop work order. For reasons not reflected in the Town's file the applicants were permitted to resume construction despite the fact that they did not comply with instructions in the stop work order (see Exhibit 5) and were eventually halted on June 1, 1990 when a second stop work order was issued (Exhibit 8). It is now over one year since construction was commenced by the authority of an illegal permit and applicants have completed a house which is by any standard out of character with the area and clearly intended to be an illegal two family dwelling that violates the code in may respects. See Exhibits 9 A-D which indicate two front doors side by side, destruction of the stately oak trees that previously surrounded the property, two fuel tanks, two alternate ground level entrances (front and side), two basement entrances. For comparison purposes photographs of neighboring properties are attached as Exhibits 10 A-F with a tax map showing their location in reference to the subject property. Part of the relief now sought by the applicants is a variance from the set-back requirement on the basis that they meet the average of those within 300 feet of the subject property. An informal calculation, (opponents herein are not privy to surveys for the respective properties), indicates an average set-back of approximately 28 feet for the houses in the vicinity. However, the applicants set-back with the new concrete foundation leaves applicant with a set-back of approximately 18 feet, far less than the average within 300 feet as called for by the code. I. BUILDING PERMIT WAS ERRONEOUSLY GRANTED IN MARCH. 1989 The subject property based upon the current zoning law was in violation of the code in terms of the size of the lot required in the district, 40,000 square feet versus 12,500 square feet, and the front and rear yard set backs, 50 feet versus 30.6 feet and 50 feet versus 45.0 feet (front and back respectfully). According to Section 100-242 such a building is designated a "nonconforming" building with a "conforming use". That section notes in subsection (A) that nothing in the section is to be deemed to prevent the remodeling, reconstruction or enlargement of a nonconforming building containing a conforming use Drovided that such action does not create any new nonconformance or increase the degree of nonconformance with regard to the regulations pertaining to such buildings. The provisions of this section apply to the applicants herein. Section 100-244 provides relief for nonconforming lots for lot coverage and front and rear set backs among other things but its provisions provide only for those owning such lots who wish to erect a building. The relief provided therefore does not apply to these applicants because in March, 1989 they were remodeling an existing structure not building an original structure. Therefore, the strictures of Section 100-24 mentioned above applied to these applicants. According to Section 100-281 of the code no building permit shall be issued unless the proposed construction or use is in full conformity with all the provisions of this chapter and any building permit issued in violations of the provisions of the code is "null and void". The code notes that any work undertaken or use established pursuant to the issuance of a permit in violation of the provisions of this chapter shall be invalid. It is well established that construction undertaken pursuant to a building permit which was issued in violation of the zoning ordinance vests no rights since a permit may not confer rights in violation of a zoning ordinance. In Cowqer v. Monqin, 450 N.Y.S. 2d 81 (3d Dept. 1982), appl.dis, cert den 103 S. Ct. 712, a fence constructed pursuant to a permit which was issued in violation of the zoning ordinance was declared illegal and its removal required. In fact, it is not improper for a municipality in repudiating the improper prior actions of its building inspector to order the demolition of an extensive addition even when the building permit when issued was proper but a subsequent zoning amendment made it improper. Reichenbach v. Windward at Southampton, 364 N.Y.S. 2d 283 (1975) aff'd 372 N.Y.S. 2d 985 (2d Dept. 1975), appl. dis. 382 N.Y.S. 2d 757 (1976). (In this case a costly and extensive charged with restrictions. N.Y. 282. addition to a motel was ordered demolished) An illegally granted permit is without effect and it may be revoked although the holder has taken action pursuant to its terms. Smalls v. Board of Standards & ADDeals, 211 N.Y.S. 2d 212 (1961), affd 218 N.Y.S. 2d 1005 (2d Dept. 1961), affd 225 N.Y.S. 2d 765 (1961); People v. Apex Lumber at Greenlawn, Inc., 174 N.Y.S. 2d 990 (1958). The applicants herein cannot claim that they were without knowledge of the illegality of their permit because applicants are constructive knowledge of the applicable zoning Rosenbush v. Keller, 285 N.Y.S. 636 (1936), affd 271 The illegality of the building permit is separate and apart from the fact that applicants have violated the conditions of the illegally issued permit and now seek a variance for their deliberate improper and illegal activities. The applicants have established a pattern of conduct whose specific purpose was to legalize an otherwise illegal structure. II. HARDSHIP IS NOT A BASIS FOR RELIEF The applicants invoke hardship as a rationale for the requested variance. This justification fails on many grounds. First, even if the applicants could prove hardship and unique circumstances, the Zoning Board of Appeals power to grant a variance is still limited by the requirement that the permitted use not alter the essential character of the neighborhood DiBari v Board of Standards Appeals, 152 NYS 2d, 30.2 (1956). People ex rel Fordham Manor Reformed Church v. Walsh. 244 N.Y. 280 (1927). The court found a Zoning Board of Appeals to have erred in granting a variance for a six apartment structure in a area with a four apartment limit because the owner had not: (1) come forward with "dollars and cents" proof that the property cannot yield a reasonable return under the permitted use, (2) show that the situation is unique and not shared by a others in the neighborhood, and (3) show that the proposed use will not change the essential character of the neighborhood. Bartholomo¥ v Zoninq Board of Appeals, 417 NYS 2d, 336 (4th Dept. 1976). The area wherein applicants house is located is and has been limited to one-story houses. Note the photographs attached hereto (as Exhibit A 1 - ) which depict other houses in the area. They are quite obviously one family dwellings, inconspicuous in appearance and establish the ambiance that the owners choose to reside in. A photograph of applicants house (Exhibit 2) clearly shows that it is not in keeping with those in the vicinity and to grant a second kitchen and create the illegal two family applicants originally intended is to compound the mistake. To grant the variances requested is to disrupt the neighborhood. The most damaging effect however of granting the variance is to set a precedent which could eventually destroy the established zoning plan. The Court of Appeals, New Yorks highest court, has held that one who knowingly acquires land for a prohibited use cannot thereafter have a variance on the ground of a "special hardship". Clark v Board of Zoninq Appeals, 301 N.Y. 86, reh. den. 301 N.Y. 681, cert. den. 340 U.S. 933. See also: Compare Nika Realty CorD. V Horn 225 NYS 2d 70 (1962) revd 242 NYS 2d 365 (2nd Dept. 1962). While applicants may not have purchased this land to erect a two family dwelling, obviously by 1989 that is what they decided to do with the property. They knew, or should have known, that the area was zoned for one family dwellings. In fact, they must have known that such was the case as a second kitchen was to be added without obtaining a variance because they knew it was not permitted. This is the essence of a self-created hardship. The fact that a building permit was illegally granted does not foreclose denial of the variance. Freundlich v Town of Southampton, 422 NYS 2d. 215 (2nd Dept. 1975) aff'd 437 NYS 2d. A hardship is self created if constructed by the applicant with from which he/she seeks relief. 664 (1981). it is created by improvements knowledge of the restrictions Thomas v Board of Standards and Appeals, 290 N.Y. 109. In fact, the court found that the denial of a variance for a second kitchen was proper when it was completed without a building permit where the applicant originally represented that he had no intention of installing the second kitchen. Ostroff v Sacks, 407 NYS 2d. 546 (2nd Dept. 1978). Zoning requirements serve the purpose of allowing the orderly development of a community based on extensive planning and the community's needs. The power to grant variances can be misused and effectively injure property owners and the community plan. Justice Benjamin Cardozo stated this quite succinctly when he stated "There has been confided to the Board a delicate jurisdiction and one easily abused". People v ex rel. Fordham Manor Reformed Church v Walsh, supra. The courts will uphold a use variance only where the applicant can prove that unnecessary hardship will result from strict application of the zoning regulation. If there is a hardship to be suffered by this applicant, which there is not, it is self-inflicted and the community should not have to pay the applicants herein have abused the system by proceeding outside which is permitted and now wish to compound the affiant to law and order by asking this Board to condone and legitimize their actions. III. SINGLE FAMILY DISTRICT/TWO KITCHENS The Court of Appeals in New York has approved the creation of districts limited to one-family dwellings on the basis that zoning ordinances out of and are sustained by considerations of the health and welfare of the community. Baddour v Long Beach. 279 N.Y. 167 reh. den. 279 N.Y. 799, appl. dis. 60 S. Ct. 77. What constitutes single family use has been the source of difficulty but where a district is limited to single family occupancy the ordinance is violated by two-family occupancy although the second family does not use the kitchen facilities of the dwelling People ex rel Melia v Menacher, 222 N.Y.S. 2d. 550 (1961). To enforce this limitation by denying a permit to install a second kitchen is proper. Owens v Michaelis, 202 N.Y.S. 2d 554 (1960). In fact it has been held that it is not unreasonable for a Zoning Board of Appeals to determine that installation of a second kitchen will alter a single family residence and render it a two family residence where the entrances and physical arrangement of the rooms support such a conclusion. This conclusion is not altered by the fact that the persons who will occupy are related by blood Williams v Adami, 334 N.Y.S. 2d 539 (1972). The concept of establishing specific residential districts such as one, two or multiple family areas is to protect the public health, safety and welfare from infringement by industry. Wolfsohn v Burden. 241 NY 288 (1925). The value of the single family district was stated by Justice Douglas to be: "A quiet place where yards are wide, people are few, and motor vehicles restricted...It is ample to layout zones where family values, and the blessings of quiet seclusion, and clean air make the area a sanctuary for people." Belle Terre v. Boraas, 94 S. Ct. 1536 (1974) To permit this clandestine two-family to continue by granting a variance is to breach the residents sanctuary and set a precedent for future violations that are ultimately granted legitimacy by claiming hardship. IV. BUILDING DEPARTMENT INVESTIGATION PRECLUDES ISSUANCE OF A VARIANCE It has recently been reported that the Building Department of the Town of Southold is under investigation (Exhibit 11). Clearly the current matter is a case where irregularities in the Building Department are visible and require investigation. Aside from the sound basis in law noted in sections I through III above the current investigation should preclude a determination on the requested variance and should in fact mandate its denial. My clients have spoken to a representative of the Suffolk County Department of Consumers Affairs who was present at the site on June 5th who advised that the contractor's home improvement license had been suspended and he was present to attempt to determine the quality of the electrical and plumbing work as it was the departments belief that it had been performed by unlicensed tradespeople. This is but another instance of improprieties with regard to these premises. WHEREFORE, I respectfully request that this Board deny the requested relief, revoke the illegally issued Building Permit and order that the building be scaled down to comply with the Code. Respectfully submitted, DATED: July 25, 1990 Greenport, N. Y. MARIE ONGIONI Attorney for Edward and Marie Tober, Adjacent Property Owners 218 Front Street P. O. Box 562 Greenport, N. Y. 11944 (516) 477-2048 TEL.: 765-1802 Disapproved ~/c ........................ ('Suiidin~- I;~[t~;c't~;':~ ........ .APPLICATION FOR BUILDING PERMIT INSTRUCTIONS a. Tiffs application ~nust be completely filled in by typewriter or in ink find submitted to th. Bu~ sets o~ plans, accurate plo~ plan ~o scale. Fee =cco~ing to schedule. b. Plot pl~ showing location of lot ~nd o~ bulldogs on premiss, r~l~tionship t · o adjoining pmmims ~ public stme~ or areas, and giv~g a det~led description of Ihyout of property must be drawn on the diagram whi~ b ~ of ~s appli ca~on. c. ~e work cove~d by t~s apPlication may not be commenced befo~ i~uance of Bufld~g Pe~L d. Upon approval of this application, the Building Inspector will issued a BulldOg Pc~it to the app~L ~ueh peri shall be kept on the premises available for inspection throu~mut the work. e. No bulldog shall be occupied or used in whole or ~n part for a~y pu~ose whatever until a Ce~ifi~e of O~up~c. shall have been grated by ~e BulldOg Inspector. APPLICATION IS HEREBY MADE to the BulldOg Dep~ment for the Issuance of a B~idlnl Pe~lt ~munnt to Oulldfn~ Zone O~fnnnee of the Town o~ Southold, Suffolk Count~, New York, ~d other nppli~ble Regulatsons, for the construction ~F bu~d~, additions or alternUons, or fo' ' Thc apphcant agrtcs to com~v wtth nil ~--.~-=~ ....... r removal o~ demolitmn, ~ ~ d~d' - - -~...~o~e ta~vs, or~znnnees, onfldmg code, ho.staR code, and ~ns, ~d tc admit authorized ~specto~ on premiss and ~ bulldog for necess~ inspecti~~ .. . ta~gn~tug ot applicant, or ~me~[~-~oratlon) ' ' St~t~ w~er ap~llc~t ~ own.r, le~e., a~ent, ~hitect. end.er, ~neral contractor, ei.ctficl~, pl.m~r or builder. N~me of owner of premis.s .... .. ~... ~... If applicant is a corporation, si~natur~ of duly authorized officer. ..... ~~., ~ ~,~.~..o ........................ n= No ..................... , · ~~~l' ~ V. · 1~4 '-' ..... "~ .... "'"~'~.. .... .... ............ ..... ,,.. Subdivisio.. .......... Ell .... ~ .... ) ...............ca M=p No~ .,, ........... Lot .... 2. ~/11~ ~ ~t~te e~lStlng t Se and occu u ' , ' , . · p' ney of premises and intended use a.-' ='~ te ' ~ ~ ~ " ,~,~7~.,.~H ~..... ;-;~:..::; . ...,. ; .......... 3, _Nature of wo,rk (cheqk which,applicable): Ne~ 13u'ildln,, ' ' ...... ' - J ' - Kepair ...... .; . oL .... · - ..... : .... t~ooJtlon..V': ...... Alteration ...... 4 Estimate'd Cost ":"~..~.~ ' ' * (Description) F , (to be paid on filing this application) $. If dwelling, number of dwelling units ...... ~ .... Number of' dwelling units on each floor.., ' 6. :f business. COmmercial or mixed occupancy, ~ecil'y nalttl:t~ and extent of each type ol'~se 7. Oimension~.s~f~:xisting structures, if Fr. any: ont.. .' · · .... Height ~'~,~..... Numb -- · ....Rear ..... Depth..~. ......... · · .... er ot atones .. Dimensions ofi~ame structure with alterations or ad_rAtions. Front . .~..* ~ o. ~' ,~':.~ ' D.'pth..~,.J~. ............... Height ...?).~:/ ........... "~'.~ ~'__' '_:.~.: ' '. .... ~ I~'~-~..tO...' ...... 8. Dimensions of eptire new construction: Front ... ~....~., ........ Height ...'~ ~ ...... ~r.._,. ....... ... Rear ....... De .h . o lot. .......... =. Rea ' '"'" I0. DateofPurch~ ............ ' ..... Depth . ~ ..... " ................. N~me of Foyer Owner ....... ' ~ ...... I i. Zone or u~ d~t~ct in which prem~es a~ situated ............ ' .................... ' ' 12. Does pmpo~d construction ~iolate any zoning law. ordinance or regulation: 13. W~I lot ba ~gmded .. ' ............................... N~o of C ' · ... ss .................. ~hono ..... ........ ale yes, Souchold Torn Trusceep Permit m'ay be required. PLOT DIAG~M ~ate cle~y ~d db~ctly ~1 bu~d~, whcthcr existing or pmposcd. ~d. in~cace dl ~t~ ~e~ons ~rom ~mpefly fines. Give ~t~t ~ b~ck numar or d~ption according to deed. ~d show steer n~ ~ ~tO w~thcr mte~r or co.cF io~~" ' ' STATE 0 $.$ .................. being duly sworn, deposes and s~ys VA~; or haw performcd th~ s3id Wor~ 3fid to m~ a~ file this ~re true tO tim bcst of his kflowlcdgc and ~l~f; and tll3t thc / EXHIBIT 2 EXHIBIT 3 __:-'~ SURVEY OF · . PROPERTY A T .GREENPORT. TOWN OF SOUTHOLD 'SUFFOLK COUNTY, N. Y. 1000 - 43 - 04 ' 37 ' - .... Scale I" 20' Dec. 6, 1989 B/~ Y RO,40 JAN. 23, 1990 (set monuments) VE N YS LK~. NO Y'OI~ PC 89 459 EXHIBIT 3(A) ~ DF SOUTHOLD ~ ~i~._~'~ DEPARTME~T ' ~WN HALL -~ ,*'~140LD, N. Y. ~Z.,'~,.~ ~ N G PEIU~IT N~UST ~E ~.4.~--"-~-- ~N THE PRE&~IS~ UNTIL FULL THE ',~ ~HORIZED) EXHIBIT 5 VICTOR LESSA RI) PRINCIPAL BUILDING INSPECTOR ($16} 765-1802 FAX (516} 165-1823 OFFICE OF BUILDING INSPECTOR TOWN OF SOUTIIOLD Town Ilall. 53095 Main Road P.O. Box 1179 Southold, New York 11971 STOP WORK ORDER TO: ANGELA AURICNIO (OWNER, OWNERS'S AGENT OR PERSON PERFORMING WOR/() BOX 1186, Melville, N.Y. 117'47 YOU ARE NEREBY NOTIFIED TO SUSPEND ALL WORK AT: 185 INLET LANE, GREEIIPORT, N.Y. 11944 TAX MAP NUMBER 043-4-37 Pursuant to section CI1100-283 of the Code of the Town of Southold, New York you are notified to immediately suspend all work and building activities until this order has been rescinded. BASIS OF STOP WORK ORDER: 1. No foundation inspection. 2. No second survey. 3. Not being built as per plans submitted. 4. Appears to have insufficient front yard set-backs. 5. Cannot build a 2 family dwelling in a R-40 zone. CONDITIONS UNDER WtlICII ~ORK MAY BE RESUMED: 1. Submit a new survey showing all setbacks and houses within 300' same side of street. 2. i~ew plans showing all details-"Stamped',. 3. ~Eliminate 2 family dwelling. 4. Pay the new fee. Failur~ to remedy the conditions aforesaid and to comply with the applicable provisions of law may constitute an offense punishable by fine or imprisot~ent or both. ~ ' curtis W. llorton ~' -']~,'¢~-~%-Bui~ding Inspector/ Code Enforcement Officer EXHIBIT 6 BUILDING DEPARTMENT, TOWN OF SOUTHOLD ,'4outhold, New York 11971 APPEARANCE TICKET-NO: 22 Issued to: commission of the offense of: YOU ARE HEREBY directed u~ appear ut the Justice Court, Town of Southold iTown flail)5:1095 Main Road (State Route 25), Southold. New York 11971. Onthe ff~ dayof ~elyJ~] 19 ~0 atq~sa o'cockin.the ~ ',M. in connection with your alleged contrary to the provisions of Section [~gD- ,7_.-~'~ of Lhe code of the Town of Southold Dated: Issued and Subscribed by: Building Inspector, Town of Southold IF YOU FAIL TO APPEAR ON THE DATE AND TIME INDICATED. A CRIMINAL SUMMONS OR WARRANT FOR YOUR ARREST MAY BE ISSUED. EXHIBIT 7 EXHIBIT 8 SOUTHOLD TOWN ZONING BOARD OF APPEALS IN THE MATTER OF THE APPLICATION OF DOMINICK AND ANN SBLENDIDO and ANGELA AURICCHIO for a Variance. SUPPLEMENTAL MEMORANDUM IN OPPOSITION SUBMITTED BY ADJACENT PROPERTY OWNERS EDWARD AND MARIE TOBER As a result of the testimony and evidence submitted at the prior hearing held on July 25, 1990, I respectfully request that the members of the Zoning Board of Appeals consider the additional material contained herein in opposition to the Sblendido and Auricchio application. Although applicants' counsel review by this Board to the relief seeks to narrow the scope of requested in the application, the facts in the instant matter dictate otherwise. The opponents to this variance respectfully request that the Zoning Board of Appeals consider its opposition as an application to review the issuance of the applicant's Building Permit and upon such review to revoke said permit. In addition, opponents respectfully request that this Board find that the structure as constructed is a two-family house with or without the addition of a second kitchen and as such it violates the code which cannot be cured by the issuance of a variance. A. TWO FAMILY RESIDENCE As previously noted in opponents' prior memorandum submitted at the hearing on July 25, 1990, the district in which the applicants residence is located is R40 which mandates a one-family residence. I call this Board's attention to a Second Dept. case decided in 1975 Baskin v Zoninq Board of Appeals of the Town of Ramapo 367 NYS 2d. 829 wherein the court sustained a lower court decision which annulled a Zoning Board of Appeals decision to grant a variance permitting a second kitchen. While the majority of the court supported opponents position in the instant matter, it is the dissenting Justice's opinion that clearly defines the issues involved in the instant matter. Justice Shapiro believed that the variance should be granted because a difference in religious observance required that the applicant and his son and daughter- in-law, who would share the residence, have two kitchens. It is his reasoning to support his position that clearly shows the differences with the subject house in this application. Justice Shapiro noted that in the Matter of Stafford v Incorporated Villaqe of Sands Point, 102 NYS 2d 910, the test of whether a dwelling is a one or two family residence is its design. Justice Shapiro this Board. with their case there entrances and stairways. In residence has six bathrooms. indicates a two family house believed that one must consider both design and the nature of the occupancy as a two-fold test and he did not believe, although the majority did, that the case before him met that test. In stark contrast to that reasoning is the application before Two separate family units, albeit sisters, but each own separate nuclear family. Here unlike the Baskin are two heating systems, two electrical systems, two fact, this supposedly one family The design of this house clearly and the application for a second kitchen should be denied. For similar results see Matter of Williams v Adami. 334 NYS 2d 539; Owens v Mechaelis, 202 NYS 2d 554. In Mucci v Town of Eastchester, 486 NYS 2d 787 (2nd Dept. 1985) the court found that a building plan showing duplicate apartments was a two family house despite a single entrance and staircase and common utility lines. Compare these facts with the facts of the instant application and the conclusion is inescapable that the structure is a two family dwelling. REVOCATION OF BUILDING PERMIT As stated in opponents' earlier memorandum, the Building Permit was erroneously issued to applicants and as such the applicants received no vested rights from it. In addition to creating no vested rights, it is revocable because of its illegal nature. People of the State of New York v Hacker, 350 NYS 2d 67 (5th Dist. Court Suffolk County, 1973) and cases cited therein at pg. 71. In fact, an illegal building permit must be revoked if the structure permitted under such permit violates a zoning ordinance. Surburban Club of Larkfield, Inc. v. Town of Huntinaton, 28 NYS 2d 813 (Supreme Court, 1968) citing to the effect that no vested rights are acquired under an illegal permit Rosenbush v Lally, 285 NYS 636, aff'd 271 NY 282, 384. Article 16, Sec. Board of Appeals hears Colonial Beacan Oil Co. v Finn, 283 NYS 267 of the Town Law states that a Zoning and decides "appeals from and review any order, requirement, decision or determination made by an administrative official charged with the enforcement of any ordinance adopted pursuant to this article". The Southold Town zoning code Article XXVII, Section 100-271 states that this Board has the power "to hear and decide appeals from and review any order, requirement, decision or determination made by the Building Inspector". Clearly, therefore, this Board is empowered to revoke the Building Permit issued to this applicant and the court agrees that the Board possesses such authority. Matter of Village Green Center, Inc. v. Reidy, 249 NYS 2d 440 (2nd Dept. 1964); Carpenter v Olin, 250 NYS 2d 96 (3rd Dept. 1964). POSSIBLE TIDAL WETLANDS VIOLATION The Board is respectfully referred to the applicants application for a Building Permit dated March 13, 1989 in particular to Question 15 which asks the applicant if the property is located within 300 feet of a tidal wetland. The applicant responded in the negative. Oponents attach hereto a copy of the tax map (Exhibit 1) encompassing applicants property (1000/43/4/37) which clearly indicates that applicants property is approximately 270 feet from Gull Pond Inlet. While the measurements, of course, cannot be definitively determined from the tax map they indicate sufficient proximity to a Tidal Wetland to demand further inquiry. Environmental Conservation Law, Article 25, Title 4 (25-401) requires that a permit be obtained from the Department of Environmental Conservation for, among other things, the excavation and removal either directly or indirectly, of soil, .... sand .... " or the "dumping, filling, or depositing, either directly or indirectly" of the same substances or "the erection of any structures .... within or immediately adjacent to enventoried wetlands". The areas "immediately adjacent" to wetlands are regulated by 6NYCRR Part 661 and in Section 661.4(b) "adjacent area" is defined as within 300 feet landward of a wetland. While opponents do not contend that a permit from the Department of Environmental Conservation is definitively required, opponents do believe the exhibit attached hereto places the applicants response to question 15 in a "suspect" class requiring further investigation. In light of the totality of the circumstance involved in this matter since its inception, opponents believe it is necessary to scrutinize the muances of this application. In fact, the tax map clearly indicates that an application should have been made to the Department of Environmental Conservation and the burden would be on the applicant to prove otherwise to all interested agencies. Opponents hereby request that the Building Permit be revoked. application for this relief, If the Board requires a separate please notify the undersigned. DATED; Greenport, N. Y. September 21, 1990 Respectfully submitted, MARIE ONGIONI, ESQ. Attorney for Edward and Marie Tober 218 Front Street, Box 562 Greenport, New York 11944 EXHIBIT 1 , :j Southold Town Board o£Appeals MAIN ROAD-STATE ROAD 25 SOUTHOLD, L.I., N.Y, 11¢~'71 TELEPHONE (516) 765-1809 APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. ROBERT J. DOUGLASS JOSEPH H. SAWICKI TO: FROM: DATE: SUBJECT: Victor Lessard, Administrator-Building Department Board of Appeals January lg88 Interpretation of "One Dwelling Unit" Please consider this letter our interpretation of the term "one dwelling unit" as requested by your memorandum {parti- cularly with reference to the A Residential Zoning District). Any building, or portion thereof, forming a single habitable unit and containing not more than one kitchen and/or cooking facility shall be deemed a "dwelling unit" under the Southold Town Zoning Code. -. This interpretation is based on the definition as worded in Section lO0-13 of the Zoning Code, which supercedes all other definitions by state, federal, city, county or village laws. Our Code precludes more than one kitchen and/or cooking facility in a one dwelling unit, and accordingly, a plan submitted through your office which shows intent to install plumbing facilities for a second kitchen area must be denied. TOWN OF $OUTHOLD OFFICE OF BUILDING INSPECTOR P.O. BOX 728 TOWN HALL $OUTHOLD, N.Y. 11971 October 21, 1987 TO: Gerard Geohrlnger Zoning Board of A~als FROM: Victor G. Lessard~-~ Executive Admin. ~ SUBJECT: One family dwelling unit In order rto clarify the intentions of NYCRR Exec- utive Laws and the Southold Town Code, I am requesting a determination fo~ the term "one dwelling unit". The area that needs clarification is, what restrictions, if any, would be for bathrooms, kitchens, i.e. stoves or cooking facilities, etc. Bedrooms are spelled out for size, in the construction code already. Actually% what are the maximum allowable areas in a one family unit, without the possibility of it becoming a multiple Unit~ £.e. more than one family unit. Present descriptions in the Town Code refers to but does not define "one dwelling unit" in the category that I am seeking a clarification on. Attached is a copy of NYCRR Executive 606 for your study. VGL:~dv Town Supervisor Town Board Town Attorney ~ ,- Section #9- October 23, 1987 Vic6or Lessard, Building Inspector Town of Southold 53095 Main Road $outhold, New York 11971 Dear Mr. Les=ard,. Following up my latter to you of the 20th of October, 19S7, relating to two-f~mily dwellings, I would like to further amplify on my thoughts in this regard. I feel that not only should plans which indicate the presence of two kitchens thereby two dwelling units in most instances, in a single-family residence to be COnstructed in a single-f~mily Zone should be disapproved. But also, Upon inspection during the course of construction,· any attempt by the contractor or OWner to rough out plumbing or electrical service to a secondary kitchen area should be prohibited. It is my view that the zoning code of the Town of SOUthold is clear in its intent that there are to be no t~O-family homes constructed except under Very limited C~rcumstances, and then on a minimum of fOur acres after special exception approval. I feel that ~ Board of Appeals, Planni .... your Department, ~=ornoy must abide ~, ~ ~_~oar~ and ~Vself a~ Town V~gorously to prevent~ ~"' ¢~=ur intent of-the ~od and act township, two-family construction in th~ Very trul~ yours, FJY;dkw cc: To%~n Board } RANca$ j. YAKABOSKI PROPOSED OUESTIONS FOR VICTOR LESSARD. BUILDING INSPECTOR FOR SUBMISSION TO ZBA AT CONTINUATION HEARING OF APPLICATION OF SBLENDIDO AND AURICCHIO NOVEMBER 1o 1990 When building permit was originally issued did plans include a second kitchen? When building permit was originally issued did plans indicate an increase in size for the non-conforming structure. Did building department at any time note that the original structure no longer existed, a new structure was being built and that this was therefore not an "addition" as had been applied for? When building permit was originally issued did the plans indicate there would be an insufficient front yard set-back? Why was the application not referred to the ZBA at that time for variance to set-back requirement? Why was the foundation not inspected as noted on the stop work order dated 12/5/897 Does the building department always accept just a signed letter from an applicant that they will not "use" the premises being built as a two family house as sufficient grounds to alleviate that problem? If the stop work order of 6/1/90 mentions some of the same problems noted in the stop work order of 12/5/89, why was work allowed to continue from December to June? When building permit was originally issued, did plans show two heating systems, two electrical systems, two entrances, two stairways? What was square footage of original structure? What is square footage of new structure? Prepared By: MARIE ONGIONI Attorney for Challengers Edward and Marie Tober 218 Front Street P. O. Box 562 Greenport, N. Y. 11944 MARIE ONGIONI ATTORNEY AT LAW Town of Southold Zoning Board of Appeals Southold Town Hall 53095 Main Road Southold, New York 11971 FRONT STREET. GREENPORT, NEW YORK 11944 (51~) 477-2048 '!'' ~ }~ ran~ary 10, 1991 Dear Mr. Goehringer and Board Members: I appreciate the Board allowing me to respond to applicant's letter of January 7, 1991 as I realize this matter has consumed extensive time and effort by the Board and its staff. I believe the Board should consider the following in arriving at a decision in this matter: 1. The applicants have culled from the Baskin decision a few words which they attempt to utilize in support of their position. However, a careful reading of the majority decision coupled with the dissent sets forth a very clear picture of what should or should not be allowed. I ask this Board to reread my memorandum of September 21, 1990 and letter of October 22, 1990 and more importantly to read the decision in its entirety. 2. The Board's interpretation of "one dwelling unit" may have pre-dated the revision of the Zoning Code but there is n_9o legal or logical hinderance to its continued use. If the Board believes it is still valid there is no logical reason for not using it and once it is reiterated there is no legal obstacle to its continued viability. 3. The applicants have no vested rights when a building permit was illegally granted. The law is quite clear on this point. Since the applicants required a variance from the moment they began construction and added to that requirement as they proceeded, the building permit was illegally granted. Thus they acquired no vested rights in a document that was beyond the power of the Building Inspector to issue without the prior approval of this Board. The fact that these applicants now ask for relief is confirmation of the illegality of their construction. To condone such behavior is to set a precedent for future circumvention of the code by others. It is a tempting specter for the would be applicant who wants what the code does not permit to proceed under subterfuge and then claim vested rights because of the extent of their expenditure. 4. The claims that the applicants utilized portions of the old structure which in turn required the duplication of certain items (tank and boiler) because the new structures size made the original facilities inadequate is an inventive argument but it remains nonetheless inventive. This Board is not only bound by the facts presented but by the common sense that we are all endowed with and utilize to dissect inventive arguments. A mere cursory examination of all the facts should be sufficient to negate this claim. I wish at this time to thank both the Board and its staff for their patience and attention to the myriad of exhibits and arguments presented in behalf of my clients in opposition to this application. Your courtesy in this matter is appreciated as is the deliberation I know you will exercise in rendering a decision. Very truly yours, On behalf of Edward and Marie Tober cc: Philip Cardinale, Esq. MARIE ONGIONI ATTORNEY AT LAW Town of Southold Zoning Board of Appeals Southold Town Hall 53095 Main Road Southold, New York 11971 FRONT STREET, GREENPORT, NEW YORK 11944 (516) 477'2048 FAX (516) 477-8919 ........ I ~a~ua~ 9, 1991 Re: Property of Sblendido and Aurrichio Dear Mr. Goehringer and Board Members: It has come to my attention that the house plans which were part of your file were borrowed by the attorney for the applicants some time ago and thereafter were "lost" by his clients. They were only returned early this week. First, I strenuously object to the fact that an applicant involved in a major controversy which revolves around the arrangement of the rooms, etc. as they relate to whether this is or is not a two family house, was permitted to remove a major piece of evidence from the file. If the applicant wanted a copy of the plans they could have ordered them from their architect or paid the Town to duplicate them, which is the customary practice. Second, I believe that the losing of these plans by the applicants should be considered as further evidence of their duplicity and should weigh heavily in the Board's decision. The events of the past year have been nothing less than phenomenal in the changing character of the house either in its depicted form (the plans) or its espoused function. It is and remains a chameleon whose many appearances we can no longer compare because the plans originally submitted were lost, found and now refiled with the Town. At this point we have no assurances that the plans returned to your office are indeed the plans which were removed. It is therefore my request that this recent incident of subterfuge be considered as part and parcel of the history of this matter and weigh heavily against the applicants. It is but another manifestation of the disregard to applicable law. MO/jb cc: Philip Cardinale, Esq. for proper procedure and adherence MARIE ONGI~ ~,~TAR~ PU~L C, S'ate ot tL~w York -- No. 470787a, 5u~o~ CourRl~ ,~ Ter~r, Exoi~es ~ch 3~), 19......7~ BULKHEADS PILINGS ' DOCKS DECKS PERMITS ~3~r~le (~u~tructio~ ARCHITECTS & BUILDERS (516) 563-9073 NEW HOMES MOTHER/DAUGHTER EXTENSIONS DORMERS PLANS December 12, 1989 TO .' 185 Inlet Lane Greenport, N.Y. 119hh Office of building inspector Dear Sir; Persuant to our meeting in your office Argyle Gonstruotion agrees to stop all work on front ste~l~ of the above contract, until a variance has been .~~~ approved Yours Truly for Argyle Construction James B. Traynor -* N~._4707878, Suffoll~ Camt-~ ~ ' ~: ,= BOX 871 SAYVlLLE L.I. N Y. 11782 '{~: ~ ; ~ ,~{~,~'., ~,. § 100-31 SOUTHOLD CODE § 100-31 § 100-31. Use regulations. [Amended 3-14-89 by L.L. No. 3-1989] In A-C, R-80, R-120, R-200 and R-400 Districts, no building or premises shall be used and no building or part of a building shall be erected or altered which is arranged, intended or designed to be used, in whole or in part, for any uses except the following: A. Permitted uses. (1) One-family detached dwellings, not to exceed one (1) dwelling on each lot. (2) [Amended 5-23-89 by L.L. No. 8-1989] The following agricultural operations and accessory uses thereto, including irrigation, provided that there shall be no storage of manure, fertilizer or other odor- or dust- producing substance or use, except spraying and dusting to protect vegetation, within one hundred fifty (150) feet of any lot line: (a) The raising of field and garden crops, vineyard and orchard farming, the maintenance of nurseries and the seasonal sale of products grown on the premises, subject to the following special requirements: [1] All buildings for display and retail sales of agricultural and nursery products grown on the premises shall not exceed one thousand (1,000) square feet in floor area or one (1) story in height. Display of produce at a roadside farm stand shall be not less than ten (10) feet from all street and lot lines. Any roadside farm stand in excess of fifty (50) square feet in floor area shall be set back twenty (20) feet from the street line. Any stand in existence at the effective date of this chapter must, within one (1) year, comply with all of the provisions hereof. [2] All signs shall conform to the provisions of § 100-31C(9). [3] Off-street parking as required in the Parking Schedules shall be provided and shall be approved by the Planning Board. Any roadside 5 Editor's No~e: See § 100-191A for the Parking Schedule. 1003~ 7-25-89 § 100-30A.2 SOUTHOLD CODE § 100-30A.3 § 100-30A.2. Use regulations.. In an R-40 District, no building or premises shall be used and no building or part of a building shall be erected or altered which is arranged, intended or designed to be used, in whole or in part, for any uses except the followin~ A. Permitted uses: (1) Same as § 100-31A of the Agricultural-Conservation District B. Uses permitted by special exception of the Board of Appeals. The following uses are permitted as a special exception by the Board of Appeals, as hereinafter provided, and subject to site plan approval by the Planning Board: (1) Same as § 100-31B of the Agricultural-Conservation District, except that a children's recreation camp, farm ]aber camp and veterinarian's office and animal hospital are not permit'a.~l and bed-and-breakfast uses do not require site plan approval. (2) Libraries, museums or art galleries. C. Accessory uses, limited to the following: (1) Same as § 100-31C of the Agricultural-Conservation District. § 100-30A.3. Bulk, area and parking regulations~ No building or premises shall be used and no building or part thereof shall be erected or altered in the Low-Density Residential R- 40 District unless the same conforms to the requirements of the Bulk Schedule and of the Parking Schedule, s with the same force and effect as if such regulations were set forth herein in full. 8 EdSo~s Note: The Bulk Schedule is included at the end of this chapter, and the Parking Schedule is in § 19O-191A. 10052 9- 2s- 9o APPEALSBOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. ROBERT J. DOUGLASS JOSEPH H. SAWICK[ TO: FROM: DATE: SUBJECT: Southold Town Board of Appeals MAIN ROAD-STATE: ROAD 25 SnUTHOLD, L.I., N.Y. 11971 TELEPHONE (516) 765-1809 Victor Lessard, Administrator-Building Department Board of Appeals January 1988 Interpretation of "One Dwelling Unit" Please consider this letter our interpretation of the term "one dwelling unit" as requested by your memorandum (parti- cularly with reference to the A Residential Zoning District). Any building, or portion thereof, forming a single habitable unit and containing not more than one kitchen and/or cooking facility shall be deemed a "dwelling unit" under the Southold Town Zoning Code. This interpretation is based on the!definition as worded in Section lO0-13 of the Zoning Code, which supercedes all other definitions by state, federal, city, county or village laws. Our Code precludes more than one kitchen and/or cooking facility in a one dwelling unit, and accordingly, a plan submitted through your office which shows intent to install plumbing facilities for a second kitchen area must be denied. TOWN OF SOUTHOLD OFFICE OF BUILDING INSPECTOR P.O. BOX 728 TOWN HALL SOUTHOLD, N.Y. 11971 TEL. 765-1802 October 21, 1987 TO: Gerard Geohringer Zoning Board of A~als FROM: Victor C. Lessard~,~ Executive Admin. ~ SUBJECT: One family dwelling unit In order~to clarify the intentions of NYCRR Exec- utive Laws and the Southold Town Code, I am requesting a determination fo~ the term "one dwelling unit". The area that needs clarification is, what restrictions, if any, would be for bathrooms, kitchens, i.e. stoves or cooking facilities, etc. Bedrooms are spelled out for size, in the construction code already. Actually% what are the maximum allowable areas in a one family unit, without the possibility of it becoming a multiple unit, i.e. more than one family unit. Present descriptions in the Town Code refers to but does not define "one dwelling unit" in the Category that I am seeking a clarification on. Attached ia a 606 for your study. VGL: ~ dv Town Supervisor Town Board Town Attorney..- copy of NYCRR Executive Section #9- October 23, 1987 Victor Lessard, Building Inspector Town of Southold 53095 Main Road Southold, New York 11971 Dear Mr. Les=ard,. Following up my letter to you of the 20th of October, 19~7, relating to two-f~mily dwellings, I would like to further amplify on my thoughts in this regard. I feel that not only should plans which indicate the presence of two kitchens thereby two dwelling units in most instances, in a single-family residence to be constructed in a single-f~ily zone should be disapproved. But also, upon inspection during the course of construction,- any attempt by the contractor or owner to rough out plumbing or electrical service to a secondary kitchen area should be prohibited, it is my view that the zoning code of th= Town of Southold is clear in its intent that there are to be no two-family homes constructed except under very limited circumstances, and then on a m~nimum of four acres a~ter special exception approval. I'feel that your Department, the Board of Appeals, Planning Board and myself, at Town Attorney must abide by the clear intent of-the Code and act vigorously to prevent two-family construction in %he township. Very truly yours, FJY;dkw cc: Town Board FRANCIS J. YAKABOSKI FORM NO. 1 TOWN OF SOUTHOLD BUILDING DEPARTMENT TOWN HALL SOUTHOLD, N.Y. 11971 TEL.: 765-1802 Disapproved a/¢ ..................................... B~ D OF HEALTH 3 T OF. PLANS SUHVEY . ,~,:./~..~-.. :...: ..... CHECK ...a .................. SEPTIC FORM ................ NOTIFY CALL .............. 2Z'.'~'--.bO'w~- //7,,7 V (Building Inspector) APPLICATION FOR BUILDING PERMIT INSTRUCTIONS a. Tkis application must be completely filled in by typewriter or in ink and submitted to the Building Inspector, with 3 sets of plans, accurate plot plan to scale. Fee according to schedule. b. Plot plan showing location of lot and of buildin2s on premises, relationship to adjoining premises or public streets or areas, and giving a detailed description of layout of l~roperty must be drawn on the diagram which is part of this appli- cation. 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 permit shall be kept on the premises available for inspection throu~out the work. e. No building shall be occupied or used in whole or ~n part for any purpose whatever until a Certificate of Occupancy shall have been granted by the Building Inspector. APPLICATION IS HEREBY ?,lADE to the Building Department for the issuance of a Building Permit pursuant to the Building Zone Ordinance of the Town of Southold, Suffolk County, New York, and other applicable Laws, Ordinances or Regulations, for the construction of buildings, additions or alterations, or for removal or demolition, as herein described. T, ~ applicant agrc. ca to ~ --~'. .'.~, ,.o, ,~.y .~.. a!l applicable ...... .,.,- ~ 1_ ~. -.fl.n_...e., building code, hon~ing code, and regulations, and to admit authorized inspectors on premises and in building for necessary inspecti~,~~: .. (Signa/ture ot applicant, o; hame, k'~'co¥o';itWn') ' g][ (Mailin=~ address of apl~li~a~t) ' '[ .... : , State whether applicant is owner, lessee, agent, architect, engineer, general contractor, electrician, plumber or builder.' Name of owner of premises ....... ....,e.... ~ ~:... · ........................ (as on the tax roll or latest deed) If applicant is a corporation, signature of duly authorized officer. (Name and title of corporate officer) Plumber's License No ......................... Electricm s License No ....................... Other Trade's License No ...................... / ~..~ 1. Location Of land on which proposed work will be done...~...~. ~.. [~l~... :~ ........... }louse Number Street. Hamlet ...... .... ......... ............ ........... Subdivision ..................................... Filed Map N,o ....... Lot (Nanle) ........................ 2. State ex~sting nsc and occupancy of premises and intended use and occupancy of proposed construction: a.E.,'s,inguseandoccupaney "' · ' 3. Nature of work (check which applicable): New Building ' . .... Rep:ur ' · .... Addition ....~ Alteration ........ .............. Removal .............. Demolition .............. Other Work .............. 4. Estimatc'd Cost .~...~.. ~ (Dcscr/ption) $. If dwelling, number of dwelling units (to be paid on filing this application) . ' .............. Number of dwelling units on each floor .... ' If gara,'e, number of cars ........................................................... 6. If business. COmmercial or mixed occupancy, spccil'y natura and extent of each 7. D]mensmn.~s~ofbxlstmgstructures fanv'Frnnr 'O~s;~.~ .. ....? t.~ype?~Puse .......... ./ .... Hot=hr .-~'./.--r:.. .... NumberofS' ' fflrsf.-~ ...... t,tear .;/-.~...~:a .... Depth. % Dimensions of,ame st~c'tt~re x .... tones.., t :/.'72,._Z. ............... .t .... '~"~ ......... ~-,, ,_ ~3~.g2 wm atterations or add~itions· Front ~ ' ~ Rea, ~ '~"':'~ ..... ~;;sions'~of ;~[i~'; ~;(v' ;;r~s't~;t'lielgh-t ' ' ' '~'q'~'~2~.''' 't ....... .~'~um ~er of Sto~ies . . .~--././~_ ' ' '~ ......... · Ion: Croat ! ...... /' ........ 8. c,ght.... 3 ~/ ........ Number of Stories''' ~ ''~ .... Rear... ~ .~. .... Dedth' i~ ,zeos,or: Front ... l.~.4~t.. ''"*'~'/' '(~'~ ...... ' ......................... ~ . ii ....... 9. DSHiate of Purchase ~ ............. Rear ..... f,. ~.~rr../.( ........... Depth .. ~O~... ' ....... I0. ............................. N.~m. of Fermer Owaer .............. ' ..... I I. 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 o premises: 14 Name of Owner of premises .j~.L4.~_~,~ ~ Addr~[~ ~ llone No Nme of Architect .. ,'M~',~ 'Address ' ~hone No N~e of Contractor ~~.~.. ' Addres~~' ~' ' Phone No~' ~'i' '~ ~'' ' 15.Is this property, l~cated vit~i~h'~' feev~~v~'' ~'ff *If yes, Southold 'l~o,~,n Trustees Permit may be required. PLOT DIAGRAM Locate cleaxly and distinctly all buildings, whether existing or proposed, and. indicate all set-back dimensions from property lines. Give street and'block number or deschption according to deed, and show street names and indicate whether inter/or or comer lot. STATE OF N'-' ~ ' C ' Y~).RV, :OxU_NTy OF~.~'.~. ~ ...... S.S ' "'~J~ '~'~:T~0~': ................... being duly sworn, deposes: (Name of indi'/idual signing contract) he is the applicant above named. ' He is the... ~~. ~.~_~.~, . (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. SWam to before me this ............. . .....day~. .~.L ....... 1'9. · - - · ·County }lota~y P~ll¢, State of Flew Y~ · ~to. 4711511 ?1, ' ' ' ....... ~e,~!T~cfl in Suffolk C~iil~lr r-, ,, C0mmlmcn [::~:!res l~ecem~, 1990 ature of applican FOUNDATtO:; ( ls t) FOU?;DATIO[; (2nd) ROUGH FRAME & -PLUMBING INSULATION PER N. Y. STATUE ENERGY CODE FI~,~AL ADDITIONAL CO,U. ME~TS: P 077 474 774 RECEIPT FOR CERllFIED MAIL }l.~t;11 CK SBLENDIDO HUNTINGTON, ~.Y. 11743 VICTOR LESSARD PRINCIPAL BUILDING INSPECTOR (516) 765-1802 FAX (516) 765-1823 Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 OFFICE OF BUILDING INSPECTOR TOWN OF $OUTHOLD STOP WORK ORDER TO: ARGYLE CONSTRUCTION (OWNER, OWNERS'S AGENT OR PERSON PERFORMING WORK) BOX 871, Sayville, N.Y. 11782 YOU ARE HEREBY NOTIFIED TO SUSPEND ALL WORK AT: 185 INLET LANEt GREENPORTr N.Y. 11944 TAX MAP NUMBER 043-4-37 Pursuant to section CH100-283 of the Code of the Town of Southold, New York you are notified to immediately suspend all work and building activities until this order has been rescinded. BASIS OF STOP WORK ORDER: 1. No foundation inspection. 2. No second survey. 3. Not being built as per plans submitted. 4. Appears to have insufficient front yard set-backs. 5. Cannot build a 2 family dwelling in a R-40 zone. CONDITIONS UNDER WHICH WORKMAY BE RESUMRD: 1. Submit a new survey showing all setbacks and houses within 300' same side of street. 2. New plans showing all details-"Stamped". 3. Eliminate 2 family dwelling. 4. Pay the new fee. -Failure to remedy the conditions aforesaid and to comply with the applicable provisions of law may constitute an offense punishable by fine or imprisonment or both. DATED: DEC. 5, 1989 ~ Curtis'W. Hortoh ' Building Inspector/ Code Enforcement Officer TO: TOWN OF SOUTIIOLD BUILDING DEPARTMENT SOUTI-IOLD, NEW YORK. YOU ARE HEREBY NOTIFIED TO SUSPEND ALL WORK AT: // · r,,,x MA~, NUMBER O O' ,_? -.- Z-/. _ 3 .~ Pursuant to sectionC/~f/)f-J ~-~ ~,7 of the Code of th~ Town of Southold, New York you are notified to immediately' s~pend ~1 work ~d bulling acti~ties ~til this order h~ been re*cinde~ Failure to remed~ the c~nditio~ Moresaid and to compIv with the applicable pro~gio~ of ' la~ ma~ co~titute an offe~e punlzhable by fine or imprlzonmen~ or bo~h. BUILDING INSPECTOR / CODE ENFORCEMENT OFFICER VICTOR LESSARD PRINCIPAL BUILDING INSPECTOR (516) 765-1802 FAX (516) 765-1823 Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 OFFICE OF BUILDING INSPECTOR TOWN OF SOUTHOLD STOP WORK ORDER TO: ANGELA AURICHIO (OWNER, OWNERS'S AGENT OR PERSON PERFORMING WORK) BOX 1186, Melville, N.Y. 11747 YOU ARE HEREBY NOTIFIED TO SUSPEND ALL WORK AT: 185 INLET LANE~ GREENPORT~ N.Y. 11944 TAX MAP NUMBER 043-4-37 Pursuant to section CH100-283 of the Code of the Town of Southold, New York you are notified to immediately suspend all work and building activities until this order has been rescinded. BASIS OF STOP WORK ORDER: 1. 2. 3. 4. 5. CONDITIONS UNDER WHICH WORK MR%Y BE RESUMED: 1. Submit a new survey showing all setbacks 300' same side of street. 2. New plans showing all details-"Stamped". 3. Eliminate 2 family dwelling. 4. Pay the new fee. No foundation inspection. No second survey. Not being built as per plans submitted. Appears to have insufficient front yard set-backs. Cannot build a 2 family dwelling in a R-40 zone. and houses within Failure to remedy the conditions aforesaid and to comply with the applicable provisions of law may constitute an offense punishable by fine or imprisonment or both. DATED: DEC. 5, 1989 Curtis W. Horton Building Inspector/ Code Enforcement Officer VICTOR LESSARD PRI~ IEIPAL BUILDING INSPECTOR (516) 76571802 FAX (516) 765-1823 OFFICE OF BUILDING INSPECTOR TOWN OF SOUTHOLD Town Hail, 53095 Main Road P.O. Box 1179 Southold, New York 11971 TO: STOP WORK ORDER ANGELA AURI CHIO (OWNER, OWNERS'S AGENT OR PERSON PERFORMING WORK) BOX 1186, Melville, N.Y. 117'47 YOU ARE HEREBY NOTIFIED TO SUSPElqD ALL WORK AT: 185 INLET LANEr GREENPORTr N.Y. 11944 TAX MAP NUMBER 043-4-37 Pursuant to section CH100-283 of the Code of the Town of Southold, New York you are notified to immediately suspend all work and building activities until this order has been rescinded. BASIS OF STOP WORK ORDER: 1. No foundation inspection. 2. No second survey. 3. Not being built as per plans submitted. 4. Appears to have insufficient front yard set-backs. 5. Cannot build a 2 family dwelling in a R-40 zone. CONDITIONS UNDER WHICH WORK MAY BE RESUMED: 1. Submit a new survey showing all setbacks and houses within 300' same side of street. 2. New plans showing all details-"Stamped". 3. Eliminate 2 family dwelling. 4. Pay the new fee. Failure to remedy the conditions aforesaid and to comply with the applicable provisions of law may constitute an offense punishable by fine or imprisonment or both. , ~ Curtis W. Ho~ton ' ~,$~Building Inspector/ Code Enforcement Officer VICTOR LESSARD PRINCIPAL BUILDING INSPECTOR (516) 765-1802 FAX (516) 765-1823 Town Hall, 53095 Main Road P.O. Box 1179 Southold, NewYork 11971 OFFICE OF BUILDING INSPECTOR TOWN OF SOUTHOLD STOP WORK ORDER TO: ARGYLE CONSTRUCTION ( OWNER, OWNER' S AGENT OR PERSON PERFORMING WORK) BOX 871, Sayville, N.Y. 11782 YOU ARE HEREBY NOTIFIED TO SUSPEND ALL WORK AT: 185 INLET LANEr GREENPORTr N.Y. TAX MAP NUMBER 1000-043-4-37 11944 Pursuant to section CH100-283 of the Code of the Town of Southold New York you are notified to immediately suspend all work and building activities until this order has been rescinded. BASIS OF STOP WORK ORDER: 1. Construction has insufficient front yard set back. 2. Not ~ ~ -~n~ constructed as per plans submitted. 3. Plumbing installed for second kitchen. CONDITIONS WHICH WORK MAy BE RESUMED: 1. Approval from Zoning Board of Appeals for second kitchen and front yard setback. 2. O.K. from Principal Building Inspector. Failure to remedy the conditions aforesaid and to comply with the applicable provisions of law may constitute an offense punishable by fine or imprisonment or both. DATED: June 1, 1990 T~ ma~//U. Pish~r ~ui~ng Inspector UNITED STATES POSTAL SERVICE OFFICIAL BUSINESS SENDER iNSTRUCTIONS To ~t DE~ I 319B~ ~ ~ USE, $300 TO\'~!, <,~,,,:.~L~.- -~OLO PHnt Sender's name, mddreee, and ZIP Code In t~ ~pace ~low, SOUTH. TN BLD DEPT C. HORTON PENALTY ~=OR PRIVATE BOX 1179 SOUTHOLD, N.Y. 11971 () ( I BUILDING DEPARTMENT, TOWN OF SOUTHOLD Southold, New York 11971 APPEARANCE TICKET-NO: 22 Issued to: YO[! ARE IIEI~F]I~Y directed to apl)car at the Justice (:ourt, Town of Soutbtdd (Town ltall)53095Main Road (~tah, R~mte 25), S(mth.ld, New York 11971. On the ,~--~ day of at 1~. t, ~/.) o'clockinthe ~ ', M. in connection with your alleged commission of the offense of: contrary to the provisions of Section [/7~- .~'B of I~he code of the Town of Southold 1)ated: Issued and Subscribed by: Building Inspector, Town of Southold IF YOU FAIL TO APPEAR ON THE DATE AND TIME INDICATED, A CRIMINAL SUMMONS OR WARRANT FOR YOUR ARREST MAY BE ISSUED. P 077 773 =,S',: C~T FOR CERTIFIED MAIL iSee Reverse) t < 'ANGEI,A AURICHIO BOX I 18~ HELVILLE , N.Y. 11747 .25 .85 YdF x 6/4/9~ ,? .9O (516) 981-0288 774 950 087 RECEIPT FOR CERTIFIED MAIL NO INSURANCE COVERAGE PROVIDED (See Reverse) I S~°¢-l~, I. A AITR TC.T fl Slreel and No BOX 1186 IPoslage S J Cerhhed Fee PS Form 380C June 1985 NO&HOH m BUILDING DEPT. ~ss-zi~oz IBUILDING DEPT. INSPECTION [ ] FOUNDATION 1ST [ ] ROUGH PLBG. FOUNDATION 2ND [ ] INSULATION INSPECTION ] FOUNDATION 1ST [ ] ROUGH PLBG. FOUNDATION 2ND [ ] INSULATION FRAMING ,r ] FINAL [ ] FRAMING [ ] FINAL REMARKS: DATE/~ REMARKS: 765-1802 BUILDING DEPT. VICTOR LESSARD PRINCIPAL BUILDING INSPECTOR (516) 765-1802 FAX (516) 765-1823 OFFICE OF BUILDING INSPECTOR TOWN OF SOUTHOLD Town Hall. 53095 Main Road P.O. Box 1179 Southold, NewYork 11971 STOP WOP~K ORDER TO: ARG~rLE CONSTRUCTION (OWNER, OWNER'S A~ENT OR PERSON PEPdFORMING WORK) BOX 871, Sayville, N.Y. 11782 YOU ARE HEREBY NOTIFIED TO SUSPEND ALL WORK AT: 185 INLET LANEr GREENPORT, N.Y. 11944 - TAX MAP NUMBER 1000-043-4-37 Pursuant to section CH100-283 of the Code of the Town of Southold New York you are notified to immediately suspend all work and building activities until this order has been rescinded. BASIS OF STOP WORK oRDER: 1. Construction has insufficient front yard set back. 2. Not being constructed as per plans submitted. 3. Plumbing installed for second kitchen. coNDITIONS Wq{ICH WORK MAY BE RESUMED: 1. Approval from Zoning Board of Appeals for second kitchen and front yard setback. 2. O.K. from Principal Building Inspector. Failure to remedy the conditions aforesaid and to comply with the applicable provisions of law may constitute an offense punishable by fine or imprisonment or both. DATED: June 1, 1990 T~oma~//J. Fish r ~uil~ng Inspector F: MNO, 1 TOWN OF SOUTNOLD BUILDING DEPARTMENT TOWN 14ALL 8OUTHOLD, N.Y. 11971 i .TEL.: 765.1803 Received ........... ,19.. :ra;/:,.%;ind~ ,mZ;!dc_{5:dtfs;,.r~,,i,iio.; . , . : . - , ,,, ..... ~ ,, . , d. Upo:t ,1,pro, al of/his apiq'catio,, tl*e M.ild. - -: - .' · ,. . ' e. No l:.uildfng shall be occupied ,, lsc] iu w':ole or il~ e ' r ....... d~all have been granted by thc Building .. ' , ,pcctor. · APPLICATION' , ': ' - ' iS IIER,oBy M,,Diz to tile Building Pcplttp'?,l~ for t~e ~ssu~tnce or a BttildJ~Ig PcrrniI puz'suant I;ui!ding Zone Ordinance of the Town of Souihold, Sufiulk Colln~y, Nc w York, ami other applicabI¢ Laws, O~dinaac~:s ,legulations, for die construction of bniktlngs, additions or alteration,e, or fl>r removal or demolition, as herein descr5' The applicant agrees to comply with all applicable laws, or iinances b, ti d[ - - '.. ~ e Im't attthorized insnecto nremie,.~ ..a ;. ~.,,:, ,: t . ~_~l-,~l, code. housibg ,odo, and regulations (Slgn.tu:'e of applicant, or name, if a coi~'tk , 't xxing auare~s or applicant) , State whether applicant is._owner' lessee, agent, architect, engineer, genei,d coutractor, electrician, plumber or bi,: Name of owner of premises. (/~l.~.~)././././~/J R.¥.~tP//¢... ~',..~,,X'~4!'.~'./ ................... (as on the tax roll or latest deed) If applicant is a corporation, signature of duly authorized officer. (Name and title of corporate officer) Builder's License No. Plumber's License No ......................... Electrician's License No ....................... Other Trade's License No .......... 1. Location of land on which propoted work will be done ................................................. ltouse Number Street /' Hanll~t .................... County Tax Map No. 1000 Section .. /0~ · · Block ............................. Lot.. ~ ............ Subdivisiou ~q~ ~ .................. (Name) ........ Fil d Map No. ',>~ Lot . .t ~ .; ...... 2. Stne ex shng use; ~ occupancy of premises and intend,~.l use/md occuF y, 'proposed cmsiruction: a. Existil~g usc nd occupancy . ~M~rT.~., b. lith2uded use and O 'Ct~p'~nCy '/~;'~ 'I ..,¢,?l OF $oUT! LIUiLD!NG DJ &F,,~ EN TOWN HALL ~OU'i'ItOLD, N.Y. 11971 t .TEL.; 765-1802 , Examined... ~ I.~.., 19~.?. Approved . .~ .I..~,'~.., 19~.?. Permit No. Disapproved a/c ..................................... ! (Building Inspector) APPLICATION FOR BUILDING PERMIT Received ........... ,19.. , INSTRUCTIONS a. Tb;-~ ' ' ' ppbcatlon must be completely filled in by typewriter or in ink'and submitted to the Building Inspector, with ets of plah~, accurate plot plan to scale. Fee according to schedule. b. Plot plan showing location of lot and of buildings on premises, relationship to adjoining premises or public street '~r areas, and giving a detailed description of layout of property must be drawn on the diagram which is part of this appl c. The work overed by this apphcahon m;~y not be commenced before issuance of Building Permit. d. Upon approval of this application, the Building Inspector will issued a Building Permit to the applicant. Snch penn, shaR be kept on the premises available for inspection tbronghout the work. e. N° building shall be occupied or used iu whole or in part for rely purpose whatever tmtil .a Certificate of Occupanc ,hall have been granted by the Building Inspector. APPLICATION IS ttEREBY MADE to the Building Depa~¢ment for the issuance of a Building Permit pursnant to th itding Zone Ordinance of the Town of Southold, Suffolk County; NeW York, and other applicable Laws, Ordinances ¢ ' :gulations, for the construction of buqdiugs, addition~ or alteratious, or for removal or demolition, as herein describe~ ,;lc .~1 plj.can.t .a.,gr. ees to comply wlt!~ all applicable laws, ordinances, _b~ii~llug Code, housin code and r u ' t ltlrnlt auulonzeu inspectors on prennses ai;d in bt ildi ,; for nccese~rC'iT, x ,,,2)~,,,, g , eg lahons, and ($~anature o.r apphcant, or.n_a_m, etff a ¢or~t'ion~ House Number Street .............. County Tax Map No. 1000 Section ............... Blc~ck '. ............... Lot .......... (Name) ......... .... Fil d Map No. ~ Lot .: ..... 2. State existing ~ ~e and occupancy of premises and intended usefind occupancy of proposed construction: E · ' a. xlstmg use and '~paney . . ~ ~/~ . ~ '; ;iteuded use and occup;,ncy SC~UTHOI," y. BUILDING PE ~ htlT (THIS PERMIT MUST BE KEPT ON THE PREMISES UNTIL FULL COMPLETION OF THE WORK ^UTHORIZFr~) N~ 16078 Z Permission is hereby granted to: ...... ~..~.~.,. ~...~ ....~..~..~.~....~. :~ ............ '"' ............................................................... o, p,~,~i~e~ ~o~d or. a ~.~ ~ ~ ~. ' ............ .................. :.,: ....... ~....~ ................. ~ ............... County Tax Mop No. 1000 Section ....... ~..~ ...... ~: ....... ~.~.,: .... Uo, ,o ..... ~t ............ ........ ..f and appr~ by the Oui:dlng In~pcctor, 5CQLE. 4~'. I" iooo~4a THE NEW YORK BOARD OF FIRE gDat~ Octobl~" 2[e [9~7 85 JOHN ~TREET, NEW YORK. NEWYORK ~ryann Fe~er~, ~ebe D~e, ~ose & Fe~, Cu~cho~, ~.Y mex~mln~on October 5, ~981 Goodale Electrical Con~. 7355 Ma~n Road Ma[t~:u~k N.Y. 11956 Lic. 7E3E c' COPY FOR BUILDING DEPARTMENT, THIS COPY OF CERTIFICATE MUST NOT B~ Examined . !~... 19 TEL.: 765-1802, Received .......... ,19.. Approved .O..~--'[/...,o~DS,~...' .I.~.~.., 19~. ~. Pemfit N~)..q.~..~..~. '. Disapproved a[c ............. (Building Inspect0r)., ? APPLICATION FOR BUILDING PERMI' '.- ....... 19 INSTRUCTIONS ...... .' . ~.. : -~ ~ ,'~X~ '~ a. This application must be completely fiIled in by typewriter orm mk ~d ~ub~[tted to ~o' Bu~din~ Inspector, with sets af plans, accurate ~lot plan to scale Fee accodi[ g to.~chedule. .~ ~ - ~ b. Plot plan showm8 location o[ lot and of buildBg~ on;~premises, . ~: ~g t . . relat~omh~p to adjoining prem~ or public cation.°r areas, and giving a detailed description of layout of property, must be drawn on'the diagram which i~ pa~ of thi~ appli c. The work covered by this application may not be commenced ' befo~ ~ssuanc,~ o~ Budding Permit. 0. Upon M~proval o[ this applicatkm, tim guihling !n~pector will i~ued a Building Pe~it to the applicant. Such pemu shall be kept on the prmmses avaihBle fm'mspecho'" ~ throu: hour the work. e. No building shall be occupied or used in whole or in part for any pnrpose ~hatever ~tll a Ceffificate af Occupant: shall have been granted by the Bnilding Inspector. API'LICATION IS I lERF BY blADE to the lhfildh,g Dcparhncnl for the issnanee of a Building Permit pursnant to th ,quilding Zoneh,rOrdinanCelhc conslrnction°f the Townof ~ :~ ~: --of Seuthold, Suffolk County, New ,York, and other applicable ~ws, Ordinances o Regulalions, ,m.t, mt~s. addilionx or l Ilerattons, or for removal or demolition, as herein described ,he applicant agrees to comply with all applicable laws, ordinances, building c~el housing c~e, and regulations, and hnit aulhonzed iuspcctom on premises and in buildi~g for necessary inspee~iplls. :~[~ ~. ~ . . ................... (Signaiure t) f applicant, or name, ff a corporat;o~ ) ( ) IousO NUln Subdivision '. State ~exJstmg use a~ · Existing use and t :ntended use and occupancy FOUIID3. TION ( 1~ t; FOUNDATION (2nd) 2. ROUGH FRAME & FLUMBING INSULATION PER N. STATE ENERGY CODE FINAL COMMENTS: ,i,iication; Ihat ail statclnellts contai.cd ork will be performed in the yom to before me ota~ P.blic, ,. ...... the f applican Certificate Of 'Occupancy No. ZI5804A THIS CERTIFIES ~hat rite builfl m~ . ~cation of Property 0880 D ~: -' -- , ' CUTC~OGUE County Tax Map No. ]000 Section . 103 · .Block .... 0 I .... Lot ...004 Hamlet Subdlvlsio~ ............................ Fllcd ~ap No ......... Lot No .............. conforms subs[an~ially to [he Appllcation for Euildlng Pe~mlt heretofore fil~d in tl~s offic~ dated ... .. pursuant to which Building Pe~i[ No. 14359 Z datcd .. Ocli 15, ...... · - ·. %,a~ ls~ueu, and conforms to aa of the requirements ot thc applicable provls;o,s of th: law. 'a' e o.:cup~ncy for which tiffs certificate is issued is ......... Ret~ovate ex[s~]n~ ~wo Eara[].y d~ellln~ and cons~ruc~ two deck addkttons. - ............ ~.~ .... Thecertificateisi:s:<dto JAI.IES F. I~O,,AN AND 0IiiEP, S Suffolk Couitty Department of UNDERWRrYERS CERTIFi~AI'E NO ........ MARIE ONGIONI ATTORNEY AT LAW ?r,T , 218 FRONT STREET, GREENPORT. NEW YORK 11944 October 22, 1990 Town of Southo]d Zoning Board of Appeals Southold Town Hall 53095 Main Road Southold, New York 11971 Re: Property of Sblendido and Auricchio Inlet Lane - 1000-43-4-37 Duildinq Permit #017923 Z - 3/16/89 Dear Mr. Goehringer and Board Members: Pursuant copies of the on that date. to your request on September 26, 1990 I enclose cases cited in my supplemental memoranda submitted In support of the proposition that a building permit illegally granted may b~ revoked and that the recipient obtains no vested rights in such a permit I enclose: Villaqe Green Center v. Reidy, 249 N.Y.S. 2d. 440 (please note that the court specifically stated that the Zoning Board of Appeals had the authority to revoke the building permit and only invalidated the decision because of procedural defects). 2. See Baskin below to same effect as Reidy. 3. See Mucci below to same effect as Reidy. In support of the proposition that this house must be deemed a two family house and thus violates the code, I enclose: Baskin v. Zoninq Board of Appeals, 367 N.Y.S. 2d. 829, (please note that it is the dissent- ing opinion of Justice Shapero who opposes the decision to sustain the Zoning Board of Appeals decision to revoke the building permit because this is a two family house, who clearly estab- lishes that the Auricchio/Sblendido house is a two family. Also note that the Zoning Board of Appeals revocation of the building permit was sustained). Mucci v. Town of Eastchester, 486 N.Y.S. 2d. 787. (Please note that the court found that even less than is present in this matter was sufficient to establish a two family house and sustained the revocation of the building permit by the Zoning Board of Appeals. I would at this time take the opportunity to respond to Mr. Cardinale's statements on September 26, 1990 as they relate to these matters. Mr. Cardinale takes exception (at page 23 of the transcript) to my characterization of the building permit issued herein as being illegal. He clearly admits (pages 9, 11, 12, 15 and 17) that the set back requirements have been violated. Such a violation requires a variance which is why Mr. Cardinale is before this Board and the fact that a variance was required means the building permit was illegally issued. In addition, this house is clearly a two family residence and as such it violates the code further establishing the illegality of a permit issued to a two family house in a one family district. Mr. Cardinale states that he has established unnecessary hardship (page 22) and that his client is free of the claim that the hardship is self imposed (page 32). This is patently opposed to the facts since Mr. Cardinale admits that his clients knew of their violations within months from the date their building plans were drawn. Those plans clearly indicate the aforementioned violations of the code. As stated in my first brief, applicants are charged with constructive notice of the code's contents and therefore their hardship, if it exists, is self-imposed. In addition to the cases cited in the supplemental memorandum, I am also enclosing copies of some of the cases cited in my original memorandum in opposition as follows: Reichenbach v. Windward at Southampton, 364 N.Y.S. 2d. 283 (1975), aff'd 372 N.Y.S. 2d. 985 (demolition of a motel ordered where building permit issued prior to zoning amendment which invalidated such permit). Cow~er v. Monqin, 450 N.Y.S. 2d. 81 (3rd. Dept. 1982) appl. des. cert den 103 S. Ct. 712 (where a fence constructed pursuant to a permit issued in violation of a zoning ordinance was ordered removed). Rosenbush v. Keller, 285 N.Y.S. 636 (1936), aff'd. 271 N.Y. 282 (a applicant is charged with constructive knowledge of applicable zoning restrictions). Ostroff v. Sacks, 407 N.Y.S. 2d. 546 (2d. Dept 1978). (The Ct. found the Zoning Board of Appeals decision denying installation of a second kitchen valid. The majority cites the dissent of Justice Shapiro in the Baskin case. The dissent in this case clearly in- dicates what is not present in the Sblendido/Auricchio house: 1) entrance, dietary necessity and one family (that is parent and child). There is one similarity to the Sblendido/Auricchio application and that is bad faith. In conclusion, the opposition herein is not attempting to piggy-back on Mr. Cardinale's clients' application. We are merely calling to this Board's attention the contents of the file and the record which indicate that not only should the instant application be denied but that the disclosures demand revocation of the building permit. /MAR~EVONGiON~ / MO/jb cc: Edward and Marie Tober Harvey Arnoff, Town Attorney Philip Cardinale, Esq. 2i9 NEW YOt~K suPpLEMENT, 2d SERIES M. arO ~ Nadle, Nexv York City, for appellant. Lov D~hua Hurwitz, New york City, for respondent. . CGHETTA, Acting P. J., aud CHRIST, BRENNAN, HILL ~I(MO1CXNi)UM BY TttE COURT. In an acllon by a husband against his wife to recoxer moneys drau n from a j~int bank account,~ in ulrich the wife interposed, tutor oha. a "Fi fl}l" counle~ claim lo recover the value of certain Whiled States 5axings ]lomls, lhe plainliff appeals from a resettled order ot the preme (*ottl't. ~lleells County, dated October 23, 1962. which denied his m,,:ion lo dismiss such ccmnterclalm as barred by the 5talule of Limita- ~ )rder rex crsed, without costs; and IllOtlOll granted, with leax e to de- fendant, if so advised, to rcplcad such counterclaim uithin 20 days after elllrV o[ (]lC order ]ler¢Oll. In our opinion, the "Fifth" counlerclaim as pleaded sta~es a cause actl,m in conversio,: as such it is barred by the three-year Statule of' ]_imitation~ (CIq.R ~ 214, subd. 4; formerly Civ. I'rac. Act, ~ 4% subd.. 20 A.D.2d 0Bi In the Matter of VILLAGE GiZEEN CENTER, INC., Petitioner-Respondent, Daniel J. REIDY, Mayor of the Village of Ardsley et al., Appellaz, ts. l'roceeding to anntfl a detcrnllnation of tile zoning board of al)peals xoiding a building permit. The Supreme Court, Westchester County, .lv}m P. Donohoe, J., ammlled the board's determination on pr,:<edural and substantive grom~ds and remitted thc proceeding to the board for a certain limited purpose. The Supreme Court, Appellate Division. held ii,at the board's determination was invalid because of procedural de- fects, that the l~)ard had authority to make the determination, that the [~ard properly determined that the permit was invalid ~ause it allowed the construction of a building ulrich would create a violation on another building on thc same lot, and that the determination could not be reinstaled because of the procedurally defective manner in whicb it uas made. Ordcr affirmed as modified. I~II~LAGH £*P~EBN GENTEt{, ING. v. EEIDY 441 The determination ,ff zonin~ board of appeals that building permit was void was im alld because of procedural defects. ~ go~ng ~468 Z,ming bc,ard of ap[~c:ds ha,l anthority to ,hake determination that building permit xxas xoid. 8. Zoning ~70 Zeroing h~,:ud ~f al,peals properly determined :hat Imilding permit x~a~ iuvalid bce:ruse it :dl~xxcd c~mstruction of building which would create a viol:tti~m on a]~,~ll~cr building upon thc san:e 4. Zoning ~749 I)c4lfitc the .Xl~l,cll:ttc [)ixisitm's c~mehtslon that zc,ning bc, ard's dc- tern~itmtion that I,uildi,~M permit was invalid was pro?er insofar as thc merits xxcre concerned, thc dcle~min:ttion would ~,:,r l)e reinstated be- call~c ,>f the im,~cdmall5 dt~fectix c maturer in which it was made. Civil Practice Act, ~ 1283 t't ,c~I. Barry G~qhmlb, New xFt)rl-: City, for appellant. l'~:trl D. Pug~lcy. \Vhitc Plains, for respondent: Peter Blasi, New York City, o[ Before UGHISTTA, ,Xcling IL J., and KLEINFELD, BRENNAN HILL and HO['I(INS, MEMORANDUM BY TIIi5 COURT. In a proceeding under attlcle 78 of the former Civil Practice Act. to annul a determination of the Zoning Board of Appeals of the Village of Ar¢lsley, which voided a building' perm. it previously issued to the petitioner, the Village ol/icials appeal from a final order of the Supreme Court, Westchester County, entered April 22, 1963 upon the conrt's de- cision and opinion, which atmulled the Board's determination on pro- cedural and substantive grounds, and which remitted the proceeding to the Board for a certain limited purpose, to wit: to determine whether the proposed structure itself complies with the front yard requirements of the existing local zoning ordinance. Order modified as folloxvs: (a) by striking out the paragraph de- daring that the Board's determination, "dated December 12, 1962 and filed with the Village Clerk on January 16, 1963 is not'supported by any authority for the same;" and (b) by striking out the last decretal paragraph remitting the proceeding to the Board for the limited pur- pose stated. As so modified, order affirmed withont costs, and matter remitted to the Board for such further action and proceedings, not in- ~inatlon wa~ invalid becanse of I elects. ]lul we do not agree that the ~oard lacked aufl~orily ~o make the determination or that ' 1he determination was invalid ou snbstant~ve grounds.. [3] In onr opinion, the Board was authorized to make lhe delcrmi- nalion, and it properly determh~ed that the building permit was iuvalid because it allowed the construction of a t;tdldlng which would create a violation on another btdlding upon the same lot. We also believe that ';'.. the ]]oard had tlae right to find, as a fact. that the front line of said other I)uilding was on the side facing Saw Mill River Road (cf. Rollins v. ~Xrmstrong, 226 App. Div. 687, 233 N'.Y.S. 359, affd. 251 N.Y. 349, 167 N.I~. 466; Adams v. Howell, 58 Misc. 435, 108 N.X.S. 945; Iu rc Mclnernev 47 Wyo. 258, 34 P.2d 33: Rhinehart v. Leitch, 107 Conn. 4~, 140 z5. 763; Ttlrnex' x'. Shrlver, 26~ III. 164, 1~ N.E. 708; Staler ' v. Meats, 13 lll. App.2d 451, 142 N.E.2d 835; Sta~e ex tel. Gnlf fining Co. v. De France, 89 Ohio App. 1. 1~ N.l~.2d [4] Despite our conclusion that the Board s deter nination was proper insofar as the merits are concerned, we cannot reinstate the determina tion because of thc procedurally defective manner in which it was made. l~oy METS, l~espondent, v. George BECKER, Respondent. [Action No. 1.] George 1v. BECKER. Appellant, v. Roy METS, Respondent. [Action lqo. 2; ~d ~other action,]] 8nl~reme C'ourl~ ~ppellnte ~)ivision. ~eeond ])elm~lment. ;~prll 20, l~occcdmgon~ t o~totra sfer to tlcAp)ellate'Ierman appeal from an order of the Supreme Court, Suffolk Cotutty, consolidatlug three actions for trial. The Supreme Court, .hppellate Division, held that ap- )cai was properly before tile court. 5Iotion denied. Courts C=237 (3) An appeal from au order of the Supreme Court, Suffolk Coonty, consolidatiug three actions for trial was properly made to the Supreme Court, :~-ppellnte Divisiou, and such appeal did not lie to the Appellate Term of the Supreme Court. CPLR § .:701. 1961. }t BASKIN v. lNG Itl}. OF APPEALS OF RAMAI'O 829 Cite s9 38? N.Y.SAld 829 Looking ebcwhere, we see that section 1261 (subd. 14) of the Public A thont~es Law defines a transportation facility ~ "any * * omnibus * * * facility * * * used for service in the transpor- ~ ~tion nf passengers * * * as a cnmmon carrier for hire * *" The words "omnibus" and c n non carrier for hire", b~ed upon what we have seen from the Pahlic Service Law ami Transportation Law, do not include charter and school buses. In 1967, in approving the · xtensive legislatkm which created the Metropolitan Transportation Authority and strengthened the powers of local governments to aid mass transpertation, Governor Rockefeller nord that the legislation w~ directed at aneh mass transportution projcc~ as "commu~r ~ilway, rapid transit, hus line, waterway and airport improvemen~ ·nd developments" (emphasis supplied; see l~gis. Ann., p. ~8, Gover- nor's memorandum on alq)rovia cKmney s Sesmon ~ws of New York, 19~7, p. 1541). lte said nothing aleut charter and ~hool buses. What all this Imckffround recognizes is that charter and school buses really eot what we ream' to as public mass transportation. To ~nclude, as Special Term did, that school ehihlren are commuters, ~trctehinff the point. There is something essentially "private" about charter and school buses. They are a type of specialized service, much like taxicaha a.d airport lim,mainea. Th,,y d,, not stop for everyone, only by PI" i.tmeah aa it were (see Matter of Reereatien Lines v. Publle Servic. Comm. of ~late of N. Y., 7 A.D.2d 20, 17~ N.Y.S.~I 1~1, mot. fro' Iv. te app. den. 7 A.D.2d 952, 182 N.Y.S.2d 848). To · llow defcn,la,ds to,ta, ke.,,ver nnd ol?yr th ch,:trter a ,d school buses on the ground Ihat rinse m trices are r :lale~ or "incidental" to eom- ~uter service would, similarly, require oc permit defendanLq to take over and nperate everything from taxis to airliuem I do not think the ~gislature ever intended that local governments might go so far. I~ the Matler of Aharan ~ASRIN, Reslmndent, v. ZONING BOARD OF APPEAI.S OF the TOWN OF RAMAPO et al., Ap~llants. Supreme Court, Appellate Division, Second Department. May 12, 1975. Article 78 proceeding was hreught to review a determination of ~ning board of appeals which gran~d a variance permitting owner to Nstall a second kitchen in one-family residence he was constructing for himself and his son and dnughter-indaw on a plot located in an ~a zoned for one-family resMenees. The Supreme Court, Rockland 830 367 NEW YORK SUPPLEMENT, 2d SERIES County, annulled soch determination ami revoked buihting pern~ ti~e zoning board appealed. Tim Snpreme C tort, Appellate held timt judgment wouhl he affirmed. Affirmed. Shapiro,,J., filed a dissenting opinion. Zoning ~='749 Judgment of Supreme Cenrt, which annulled dctermin zoning board of appeals granting a variance permitting instnll a second kitchen in one-family residence he was for himself and bis son anti daughter-in-law on a plot area zoned for nne-family residences, and which revoked permit, was afl rmed. CPLR 7801 et seq. Kennctl~ Il. Resnik, Tewn Atty., Town ef Ramapo (Andrew I)eputy Town Atty., Town ef Banmpo, of counsel), for Greenberg & Wanderman, Spring Valley (Carl L. Wa Spring Valley, of counsel), for respondent~ Before MARTUSCELLO, Acting p. j., ami LATIIAM, CIIRIST and SIIAI'IRO, jj. MEMORANDUM BY THE COURT. In a proceeding pursuant to CPLR article 78(1) to review a nation ef the apl}ellant Zoning Board of Appeals, rendered 1973, approving an apldieation for a use variance ami (2) ~ ~v~ Imihling i)ermit issued I)y the apl)ellant lhJihling Inspector, that is from a judgment of the Sul)rcme Court, Rocklamt County.' May 31, 1974, which ammlled the said determinatien and said buihling permit. Jodgment affirmed, xvithout costs. No ol)inion. ~ MARTUSCELLO, Acting p. J., amt LATHAbl and COHA SItAPIRO, j., dissents and votes to reverse the judgment the petition, confirm the determination and reinstate the permit, with the fellowing memorandum, in which CHRIST, J curs. This court is affirming tim judgment ef Special Term, ~ hulled a determination of the respondent Zoning Board That board, after a public hearing, granted a variance to on*' Lamta, permitting him to install a second kitchen in the residence he was constructing for himself ami his sen and da, htw on a pict ho ow.ed, which wns located ie un area permit, iate l)ivisto~ rmination o~ constructin~ located in ~ ked buihllnll ,drew Stolid', ,r appellant, Wanderma~ . COIIALA~, ~w a deter~ ~d August Ilk to revoko ~r, tho ~ounty, I revoked IIALAN. J$. r' IIA~KIN v. ZONIN¢I BI}. ¢)F AI'PEAL.q OF RAMAPO 831 'one-family residences. [ helieve that the board's action shouM ~ . ~ustained aml, consequently, I dissent from the determination of this ~ At the public hearin~ heM h7 [}~e Zomng Board of Appeals on ~Lan{la'~ ~pplieatlon for a variance, the petitioner respondent appeared in person and by counsel and voiced his objection ~ the granting of [he variance. The Zoning Board ef Appeals ~anted the variance after finding that (1)differences in the de~ee of reli~ous observance ~tween thc applleant ami his son nnd danghter-in-law required that the apldicant have a kitchen separate and apart from that used by his ~n, (2) th, structure being bu,lt had a s,ngle entrance, a s,ngle boder ami only ,,,,~ utility room, (3) the staircase separating the upstairs and ~[~ ; downstairs consisted of an open staircase and (4) there w~ a single ;; mntrancc to the prmniscs. The hoard also found that the applicant had consented to a living arrangement with his son and daughter-in- law in order to permit his son to continue to attend school and had agreed to remove the second kitchen when it w~ no longer requir~ for his persomd use. Thus, the major issue Imsed by this appeal is whether the fact that a house which i9 to be occupied hy what would clearly qualify as one family under the zoning ordinance (a father and mother and their son and his wife) becomes a two-family house under that zoning ordinance merely hecause it contains two kitchens. The majority says it does. I :.' disagree. : Although the Justice at Special Term, citing Matter of Stafford v. .)r:ded Vii. of Sands Point (200 Misc. 57, 102 N.Y.S.2d 910), set ~ forth as the test of "whether a dwelling is a one-family or two-family r * ' * thc design of the house ami a finding that it was be occupied by the owner and his family", he nowhere dealt with ;~e quesiion of whether the honse under examination is '%0 t~ ~cupicd by the owner aud his family", hut predicated his finding on ~{~ conchmlou that "thc house desitin clearly indicates that a two-fam- honse is contemldated' and thnt "it is clear that there was an at.rapt here h, erect a two-family house in a one-family R-35 zone" {~ml)h:mis supplied). But, in Stnfford, upon which Special Term ~lied, the court said: "As mit0d, be expected, neither the design of the house nor the nature of its oCCUlnmcy stamiing alone controls. The combination of the design of the huuse and Hm nature of the occupancy is the ~ two-fohl test. Thc word. 'design' in ~he definition need not ~ ~ commented upon. In saying thai., I am not unmimlful of the fact : that reM~omlent leans heavily, I would say entirely, ul~n design fnr its ohjcction to petitioner's bulb{lng. I consider that comment on the word 'family' will mute than suffice. Taking respondent's objection at face value, it eonslders that the design, including two ki~hens and other possible uses for r~ms labelled in plans to 832 367 NEW YORK SUPPLEMENT, 2d SERIES the contrary, together with the presence en the premises of er's mother and sister, render petitioner's dwelling into one ased as a two-family house. * * * The using of a dwellingi living purposes by a son, his family * * * and his mother sister, in the absence of evidence to the contrary, may not be be thc setting 'up of two separate family units who are umier a single head or management for the purpose of certificate of occupancy in a one family district" (supra, 102 N.Y.S.2d p. 913). Thus, that case not only does not support Special Term but, rather, requires a ruling agaiast the petitioner respondent The occupant~ of the residential housing which is the subject of instant appeal are clearly all members of one family. The fact they will have separate kitchens arising out of the need daughter-in-law to have a kosher kitchen cannot serve to ! what is one family living in one house in shared heating, utilil entrance facilities, and without scg~*egation within the house, the open stairway bctween floors), into a two-family homo because it couhl be altered into a two-family home. Zonin naoces, which are enacted under tho police power to protect the health, welfare and morals, should not be used to bar the owner~ legal occupants of a one-family home in a one-family zone from available space to provide themselves with such luxuries as an tional sitting room, kitchen, bathroom or extra bedroom sim cause, in other hands, such facilities couhi he used for mai~ a two-family home. It is clear thut the existence of a mere, ty for future evasion or violation of law does not raise a that such violation in fact actually presently exists (tlolt States, 218 U.S. 245, 251, 31 S.Ct. 2, 54 L.Ed. 1021). There time enongh for tile petitioner respondent neighbor to take end a violation of tile zoning ordinance when aud it' it occur~; shouhl not receive the aid of thu court Lo fund off the mcr, possibility of fntore violation. Insofar as the petitioner is his conteution'is that, sioce the residence io question is so that it couhl Ire transformed into a two-family residence because It a duplication of kitchen ami other facilities, it is in fact a residence, despite tile fact that the residence will occupied by what is clearly one family. Special Term novel concept in law enforcement and struck down the of the Zoning Board of Appeals as "arbitrary, copricious and In my view, Special Term's conclusion was wholly I do not believe that the zoning ordinance wlts intended to single families residing in a one-family house from homes with more than one kitcheo, moro thon one bathroom, al living rooms and extra bedrooms, if they couhl afford IIASKIN v. NG liD. OF AI'I'EAL,~ OF RAMAPO 0833 : did so, for reasons of religious observance. Zoning ordinances are not enacted to enforce procrustean conformity on a residential area limit- ~d to one-family homes hy allowing only one kitchen to a house, but rather "to promote the puhlic safety anti welfare and to do substantial justice (Matter of Kasten v. Zoning Bd. of Appeals of Town'of Brookhaven, 47 A.D.2~I 766, 365 N.Y.S.2d 254 [2d Dept., dec. Mar. 17, 1975]) hy preventing overu:~e of homes in such areas by avoiding overcrowding. The standard, therefore, is not designed or potential use, but actual u~e. If, in fact, a large house with additional ameni- ties such as those the owner-huilder here sought to include in order to meet the deslrvs and religious needs of his wife, son and daughter-in- law is to be barred because it might, at some future t'me, ~ss,hly ~ used by later owners or occupan~ for a use which violates the existing one-family llmlta~ioe, the effect wouhl ho te visit on the present lawful nscrs nnd ~cuplers of the home anticipatory punishment for future wrongdoing by another, a concept centra~ to the b~ic princi- ples of Anglo-Saxon law. A second r~nson why the cenclusion of Special Term and of the majority h~w~ ~hould be sct aside is that both apparently fail to ~cognize that they are dealb~K w/th an effort to overt,*rn a decision 0f the Zoning Bo:~rd of Appeals. tlere, the attack is ena variance ~anted by the board in the exercise of its discretion. Finding that, although thc. ri w~re two kitchees and apparently sufficient other dwelling facilities to p~:rnfit the ewner-bui]der ami his wife te have dwelling facilith~s wi[hln the structure s(,parate from those of his son and daughter-in-law, th~ Zoning I]oard of Appeals neted that there is but a single e,h~:mce to the building, a si,gle Ig)iler ami one utility ~m for the ,',tlr, sh'ucture, and only at, open staircase separating the upstairs and downsl~drs, ne~:~tlnff, ia th~ir view, and mine tee, the sio~ that lhe structure is in fact hein~ occupied as a two-family ~use. Certainly, thc oxisteece of these fa~tors justified, if it did not ~mpel, the ex~,rcise of di~cretieu hy the appellant Zening Beard of Appeals in detornfininff that the ese was to I~e a one-family use ami the need f~r a vari:mce allowing thc use of a secoml kitchen in the house was supported by a sufficient showing of practical difficul- ly. To overturn the presuml~tion nf regularity which attaches to such i determinathm by Iho Zonin~ lioard of Appeals (Matter of Faire v. ~Kerner, 222 Apl~.Div. 289, 225 N.Y.S. 747) it is necessary for the ~mplaining party te n~gative this presumption (Matter of Revorg ~alty Co. v. Walsh, 225 App. Div. 774, affd. 251 N.Y. 516, I~ N.~. 410, mot. for Iv. to rearg, deu. 251 N.Y. 557, 168 N.B. 426). The of proof r~,sts with the party seekh~ to overturn a decision of ~e board (3 Anderson, American Law of Zoning, ~ 21.16, p. 584) and ;.~he courts, since the earliest years of zoning, have recognized that ~inances which create boards of adjustment delegate to such admin- ~trative agencies broad discretionary powers" (id., p. 585). 834 ~67 NEW YORK SUPPLEMENT, 2d SERIES This court has consistently held that, where a decision of a Board of Appeals on It matter within its jurisdiction is ratioual basis, the courts may not substitute their judgment foe, of the board (Matter nf Kropf v. Brooks, 17 A.D.2d 829. N.Y.S.2d 62, 68; see, also, Matter of Davison v. Segur, 263 N.Y.S.2d 724, 725). Here, Special Term erred when it its judgment for that of the board ami reversed the (Matter of Fort Greene Assoc. v. Murdock, 2A9 App. Div. N.Y.S. 886, affd. 273 N.Y. 506, 6 N.E.2d 426), since "[t]he before the board ;vas nf It character that afforded a basis fo~ determination at which it arrived" (Matter of Streit v. Murdocl App. l)iv. 791, 292 N.Y.S. 456). Thc Conrt o£ Appeals expr~ views in tile same fashi,n when it said that "lilt is axiomatic cnurt will not substitute its judgment for that of the board, aside unless it clearly appears to be arbitrary or contrary (Matter of Fiore v. Zoning Bd. of Appeals of Town of N.Y.2d 393, 396, 288 N.Y.S.2d 62, 64, 235 N.E.2d 121, 1~); It is noteworthy, in this connection, that tile two decisions Special Term to support its conclusion that the "house design indicates that a two-fmnily house is contemplated" and that quently, the determination of the Zoning Board nf Appeals fouml to be arbitrary, capricinus ami unrcasnnable" both elf nrta to reverse Zoning Board of Appeals' denials install a second kitchen (see Matter of Williams v. Adami, 702, 334 N.Y.S.gd 539 and Matter of Owens v. Michaelis, 107, 202 N.Y.S.2d 554). In my opinion, the action of the Zoning Board of 'rating the variance, ~;as supported by tile evidence and was' tiscretion; it wits not arbitrary, eaprlcious or unreasonabl8 nent appealed from shouhl therefore be reversed, the be dimnissed, thc hoard's determination shouhl be buihling permit Mmuhl be reinstated. q, etc., Plaintiff° v. Alice CRIblMINS, tort, Appellate Division, Second Department.' D, May 14, 1975. the Sul ~ ~,, de~rmiu :, ~ continue stay of exccutiou of ens County, ami to continue bail '}111 order of th~ ~ jJr't~llt(~ (, } ltL, A ,of MUCCI v. TOWN OF EASTCIIESTER sLation and was thorefme prohiblted hy terms of lease. 2. Landlord ami Tenant ~lgl{3) Landlord did no~ waive any objection ins rent for four mm~th~ aft,~r he became aware that suhten:tnt wa~ aplling and reef ins video ~pes on prclnlsc~ in contraven- tion of lease which permitted premises to be used solely aa gas slaten, as lease con- ~ined a s~called no weiver provision which rescued landlord's righls and remedies even if there was a failure te insist upou strict performance of any terms. Freedman, Woiahein & Samoelson, P.C, Garden City (Kieth I. Rieger, Garden City, of counsel), for appellant. Shapiro, Mortman & Schwartz, P.G., New York City {Marvin I, Schwartz, New York City, of coungelL for respondent. Before LAZER, 3.P, and GIBBONS, TItOMPSON nad NIEIIOFF, JJ. MEMORANDUM BY 'FILE CouRT. In an actim~ for a jml;~mrnt declaring a sub,heat's uae of I~aaed prmnlnr~ to he proper, plaintiff appeals from an ardor of ~red Sep~mber 2¢;, 19g4, which denied its motion for a preliminary hljnncti(m and maw judgment. Order affirmed, with costs, and ,ratter remitted W the Sopreme Court, N~ssau County, for the entry of an appropria~ judgment declaring the righLa of Om par- ties in accordance herewith. The plaintiff corporation is the assignee of a lease between ika assignor, I/ink Oil ~mpany, Inc., and defendant's fa0mr, whleh provides Omt Otc subject premises are "~ be used ami occupied only for a g~ollne s~tion". Plaintiff subsequentl~ sublet the premises to Joseph Intermor and, in January, 1D84, the auhtenanL in addition to using the premises for O~e sMe of gasoline, began using them for the sale and renal of video tapes. In February, 1984, the defendaot, wbo had inherited ownership of the leased property, '~eeame 787 aware that the subtenant was selling and renting video tapes on the premises and by a notice dated May 31, 1984, demanded tbat Stlch nsc cease. Plaintiff thereafter com- menced this action for a declaration that [I] The use clause in tile lease is re- strictive, permitting tile premises to be used solely as a gasoline station. Tile sale and rental of video tapes is not incidental to th, nsc of the premises as a gasoline statim~ m~d is therefore prohibited by the terms of the lease (Dennis & Jimmy's Food Corp. v. Milton Co., 99 A.D.2d 477, 4'/0 N.Y.S.2d 412, affd. 62 N.Y.2d 613, 476 N.Y.S.2d lit;, 464 N.E.2d 484). The affida- viks of plaintiff's three experts were insuf- ficient to create an issue of fact requiring' a trial. 121 Defendant did not waive any objee- Lion to the sale and rental of video tapes by accepting rent for four months after he became aware of such use, The lease con- talus a so-called no waiver provision which reserves the landlord's rights and remedies even if there is a failure to insist upon strict performance of any terms. Defend- ant is entitled to exercise its remedies un- der the lease (Dennis & Jimmy's Food Corp. v. Milton Co., supra). 109 A.D.2d 884 In the Matter of Joseph MUCCI, et al., Appellants, ToWN OF EASTCRE.qTER, et al., Respondents, and Louis W. Bauman, et al., lntervenors-Respondents' Supreme Court, Appellate Division, Second Department. March 25, 1985. Intended occupants of dwelling sought review of zoning board of appeal's detormi- 788 nation revokiuR building preme Court, ~/estchestelfermit' The ney, J. dismissed County, Dela. proceeding on the merits, and intemied occupants appeal. The Su- preme Court, Appelhtte D/vision held that even though strnc(ure was ~ have onl~ one main entrance, an in~erior, open S~ir- case for access t~) each floor, one heating system, and common utility lines, phms in- dicating first and m~cmni floor wouhl each con.in kitchen, master bedroom, al least one additional bedroom, balhrooms, living room, and dining room suppor{ed revoea. tion of buiMing permit on ground that St~cture was not inlendcd for use as one- family residence. Affirmed. Zoning and Plannlug ~69 Even though structure was to bare only one main entrance, an interior, open ,staircase for access to each floor, one heat- mg system, and COmmon utility Iiuea, plans indicating fi~t and secood floor would each con.in kitchen, master bedroom, at ~east one additional bedroom, hathrooms, living room, and dining room supportnd revoca- tion of building permit on ground that structure was not in{ended for use as one- family residence. Gilberg & Gdberg, Mount Vernon (David C. Gilberg, Mount Vermin, of cmmsel), for appellant. Fahey, Isaac & Neale, While P~ains (J. Henry Neale, Jr., White Plains, of counsel), for the ~wn respondenL~ and the iob~r- venors-reaponden~. Taylor, McCullough, Goldberger, Geo- ghegan & FHedman, White Plains (Char}es A. Goldberger, Whi~e Phdns, of counsel), for res~ndent j. 1)eBeuedictis & Sons Building Co~. Before MANGANO, j.p., and BROWN and LAWRENCE, jj. MEMORANDUM BY TIIE COURT. In a preceding pursuant ~ CPLR article 78 ~ review a de~iuation of the Zoning 486 NEW YORI{ SUPPLEMENT, 2d SERIES Board of Appeals of the Town of Eastches- ter which, after a hearing, revoked a build- log permit, petitioners appeal from a judff- mtmt of the Supreme Courl, Westehes~r (.t un(y, dated August 27, 1984, which dis. missed the proceeding on the merit. dndgmeut affirmed, without costs or dis- e main issue raised on this appeal is whether under the zoning ordiuance of the respondent Town of Eastchester, a dwell- ing intemled to be occupied hy petitioners as lheir residence ami designnd with dupli- t ate I~Ousekeepmg fatalities on the first and second floors, qualifies as a one-family dwelling. Petitioners Joseph and Ma~ Mucci ere the paren~ of petitioner Audrey Marut,dlo, who is the wife of petitioner Anthony Marutollo. The real property at issue is located in a one-family residence zoning district and is owned hy respondent J- DeRenedictis & Sous Building Corp. (hereinafter DeBenedictisL Petitioners en- tered into an agreement w/th DeBenedictis for the purchase of the lot ami the con- structioa thereon of a "mother-daughter,, type residence for a purchase pr/ce of $27(I,000. In July, 1983, the But/ding In- spector of the Town of Eastcheater issued a bnihb.g permit after DeBenedictis flied architeclural pla s for the proposed build~ mg sod an affidavit by the petitione~ which stated iu suba~oce that they would reside at the premises as a single family. In the affidavit, petitioners requested a oud kitchen. They also stated that they agreed to remove the second kitchea if this change in title. The plans for the residence 'indica~d that the first and second floor would both con.in the followiug: a ki~b- additional bedroom, bathrooms, a liviug room and a dining room. However, the structure had onl~ one main entrance, an In.riot, Open s~itease for access ~ each floor, one heating system, and Common util- ity lines. the issm~ 1983, lan, eel filed Board of ter (here~ building , ing perm~ was not residence inspector and consi On Sel, I~c heari~, nation re tioners a comment CPLR a~ Westche: nation. court 1983, th, complete judgmem IK, J.), determin and remi reconsid, of fact a: The cou, that tile On Al, second I mined ti after fill such : plated two Petitiont eeeding I Bas, ~ I'EOI'LE v. PASSLEY Construction commenced shortly after the issuance of lho permit. Ia August, 1983, landowners adjoiuing tile m~bject par- eel filed an appeal to Ihe respondent Zoning Board of Appeals of the Town of Eastches- ~r (hereinafter the hoard) challenging the building inspector's issuance of the build- ing permit on the ~round that the structare was not inteuded for aae as a one-family ~sidence. On August 19, 1983, a work" notice was served by the building inspec~r upon respondent DeBenedictis, and constractloa ceased. On Sep~mher 13, 1983, fei}owing a pub- lic hearing, the board rondered a de~rmi- nation revoking the building permit. Peti- tioners and respondent DeBcnediclis then CPLR article 78 in the Supreme Court, Westchestor County, to review the determi- nation. By an intermediate ord,~r of that court (ST()I,AR[~, J.), entered ()ctoi~or 1983, the petiti,mers were permitted to eomple~ the exteri~r of the hnnse. By judgment dated March 12, 1984 (STOLAR- IK, J.), the courL i.tcr olin, annulled the de~rmination dated Spptemtu,r 12, 1983, and remitted the matter to the h.ard for reconsideration and ~lle making of 5ndings of fact as required hy the zmfing or~linanee. ~ court alm~ rul.d that tho aljoining landowners had atandi.ff to appeal thp is- suance of the subject permit to tl~e board, O~at the board hml jurisdiction to hear the appeal, and that the }mar{Ps proceedings were lawfully em~ducted, On April 24, 1981, the board conduced a second puhlie hearing and again de.r- mined that the permit shmdd be revoked after finding the following: "Considering all the factual e~idenee, such aa two kitchens and the cmtem- plaid uae of tho house, it is at best, a two family house". Petitioners then instituted this second pr~ eeeding pursuant to CPI,R article 78, wbidh Affirmed. was dismissed oa the merits by the judg- ment appealed from. Bas¢d upon a review of the record, we find that the determisation of the hoard rational under tho relewmt provlsiou~ of 789 {A.n. 2 Dept. 198~) the Town of Eastchester Zoning Ordinance ami substantiated by the evidence. Peti- tioners have failed to demonstrate that the board abused its discretion, or that its deci- sion was arbitrary and capricious (Matter of Fiore v. Zoning Bal. of Appeals of Town of Southeast, 21 N.Y.2d 393, 396, 288 N.Y. ,q.2d 62, 235 N.E.2d 121; cf Matter of Raskin v. Zoning Bd. of Appeals of Town qf h'amapo, 40 N.Y.2d 942, 390 N.Y.S.2d 412, 358 N.E.2d 1037). We have reviewed petitioners' remaining contentions and find thmn to be without merit. 109 A.D.2d 897 The PEOI'LE, etc., Respondent, Donovan PASSLEY, Appellant, Supreme Court, Appellate Division, SecoDd Department. March 25, 1985. Defendant was convicted on a plea of guilly in the Supreme Court, Kings County, Owens, J., of robbery in the first degree, and he appealed. The Supreme Court, Ap- pellate Division held tbat trial court was not required to elicit a detailed set of spe- cific waivers prior to accepting a knowing and voluntary plea of guilty from the de- fendant. I. Criminal Law ~"1028 The defendant failed, as a matter of law, to preserve his claim for appellate i IUC!{ III.~NB:\CII v. %INI)WAI.I1) ,~.'1' SOlTTIIAMPTON 283 h;r:}d,endm'fr v. Nvw Y,,'k II,sp. 211 N.Y. 125, 105 N.E. 92 (1914); F'o~,al v. (]enc:;.c Ifo:p...11 A.D.2d .1~;~4, ,173,314 N.Y.S.gd 552, 559 (4th 1,~snick, 19 N.Ym2d 5'.)0, 27g NmY.S.2d 237, 221 N.E.gd 739 (1967); Cox v. Slretton, 77 Mi:~c g,1 lr~5. :]52 N.Y.S.2d 8~1.1 (197,1); Contra, Brnse v. Ihq{g~mn', 78 Mi:~c.2,1 999, '.:~/.* N.Y.};.Zd 207 (1974); Terry v. Albany hh~di~::d CenLc'r, 78 Misc.2d t1):~7,, :~59 N.Y.S.2d ~5 (1974). '['he distinction bctwcim ;ts:;:tult and negli~rcnt malpractice, and the :qqn'opriatc ni:ututc ~1' limit~dim~s in thcs~: situations, is so subLIc as 13] But }rare ~xe do not (h'M with sm'~rcry or really with the physhtian ev~m lmmchin)~ th*~ l,aticnt. Wi: dcm with n case of u physician advisin[ a lmticnt h) lake a pill {,rally, without warning her of the dangers, a })rrach of a professional dnty. This seems to me rnnch closer to lr:tditi(mal v(m('(g,~s of malln'md.i{~c than of ass:mit. Accordini~ly I tmhl thai thc orm year statu~c of limltatimm apl)fica- bio to assault docs not hat thc seventh caus(~ (ff notion, and the defense is str[ck(m. ,q0 Ml~x~d 10;Il Charh'~ II. ICICIIENiL'~CII ami V,:rlla Reichenbach, I'hdntiffs, v. WINI}WAI(I) Al' SOUTIIAblI'I'(iN. lh,femla.(- ~ ~ I, Sl*~:{:ial Term, Suff.lk (%unty~ · bm. 8, 1975. ,notv). Thc Sul,r,'m,~ (lorn't, l~con l). I~ttzc,', .1., Imhl that eXl)(mdiLurcs, nnt "substantial" in relation to tota~ estimated cost of motel project of $600,000; thm~ Imihlinlr I,ormil for motel ,lid Ilot surviw~ ,'ezonin~r under the traditional vested rlghLs rule, and that buihling inspector's successive ~rants of use variances contrary to state or local law did 284 31;I NEW 'fORK SUPPLI,;MENT, 2(! ,qLIHI.S not consl, itule l)u;ds hw eS/Olq,,I prechalluff dpnmtilion er moLel con- strocted :t~tcr such grant~, where thc grants dhl not result from a rcasunahlc, albeit erroneous, interpretation (ff ordinance, hut solely body, Injunction to issue pen(titlg applicalion to zontn~ board of al)pc:ds for relM'. 1. Zoning ~-~3!)1 ]hlihliug UlSl)e(.tor's inLerlWetaLion (if pluns as heing For mole] per]nil for construction for motel in zone in which motels ;vere permiLted use was riel ilh'g:d on theory r) l' oru~in;t] invalidity. 2. Statutes ~219(2) 'In case of doubt or ambiguity iu meaning of aw l)ractical constroction thut has be(,n g;ven to it by those (:hupg(,(I with duty of its enfi)rccmen~ takes on ahn~,st the force (if juiliciul iotcrpretation 3, Municipal Corporations Building lmrmiL was not rendered inwdi¢2 nuder ordinance provM- lng for antomatic expiration of permit if actual construction IS not commencc(I within 90 days or extcnsiun el)rained, where the work was commenced within such peried even though the work was suspended 4. Zoning ¢=376, 468 Under vested rights rule, issuance of building pcrndt alone does not confer any rights which survive a zuning chauge, permit ,s revoked hy change if no constructiun has b~2en commenced or liabili- ties incurred ami expenditures made after zoning amendment has become effective will not defeat it. 5. Zoning ~='465 Vested right to complete nonconforming huihtlng matures when substantial work is pcrfnrmed and obligations are assumed in good- faith reliance on permit legally issued 6. Zoning ,~::~465 Under the vested rights rule. there is no right to rely upon invulid huihling permit. 7. Zoning '~='376 % In determining whether, ' " · · ' ' - - under vested r,ghts rule, build,ag permitqa ,~ for motel survived rezoning precluding motels, expenditures on which ~,,~' owner could rely were limited to those made before the effective date ~ of rezoning and expenditures thereaf'~er were irrelevant. ',, f 285 ,.,- permit J'?.Xl)ell(liltlr,'s, '":,", I,,'l'.rt rezoui~ ? r.!.Judinl,' moteN, in a]nomlt m.h,l project of :ll(;0(}.,~(}0; ]lUS. building .. rmit for motel iJil riel IlL I'bd Ol)pel Equihtbh' (,StOlq.'l, when as:;ertcd al!ainsl :l mumeilmlity in con- nc,ct)ira with u:~c (,f I;u~d. fi.'L],~es on whethcr it would be inequitable to ;tliew g(IV~rlllttCllt le repudiate its l.'[or conduct in view uf delllOll- sir:iLeal c}lam:c of losition for worse on l,art oF landowner, II ('onstitulional Law c-'~93(11 Doctrine of w~stcd r~ghts, Wilt!Il asserted against a inunicipality, relates tu wheLhcl~ owner has ncq.ired real property rights which e:mnot be cxtiny, uished under Fmtrtccnth _kmclldmeul due lU'O¢OSS clause by govermnental regulations ie view of substantial investment nnll In'ep.'tr~ttilm of ~ropert,y for a subsequently prohibited use. U.S.G. A,Con,~t. Amend. 14 12. Zoning ¢=7~2 Buihling inspector's successive grallLS 0[' use Variances contrary tx) state or local I:lw did not c(msLitnte basis for an estoppel which would preclude order for demolition of motel constructcd after such grank% mlcrpretation of ordinance })uL solely from an egregious usurl)atiou uf powers o£ anottmr governmental body. Tuwn Law § 267. 13. Zoning Good-faith nil)anco upon invalid buihling permit can be con- sidered hy beard of apl)eals on application for a varmnee, where the expenditures are a factor in determination of tmneeessary hardship. 14..~nl~g' ~ 781 ;'~'- :L~downers who demonstrated tha~ value and enjoyment of their ~en d minisled by virtue of construCtmn'of~mo~l m such eonstru,':t~on had standing to bring stat to enjoin}lurther construction. :164 NEW YORK ~UI'IqA,;51ENT, zd HERIES 15. Zoning c~7~2 .. Property owners were m~t I)rechuled by laches from instituting actions to enjoin defcmlant's coasD'uction of mole], although construc- tion was recomnmm'ed in June and nctiou was uoL initiated until Octoher, where tlu're was (.w,ry h.lwatlo, that phdntiUs acted with ]RXHtlIIt~ dNcernible ami, hereto inslih~tin~ ac/bm iu ()ctoher, pluintirfs ~'ir~t s..ghL in July and Aelumt Io iaduc4, town {o uuforce on]inanec anl] did succeed hi ohlalnhig a'StOll order ill ~ulfleluber. Scheinberg, Wolf, Laldmm, Dcl'etris & Ih'uzansky, Riverhcud, £or lflaintif f~. Wasserman, ChiniCz, Geffner ~ Green, Wesfln.'y, for defondnnt. LEON I). LAZI']I~, To what degree has Nexv York's highly restrictive vested rights doctrine fallen victim to recent appclhtte detc'rmi~mtions which al)Iffy principles of equitable estoppel to zoning litigation? 'Phc answer is a rcq unite to the determinaLion of lhe issues raised aL the trial of this action in which certaiu SOtltJlltlnjJloll t..Ol.,rty owners seek not only the enjoin(hw of furLher c(.:struction or ;t imrtially (.Omldeted mot(:] but its demolition nnd remowtJ. 't'he defendunt partnership has expended in excess of ~;148~111(I fro' cmmtruction of the motel and contends that its rights to complete the two fully enclosed structures are beyond the reach of newly enacted prohibitm'y town legislatien. The essential facts follow.' On April 18th, 1970, while its property was zoned E Business District in which motels were a permitted use, one 6f defendant's predecessors in title, Land ;md lk~troleum Corp. ("Land"), was issued building permit by the building inspector of the Town of Southampton for the construction of a forty-unit motel. After installing footings and foundations in May or 1970, Laml suspemled all further work. April or 1972, &}file contemplating purchase of the property, one of defemhmt's partners inquired of the building inspector whether thc 1970 permit was still vulid ami subsisting. De:;l~ite the buihting inspector's affirmative answer, the Suuthampton t.wn board enacted a new zoning ordinance on May 2, 1972 phteing thc property in the I~0 Residence District, a classification which excluded motel uses. Nonetheless, on May 9, 1972 the defendant's em'pm'ate nmninee en- terod into Il conlract wilh l,aud's sue<.ossor for tho imrclmse of tile g. Sa8 acres or real property aL u price of $70,(}110, reserving the right of cancellation shouhl it ascertain that the building permit was no longer valid. One of the partners testified that he was then aware that changes in the zoning ordinance were under consideration and he revisited the building inspector to make fm'ther imtuiry, The building inspector again assured him that the permit wus not affected by the REICHENBACII v. WINDWARD AT SOUTllAMIVFON 2S7 new ordinance. On May 15, 1972, defendant submitted to thc bulbling inspector modified building plans which increased the number of motel units from 40 to 52, thc floor area from 14,000 square feet to 20,~8 and the total length uf the two buildings from 277 feet to 393 feet. Although thc new ordinance became dffective on May 21, 1972, it was not until June that the modified phtm; were approved. Title was conveyed to the defendant on June 14th, 1972 and construction the motel was promptly resumed. In Jely, the buflding iqspeetor approved another modificatiun of the plans further incrcasin~ thc size of the proposed Imihlings. Construction coetieucd until Se)tembcr 11 1972 when it was halted in response to a :;t.np order issued ltv thc building inspector as a result (ff cemlflaints to the town board by '~laintiffs and othccs. By that time the deftmdaots hud expended .~1:1g,296 for the erection or thc two structures which now exist (m thc premises.. When tim town refused to institute suit against thc defend- ant to enjoin further construction, this action was instituicd by the plaintiffs in Oetohev of 1~72. [1, 2] Plaintiffs' three-pronged attack upoo the legality of defend- ant's buikting permit relies on theories or original invalidity, quenL abamtonment, ami revocation by rczoning. Thc first contcntlon is without merit. The building inspector's intccpretatiun or Land's plans (as well as those or two other projects) as constituting merci and not apartment units is neither irrational nor unreasonable, although its correctness is not free from douhU It is a cavdlnal in'incilflC statutory c. onstcuction that in case ef doubt or ambiguity in meaning of a law the practical construction that has been givcu by those charged with thc duty of its enforcement takes on ahnost the fo~e of judicial interpretation (Lezette r. Bd. of Ed., tludson City N.Y.2d ~2, 360 N.Y.S.2d 869, 319 N.E.2d 189; see also uoit Teachers Ass'n v. ltelsby, 35 N.Y.2d 46, 358 N.Y] · · ,- ,) S.2d ~0, 815 N.g.2d 775; ltoward v. Wyman, 28 N.Y.2d 43d, N.Y.S.2d 8~, 271 N.~.2d 5~), he abandonment argument likewise Fails For it is based npon onstru~tien in Ma~ el 1970. Article XVIII, subd. ~2 Oe th~flgT0 ordinance provided for automatic expiration of a permit if actual construction w~ not commenced within ninety clays or an :,extension ob~ined but it% undisputed that the work was commenced f~within the statutory pcriml. If. as claimed, the l)urposc of thc statute :~&s to mandate continuity in as well as commencement of construc- during any fixed time period such a reqnirmncnt couhl have been the ordinance (Gulf Oil Corp. v. Vogel, 50 N.J.Supcr. 32,1, 1,12 The real issue rot determination is whether thc permit survived the 1972 rczoning and the events which rollewed it. ~ording to the defendant tho boihling permit stu'vived the 1972 ".' rezonlng under both thc ta,aditiomtl vested rig'ht:~ rule and ;t balance o~ equities concept which it claims flows frotn thc holding in 361 NEW '~'~1{1'~ SUI'Iq,I';I~II,;NT, 2d SI'~I,;S I,,,l'r.k I,'.,'~,~d Ilill. C,, ,. v. (hllvin. ,10 A.I).21 211. :l:l,q N.Y.,q.2d 932, aff'd '.12: N.Y.2d 796, 3,15 N.V.S.2d fi47. ggB N.l'k2d 68~, em't. den. 414 U.S. 10tl4, 94 S.~t. ~1~0. 118 I..l,;d.gd ~10. [44] Under traditional analysis ~he issuance of a building permi~ (Sibareo Stations, Inc. v. Town Board of Vestal, ~ N.Y.2d 900, 801 N.Y.S.2d 637, 249 N.E.2d 498) and indeed the permit itself is revoked by the change i1' ,lo consLruetion has been commenced or liabilities incurred (l~ice v. Van Vranken. 225 App. Div. 179, 232 N.Y.S. 506, aff'd 255 N.Y. 541, 175 N.I,]. 304). Expenditures mude after a zoning Gardens, lin'. v. Barker, 2g2 App. Div. 1069, 126 N.Y.S.2d ~0; I¢ice v. Van Vranken, supra: l)owney v. Incorporated Village of Ardsley, Bup., 15~ N.Y.S,2d [95. aff'd 11 A.l).2d 66~L 15R N.Y.S.2d 806. Wheat- hind v. Ess. Standard Oil Go,, g Misc.2d 784, 15U N.Y.S.2d 130; ,19 A.[,.ILIhl, p. qS). A vested right to complete a nonconforming Imihlinl( matures wlmn sulmLantial work is performed and obligations arc m:sumed iu good faith relium'e on a permit legally issued (Bibareo Stations, Inc. v. Town Board of Vestal. supra; Ortenberg v. Bales. App. Div. 87, 229 N.Y.S. 550. aff'd 250 N.Y. 598. 166 N.E. 889). Basle lo t.raditlmml vested rights jurisI~rudenee is the ~ene~ that there is no right Lo reli:mcc Ilpoll an i,valid buihting permit (Jayne [~}states, Inc. v. lktynor, 22 N.Y.2d 41q. 293 N.Y.S.2d 75, 239 N.~].2d 713; B. Constr. Corp. v. Board of Appeals of Vii. of Amityville, 809 N.Y. 780, 1~ N.l~.2d 423; City of Buffalo v. lloadway Transit Co, 808 N.Y. 453. 101 N.1,;.2d 96; Cortn&l Ilomes Inc. v. Misiakiewiez, 45 A.D.2d 1008. :158 N.Y.S.2d 211; Bogart v. Woodburn. 40 A.D.~I 888, 337 N.Y.S.2d 135; Sm'os v. Board of Appeals, Village of SauthampLon, 50 Mi~e.~ 205, 269 N.Y.R.2d 796. aff'd 27 A.D.2d 705, 277 N.Y.fi.~ 821; Cohmial Be:won Oil Co. v. Finn 2,15 App. Div. 459, 283 N,Y.S. 884;' l~ollins v. Armstrong, 226 App. I)iv. 687. 238 N.Y,S. 359, aff'd ~51 N.Y. 349, 167 N.E. ,166; PaffnotCa v. Robcrt~ Sup., 101 N.Y.S.2d 836; lnzerilli v. Pitney, Sup., I~l) N.Y.S.2d 129). [7-9[ Application of the traditional rule to the instant facts limits the expenditures upon which defendant may rely to those made by I,and in 1970; defendaut's own expenditures made after the effective (late el' the 1972 or(lin:race utc irrelevunt. Land's 1970 construction c(~st~ of $3150 for footing and foundation work and $3345 for plans and surw:ya (1o ll()L meet the substantiality test under thc rule (see An(iff;ir A~soci:ttes,.htc. v. IMard o[ Zoning Appeals. 80 A.D.2d 072. 291 N.Y.S.2d 991) which rc(luires Lhat the expo(roes must not only be sul)st:tntial in and o~ themselves (see I)eoplc v. Miller. 304 N.Y. 105. 106 NA'i.2d 34; l~ocz;t~ek v Zoning Board o~ Al)peals. 2~ A.D.2d 556. 270 N.Y.S.2d 980) but must be substantial in relation to the total cost of the i)rojeet (see Tnwn o? Lh)yd v Kart Wheelers I~aceway, (nc,, A.D.2d 1015, 283 N.Y.S.2d 75B: Glcnel l{calty Cnrp. v. Worthington~-4 ,k.D.~d" '> "- ' N Y.2d ~21 16'7 N Y S ...... dflltq Da~slt:r. S ., lY~5 N Y.$.2i 975 which 922NYS.2 52~;; cf.' ' 'v. Als ~,lnc. v.( r~m,~ ,SUl., lli:IN h'25.2d T(}6. FF'd ~,L Ai,p.l)iv. lOl~. 1.11 N.Y.S.2d 51(1, npl~. dNm. 1 N.5...I liNC}. 150 N.Y.k~.2d (;Ii;. 1:/3 apt)roving b~lh H~c m~)diflc;ttion of l lans u ~ ~}tich thc permit was th(' size ;md h~(.ndf'it.d thc usc- of thc buihli~ ;ss constituted thc grant ~)f It variittLc(: (:;~,' ('l.o~:<ro;t(Is l~t.ct-t.itiit)ll x [~l'oz. ,1 N Y.2 39. 172 (Town Law ~ ~ ) a~d the tov'n hoard ,.,,.ctitm 5-50 ;;UI.01 tff the illSpeckof wile lacks Lhe l)owt:l' ~O gl'ltlll it .enters no vested rights upon the l)r'Ol)t~rlY o~rll{~t' (l(allellhach v l~oard or Standards and Appeals, 2~,1 N.Y. :H, 8 N.I,L2d ,t 7, Mart'u:, v. Mitlll/tro~l¢'ck, 2~:/ N.Y. ' = ' ~' ' 85~;; Chatsworth 7End St. (~-~ ~. v I,'ote~q 29 A.l).2 1 ~20, 28 N.1 285 N.Y.S.2d 426; lq'ench v. IncOrporated Vilhm-e of North tlaven. 1 A.D.gd 7Sa, 1.iS N.Y.S.2d 151; Van Aukcn v. Kimmcy, 141 Misc. li7. 252 N.Y.S. :H3), and the right to continue ,- nonconforming usc does not include thc right to exLeml or enlarge it in tl~e absence variance (Clmudh'c v. (~m'bct. L, 27,1 AIq).l)iv. 1073, ~t; N.Y.S.2d 646: Towne v. Sht.rk,257 :kpp.l~iv. 9~3, 13 N.Y.~.'2d IS;I,a[f'd 281 N.h. 23 N.I,.21 18; Van Auken v. Kimmcy, sul It no~v appears that New York's traditional vested rights rule is state of transiti.n and that s.lne of.thc vt,r~crithlc :ttltl/ol'ikies ~:tsic to it may not. h:,vc surviv~'d tho holdings in I,ofr:tk l,'orcst tlills (, ~' · v. Galvin, supra, and Jim Davis l)cw,lopment ('or ,. v. Town Board of thc Town of lh'o~dih:tvcn, N.Y.I,.J., Marcl ? I JlA. p. g0. col. lq. :tff'd ~.l).2d ~05, ,,.H~ N.$ .,~...I "~' In L~,frah. Iht inninlilT and ils apartment project which had become a prohibited use under ;t New York City zoning amendment. Tho extensious were granted under scct~on 11.-,121 of the New York City 1960 Zoning Restdution which empowers the Board of Standards and Appeals (the "Board"} to grant · :~l;t NEW YOlH{ :,4UI'IqA,3MI,~NT, ~tlbHLatltl,'d commilmcnls fin' c,m::tructimt ~vero llo~ nntde until Lhe period or the seventh cxtcn:d,m, ~t[Ior which the Beard denied the owner'~ al)plica- Lion ['or an eighth (m the ~U'oulld th:tL L}le rcquisiLe degree of construe- Lion had not hp<m cOtnl)lelcd. In reversinll the Board and directing is:4u:ttwe of the eighth exLcnsion, Lhe AI)pelh~e DDision abjured reliance upon rcs .imlicata bu~ greunded its holding upon the combined ell'cots (ff the carllcr extensions (nil of which had I)ecn challenged and judicially sustained) and the exl)enditures and commitments which had been made bascd upon them. That thc completion of thc requi- site work under the zonin~ r(~sohition had not taken place is al)Imrent from the failure of thc Alq,elktto Division to base its hohling upon ~;u~]l t~olnpl~:tlon ~tlld [l'otll cxamimttion nf thc al)pelhtte record. In rindinp,' t,hnt th~ owm, s rights Lo the permiL hnd vested, the court (J('cJart'(J LJt;tL vesLe(J r ~' t "SillllS tlJ) It ju(lieild (lekornlillakion tJlltt the facts (ff thc case ren(k:r it inequitable that the State impede the individual frum taking certain action " (40 A.D.2d at 218, :~:~8 N.Y.S.2d at 9:{9) ;tn(J that to ignure cm~:;i(l(wing those facts "would blind our eyes to the equities and rights upon which l,el'rak might justifiably del)end in dc:ding witl thc I)rope ry. (,10 A.D.2d at 217--218, 338 N.Y.S.2d at ( J J38). In his dissent h'om the Lefrak affirmaoee, Judge Jasen ef the Court uf Appeals Concluded that the Appellate Division had engaged in thc balancing of cquilics Lo achieve its result. The accuracy of ~ndge Jasen's insight was qu,iekly underscored by thc Second Det)art- ment's unanimous affirmance of the holding in Jim Davis Develop- merit Corp. v. Town Board of the Town of Brookhaven; supra, a case i~ which iL is quite aplmrent tirol ti~e equities, were bahmeed to achieve the result attaim~d. In 3ira Davis Det'elolmmnt Corp., the original building permits for Ihe construction of two-family houses were issued in 1968 at thc same time that the zoning ,rdinanee was amended to prohibit the use. Nevertheless, the building inspecLor issued three successive renewals of Lhcse permits under a savings clause which provided for commeoce- mt.nl, of wo~'k within Ihvee months and completion within one year. Actually, no work xxns commenced by the owner until late 1971 but thcucaftcr $150,000 was expended before the permits were revoked by (he town hoard. Tho rcvocaklolls wore in turn annoJJed by Special l,:l' t on Ihe ground that Lhe o;vner had vested its rights b~ proceed- ing on thc basis of ;t ' ~; still tble albeit erroneous" interpretation by tl~c building; inspector who it couhl not be said acted with eompletb lack of semblance of authority. Although the unanimous affirmanee was withont opinion, it cited LcD'ak as its authority, While7 the Lel'ralf and dim Davis Deuelopnient Corp. holdin~ appear t°5:~under-, mine traditional dogma concerning reliance ulmn inval d permit; ]Ri,,It'.~;?',IiA! I] v. "/I}~1}\,' ~]~,1) ,\'1.' ',-;~)1 111 ~,MpT{)'4 pr,qmrty (Lefrak, ,10 A.l).2d :ti 217 218, 338 N.Y.S.2d aL 9;/8 939 'Thc obvious hmcllsf,mr: of LcD'ak ami Jim I):lt,i.s l)(,vchqnzlenL (Jorp. owner who was thc]'cf,.'e doomed to an inevil:tble failure under the ir~tdiliona] vested ri/(]Ji; rule. blxamination of thc r:tliona c of each A{)l,licakion of lhe I'rhwil)h,>; of IC, iuiL;tl~h~ l,;stop)cl & Vesi(.d l[ie'hts Tinting I)islmtcs, 1971 lh'i~;m I,aw Annual 631. Vt:sLed rights is . t'OHXl il utionid d,,ctrin~' (~ ~,~, ?;;dh:cf & Wcinsit:,' v. Mc(lohh*icli, 295 N.Y ItV. L 6g N.E.2d 5{Iq; l'coph: v. Milhq', Stlpl'a] v, qlllt~ tim doctrim o~' cqui/:tble estoppel is pr,'mnim,nlly thu cl'caltll'O ~f , luity (3 Pomcro3 . A 'i'rc;ttisc on I';,luily .hu'isprmlencc, 5th l, hl. ~ S()2~ Thc doctrine of (Chm'ch v. Church, 5S Mi:','.2d 753, 290 N.Y.$.2d 716: Al~plication Cohen, 269 Apl~.Div. 256, 55 N.Y.S.2d 337; 16 C.J.S. Constitutional Imw 5 216) which involves thai "fuml:tmental fairness" which is cs:,cntial t.o the vm'y cmmcpt of justice (Kinsulht v. United States, ILS. 2a4, 80 S.Ct. 297, 4 L.l,;d.2d 268; l'eople v. Leyra. 302 N.Y. 353.98 N.l';.2d 553) and emb{~dics ti~e dil'fcring rules o~ "fair pIay" which through the years have hecmne associ;~ted wit different types proceedings (Itannah v. I,arche, ;163 U.S. 420, ~u S.Ct. 1502. 4 L.gd.2d 13(17).. Equltabh' eshqqwl is ab;o p,'roundcd on cm~si,lcrations of "fair- m";~;" (sec Whit,, v. l,a Duc & Fitclh hw,, :~0;I N.Y. 122, 100 N.l,;.2d 167; l[othschihl v. 'l'iLle Guarantee & Trust Co.. 204 N.Y, 458, 97 N.I,L 879; l{obinson v. City of New York, 24 A.D.2d 260. 265 N.Y.S.2d 566; Adchnan v. Applcfieht, 22 Misc.2d 95, 203 N.Y.S.2d 602) hut there has always beell tt difference in thc man,mr in whicil "fairness" is mined ureter the two doctrines, l;;stoppel, when asserted against a :ll;I NEW '",oI;l'k SUI'I' , lENT. 2 rclale ~o whe[h.r thc owner has acquired real property rights which cannot be extinguizhed hy gm'crnmental regulation. Those who rely the WOl'SC~ (3 I'mm.'oy, A 'l're:ttis~ on Equity Jurist~rudenee, 501 inv.:dnl~,nl in i.'.p:.'ali.l~-I' I.'Ol.'rty for' a sul~s(!qt.'nt, ly prohilfit(~d tl:;e (sec (2. I.% l~.icc v. Van Vrankcn, supra). While courts often c.,f.~(~ the two l.'imSiH¢~, using the tcrminok~gy intcrchangcably, the ils powers derivcq from tim dt::d,'e to avoid thc unpleasant conse- qtl(~llC(:~; t}l;l~ sm.~ (,stolq.q c,.,hl promote (lleel.er, supra). Thc alrcngth of Lhc }~;tl'sht~r vcslcd rlgd~ts doctrine is ils d(~l)i~lldellco on rchttiv,Hy fixed crik.rla while thc more flcxildc eatoppcl doctrine is subject Lo the criticis~n that the g~cater thc magnitude of the change of positio'n, the less the color of authority required for the governmen- t;ti act relied Ul)On. Tim maj.[ity .~ .im'isdlctiott~; }l;Ivt~ mlal)ted the i)rinciples o~ esLol)pel Co :c.ninl~' :tB~] ltl;ttly }lltvt~ cwHvcd a theory of "zollillg estoppel," as a ~yntht>~}~ o[ the two h'aditimml approaches, under which'a local govcrnm¢,nt hits mmic such :t substantial change in his position or inct.')'~,d :tach cxhmsive .I)li~:tLh)ns ;m(l CXlmO:~cs that i~ wouhl he in('quil:dde m.l .nj.st t. d(,str.y the rig'hts which he ostensibly had acqui)'(.l (Il.etc., supra). New York, however, has traditionally ad- Jtt~t'{,{l lo IJl~, (~Oll(.t,j)L of i~vcrllmental inlmunity Lo estopl)i~l on Om J'un.~ion (l~,t,mium Bond Cort}or/tLion v. City of Long Beach, 2dB App. l)iv. 75~;, 291. N.Y.S. 8:1~) a municipality cannoL be estopped/to ((lillil:tnd v. l,hlc()ht2AIliancc lktnk & Trust Co., 145 Misc. 827, 2fi1 N.Y.S. 82~;, m.d. on other ~rds. 239 Apl).Div. 08, 2¢1 N.Y.S. 779, aff'd 2~;,1 N.Y. 517, 191 N.E. 543). Whus, i; has traditionally been held in this ~tatc th;d, :t municil)ality cannot l)e cStOl)l)Cd by ~he unauthorized or wr()ngftd itcls of its officers or agents (City of Yonkers v. l~eng- w.ys, Inc., :~04 N.Y. 499, 10~) N.E.2d 5~7; Zieglcr v. Gi[y of New York, 15G Misc. G21, 2N1 N.Y.S, 4(;2, :tff'(I 248 Al)l).l)iv. 873, 291 N.Y.S. 401, aN"d 253 Aiq).l)iv. 7(;4, ;}00 N.Y.S. 1152; I)eol)lC cx tel. Sweet v. Board of 8.pervis(.'s, 101 App. l)iv. 327, 91 N.Y.S. 948; Russell v. Messina, Sup., 1~8 N.Y.S.2d :~94; Wylcr v. Eckert, Sup., 73 N.Y.S.2d 78~; S; B. (;ltrlti}'e Corl)oragion v. Murdock, 185 Misc. D5, 55 N.Y.S.2d 45B), or ~he failure of its (>ffic. ials to cnG)rte the law (Village of North Pelham v; Ohlig-er, 21(; Ai)p.l')iv. 728, 21.4 N.Y.8. 253, aff'd 245 N.Y. fi~3, 157 N.~. 871). -~ : ~ ' C:orflrat'y to Mr..bl:~ch'e I)ouL'lat,' .hscrv;t~hnl thaL where Lhcrc Decisis, in 8ih Ann. ll,mjamin N. Car&,zo Lcctm'c 22), the transi- llon in New York l:~w h,,r;thhM hy l~cFr:th xx;t>; ;t],FIIpL. ()lily ])IiI)OW V. Ih~ss, 25,1 APl~.l)ic. TOG, 3 N.5 .S.~ I k;412 (191;;.4) and X%qtrd ;. i. t~ of New ,d} ?dlsc.','M 197 N.5 ,~.,d 61, M'Fd A.D.Ed 911, 197 Rochelle, '> 122, ' ' ~'" 9 N }.,~. ,I 1, , m~i. for Iv. to ;ipp. dim. 7 N.~..:,I 711. 199 N.Y.N.2d Lion of equitable ezbqqml iu zoning litigation. But l)ubot~s ration- ale is reCrihutiml for p:ovcrnmental deception, not change of position, and while thm'e is ch;m~c of position irt ;l;td, there is certainly an e[enmnL (ff deceplion in the conduct of the l'lannin~ (,o t nib- sion there in~.lwM. More reccllily, Lite (kraft of Appeals with- ,ut cit, in~ I)ubow) has hchl i[i;tL where a nmnicil~al agency errone- ously adotds a mor, torium ordinance and thcrcl)y unlawfully ln'C- ,,'cnLa a ]amloww>r from avqult'hul' vesh,d rip, his Lhe ltgctlCy iS cstop-- I I k n v. IiaralzhcuT,d'f ii1 N.Y.2 ! ,~zl, o, Z N.xi.S., 1 ,170, 313 N.E.2d 770, afl ~ .'W A !).2d ~:LO, 35l N.Y.f;.2d 1.1l). ]hese Ncx~ Yerk ".;,, off,~r little in thc w;ty (*)f f',l d t 10c. as to tim t.~4Oi)l)Cl (,t. tkd limit.s ,ff the emcrp, ing rtdc. F(w direction in that regard it i~; necessary to I()ok h) the eXl)erience ,,1' tim neighboring jm'is(lic- Lion }}f New Jer,ey where z()ning eStOl)l,('l has a hmger history (sec e. g., Tremarco (,) . v. Garzio, 32 N.J..IDS, lgl A.2d ~ll; Bonsall v. ' ~,4_ A.2d 410, certif, den. Township o~ Mendham, 116 N.J.guper. 337, "'~ 59 N.J. oZL 2~1 A.~M .,M). In New Jersey, ;m estoppel may he asserted al~aiu:4t a ~mficil,dity when a imhlic official acklng within the SCOl)e of his duty makes an m'roneous but debatable determination. and the l,'Ol)criy O%VIICI' ill good fftiLh rches tH)on it, but there can lie m) c. stOl)pel where Chore is m) aut}m)'izakion for the action taken (llill v. Board of Adjustment of Bot. of EatonLown, 122 N.J.gul)er. 15B, 209 A.2(I 737). Ti,m, there can he m) estopl)el in r(liance Ul))l a buihling permit issued for ash,' g'e l)uihling i, an A residence area (Km'0wski v. Board of Adjustment of City of Bayonne, 11 N.J.gul)er. 483, 78 A.gd 42~) or for the exlcl~sion of It nonconforming use where no variance ires been ol)tained and there is thus no semi)lance of either compliance with or authorization in the ordinance (Weber v. Picretti, 72 N.J.Su- , I)er. 184, 178 A.2d 92, aff'd 77 N.J.Sul)cr. 423, 186 A.2d 702). Il21 In the instant c;tse, the s[iucCSSlV(~ gTanLs or usc variances I)y 0m huihli)q~ hl:qmctor co ltrary to state or local law CltllllO~ constitute thc basis .for :m estopl)el. They did n<)t result from a reasonable albeit et'ronco s' intcrl)retation -f thc ordinance but solely from an egregious umlt'Itath)n of the powers of anolher govi,rltlllt,ltlld I)ody. Had the defendant's exl)endiLurcs been made for construction in . accordance with the orighml,phms, it might bc argued on the basis of l,ch'ak and ,Jim Dr*vis llc~clotm~ent ( orl · ti t it had ::t right to rely on NEW 'f ORI~ work had v,,~l.d lh,~ pm'mit. There wa~ no ril(hl.,howover, to rely upon /he u[tm-ly void nlqm~val:< All houl~h Ihm'e is hm'e Illl "TI.,re can lmn. 'w'~h,l ril~hls' mnlm' a void lmrlni[. To holO ollmrwise wmdd bct. put a lmmdum nn dishonesty of eiLy officials char~.l wil.}~ the duty of issuing' such pcrmiLs and wouhl open the w:~y I'm' v.nnivance and frnu,I. The will of Ibc 61Tieial wnuht then I)c sul,~;lilutcd I'm' the Inandatc 4w the rest*'icti.n of the legislative hchl fro' n:tul(ht," (Oslnm'sky v. Newark, 10g N.J.l~]q. 160, 13~ A. 91 l) "1 Iai l)cslfil.e its inabilil, y Io establish an equit:tblc estoppel in this fnrum, the dtffemlant should not be precluded from seeking relief from the t.wn which is m,t a party to this action and whose zoning Im:u'd {,f al)i~cnls may chonse to exercise its discrctioa to grant relief from l}~e consequences of thc bulhling inspeetol s errors. Geed faith r~li:mce up{m an invalid Imrmlt can be considered by a board of npl,c:,ls on an alqfliealion fnr a variance (Corl.odd Homes Inc. v. , I,~(.{ .,, lllc. v. Raynor, supra; Badish v. Mi:;idd,~v. icz, :nq~r:t; .lasnc "' ' ' O'l~eg'an, < '~ '~ "' o~., ,1~ N.Y.S.gd (, 2, er. Midgctt v. Schermerhorn, ~ ) A.I).~. / 572, 2~;2 N.Y.S.2d 269) where the expenditures are a factor in lJlc dvterminatJnn of unn{.cc?s'u'y hardship (Ullian v. Town Bal. of Tnv:n of ltcmpstead, G8 Mise.2d 393,326 N.Y.S.2d 606, arr'd as A.D.~ 8~1, 330 N.X.S.21 779). On such an application, the entke issue of nolace (see Rosenbush v. Kelh'r, 2~7 App. I)iv. 748, 280 N.Y.S. 636, arr'd 271 N.Y.23~,' '~ 2 N.l,.2i', l ~;59) may umlergo a scrutiny it has nnt received here because the result was otherwise arrived at. 114,151 The other dele,scs raised by the defendant are without mm'il.. The iflnin[ifrs have demonstrated that the value and enjoy- mcnt ,ff their property have been dimiuished by virtue of defendant's com~tructim~ (cf. Marcus v. Inc~.,rporated Village of Spring Valley~ ~ A.I).21 lo21, 2t~r~ N.Y.S.21 9g5) and therefore they have standing to bring this s,it {Daunl v. Meade, 35 A.D.2d 598, ala N.Y.S.2d 625). q hc allegat.'o that plaintiffs are guilty of laches because construction Was rccomnn~ncod i~l June but this action was not initiated 'until ()clolmr has riel I)cen.snstaim~d by the proof. The plaintiffs were not bouml to enjoin in adwmce the contemplated changes in the use 0f d ,157 ~1 tnt s prnpcriy nr forever lose their rights (Marcus v. Vilhtge of mamaroncek, suI.'a) and thole is every indication that they acted with eXl,~ditinn m~ce the constru,~tion was started and the la,out of the units botanic discernible (.,c~"'~ City of Lansing v, Dawley, ~7 Mit}9 :194, 225 N.W. 500). t urth,rmote, before instituting the action in 71?,Dll,;It MAN Lo enforce Lira or(limm('e (Mm'tis v. llorou~d~ of lI;d~:(lon, 2.1 N..I.Supt,r 171, 93 A,2d 7~I; s{.c al.;,, M:tzzm'a v. Town o1' l'itl>;for, I, 3.1 A.l).Ed 90, 310 N.Y.S.gd 81;5) aml tl.,y did succeed in ,,l,tuininlr the September 1 lib stop )m relief })c g'r:ml(.d by tirol ))(>;tJ'(I plainLiffs may al)l)ly (>n not. icc for final jmtgnmuL f~,r ~.}., Fttil r(.li.f reqtmslud in thc complaint. The 80 MJsc.2d 824 I)onaM Z1MMERMAN, PlainHff, v. Archil):dd 1L MIII~.RA¥ et a|., I)('f(unlant s. S.pr(~mc (3om'L, SI)c(:iM Term, Albany Cmmty. ,lan, 10, 1975. Court of Claims judge assigned to the Supreme Court to prcsMc over cases g,'owin~v ,).t of thu (mmrgency ({;mg(:rous ({rug contr~)l l)rOg)'am I,ro.;~ht a('Lim] t,) ('oml)t'l Commissi(mcr (,f thc I)ivi~fion of Criminal ,Jusl~ce, ~4Utt,o Ad,.inlstrutive Jud~c, and State Bu(lgct ])i- rector to I[t)l)or~io)l ~l))l{is for /hr(.t~ I,ersonal assistants to be assigned to his chaml.'rs. The S.i)reme C(mrt, Albany Cotltlty, llarold I(orcman, J., held t.h:,l, tim jt.lg'c did not h;tvo st;m(tinl~ to the plan for admi~fistraJi{m (,f Lhe nareotlcs paris of the Supreme Court; and (hat thc statuto lmrsua))t to which the plan was formulat- ed and l)rOV(.d hy Ih. :uhnhfisl)-:tlixc board o[ Dismissed. I. Constitutional I.aw ~42(2), ,tC)(I) Constitutionali|y of state statute can only I)c tesle(I l)y one l)Crsonally al~g')'icvcll I.ht!r~,l)y, lind I.h(.n only if ,k't('rmilmtlon of .tg-icv- anee requires deter~nination .f constitutimmlity. iL Iff · is, 9 for 2,1 BIEMOI(ANI)UM DECISIONS 985 I (;harh.s RI']I('III.;NI;AUII et ~1., Itesi~mdent~, v. WINDWARDAT ~OIVFIIAMI~I'ON, a co-parlnershlp, eic., Apl~qlant. Supreme Cotrrt, Alq~ellate l)ivisioa, Secoud Department. June ~3, 1975. ~V;tssm'man, Chinitz, (;effner & Green, Westbury, ~lwin L. Wolf, Wc~4hury, of c(mnsel), for apl~llant,' Scheinberg, Wolf, Lap- ham, l)cPciri. & Pruzansky, Riv~wheml (Richard E. I)ePetris, River- head, ,ff cmm~wl), for respondents. Interlocutory judgment of thc Supreme Court. Suffolk County, dated February 13, 1975, affirmed, 80 Miac.2d 10:H, :~;~ N.Y.S.2d ~3. with cos~, upon the opinion of Mr. Jtmticc {,AZF]R. gAMIIEI, RAIIIN. Acting P. J., aud MARq_USCLLI,O, CIIR. IST, MUNI)ICR and SIIAI'IRO, JJ., concur. 2 Rhoda MICNIN, I'lainliff, v. William MENIN, Appellant, Commis- sloner of Ftmmce of the County of Westchester, l~s~ndent. In IIw Mailer of Su~m SCIIMID'F, Ap~llant. In the Mailer of Fram'hie IIIgLTON, Ap~llant. Supr,'mc ('.,,urt, Appellate Divisioo, Secoml l)epartmeut. June ~, 1975. 1,m'y. (furman, (;oldbcrg & Kaplan, New York City (Abigail l'css,m. Br¢~oklyn. of counsel), fro' alq~llanka. Tin'e, orders of tl~e StIIH'I'IIH' (tiHll'{, ~V,,stch,,ster County (one in each of the a~)ve-entiUe,I, c:ls,,a), onlor¢,d S,pt,quhor 2G, 19'14, affirmed, 79 Misc.2d ~5, 359 N.Y.S.2d 721, without c,,sLa. I,ATIIAM and (;IIRIST, JJ., w~te to affirm on the authority of M:ltt~'r ,£ NIndq;', :~6 N.Y.2d 43A, .~t~D N.Y.EL2~I 87, 330 N.l!k2~l 53 (dec. May I, 1975). with wlfich they agree. SAS1UI,I, ]~.ABIN, Acting P. J., ami IlOPKINS and SHAPiI~.O, JJ., concur ,m cmmtralnt ,,f Matt(,r of Smiley (au/wa). In the Maiter of Mnrilyn [~ COW(~I~B, Appellant, Charl~ M(INt;IN el aL, (Mnslliuling the ZoninR Bonr~ of Appeals nf the '[o~n of Ni~kayuna, Ne~. York, Respondents. Thh'd Oel~:l r [ irl(~fl f' April 22, 19~2. ])roeeeding was Jl)!;titutcd under Al'ti- cie ?8 to annul a det¢'r)Jlhlalion or the town zoning I~)ar(I of nl)p¢,als. Thc Supreme Cuurt, Si)eelsI Term, Schenecta~ y County, Ceftin, J., entered judement disn)issi.~ plieatlon, and owner al)i~.al~d' The preme ~urt, Alq~I)at,, II'vision, hehi (1) apical t)~ neiR)d~)r ,f owner to whom uutil demand I)~ eci~hl)o~ for rcvoeali,m was re~eetod with some formality nnd final- ity ami, when made willfin 30 days of thut peals that fences for which Owner sought a bui[ding ~rmit Were "accessory structure" and, hence, could not he I)('rnHlted on ))roi). AffirmS. I. ZoninR and i)launluR ~SM Appeal by nelghhor of owner to whom home ~wn ~an~d a permit to construct two fends on i)~)l~rty was not required until demand hy neighhor for ~vocaHou wa~ rejec~d ' w~th some formality ami final- ity and, when made within 30 days of that 81 rejection, waa not untimely under general rules governing zoning appeals. 2. Zoning and P[annlng Determination of town zoning board of a[)la~nls t/mt fenc~ fur which uwner sougl~t a huilding l~it were "accel;sony strue- tones" and, hence, couhl not I~ ~rmit~d resi(ler)fial lot and owner already had two he d~tt~rl~yd given definition of "aeees~ry str :ctures' in ~wn r~uing ordinance turea 120 squa~ feet or leto in a~a. 3. Zunlng and Planning An iavulid Imrmit vests no rights in ~,travcnti,m ufa zoning ordinan~ in the l~ou obtaining that permit. 4. Zoning and Planning ~762 Town was not estopl~d from enforcing its zoning or, iinan~ and, hence, from invali- dating ng:dnst building I~rmit obtained violatioe of zoning ontinance notwithsMnd. lng reliance of owner on I~rmit.. John P. lant. MaeArthur, Albany, for apl~l Paul L. Ryan, Town Atty., Town of Nis- kayuna, Schcmwtady, for respondenkq. Before MAHONEY, p. j., and SWELL NEY, CASEY, MIKOLL ami LEVINE, MEMORANDUM DECISION. Apical from u .judgment of the Supreme Court at E ~ecia{ Term, entered D~,em~r 9, 1980 h~ Schen(<Mdy ~unty, which, Mia, d~sm{sscd l~titioner's application, in a P~e~Hng pumuant to CPLR artk:le 78, annul a determination of the Zoning Board of Appeals uf the Town of Niskayun~ On June 8, 19~, petitioner obtnin~ huiMing ls~rm{t allowing her to construct two fences on her P~rty in the ToWn of Niakayuna. ~nstruetlon ~ of the fen~a commenced in Oc~r, 19~. A~neigh~r, of ~tltioner m~s~: a complaint ~n- 82 450 NEW YORK SIIPPI,EMENT, 2d SERIES cerning Ibc fences with the Town Board the Town of Niskaynna on November 20, 1979 ami was t, hl to attend a meeting ihe Town of Niskaylma Planning Board and Z~min~ ('ommissJ.n on December 3, 1979. lie ~ttendcd that meeLing and wm~ tohl that he eeuht not oidMn the relief he soughL before the planning board. Consequently, on Deeemher 6, 1929, the neighhor filed an appeal with the tuning board of alq~als challenkdng the issuance of the baihiing permit b) petitioner. The board reserved decision nn the 8ppea[ hat ordered ~tition- fences wilhin 30 days. In February, 19~0, the Town of Niskayuna commenced an tion ngabmi i~titioner seekiug the renloval of the berbed wire. AL a meeting of the board held on February ~, 19~, it was decided that the fences were accessory *trucLures; that petitioner already had ~ceessory struetores oa her property; ami that the fences were constructed in viola- tion of the iown zoning erdinanee whid~ residentiM lot The buihli~g [~rmit was therefl~re ruled invalid and petitioner was ordered to remove the fences. Thi~ article 78 preceding was then commenc~J ~nnulment of the J~mrd's determination. Special Term dismissed the enmplMnt of the Town of Niskayuna ns moot, dismissed i~ti- tioner's application, ami ordered, that the fences be removed by I~titioner. This [I] Petithmer maintains that the appeal by hey nelghJmr lo the zoning [~ard of within thirty (30) days of the ~etion nf the ~dministralive official appealed from" (General Governing Rules, Zoning Board of Appeals of the Town of Niskayunn, ~ 5.1.2). In situatioes such as the present one, how- ~ permiL i~sued to another, an ~pl~[ sh,mhl not I~ reqnired ontil his denmml for revoca- ~nd fimdlty (Mattdr of Pansa v. I)amiam~, 14 N.Y.2d 856, ~1 N.Y.S.2d ~, ~ N.E.2d 6~). Applying a liberal construction to the npplicable rule in the instanL ease as the court did m Pansa and considering the cir- elude that the appeal was timely. [2] Section 5.7.11 nf article V of the Town of Niskayuna Zoning Ordinance per- dential lot. Petitioner d(~,s not dispnte that at the time she olmdued the buihling pe~it she had two accessory structor~ on her propegy. She (h~s arum, however, that thc board incorrectly deter,nincd that the regard it is to he ,,oted that the construc- tion given an ordinance hy a zoning ~ard shouhl be uphehl if not irralional or unrea- sonable (MaUer of Delles v. G~ot~r, 55 "detached accessory buildin~m or other structures one hundred and twenty (120) square feet or less in area" (Town of Nis- kayuna Zoning Ordbmnce, art. II). Fences are by defiaition inch,led as structures (M.). Sc~tion 5.7.1.2 B ut article V of the ordi- structure other than femurs, shall t~e located within five (5) feet of the side or rear lot lines" (emphasis a(hled}. Upon considera- tion of these pertinent provisions of the zoning ordinance, we are of the (q)inion that the board's determination Ihat fends are hie nnd, therefore, shouhl .or Lc distur~d. [3,4] Petitioner also contends that the town shouhl be estopped from invalidating the buihling permit she obtained due to her reliance on the permit in omstructing the: fences. We disagree. An invalid Imrmit vests no rights in contraventk~n of a zoning ordinance in the ia~rson nhtaining that mit (see Matter ,f II ~ G (}mstr. ~rp. Board of Appeals of Vii. of Amityville, 8~ N.Y. 730, 1~ N.E.2d 4~q; Rollios ~. Arm- strong, ~5 App.1)iv. 752, Z]4 N.Y.S. 36, afflL ~1 N.Y. 349, 167 N.E. 466). A~rd- ingly, the town was not estopped from en- forcing itu zoning onlinmtcu under the present circumstances (see Amie~on, N.Y. Zoning Law and Practice [2d ed.], ~ 6.~, pp. 178-181). We have ~nsidered petition- WA.qlI, v. IIF, ALTY III'~AI,EII~II P'Co unpe~u~ive. Thc ' . ~cr, 8aft & ~ow~ner, ~ew York firmed. 3udgmcnt nlUSt I.~ al= C~Cy (Paul D. Powsner, New York C/ty~ of Judgment affirmcd, wiU~ont eosb~. 87 ^.D.2d 931 Frank WASIL et al., llespondenta, REALTy DEALEIIsIIIp COMpANy, a Partne~hlp Consis(i.~ of Arlene Reiss et al. APpellanls, et al., Defendants. SUpreme (~urt, ~Ppollnte Division, Third Deparlm.nl. prcme Court, Br. omo ('.mil., l"isehcr, j., t , ,tl~q-y Jadgmont , ',l,l~lfaTe l)ivi~i . h.hl IIm[ the purchase et the grmdr)r~' properly IW lhe ~nolee. affirmed. Eleelrlcily ~='9(1) Operative clause of instrument grant- ing ea*ement, When read with recital clause, ~an~i ~mperary casement to s~ll and main~in utility liues which was to become un~ndltional cha,e Open gran~e's pur- er ~an~' P~lmrty. I. Defendants ~drews have not uPpea~ed In tile ne/ion and no 8fflrmallve relief Is sought against them. cO.nsel), for apPellants. , Kramer, Waes & Mcgvoy Plinghamton (Donald W. Kmmer, Ringhamton, of COUn- sel), for respondenl~. t~efore MAHoNEy, p, j., nod Ni~y, KANt, ~A~Ey and MIKOLL, ~EMORANDUM DECISION. Apical f~m that part of an order of the SUpreme (~ourt ~t Special Term, entered Seplemfer 2, 1981 in Br~me ~ounty, which denied defendant l~alty Deale~hip ~mpa. ny's motioa ~ dismi~ the Second c~use of action set forth in plaintiffs' ~mplaint. ~lty Dealemhlp Company (~alty), Imrtne~hip c~ nsisting of Arlene l~iss, Mar- vm M. Rei,s, IJo~a A.'Relss and Rober~ Mil]er, owns Omme~ml property in John. son City, New York, which adjoins prol~rty OWned by Plaintiffs Frank and Catherine Wm~il and &fie Im~N Ant on, ar Andrews I lt~ ' ) Id Vic~ria · :mLy S predecessor in tillo. PlxdnlJffs I lo l'u~lmse their While lhis ¢out.net sas staling a Sl~elfically mi Septem~ 14 ...J~l M-R~tl Re en~emen~ ~ install utility lines on their pro ~ertr subject to the ~ntraet of pOrehn..~. O. May 19, 1980, N-R-fl sold its mi joining pr.p.rty ~ Really. Sin~ N R I1, prior ~ the ,ale to Realty, had excnvnlod on its hind ami made other alleration~ · nll'g~'dly, affectlng the InStal "UPlmrt rot plaintiffs' pro~rty and, rut. ther, Md soM the premis~ without fi~t. purcbmsing plaintiffs' pro~rty, plaintiffs, W~sll COmmenced an action agalmt Realty. seeking damages for injury ~ their ty caused by ~alty~ mainNnanee of the improveNen~, on t ~e pu~has~ pro~rty nnd, i~ a sOoond caNse o~ action, for declara. tory ~lief nnlliq, ing the casein g~ond that its grant w~ ., ?t on tbs , ~nmtlon~ u~n, 6.2(i 285 NEW YORK 8UPPLi~1[EN'£ ten t~ust agrcement will bc cx6sed aud tlmt part in accord with the dominant purpose will be rctaiucd. That rule I follow here in so far as it applies to the period of mi~ority. ~ut bcyoud that pdri~l tim h-ust must be strk:tly COllStl'tlcd frum tile language of t e i strtunent ilsclf. Ccutral Union Trust Co. of New York v, Trimble, 255 N.Y. 88, 174 N.E. 72, The purl~sc of the trust after x inor ty was not ior the advantage of the beneficiary, but to nmke acmm~.ulations for ' the benefit of thc donor, to ~ paid to him at ,thd cud of thc term. The beneficial~ was not del~ndent on the .trust income for main-' tcnance, as is stated in thc submission, It was suggested on the ar~- mc,t Ihat lifts trust wits set ut> for sonic ulterior or fraudulen} pur- pose. Nothing of that ldnd appears ia the record. I thlnk;~e ~r~ limiting ouF decision solely to lhe questions submitte& CARSWELL, J., concurs with DAVIS, J. ILOSIqNBUSII v. KELt,ER (~onnnlssfoner of tluilding. - 8uprvnle U.nrt, Appellate Divisioa, Second Doj.)~kt'bltlen5, Feb. ~, 1936. : 1. Antomobiles ~395 Aplflk'ant for permit to construct filling station had construe- tire ~otice of cha~ ge ia zoning rcguhtth'm whereby plot wa$ in busi- xmas use district, instead of unrestricted use area. 2. A~,Lomobilca C=-395 False roi t cscm;ttiou by applicant for permit to construct filliug station that plot was in unrestricted use area,' eve'u if inuocent/author- izod rcvocatiou of pm mit by commissioner of building., ., 3. ~unicipal corpora~ons ~621 .... Legality o[ buihling construction is to be determined by zoningS,' statute at time omstruction is begun rather than by.?rmit under which work is puq)ortcd to be done. Issuance o [ permit for construclion of filling station could not nullify statutory provision which made plot whcwcon filling,station be acqulrcd by pm'mit owner iu rcliam:c on such illcgal pcrmlt, where owner was c.har~gcd with ndicc of illcgalily. ': l:'rocccding in the mall er of thc al;plicadon of Eva Rosenbush for a percml)tory mandamus order against Fr:mk C. Keller, Commis- si0ncr of Building, Borough of Queens. From orders granting the 'mot~o~x and canceling the revocation by the Commissioner of a per- 'init Ihcrdr)~ore i:;sucd, thc C, mmfissioncr appeals. Reversed, and m~tion denied. Argued before LAZANSKY, P, J., and ilAGARTY, CARS- WELL, DAVIS, and ~DEL, JJ. Edmtmd L. Palmierl, of New York City (Paul Wendels, Corp. Counsel aml Paxton Blair, botlt of New York City, on the brief), for aplmllimt. ' Samuel l~lumer, o[ New York City, for respondent. ' PER CU~RIAM. ,., [1-4] Order gratding' l>cti[ioncr's Ji~oti,u* for n. pcrcnlptory man- danms order c~m,:elh~K dm revocation by thc ommlissioncr of build- in~r of the 1)(u-ou~,,h of ~lleCllS o[ ;t permit lhcrdo[ore issued by him for thc c~nsU'ucli~m of a g:tsollne tiiling shtli,m reversed on 1lin law 'and the f~ctq, with custs, am[ thc motitm denied, xxith $10 costs aml disbm'scmcmr4. ~Vhcn fha Imrmi~ issued'o~ Aug:mt 5, 1035,.:d the rcqucs[ ¢f thc l,Clifi~mcr based ot~ an apl:r.val of plans bad on bet g, 193~, :md up, m an apl,lie:dion [~n' a permit datcd ScI h'mbm: ~18, 1934, she in cffcd rcprc~cntcd Ihat ~l~t ztnfing'rcgulations had not been ebang~'d i~ lhc interim. ~Vhcn dm .~ igin:d application was lllrtde alld thc pi:ms :qq,~{wc{1, the IXtr~cl involved was in m~ Illlrc strictcd u*,e area. ~Vh{'n flu: pcrmlt was requested on August 5, ~1935. ihe z(.uiu2 t(~ulatlon bad h,'cn c'b:mXcd s. llmt the plot was in a business usc didrict; the dm,ge lmvlng h('en effected in December, 1934. · Thc pctilh,ne) had crm,unctivc, iE llfff ac[md, km~wlcdXe of , dm change (()Hingcr v. Atonal Realty Co., 257 N.Y. 371, 178 N.E. 665), ;md her rcqu,'~,[ [or a l~e~ mit lq~,)n Ibc ;q)lU-OVCd Itl:ms was plicic wilh ibc rclu'CSCnlati(m thai Iht are;[ :,till conlhmcd as it was ltl tile Iimr: I]tc phum wcrc ;ll~[)roxre(l. Tiffs rCln'cscnb~tion, im~occn[ or otbcrwis{', was ;L f;tlSC rcprcscntallon of a chmaclcr lhat author- izod II~c rcv{~cati,m o( lhc I,etmil by Iht c.mmissloncr of Imildi,g. Chal}mr 5, ad. I, ~ ,I, ~uNI. 7, N('w Xtnk C,dc ~[ Ordimtm'cq. ']'he legality of a huihllng' c,,~shucfh,n Imdvr thc ch'cumslam'cs here strut'tion is bdguu rldher than by the permit raider which tim work is lm:To~tcd to bc done. Ilere. whmx the permit issu6d, the zoning law made unlawful a gasoline filling station ou the petitioner's plot. TI,: issuance of a [~crmit could not nulli fy lltosc statutory provlsious, :md vested rights could not be acqtfircd by the pctnkmer m rellancc on an illcgal pmmlt, where she was charged wilh notice of its illcoal character. Ottingcr v. Arcnal Realty Co., 257 N.Y. 371, 178 N.E. 665. Cases relating to an extension of an existing lcga[ use are no[ l~crtincnt. 80IIWt',IT et; al. v. II'AI1,'I'JI~ 80A.I',.UM A1;IUSEIV[BI,PI' UOItPOIIATIOI{. Supreme Court, Apl)elh~te Division, Second Department. Feb. 21, 1030. . Theaters ,'mtT shows Whether dcfcmlant was negligmu as regards injuries iufant paN'on suffered while n revolving br~rrcl inaintaincd :[or profit for anmscmcnt o[ dcfcnd:u~t's pau'ous, ill 110[ ftu'nisb[,lg-attcndant to supervise usc of barrel hchl for jury. Aclion by Rcnce Schwcit, an infant, bv Max Scbweit, her guard- ian :ul lilcm, and another ag:tinst tim [lartm~ ~carum Allltlselllcnt Corl,oration. ]qom a judgmcut dismissing the complaiut, plaiu- tilts a l~¢'x'('~s( ~I ) I e :tw ;Itlil a lqCXV trial grautcd. Atl;ucd before LAZANSi{Y, P. J., a~td YOUNG, IIAGARTY, J{.) 11 NSTON, a~d '1':kY LOR, JJ. Abrah:tm Ollau, or New York City (Matthew l{ester, of New Yrul (513, on tbc bi icf), fo[ap1)cllants. William B. 5helton, or New York City, for respondent. ['I';R CURIAM. Acli~,n to recover damages for personal injuries to hlfant plain- tiff, su{fcrcd while iu a revolving barrel maintained for profit for amuscnicnt of defendant's patrous, of whom infant plaintiff was 546 407 NEW YORK SUPPI,EMENT, 2d SERIES constructml thereon at a price sufficiently in excegs of the purchase price to have For these reasons, I conclude that thc board did not abuse its discretion in denying the petitioner's application for an area vari- ance. The board's determination should be sustaiucd (see Matter of Co~an ~. Kern, s~q,'a ). 64 A.D2d 708 in the Matter of Allen J. OSTRt}FF et al., Appellants, Joseph SACKS, Chairman, ct al., constitut- ing the Board of Zoning Appeals of the Incorporated Village of East Ilochaway, etc., Respondents. Supreme Court, Appellate Division, July 31, 1978. Article 78 proceeding was brought to review determination of city board of zon- ing appeals.whicl{ denied petitioners' appli- cation for permission to maintain second kitchen in one-family dwelling. The premc Court, Nassau County, Steven II. Deroanian, J., dismissed petition, and peti- tioners appealed The Supreme C,mrt, Ap- pellate Division, hehl that the bunrd's deter- ruination denying applientiun for permission to maintain sec,md kitchen in one-family dwellieg was supporled hy record. Affirmed. Rabin, J,, dissented and fi{ed memoran- dum. 1. Zoning m=~502 Fact that a house }s designed so cou|d be transformed into a two-famiP dunce t~ecause it has a duplication of en or other facilities }s not determ}nativa issue uf whether zoning hoard of should grant application for variance mitring installation of second kitchen one-family residence. 2. Zoning ~=,539 Determination of city board of appeals denying application for , ly dwelling was supported by record. Maffucci, Kruman, Zito verne (Christopher C~ Maffucci, Jr., verne, of counsel), foriappellants. Meischnan, Boland, Reilly & Pittoni, neoht tM. Joim Pittoni, Mineola, Before III)I'KINS, J. P., and TITONE and RABIN, JJ. MEMORANDUM BY TIlE In a proceeding pursuant to CPLR' 78 to review a determination of dents, dated October 25, 1976 and after a hearing, which denied npplication for permission to maintaiit secoml kitchen in a one-family petitioners appeal from a judgment of ,qupreme Court, Nassau County, April 6, 1977, which diamissed thn Judgment affirmed, with costs. Itl We do not believe that the nation in Matter of Baskin Appeals of Town o£/~amnpo, 40 390 N.Y.S.2d 412, A.I) 2d 667, 86'/N.Y.S lng memorandum of SHAPIRO, the findings and actions of the zoning appeals in this matter. The Zuning Board of Appeals, after a hearing, granted Baskin's application variance I,ermitting him to install a kitcllea in n one-family residence con.~lructing for himself and his daughter-in-law on a plot he ~Jl~JiS for ]l~ di'brnlirlaUon ffranllng the Vtrlance, tlu, >'mthlg I.,ard in ' ' ~'~,l~kln fou~ld h~ (]) dJffc~ m.e~ i~? Hie deKr~,e o~ roli- We ~ ~el,m:¢. kilchvrh (~) tho ~iructu~e ~Jer and mJlv -n,, ulilily r'-om, (8) tho ~ n duplic~dim~ ~ff'~ih'llen and o~heF /~iliLies, is nol d.~,'rminative Tke ~ is n.t Ih,, du~:i~tm,d or potcnHal ~[ the actual u :,,, m~d file fro'ts in Bnskin ~mely the sinah, e~r:mcc, tim one utility ~m and tke ,q,,'v s~aitcase scpar;~tin ~irs from th,, &~wnstah.s, .ius6fied the ~erminir~g thai the usc was for one family ~ that the nctd for a ~1 hy a sufficient showing {)f l~rm~tlcali~ ~,: Furthermm.. sim'e Ihe ,I,qermination ~kin gr;ml ~, Hie variam,e was based I rational has~s, the c.urts sJmuhJ not ~e subatilut.d limit jt~dl{inonl for that of ~llowever. ti., fa,qs in th. procee,ling now ~d, in JHrle. 1~171, ;tJli[~, lip waz living in klyn xxith hi~ ;dh,, children and par- for Iht :q,provsl of plot plans ~yard m~ Ih. auhject p~rc~ l, (,f which ~e ~J his wife ~e~. ,',,.Iracl vendees. &t the I.'ari~a. lhe p~qitio.vrs specifical- ~uested applmal of the plan which had kitchen .n tim sro,md level of the hmme ;~ead of H.~ liszt level, Aware of the ~ibility of c,,nv,,r.i,m ,,f the house to a ~e building itself, a member of the put the f-lk~wing quesLiml~ (o the OSTIIOFF v. SACKS petitioner husband and received the follow. lng answers: "SHL TRACY: Are you going to have a kitchen on the first floor? "MR. OSTRob'F: No kRcben. "MR. TRACY: No kitchen on the first flonr? "MIL OS'I'ROFI~: No way. I am making provisions that in case, at some future date it ia difficult for my parents to come upstairs. I am planning to have a stairway elevator for that purpose. i.~ being so constructed that I can put it in." ( Emphasis supplied.) M-reover, earlier in the hearing the fol- lowing colloquy took place: "TII~ CItAIRMAN: According to the plans Its Suhmltted. it appears to us that you have aa unusual home in the sense that your kitchen facilities would be on the second floor? "bill OSTROFF: That's correct. "TILE CIfAIRMAN: Are there any pro- visions for kitchen facilities on the first floor? ; "Mit. OSTROFF: No, Lhere am not. "TILE CtlAIRMAN: There':will I~ no I,ipinK, no allowance for kitchen faeili- th~s on the fi~t floor? ' "MIL OSTROFF: No., (~mphasis sup- plied.) The variance was al,proved b~ the board and, subsequent thereto, the house was huilt; I,etitioners took occulmncy early in 1975. Thereafter, and without the permis- sion of the board or of any Village authori- ty, pctitloners constructed a second kitchen in thc lower level of the house. Befor~ that, a refrigerator had been installed on that level for his parents; later a stove was installed and. finally, the entire kitchen. When the Village 8uildiag Department Came aware of the violation, it instructed thc peUtioners to remove the kitchen. Th? then, after the fact, applied for a huildi.g permit to validate the illegal use. The permit was denied anti an application At the hearing, the petitioner husband stated that he needed the extra kitchen 407 NEW YORK SUIq'LI~]MENT, 2d SERIES stricl/,ns '~hile he and hi~ wife did not. huqhand testified as to the need for a second kitchen. ' were all liv g on the main or first floor struction, plumbing and a high w)ltage line (cssenllal for tho operation of an electric kitchen ami which petitioner~ had indicated as a den. At the earlier hearing the pcti- tkmer husband had testified lhat the phtns the ouIside. 121 From the aforegoing recital o~ facts, we believe the detcrmina6on o~ the hoard is fully supported hy Lite record and that St,e- cial Term's dismissal of the petition was justified. From the outset il is mauifest rate h.usckecping uni~ and that the first merit hy a nonfamily group, to wit, Mr, Moreover, unlike Baskin, 40 N.Y.21 942, 390 N ' ' , . ~ .~ ,S.2d 412, ,3o8 N.E.2d 1037, revg. ,18 A I),2d 667, 367 N.Y.S.2d 't ' 823, supra, where gious dietary purposes, the petitioner hu~- ly, the assurance given by Mr. Ostroff to the board that in "no way" did he intend to place a kitchen on the first floor, shouhl he categorized as a deception in view of the fact that ho had heavy duty wiring and plumbing placed into the first fh.,r "den" conversion to a kitchen. Such eomluct fully Warrants the lack of credence testimony hy the board after the Other facts, in addition to Mr. decisi.n of the board is supported stantkd evidence. The physical the bt.me is such that the petitionO the two units from the outside record indicaling that the house family resideuce, as he promised he do at the see.mi hearing, such wouhl not change what is now two-family residence. Mr. Ostroff's d.ty to the ~anl less than lhat which he would ow~ not resort to suhterfuge. Therefore of Ihe ( )inion kat, )ecause of Mr actions in this matter, the petitioner{ he estopped from having U{eir appli,~{~ approved, Acco}ding{y, we affirm. I{OPKINS, J. p., and DAMIANI TONI/i, JJ., concur. RAIHN, J., dissen{s and votes to {he judgment ami gr;tnt the petition, The essentia{ issue on appeal is whel~ the mere insta}{ulion (,f a second kitchea sufficient to transform a one-family donee into a two-fam}{y residence. Un}ii~ the maj.rily, I I c{ieve tkat the determin~ Lion in Matter of llnsMn v. Zoning Bd. Al'peals of ~knrn of l~amapo, 40 N.Y.2d 390 N.Y.S.2d ,I12, 858 N.E.2d 1037, revg. A.D.2d 667, 367 N.Y.S.51 8~ is dis~sili~ of the iustaat proceedieg and, thereforo, would reverse. There is no qm~sllon Hint the petitionem'; residence has (he potenthd for use two4amily home and that the husband has demonstrated bad faith .edence given .~rd after the accel4 dition to Mr. Ostroff's demonstrate that th~ I is supported by nub. ")~e physical layout at the petitioner ,st flour, the kitchen~ the ouk, lide are eom. ';suming Mr. Ost~lf mt restriction on ~ L the house is a ,e promised he ring, such restrict~ to the board was ~ he would owe to his presentation mM e. Therefore, we sa ause of Mr. Oslroft'~ 'he petitioners sheut~ , mg their applicst$,. , we affirm. ~ DAMIANI and t tile peHtlon' a second kitchen a one-family residence. Unlit* hat the determis~, . v, Zunin~ Bd. apo, 40 N.Y.~I PLEd 1037, rev I 8~J is dis~shi,, ~ ami, therefore, at the petitioa~,,~' qal for use am ~, ,at the petitlo~,~ ,I bad faith in I~ OSTROFF v. SACKs deali i.a with the zoni,)g I.mmd. llowever, eot inqniry must be restricted to actual rather than potential use, and bad faith is illegal use. ]IP.n revk, w, thc retool indi- design of thc petitioners' home was ap- proved hy the }{oard of Z.ning Appeals. This dnsign anticipated use hy the family mlil c.nsiath p of the I.qifiom,rs, their chil. band. It was origioaHy reprcscnt,d to the board Jewish kll~hrti~ laws and, th.refore, ]ivln~ mill. ,kt the subsequent hearing, o.w uoder review, the petitioner husband testified that the original arrm]ffement proved impractical nmi that the inhereot dffricolty of u~Jn~ the sam. kitchen was exacerbated hecau~e of his mother's deterL orati.a medical condition which made use .t the stairs quite difficult. Thc petitioner hnsba.d $.lvcd those problrm~ hy installing acc.saihlc t. his parents. The i.shdlati.n of this kit-hen did not mah,rlal¥ alh,r the essential dcslgn aud ' Ihe oulaJde slairway and the largely sopa- oriE/nally approvml design. I. addition, the the rcsidonce is still occupied hy the same family milt, The pctitiomn, husband testi- flc,I that lie essentially s,ppm.ts the entire family unit and Ihat he clahus his parenLa stayc~ with him since' suffering a severe himself. No renL is paid to the peLitioners. Aa stated i. Mntfi,r of StaFBwd v. Village of ,q: nd~ Point, 200 Misc. 57, gO, 102 N.Y. S.~d 910, 913, "Il]he using of a dwelling for livin~ puH.,scs hy a son, his family * 549 and his mother and sister, in the absence of evidence to the contrary, may not be said to be the setting up of two separate family units who m'e liviug not under a single head or management". The instant record con- tales no evidence to rebut the prcsumpHon that t l~e petitioners' amfly ~s occnpying thc f , residence as a single family unit. The blXtlry of n second kitch,,n for conveuience of certain family members with one-family zoning regulatio.s {nee Matter of Baskin v. Zoning Hd. of Appeals of Toa'n of Ramapo, supra ). It iv alq)arcut that if the petitioners had followed proper procedure and applied for the variance prior to iustallation, it would have been an abuse of discretion to deny the variance. The failure to follow tbe proper procedure does one. The testhnony referred to by the ma- jority does not su.oport the inference that approval of the petitioners' dwelling was contingent open the petitioner hushaml's representations that there would not be a second kitchen. That testimony wan given in the course of a hearing which was pri- and the garage. At no time wan it iudi- cared that the proposed design, which antic- ipated living qoarters for the petltion~r husband's parents on the ground floor, wouhl have been disapproved if the design had inch,led a ~econd kltehen. Indeed, in Zoning ordinances cannot be used to arbi- trarily destroy the tradition that a family unit spa.eing several generations may live together under one common roof. There can be no question that the occupants of the petitioners' reshlence comprise one family (see Afatter of Stafford v. Village of Sands omi, 200 Mme. 57, 102 N.Y.S.2d 910, supra; Matter of Baskin v. Zoning Bd. Of Apl)eMs of Town of Ramapo, 40 N.Y.2d 942, 890 N.Y.$.2d 412, ,358 N.E.2d 1037, revg. 48 Al).2d 667, 367 N.Y.S.2d 829, supra). Thus, upon this record, it Was an abuse of discretion to deny the variance. MANHANSET AVE. JOHN C. BIDDULPH ov,,ett~ ~ W~FE _r_'-_~ $ 87° 05' 00" E 100.00' AREA = 12,289sq. ft. 9~57' o.~ o. l s.~'$ .~'$ N 87' 05' 00" W N/O/F EDWARD P. TOBER & MARIE TOBER BAY ROAD SURVEY OF PROPER T Y AT GREENPORT . TOWN OF SOUTHOLD SUFFOLK COUNTY, N Y. 1000 - 43 - 04 37 Scale I" = 20' Dec. 6, 1989 JAN. 23. 1990 (set monuments) S(XITHOU~ N K n1~71 89 - 459 APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. Joseph H. Sawicki James Dinizio, Jr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD sco'l-r L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 TO WH~ IT MAY CONCERN: Enclosed herewith as confirmation of the time, date and place of the public hearing concerning your recent application is a copy of the Legal Notice, as published in the Long Island Traveler-Watchman, Inc. and Suffolk Times, Inc. Please have someone appear in your behalf at the time specified in the event there are questions brought up during the same and in order to prevent a delay in the processing of your application. Your public hearing will not start before the time allotted in the attached Legal Notice. Please feel free to call our office prior to the hearing date if you have any questions or wish to update your file. Yours very truly, GEPJ~RD P. GOEHRINGER CHAIRMAN Enclosure Copies to the following on or about 11/13/90-: ..... L.I. Traveler-Watchman (delivery 11/13) Suffolk Times, Inc. (delivery 11/13) Bulletin Board (Lobby) Individual ZBA files J. Kevin McLaughlin, Esq. Mr. Herbert Lindtveit (hand-delivery 11/13) Mrs. Beverly Lehr (hand-delivery 11/13) Mr. John Scaramucci, P.O. Box 1043, 2045 Westphalia Road, Mattituck, NY 11952 (Re: Vangi) Mr. Sanford Friemann, P.O. Box 915, Cutchogue 11935 (Re: H & $) Mr. Curt Meyhoefer, 2195 Albertson La, Southold 11971 (Re: Copin) Marie Onqioni, Esq., P.O. Box 562, Greenport 11944 (Re: Copin; John M. Wagner, Esq., P.O. Box 279, Riverhead 11901 (Re: Sun Oil) Donald M. McGayhey, Esq., Box 981, Southold 11971 (Re: Maloney) Mrs. Phyllis Rayne Byer, Box 1161, Cutchoque 11935 Re: Milazzo: Salvator A. Caradonna, 23 W. John St., Hicksville, NY 11801 Mr. John Milazzo, 137 Kings Road, Hauppauqe 11788 Mrs. Muriel Baldwin, 1045 Island View La, Greenport 11944 Philip J. Cardinale, Esq., P.O. Box W, Main Rd, Jamesport 11947 Marie Ongioni, Esq. (same as above) ~Mr. Victor Lessard, Principal Building Inspector Mr. Arthur G. Carlson, Box 693, Southold 11971 ~ of So~thold. he~ngs ~itl ~ ~ the SOUTHOLD ~F APPEA~ ~ I ~ M~tin8, at the Town Hall, Main , ~uthold, NY 11971, on NOVEMBER 29, the following times: ' 7:30 p.m. AppL No. 3972~ PETROL STATION LTD. Hearing continued from November 1, 7:35 p.m, AppL No. 3985~ HERBERT AND CAThER- INE LIN~VEIT. Variances to ~.~ ~ning Ordinance, Article ~VUI, S~tion and Art c e XXIV, Section I~2~B for proposed one- sto~ and se~nd-sto~ additions with two-~oot over-hangs (c~n- tilevers). Portion o~ will be less than 75 ~eet bulkhead along Corey C~ek and will reduce both side yards to less than the minimum re- quired at 10 ~d 15 ~t. TAc dwelling as exists has noncon- forming side yards, and the lot ~ and width are also noncon- Forming in this R-~ ~ne Dis- trict. ~cation o~ Prope~y: 625 Windy Point ~ne (Private Road ~12), Southoid, NY; County Tax ~ap Parcel 1~-87-4-7. 7:~ p.m. AppL No. 3986~ BARRY AND ~EVERLY LE~R. Variance to thc ~ni~g O~manc~ A~cle Ill, Sect]on 1~30.~ For approval oF the ~on accesso~ building ~ ~ ~ ~ oth~ th~ ~e ~ui~ m~ ~ and ~thin 75 ~t of the bulkhea~ Mong Goose Creek (a/k/a West C~k). ~t is nonconforming ~ to lot ~ea ~d ~dth in ~his R~ ~nc District. ~cation o~ Pro- perty: 15 Sun ~ne, Sout~old; also re~erred to ~ ~ts 1 A 2 on the Subdivision map o~ "West C~ek Development" filed July 6, 1937 ~ County File No. 1236. County T~ ~ap ~rccl ID No. 1~-76-1-1. 7:45 p.m. AppL No. AN~NIO VANGI, V~i~ce to the ~ning Ordinance, Article XXIV, Section 1~-2~ and dele ~[11, S~tion 1~-239.4, For permission to construct garage addition w~th a setback of less than 1~ Feet From the top of the bluff along the ~ng and vadth arc nonconforming in this R-.lO Zone District. Loca- tion of Property: 645 Glen Court, Cutchogue. NY; Vista Bluff Map No. 5060, Lot #1; County Tax Map Parcel ID No. 1000-83-1-7. 7:55 p.m. Appl. No. 3987-- H&S ASSOCIATES by Sanford Friemann. Variance to the Zon- ing Ordinance, Article X, Sec- tion 100-102 (Bulk Schedule) for approval of insufficient frontage (lot width) (as exists) along the Main Road of proposed Lot #3 and for approval of insufficient lot depth of proposed Lot #2, in this pending minor subdivision, and for approval of access ac- cording to New York Town Law, Section 280A over a private right-of-way. Zone Districts: B- General Business and Agricul- tural-Conservation. Location of Property: North Side of Main: Road, Cutchogue, NY; County Tax Map Parcel ID No. 1000-102-2-24. Total area: 19.596 8:05 p.m. Appl. No. 3977-- BETTY J. COPIN. Continued from November 1, 1990~ 8:15 p.m. Appl. No. 3788-- SUN REFINING & MARKET- ING. Variances to the Zoning Ordinance, Article X, Section 100-102: (1) for permission to es- tablish convenience store use in conjunction with and accessory to the existing gasoline station use on this substandard parcel sq. ft. in lot area; (2) for inter- of accessory (canopy) structure, and (3) for approval of canopy structure in the front yard loca- tion. Location of Property: Cor- ner of the Easterly Side of Fac- tory Avenue and Northerly Side of the Main Road, Mattituck, NY; County Tax Map Parcel ID No. 1000-142-1-27. 8:30 p.m. Appl. No. 3983-- JANET MALONEY. Variance to the Zoning Ordinance, Arti- cle XXIll, Section 100-239.4B for approval of deck within 75 feet of bulkhead along Hog Neck Bay. Lot is nonconform- ing as to lot area in this R-40 Zone District. Location of Pro- petty: 30 West Lake Drive and 2505 Little Peconic Bay Lane, Southold, NY: County Tax M~p Parcel ID No, i000-90-1-2_~; Cedar Beach Park Lot No. 125. filed Map No. 8:35 p.m. Appl. No. 3981- PHYLLIS RAYNE BYER. Variance to the Zoning Ordi- nance, Article III, Section 100-30A(I), as disapproved, for approval of second dwelling apartment unit, as exists. Build- ing as exists contains two dwell- ing units and retail store in this Limited Business (LB) Zone District. Lot is nonconforming as to lot area, width and depth. Location of Property: Comer of South Side of Main Road and the East Side of Bay Avenue, Cutchogue, NY; County Tax Map Parcel ID No. 1000-85- 3-2.1. 8:45 p.m. Appl. No. 3973-- JOHN AND ROSE MILAZZO. Variances to the Zoning Ordi- nance, Article XXIII, Section 100-239.4 [a/k/a 100-239d(B)] and Article XXIV, Section 100-244B for permission to locate addition and reconstruc- tion of dwelling structure with setbacks: (a) at less than the re- quired 75 feet from the bulk- head, (b) at less than the re- quired minimum 35 ft. rear yard at its closest point, and (c) at less than the required 10 ft. and 15 ft. minimum side yards, (d) at less than the total side yards re- quired minimum of 25 feet. Existing dwelling structure is nonconforming as to the nor- therly side yard, the rear yard, and the setback from the bulk- head. Lot area and width is non- conforming in this R-40 Zone District. Location of Property: 9 Island View Lane. Greenport, NY; County 7hx Map Parcel ID o. 1000-57-2-20. ~'~8:55 p.m. Appl. No. 3955-- DOMINICK SBLENDIDO & A. AURICCHIO. Interpretation requested regarding second kit- chen facilities and its relation to single-family versus two-family uses, and a variance for addition with an insufficient frontyard setback. 185 Inlet Lane, Green- port. Continued from Novem- ber I, 1990. 9:15 p.m. Appl. No. ARTHUR G. CARLSON. Interpretation and Variance to the Zoning Ordinance, Article ,III, Section 100-30 (as disap- proved by the Building Inspec- tor) for permission to accept delivery of shellfish from local waters, to shuck the shellfish, and to deliver or ship the seal- ~ale dmnbutm~. Scal~o~ ~ ~ conch~ Io ~ ~ f~ o~- P~ ~pl~ ~ ~ ~ne ~sl~: A~lmml- ~ 1~7~ ~ ~ ; ~uthold, ~; County ~ ~p ~ ~1N~ I~-I].~ Con- ~e ~ of Ap~b ~ at ~d time ~d p~ h~ ~ ~ siring to be hea~ in each of the above matters. Writt~ ~m- meats may also ~ submitt~ p~or to the conclusion of ~e subje~ he.ag. ~ch heating will not start befo~ the time al- lotted. ~ditional time for ~ur pr~tion ~11 ~ av~labl~ if n~ded. ~r mog information, ple~e call 765-18~. Dated: November 9, 1~. BY ORDER'OF THE SOUTHOLD ~WN BOA~ OF APPEALS GE~RD P. GOEHRINGER CHAIRMAN By Linda Kowalski IX, 11/15/~ (30)~[_ COUNTY OF SUFFOLK ss; STATE OF NEW YORK Patricia Wood, being duly sworn, says that .~e is the Editor, of THE LONG ISLAND TRAVELER-WATCHMAN, a public newspaper printed at Southold, in Suffolk County; and that the notice of which the annexed is a printed copy, has been published in said Long Island Traveler-Watchman once each week for ................... ~'. ...... weeks successive!y, commencing on the ......... ./.~...'~. ....... Sworn to before me this /~C' ~ ...................... day of ........... .~,~....~......, ~9 f~... Notary Public BARBARA ~. S~INEII~ NOTARY PUBU~, ~l~e ef ~ ~ No. ~4~ ~ua~ifi~ i~ S~QIk NOTI~EBY GIVEN. ~ pur~aml To Sccfi~ 267 of ~e To~ ~w ~d ~e C~e of ~e To~ Southold, tbs following hea~ngs will be held by the SOUTHOLD ~ BO~ OF APPEA~ at Regular Meeting, at ~e Sou~old Town H~I, Mare Road, Sou~uld, NY 11971, on THURSDAY,~ NOV~BER 29, 19~ at ~e fol- 7:30 p.m, Appl. No. 3972 PE~OL STA~ON LTD. ~uM ~ N~am~ 1, I~0. 7:35 p.m. Appl. No. 3985 HERBERT AND CATHER~E two-f~ ~er-~gs (cant~eve~). has nm~o~g s~e ya~s, Windy Po~t ~ne (Private R~d ~12), ~ ~ ~ T~ 7:40 p.m. Appl. No. 3986 B~RY AND BEV~LY ~HR. A~cla ~, S~ti~ 1~-30.2A for budding l~ated ~ an a~a other than the required rear yard and l~t~ w~ 75 f~ of ~e ~ ~mg ~se C~k (~a Wm C~). ~ is ~g as to Dist~ct. ~ation of Pr~y: 15 ~ ~e, ~old; ~ ~f~ u L~s I & 2 on the SuMivision ~p of 'West C~k Devel~m~"~ f~M ~y 6, 1937 as ~m~ F~e No. 1236. County Tax Map Panel ID No. 1~76-1-1. ~:45 p.m. Appl. No. 3988 ~O VANGL V~ ~ning Ordinance, A~cla XXIV, ~m 1~-~9.4, f~ ~issi~ top of the bluff alon~ the Lon~ h~d ~d ~d wi~ side ya~s ~ss ~ ~e ~u~ 15 feet ~ 20 ~n. Cutchogue, NY; Vi~ Bluff' ~ N~ ~, ~ ~1; ~ T~ ~ ~ ~ No. 1~-83-13. 7:55 p.m. A~. No. 39~ ~ H & S ASSOCIATES by Sanf~ Fde- Main Road. Cutchogt~, NY; County Tax Map Parcel ID N~x 1000-1~R-2- 24. ~ a. ea: 19.596 ac~s. 8:05 p.m. Appl. No. 3977 ~ Nov~nber 1, 1990. 8:15 p.m. Appl. No. 3788 -- SUN REFI~q~G & MARKET~G. A~cla X, S~cfio~ 1~0-102: (1) fo~ sto~ use in ~onjunctloo with and accessory to the existin8 8asollne eel which contains lass than 30,000 tim as to height limitation of acces- so~/(c.a~py) structure, and (3) for app~val of canopy muctu~ in the front yard location. Location of Property: Comer of the Easterly Side of Factory Avenue and Northerly Side of the Main Road, Mgttituck, NY; County Tax Map Parcel ID No. 1000-142-1-27. 8:30 p.m. AppL No. 3983 -- IANET MALONEY. Variance to the Zooing Ordinance, Article XXI~, Section 100-239AB for approval of deck within 75 feet of bulkhead ·long Hog Neck Bay. Lot is non- n~ann. Vamnce to the zo~mg Ordi- / JOHN AND ROSE MILAZZO. hence, Article X, Section 100-102'~ Variances to the Zoning Ordlnanc~, (Bulk Schedule) fo~ approval of in- ~ ,Article XXHI, Section 100-239.4 sufficient frontage 0or width) (as ~'~ [a/k/a 100-239d(B)} and Article exists} along the Main Ro~d of pro- :.:~ .XXIV, Sect on 100-244B for pet- posed Lot #3 and for al~roval of '. mission to lo,ate addition and imufficle~t l~x depth of proposal Lm construction of dwelling structure #2, in this pending minor sub- ! with seth~cks: (a) at less than th~ aivisi.c~., Rd for apl~OVal of access : ~ ~quimd 75 fee~ ftmn the according to New Yodt Town Law, ~ (b) at less than the required mini- ~ 280A over · p~vate rlght-~- ~? mum 35 IL tear yard at it~ way. Z~ne Distrims: B-Genersi '-~ point, end {c) at less than Ole ne~s.a~ ,Ast~u~al-C.~serv~ien. ~.=.~quired I0 f.t. end 15 ft. minimum ~_t__~'~t~on ~ Pr~e~: No~h Side d ~- si`t- wuds, (d) at less than th~ side yants ~quimd minimum of 25 feec Existing dwelling stro~um is noneeoforming as to the no~herly side yard, the t~er yard, and tbe set- back from the bulkhead. Lm area ami width is n~nconforming in this R-40 Zone District. Location of Property: 9 Island View Lane, Greenport, NY; County Tax Map Pan,el ID No. 1000-57-2.20. /"~55 p.m. Appl. No. 3955 DOMINICK SBLENDIDO & A. AURICCHIO. Interpretation seque~d n".gnrdin# secend kitchen fncilitlas and its relation U~ single- family vetse, s two-fnmay uses, ~t a vadsnce f~ sdditieo with an insu~. einnt frontyard setback. 185 lnler~ Lane, Greenpo~ Continued ~o~mber 1, 1990. 9k15 p.m. Appl. No. 397~ -~, ARTHUR O. CARLSON. Inteq~r~tation and Variance to th~ g~ 100-30 (~s disapproved by the Buildin8 Inspecior) for permission to aceepl deliver/of shell/lsh from ~ wa~rs, to shuck the sbelffish, and lo deliver or ship the sc~llops ~ c~ches for wbulesala disul- bugon. ~llope ~nd coacbes to CHAIRMAN By Linde Kowallki 6867-1TNI5 . , ~., etty: 30 West ~ l~ive nad 2505 total-Conservation (AC). Location Litdc Paconic Bay Lane, So~thold, of Property: 1575 Lower Road, NY; County Tax Msp Parcel ID No. South~t, NY; C~mnty Tax Map Pa~- 1000-90-1-25; Cedar Beach Park / ~.1 No. 1000-69-5-13.2. Continued Lot No. 125, fded Map NO. ~0. ~'~ from November I, 19~O. 8:35 p.m. Appl. No. 3981 ~ Tbe Bo~g ~ Appeuls will at said PHYI t v~ RAYNE BYER. Variance ~ and place hear any and all per- Section 100-30A(I), as disep~, heard in each of the ~ove mat~. for approval of second dwelling Written ~mments may also be su.b- apartment trait, as exim. Building as n~ed ~ to the o0ncinalon of the exists coat,ns two dwetling units subject hearing. Each bearing wi~ nmi ret~ ~ in this Limited Busi- not start before the time allotted. ness (LB) Zene Dis~ict- Lot is non- . . Additional time for your pr~- ~mfonning as to 1o~ a~.a, width and sentatlon will be avai~bla, if need- depth. Location of Prope~y: Comer ~L Fo~ me~ infmmatkm, please c~l of Seuth Side of Main Road and the 765-1809. East Side of Bay Avenue, D~ted:No~mber9,19~O. Cutchogue, NY; County Tax map BY ORDEI~OF THE SOU'I~XO~D Par~l ID No. 1000-~5-3-2.1. ' ' TOWN BOARD OF APPEALS 8:.45 p.m. Appl. No. 3973 -- GERARb E GOEHRINGER o{ Property,: South Sid~ of Park - -~: (f,,~t%.e) of bus than the requited  Avmu~ Mmthm~ NY; County Tax ' ISO fect in thls R-40 Zono Dimict. Map ~ No. 1000-123-8-8. ,, Locatiou of Property: Lake View 7:50 p.m. Appl. No. 3971 ~ . .. Avenue (127:1: feet southwest of VALERIE M. KRAME~ Variance. Humintton Boulevard, a privnto to the Zonin80rdineec~. Aflick. .. ro~d), Sonthold. NY; County XX]II. SecUre 23~.4E and A~iel~ ~ Map Patcd No. 1~0~0-6~3-10. XXVIII. Sea. ion 281. for pennis- ~ 8:33 p.m. Appl. No. ~975 --' sion to construct new dweHins: .:!~CARTHUR O. CARLSON. beck from existin8 b-n~hend and = ?~,~_ Onfinanc~ A~ick HI. Sec- from the.easterly (front) v.G~'y 'tim 100-30 (as di.~,,~M by the line alms Manhantot Awnue. Lot , Build~ I~_,.T.~or) for .~vel a~en of i)areal is neean~o~,~h! in ~-- m~adnm) nm ~o inc~de de3i~/ ~,~,,~ ~ u~.u~d~_e -'~'~- ~1- County Tax MCts Parcel No .'-'.%~ shippin8 and/or sales for off- ~" '-'~"'-~'~ ~ -,-- ~ - :' . m q~ n m Auol No 3976 --~'~'~ tract: Asrionlturci-Conservattou law and I~ Code of tho Town of ;-- THOMAS AND MARIAN SAN-'. (AC). L?~_ ,{~n of Ptope~y: 15'/5 Son,~ula. the foBowin{ heafinss ':~J TACROCK Special Excel~ion ~ Lower ~ Seu~el~ NY; Commy will be held by the SOUTHOLD ~the Z~in8 Ordinance, Afllcle I~, .._ Tax Map Parcel No. 10~)-69-5-.~j TOWNDOARDOPAPPEALSata ~ .~ __q~L~. 100-31(9)(B)forpeflnlsalm _ 13.2. · ~ . Rejular MeetinS, at the Sonthuld to coustrcct off-premises 8rcund Town Hall, Main ~ Sonthold, eisa to nd~rtis~ for business put- NY 11971, on THURSDAY. ' ! poses. Location of Properly for NOVEMBER 1, 1990, at the ; Sisn: Sm]theist ~ of Shipyud fdlowinftimes: · . ~ Lane and the Maln Rmd, EastMMi- 8:45 p.m. Appl. No. 3788 ~ - SUN REPINING & MARKBTING. Variances to the 7,~h80~innce, Aflide X, S,*~,ms 1(]0-102: (1) for. ~ us~ in conjunctimm with and '~0': 7:30 p.m; AppL No. 3969 -~ - .?- m, NY; County Ta~ Mq) Parcel NO. ~~~ S~ 1~32 for ~asi~ ~ c~stmct two-f~ ~mnal~ of . ~ m ~e ~ms ~m~ Amcm ~ ~ ~ ~ ~ ~ ~ ~ wh~ w~ have 370 ~ By-~e*h Su~hi~ ac~ssory to the eaistin8 8asoline ~.atim me en Ihis tolmanderd i~- eel which ,"~.'-{,',. leas than 30,0(]0 (2) for interpmatlon ~s to heist limitation of accessory (can~'py) structure. Location of Property: ~ Avenue and Noflbedy Side of 167, Section Three, Msp 6160; . Road 4265~: feet west of Alvah's the Main Road, Mettituck, Ny: 1000-15-3-24.13. · ~ · Lane), Ondmgue, N~ OMmty Tax - 10G0-142-1-27. 7:35p.m. Appl. No. 3974--~;"' MapParcelN°-1000'l~O~o'13?7'7 DONALD L. OSANI (f~ GEORGE .~., ~ 8:05 p.m. Appl. N.. 7 BRUDERMANN JR OwnerL.'.3 '-' ~rtz J. co~. ~ to ~ ./u~?.%.~.~Z~.-y- ........ ':~-. ,"?,~a,,o Chdlmm~_ ~ fit ~e~-' ~NICR SBLENDIDO Variance to me/.omni ~ ~ =.~..-~ -- ---, . : ~r,ut~ ~-- t. < - '- ~.~ ~.,_ _______3for . tm~ () i~m . . . . .., ~o~al of m-st~u~i~ into two ~ nc~ssov~ (~arcse) bnildmg -rc. ..yanee,, --h ,ct the ..- havintinsoffici~ntateeandpm- ~-~' qui~d20f~ctfromthesomhefly - -~ ~e~uimnents for ~is R"IO Zon~ -YUm- i~u'A is n~ee~fon~in8 nt 40.000 - be heerd m eech of the ahow mat- :".'-~ -~' - ....... also be · .L ,a,~.., e:a..~ u~,,don Drive ~'¥~:' sou Lane, Artham~naque, O~can- ' the subject hem'ms, lhch hearm Southold NY; C(mnty Tax Map '? ~ ':po~ N~; Coutty Tax IVltp Parcel . will no( ? ~ the ume allo~ u,,,,,l~,, ~000-7~-5-10 nd 11 No I00042-$-84 , -.' . ~' ted. Addhinnul ume for your 7:40 p.m. Appl. No. 3980 -- 8:15 p.m. Appl. No. 3979 -- VIRGIIVIA OLGA LBE. Variance THOMAS J. GORMAN. Vatimce~ m the Zonin8 Ordinance, AfliFle to the Z~uin~ Ordinmce, Article El, XXIV, Sectio~ 100-244B for ap- Se~ion 100-33'for sMmmval o~ Ioca- proval o~ deck rdditi~m to dwellin8 ' tics of two accessory (storage) hck. l_mateeisnooc~efonnlnsin - ~0nfonninsinthisR.80Z~e~Dis. ~v~.~y: 14.q5 Cedar Eeach Romi . j.~ emit I~ive, Mattimck, ~; ~ty ~st, Son~old. NY; County T~ ~ Tm ~ Pa~ No. 1~1214-~. ~ Pa~ No. 1~-14. 7:45 p.m. Appl. No. 3978 ~ ~NA~ & ~RO~ SW~. ~nin80rdi~, Aflicin IHA. ~s m ~ ~ ~ ~ ~ction 100-30A.3. and A.icl~ ~,~1~- - .~.~l~9.4Af~- ticle XX~, ~ctiou 1~-239 for ..~ :~si~ m I~ ~ d~g wid~ (f~ge) of two p~s~ parcels, each with an existing ' ' ~' ~t (~ of bl~ ~ ~is 42,930 d~L ~ ~h ~ di~im of ~. ~ ~. ~ ~ ~ q~ ed. For more information, please cell 765-1809. ~, Dined: Octo~ 17, 1990. BY ORDER OF 'ITIB SOUTHOLD TOWN BOARD OF APPEALS GERARD E OOEHRINGER By Linde Kowahki STATE OF NEW YORK) )SS: COUNTY OF SUFFOLK) Christina Volinski said County, being duly sworn, say: Clerk o! THE SUFFOLK TIMES, published al Maltiluck, in the Tow~ Suffolk and State of New York, and the onnexed Is a printed copy, has b~ said Newspaper once each we successively, commencing on ti Octo~ ~9 ~0 Sworn to before me mb ~7~ ~ NOTICE OF HEARIIqGS NOTICE IS HEREBY GIV- EN, pursuant to Section 267 of the Town Law and thc Code of the Town of Southnid, the following hearings will be held by the SOUTHOLD TOWN BOARD OF APPEALS at a Regular Meeting, at the Southold Town Hall, Main Road, Southold, NY 11971, on THURSDAY, NOVEMBER 1, 1990, at the following times: 7:30 p.m. Appl. No. 3969- ANDREW BURKARD. Variance to the Zoning Or- dinance, A~ticle III, Section 100.32 for permission to con- struet two-foot extension of garage attached to dwelling with an insufficlem front yard set- ~back. Zone District: R-40. Loca- tion of Property: 370 Uhl Lane, Orient, NY; Orient-By-The-Sea Subdivisoin Lot No. 167, See-. tion Three, Map 6160; 1000-1~p- 5-24.13. 7:35 p.m. Appl. No 3974- DONALD L., OSANI (for GEORGE BRUDERMANN JR., Owner). Variance to the Zoning Ordinance, Article ILIA, Section 100-30a.3 for approval of re-separation into two separate parcels us shown by separate deed conveyances, each lot having insufficient area and proposed construction to meet · setback requirements for this R-40 Zone District. Location of Property:. North side of Bayview Road and the West side of Reydon Drive., Southold, NY; County 'Ibx Map Parcel Nos. · 1000-79-5-10 and 11. 7:40 p.m. Appl. No. 3980- VIRGINIA OLGA LEE. 100.244B for approval of deckc addition to dwelling with an int sufficent sideyard setback and reduced front yard setback. LOt area is nonconforming in this R-40 Zone District. Location of Property: 1455 Cedar Beach Road East,. Southold, NY; County Tax Map Parcel No. 1000-92-1-4. : 7:45 p.m. Appl. No. 3978- DONALD & DOROTHY SWAHN. Variances to the Zon- ing Ordinance, Article II!, Sec- tion 100-32 and Article XXIII, Section 100-239 for approval of insufficient lot area' and width (frontage) of two proposed parcels, each with an existing dwelling, in this pending divi- aion of land. Zone District: R-40. Location of Property: "~'South ~ide of Park Avenue, Mattituck, NY; County Tax Map Parcel No. 1000-123-8-8. 7:50 p.m. AppL No. 3971~ VALERIE M. KRAMER~ Variance to the Zoning Or- dinance~ Article XXIII, Section 239.4B and Article XXVIII, Section 281, for permission to construct new dwelling structure with an insufficient setback from existing bulkhead and from the easterly (front) proper- ty line along Manhanset Avenue~ LOt area of parcel is nonconfor- ming in this R-40 Zone District. Location of Property: 730 Robinson Road and 980 Manhanset Avenue, Greenport, NY; County Tax Map Parcel No. 1000.3,~5-20. . 7:55 p.m. AppL No. 3976- THOMAS AND MARIAN SANTACROCE. Special Excep- tion to the Zoning Ordinance, Article III, Section 100.31(9)(E) for permission to construct off- premises ground sign to adver- tise for business purposes. Loca- tion of Property for Sigd? Southeast corner of Shipyard Lane and the Main Road, Fast Marion, NY; County Tax Map Parcel No. 1000-38-1-1.2 : 8:00 p.m. Appl. No. 3972- PETROL STATION LTD. Variance to the Zoning Or- dinance, Article VII, Section 100-72 for approval of propos- ed Lot No. 4 which will have in- sufficient area in this Residantiai-Office (RO) Zone District. Location of Property: North side of the Main Road (2654- feet west of Alvah's Lane), Cutchogne, NY; County ~ Map Parcel No. 1000-109- .... 1-23. : ,_,. ~ 8:05 p.m. Appl. N~977- BETTY J. COPIN. Varian}e to the Zoning Ordinance, A~'ticle III, Section 100.33B(4) for per- mission to locate accessory (garage) building partly in thex side yard and rear yard with setback at less than the required 20 feet from the southerly pro~ perry line. The lot area of this parcel is nonconforming at 40,000 sq. ft. in this R-80 Zone District. Location of Property: 2195 Albertson Lane, Ar- shamomaque, Greenport, NY; County Tax Map Parcel No. 1000-52-5-54. ~ 8:15 p.m. Appl. NO. 3979- THOMAS J. GORMAN. Var- iances to the Zoning Ordinance, Article 11I, Section 100-33 for approval of location of two ac- cessory (storage) buildin~ in the front yard, us exist. The lot area of this parcel is nonconforming in this R-80 Zone D'mtrict. Loca- tion of Property: 18 Crescent Drive, Mattituck, NY; County Tax Map Parcel No. 1000-121-4-23. 8:25 p.m. Appl. No. 3968% IRENE R. MILLER. Varianc~ to the Zoning Ordinance, Arti- cle ILIA, Section 100.30A.3, and Article XXIII, Section 100. 239.4A for permission to locate proposed dwelling structure with a setback of less than 100 feet from the top of the highest point (top of bluff) on this 42,930 sq. ft. parcel. The parcel in question is nonconforming us to lot width (frontage) of less than the required 150 feet in this R-40 Zone District. Location of Property: Lake View Avenue (127± feet southwest of Hun- tington Boulevard, a private road), Southold, NY; County Tax Map Parcel No. 1000-68- 3-10. ":~ $:35 p.m. Appl. No. 3975- ARTHUR G. CARLSON. In- terpretation and Variance to the Zoning Ordinance, Article III, Section 100-30 (as disapprove~ by the Building Inspector) fdr' approval of maricniture uses to include delivery and storing of seafood, packaging, freezing and/or preparation of raw or cooked seafood (processing) for shipping and/or sales for off- premises consumption. Zone District: Agricultural- Conservation (AC). Location of Property: 1575 Lower Road, Southold, NY; County Tax Map Parcel No. 1000-69-5-13.2. 8:45 p.m. Appl. No. 3788- SUN REFINING & MARKET-~ lNG. Variance to the Zoning Or· dinance, Article X, Section 100-102: (1) for permission to establish convenience store use in conjunction with and ac- cessory to the existing gasoline station use on this substandard parcel which contains less than 30,000 sq. ft. in lot area for each · use, and (2) for interpretation us to height limitation of accessory (canopy) stcactur~ Location of Property: Comes of the Easter- ly side of Factory Avenue and Northerly side of the Main Road, Mattituck, NY; 1000-142-1-27. :'~'~gl;[ers Recessed from '- ~:00 p.m. AppL, No. 3955- DOMINICK SBLENDIDO & VILLAGE MARINE. ' ~'~'.! · The Board of Appeals wiH ~t~ · said time and place hear any anll all peraom or r~resentatives desiring to be heard in each of rthe above matters. Written com- inents maY'-also be submitted' prior to the conclusion of the subject heating. Each hearing ~ will not start before the time allotted. Additional time for your presentation will be available, if needed. For more information, please .call 765-1809. · Dated: October 17, 1990. '" BY ORDER OF THE souTHoLD TOWN BOARD GERARD P. GOEHRINGER ~/" By: Linda IOawaiski - COUNTY OF SUFFOLK SS: STATE OF NEW YORK Patricia Wood, being duly sworn, says that she is the Editor, of THE LONG ISLAND TRAVELER-WATCHMAN, a public newspaper printed at Southold, in Suffolk County; and that the notice of which the annexed is a printed copy, has been published in said Long Island Traveler-Watchman once each week for ..................... /'. .... weeks successively, commencing on the ........... ~ ~ day of ..... .~. ..... ,19 .~.A.. Sworn to before me this '~- '~' day of Notary Public P.~q:~?'. A. ~NEIOEii NOL .~f r U~L#,. $1~1 ~ ~ ~ ~ualif~d iff Su~k ~ ~ APPEALS BOARD MEMBERS Gerard P. Ooehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. Joseph H. Sawicki James Dinizio, Jr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOFF L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 TO WHOM IT MAY CONCERN: Enclosed herewith as confirmation of the time, date and place of the public hearing concerning your application is a copy of the Legal Notice, as published recently in the Long Island Traveler-Watchman, Inc. and Suffolk Times, Inc. Please have someone appear in your behalf at the time specified in the event there are questions brought up during the same and in order to prevent a delay in the processing of your application. Your public hearing will not start before the times allotted in the attached Legal Notice. · l~ase feel free to call our office Drior to the haaring ~ate if you have questions or wish to update your file. GERkRD P. GOEHI~INGER CHAIRMAN By Linda Kowalski APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. Joseph H. Sawicki James Dinizio, Jr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD NOTICE OF HEARINGS SCOTt L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and the Code of the Town of Southold, the following hearings will be held by the SOUTHOLD TOWN BOARD OF APPEALS at a Regular Meeting, at the Southold Town Hall, Main Road, $outhold, NY 11971, on THURSDAY, NOVEMBER 1, 1990, at the following times: 7:30 p.m. Appl. No. 3969 - ANDREW BURKARD. Variance to the Zoning Ordinance, Article III, Section 100-32 for permission to construct two-foot extention of garage attached to dwelling with an insufficient front yard setback. Zone District: R-40. Location of Property: 370 Uhl Lane, Orient, NY; Orient-By-The-Sea Subdivision Lot No. 167, Section Three, Map 6160; 1000-15-5-24.13. 7:35 p.m. Appl. No. 3974 - DONALD L. OSARI (for GEORGE BRUDERMANN JR., Owner). Variance to the Zoning Ordinance, Article IIIA, Section 100-30a.3 for approval of re-separation into two separate parcels as shown by separate deed conveyances, Page 2 - Notice of Hearings Southold Town Board of Appeals Regular Meeting of November 1, 1990 each lot having insufficient area and proposed construction to meet setback requirements for this R-40 Zone District. Location of Property: North Side of Bayview Road and the West Side of Reydon Drive, Southold, NY; County Tax Map Parcel Nos. 1000-79-5-10 and 11. 7:40 p.m. Appl. No. 3980 - VIRGINIA OLGA LEE. Variance to the Zoning Ordinance, Article XXIV, Section 100-244B for approval of deck addition to dwelling with an insufficient sideyard setback and reduced front yard setback. Lot area is nonconforming is this R-40 Zone District. Location of Property: 1455 Cedar Beach Road East, Southold, NY; County Tax Map Parcel No. 1000-92-1-4. 7:45 D.m. Appl. No. 3978 - DONALD & DOROTHY SWAHN. Variances to the Zoning Ordinance, Article III, Section 100-32 and Article XXIII, Section 100-239 for approval of insufficient lot area and width (frontage) of two proposed parcels, each with an existing dwelling, in this pending division of land. Zone District: R-40. Location of Property: South Side of Park Avenue, Mattituck, NY; County Tax Map Parcel No. 1000-123-8-8. Page 3 - Notice of Hearings Southold Town Board of Appeals Regular Meeting of November 1, 1990 7:50 p.m. Appl. No. 3971 - VALERIE M. KRAMER. Variance to the Zoning Ordinance, Article XXIII, Section 239.4B and Article XXVIII, Section 281, for permission to construct new dwelling structure with an insufficient setback from existing bulkhead and from the easterly (front) property line along Manhanset Avenue. Lot area of parcel is nonconforming in this R-40 Zone District. Location of Property: 730 Robinson Road and 980 Manhanset Avenue, Greenport, NY; County Tax Map Parcel No. 1000-34-5-20. 7:55 p.m. Appl. No. 3976 - THOMAS AND MARIAN SANTACROCE. Special Exception to the Zoning Ordinance, Article III, Section 100-31(9)(E) for permission to construct off-premises ground sign to advertise for business purposes. Location of Property for Sign: Southeast corner of Shipyard Lane and the Main Road, East Marion, NY; County Tax Map Parcel No. 1000-38-1-1.2. 8:00 p.m. Appl. No. 3972 - PETROL STATION LTD. Variance to the Zoning Ordinance, Article VII, Section 100-72 for approval of proposed Lot #4 which will have insufficient area in this Residential-Office (RO) Zone District. Location of Page 4 - Notice of Hearings Southold Town Board of Appeals Regular Meeting of November i, 1990 property: North Side of the Main Road (265+- feet west of Alvah's Lane), Cutchogue, NY; County Tax Map Parcel No. 1000-109-1-23 8:05 p.m. Appl. No. 3977 - B~'l"l'f J. COPIN. Variance to the Zoning Ordinance, Article III, Section 100-33B(4) for permission to locate accessory (garage) building partly in the side yard and rear yard with a setback at less than the required 20 feet from the southerly property line. The lot area of this parcel is nonconforming at 40,000 sq. ft. in this R-80 Zone District. Location of Property: 2195 Albertson Lane, Arshamomaque, Greenport, NY; County Tax Map Parcel No. 1000-52-5-54. 8:15 p.m. Appl. No. 3979 - THOMAS J. GORMAN. Variances to the Zoning Ordinance, Article III, Section 100-33 for approval of location of two accessory (storage) buildings in the front yard, as exist. The lot area of this parcel is nonconforming in this R-80 Zone District. Location of Property: 18 Crescent Drive, Mattituck, NY; County Tax Map Parcel No. 1000-121-4-23. 8:25 p.m. Appl. No. 3968 - IRENE R. MILLER. Variance to the Zoning Ordinance, Article IIIA, Section 100-30A.3, and Article XXIII, Section 100-239.4A for permission to locate Page 5 - Notice of Hearings Southold Town Board of Appeals Regular Meeting of November 1, 1990 proposed dwelling structure with a setback of less than 100 feet from the top of the highest point (top of bluff) on this 42,930 sq. ft. parcel. The parcel in question is nonconforming as to lot width (frontage) of less than the required 150 feet in this R-40 Zone District. Location of Property: Lake View Avenue (127+- feet southwest of Huntington Boulevard, a private road), Southold, NY; County Tax Map Parcel No. 1000-68-3-10. 8:35 p.m. Appl. No. 3975 - ARTHUR G. CARLSON. Interpretation and Variance to the Zoning Ordinance, Article III, Section 100-30 (as disapproved by the Building Inspector) for approval of mariculture uses to include delivery and storing of seafood, packaging, freezing and/or preparation of raw or cooked seafood (processing) for shipping and/or sales for off-premises consumption. Zone District: Agricultural- Conservation (AC). Location of Property: 1575 Lower Road, Southold, NY; County Tax Map Parcel No. 1000-69-5-13.2. 8:45 p.m. Appl. No. 3788 - SUN REFINING & MARKETING. Variances to the Zoning Ordinance, Article X, Sections 100-102: (1) for permission to establish convenience store use in conjunction with and accessory to the existing gasoline station use on this substandard parcel which contains less than 30,000 sq. ft. in lot area for each use, and (2) for interpretation as to height limitation of accessory (canopy) structure. Location Page 6 - Notice of Hearings Southold Town Board of Appeals Regular Meeting of November 1, 1990 of Property: Corner of the Easterly Side of Factory Avenue and Northerly Side of the Main Road, Mattituck, NY; 1000-142-1-27. Matters Recessed from September 26, 1990: 9:00 p.m. Appl. No. 3955 - DOMINICK SBLENDIDO & A. AURICCHIO. 9:10 p.m. Appl. No. 3938 - VILLAGE MARINE. The Board of Appeals will at said time and place hear any and all persons or representatives desiring to be heard in each of the above matters. Written comments may also be submitted prior to the conclusion of the subject hearing. Each hearing will not start before the time allotted. Additional time for if needed. For more your presentation will be available, information, please call 765-1809. Dated: October 17, 1990. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER CHAIRMAN By Linda Kowalski Copies to the following on or about October 19, 1990: Suffolk Times, Inc. L.I. Traveler-Watchman Town Clerk Bulletin Board (Main Lobby) ZBA Board Members (with file copies) ZBA Individual Files Notice of Hearings Z.B.A. - November 1, 1990 Copies of Legal Notice also to the following on or about 10/16/90: Mr. and Mrs. Andrew Burkard, 40 Slocum Ave, Pt. Washington 11Q50 Mr. and Mrs. Donald L. Osani, 332 Throop St., N. Babylon 11704 Mr. and Mrs. George Brudermann, 10 Winter La, Dix Hills 11746 Mrs. Virginia Olga Lee, P.O. Box 1273, Southold 11971 Mr. & Mrs. Donald Swahn, P.O. Box 283, Mattituck 11952 Mrs. Valerie M. Kramer, P.O. Box 1360,'Southold 11971 Mr. & Mrs. Thomas Santacroce, 75 Shipyard La, East Marion 11919 J. Kevin McLaughlin, Esq., P.O. Box 803, Greenport 11944 Karen Hagen, Esq., P.O. Box 1424, Mattituck 11952 Mr. Curt Meyhoefer, 2195 Albertson Lane, Southold 11971 Mrs. Mrs. Marie D. Cassidy, 2055 Albertson Lane, Southold 11971 Mr. Thomas J. Gorman, P.O. Box 1445, Mattituck 11952 Proper-T Services, P.O. Box 617, Cutchogue 11935 William D. Moore, Esq., P.O. Box 23, Mattituck 11952 Mr. Arthur G. Carlson, P.O. Box 693, Southold 11971 John Wagner, Esq., P.O. Box 279, Riverhead 11901 Philip J. Cardinale, Esq., Drawer W, Jamesport 11947 Marie Ongioni, Esq., P.O. Box 562, Greenport 11944 Charles R. Cuddy, Esq., P.O. Box 1547, Riverhead 11901 NOTICE OF HE~RINGS NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and the Code of the Town of Southold, the following hearings will be held by the SOUTHOLD 'FlYs~N BOARD OF APPEALS at a Regular Meeting, at the Southold Town Hall, Main Road, Southold, NY 11971 on WEDNESDAY, SEpTt~MBER 26, 1990, at th~.following times: 7:30 p.m. Appl. No. 3961- VENETIA McKEIGHAN. Var- Arti~,e llI, Section 100-33, as disapproved, for permission to construct an accessory structure (gazebo) in an area other than the required rear yard. Proper- ty location: 495 Bayview Ave- Map No. 1000, Section 052, Block 05, Lot 23. 7:35 p.m. Appl. No. 3962-- HAROLD GORDON. Variance to the Zoning Ordinance, Arti- cle XXIV, Section 100-2~ B, as disapproved, for permission to construct an (deck) addition to existing residence. Proposed construction will have insuffi- cient side yard setback(s). Pro- 16. 8:00 p.m. Appl. No. 3960--- THOMAS & ALLISON SAR- GENT. Variance to the Zoning Ordinance, Article 111 A, Sec- tion 100-30 A.~, for approval of in~ufl'miem ~ width and depth of parcels, each with an eaisting single-family dwelling, in this pending division or re- separation of merged pmperries, and for approval of reduced Cconeem/ng addition tO the exist- ing one-family dwelling for use as a second dwelling unit. Pro- perty Location: 185 Inlet Lane, Oreenport, County ~ Mapq Na lOOO, Section 43, B~,k 004, k S:55 P.m. Appl. ~VILLA~E MARINE. Variances to the Zoning Ordinance, Arti- cle XI, Section 100-112, Article XII, Section 100-11lC(I) Article XXIII, Section 239.4, and Arti- - yard setbacks between existing structures and property l/nes, as proposed. 'Proposed construc- i tion of new lots will have insuf- fident width, depth and total lot area for th/s district. Property ,,cie XIX, for permission t~ con- :struet addition to existing prin- :~ cipal building with insufficient ,~$etbacks from the bulkhead, the ~: e~teriy (rear) property line, maintaining the nonconforming perty Location: 124 Hickory Location: Private Road of Fox northerly (side) setback, and to A~,-,,,~. Soatbold, Cmmty ~x ~,~,,m,. ln,~,,~ ~ C,nuay i loca~ I,~,t smm~ sm~eta~ Map No. I000 Section 78, ' Tax Map No 1000, Section 06 .... Bln,-k7 s~*50 · ~ ~ ...... ' A- ' ~ ,;.tanatracK)wltllhlsarllCiantset- · .t .~oc~oo,~oto~. ' ~" ¢" :~ backsf 740 pm. Appl. No. 3966--- ~ 8'05-m MattersofJAMES. rom the northerly (s~de), PETER BLOOM. Variance to ~ PETER & CHRIR Ml~Crcn~ ?: y, easterly property lines, the Zomng Ordinance, Amcle - RIS . . mane. au..~uso requesteo ~s · refie~, as may be deemed neces- Ill A, Section 100-30 A.3, as dis- approved, for permission to construct a deck addition to existing dwelling. Proposed con- struction will have insufficient side yard setbacks. Property location: 40 Old Shipyard Lane and 580 UHommedieu, Southold; County Tax Map No. 1000, Section 64, Block.2, Lot 53. 7:45 p.m. Appl. No. 3964-- KENNETH MINNICK. Special Exception to the Zoning Ordi- nance, Article III, Section 100-31 B(14), as disapproved, for permission to establish acces- sory apartment in proposed ad- dition to existing une-family Appeals No. 3951 and 3957-- Variances to the Zoning Ordi- nance, Article IliA, Section 100-30 A.3, Article XXIII, Sec- tion 100-239.4 (100-239d), and Article III, Section 100-3lA, for proposed deck construction wh/ch requires approval as to in- sufficient sideyards, excessive lot coverage, and reduced setback from the minimum required from the ordinary highwater .mark of Long Island Sound, and for approval of this substan- dard parcel for dwelling use (as exists) (re-separate lots that are merged). Property Location: 1350 Sound Beach Drive, Matti- ituck, County Tax Map No. sary concerning parking and/or landscaping under the current revisions of the site plan regu- lations. Zone District: Marine I (M-I). Property location: James C~ek, east side of Bay Avenue, Mattituc~ NY; County ~ t i Map District 1000, Section 122, ' Block 3, Lot ISA. . ~ - ' The Board of Appeals will at said time and place hear any and all persons or r~msentatives de- ,i ? siring to be heard in each of the above matters. Written com- ments may also be submitted prior to the conclusion of the subject heating. Each hearing . will not start before t/me allot- t~d. Additional t/me for your dwelling structure. Property 1000, Section 106, Block 1; Lot .~ i~ presentation will be available, if location 3305 Aldrich Lane, 36 and l~t 37 : ' ' ~ ~aecdcd. For more' Laurel County Tax Map NO. ~' 8'20 '~ m ~,q No '~95n--~f '" mformatio~ 1000, Section 124. Block I. Lot, ~ I~MINICK SRI I~NDIDO R['~{~ pleas.e call 765,1809,g,n~.~....,.,,~--~ ........ ~'" 3.2. 7:50 p.m. Appl. No. '3967-- ~the Zoning Ordinance, Article~')7 KlM CAMPBELL Variance to / I11 -- Sections 100-30A.2 theZmfingO,dmanee,Art,cl~ / ~B0-31A~andlnO:'to~-'~ i~q'~t' ' IiOA~I~OFAPPEa~LS .................. GERA 11I, Sect,on 100-33, as disap-[ ~IeXXIII Section lan-2an t~'~ ~ RD P. GOEHRINGER proved, for permission to con- [ };r interp~tation r~;~l'~l~'~-' \ : ' ' B- Li-C~A2-RM,A,N' struct accessory garage in an [ ~oad ki h ne ~it I y ~lui~ l~OWalSrl yard ama. Property Location: East End Road, Fishers Island, NY; County Tax Map No. 1000, Section 004, Block 004, Lot 016. 7:55 p.m. Appl. No. 3963-- FRANK CURRAN. Variance to the Zoning Ordinance, Article Ill, Section 100-30 A.4 (100-33) and Article XXIII, Section 100-239.4 B, as disapproved, for ~permisalon to construct an a~cessory building in an area and with a setback of less than 75 ft. from the bulkhead· Property Location: 780 Hay- w~ters., Rgad, (Pec0nic Bay Properties Subdivision), Cut- chogue, County Tax Map No. Copies of Legal Notice to the following on or about Septem- ber 17, 1990: Mr. and Mrs. Harold Gordon 124 Hickory Avenue Southold, NY 11971 Mr. K.T. Grathwohl, Jr. Willow Pond Lane ~u~hnld, i~Y 11971 Mr. and Mrs. Peter Bloom 135 Pacific Street Brooklyn, NY 11201 Mr. and Mrs. Kenneth Minnick 3305 Aldrich Lane P.O. Box 201 Laurel, NY 11948 Mr. Jacobs Albert James V. Righter Architects, 58 Winter Street Boston, MA 02108 Inc. Environment East, Inc. 3075 Indian Neck Lane Peconic, NY 11958 Michael N. Hills, Esq. 206 Roanoke Avenue R/verhead, NY ll901 Mr. James Fitzgerald Proper-T Services P.O. Box 617 Cutchogue, NY 11935 'Philip J. Cardinale, Cardinale & Cardinale P.O. Box W Jamesport, NY 11947 Charles R. Cuddy, Esq. P.O. Box 1547 180 Old Country Road Riverhead, NY 11901 Esq. Mrs. Venetia McKeighan 495 Bay View Avenue Southold, NY 11971 APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. Joseph H. Sawicki James Dinizio, Jr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOTT L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 TO WHOM IT MAY CONCERN: Enclosed herewith as confirmation of the time, date and place of the public hearing concerning your application is a copy of the Legal Notice, as published recently in the Long Island Traveler-Watchman, Inc. and Suffolk Times, Inc. Please have someone appear in your behalf at the time specified in the event there are questions brought up during the same and in order to prevent a delay in the processing of your application. Your public hearing will not start before the times allotted in the attached Legal Notice. Please feel free to call our office prior to the hear/rig dat~ if you have questions or wish to update your file. truly, GERARD P. GOEHRINGER CHAI PuWL~N By Linda Kowalski Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. Joseph H. Sawicki James Dinizio, Jr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 NOTICE OF HEARINGS NOTICE IS ~RREBy GIVEN, pursuant to Section 267 of the Town Law and the Code of the Town of Southold, the following hearings will be held t~the SOu'£nohDT~]WNBOAltD OF APPEAL$ at a Regular Meeting, at the Southold Town Hall, Main Road, Southold, NY 11971 on WEDNESDAY, SEPTEMBER 26, 1990, at the following times: .7:30 p.m. Appl. No. 3961 - VENETIA MCKEIGHAN. Variance to the Zoning 6rainance, Article III, Section 100-33, as ~n_.r,p~'.t~v~, for l~_~,.insiDn~c~uctan a~cessor~-tructure (gazebo} in an area other than the required rear yard. Property location: 495 Bayview Avenue, ~outhold, NY; County Tax Map No. 1000, Section 052, Block 05, Lot 23. Page 2 - Notice of Hearings Southold Town Board of Appeals Regular Meeting of September 26, 1990 7:35 p.m. Appl. No. 3962 - HAROLD GORDON. Variance to the Zoning Ordinance, Article XXIV, Section 100-244 B, as existing residence. Proposed construction will have insufficient side yard setback(s). Property Location: 124 Hickory Avenue, Southold, County Tax Map No. 1000, Section 78, Block 7, Lot 50. 7:40 p.m. Appl. No. 3966 - PETER BLOOM. Variance to the Zoning Ordinance, Article III A, Section 100-30 A.3, as disapproved, for permission to construct a deck addition to existing dwelling. Proposed construction will have insufffcient side yard s~acks. Property location: 40 Old Shipyard Lane mad580 L'~edieu, Southold; Cq.~Lx Tax:Map No. 1000, Se~ci~ 64, Block 2, Lot 53. 7:45 p.m. Appl. No. 3964 - KENNETH MINNICK. Special Exception to the Zoning Ordinance, Article III, Section 100-31 B(14), as disapproved, for permission to establish accessory apartment in proposed addition to existing one-family dwelling structure. Property location: 3305 Aldrich Lane, Laurel, County Tax Map No. 1000, Section 124, Block 1, lot 3.2. Page 3 - Notice of Hearings Southold Town Board of Appeals Regular Meeting of September 26, 1990 7:50 p.m. Appl. No. 3967 - KIM CAMPBELL. Variance to the Zoning Ordinance, Article III, Section 100-33, as disapproved, · or~n~oczms~r-~ta=c~sxrrF~axageinanarea other than the required rear yard area. Property Location: East End Road, Fishers Island, NY; County Tax Map No. 1000, Section 004, Block 004, Lot 016. 7:55 p.m. Appl. No. 3963 - FRANK CURRAN. Variance to the Zoning Ordinance, Article III, Section 100-30 A.4 (100-33) and Article XXIII, Section 100-239.4 B, as disapproved, for permission to construct an accessory building in an area other than the required rear yard area and with a setback of less than 75 ft. from. t~ bulkhead. Property Location: 780 Ha~waters ~ad. (~c:onic Bay Propert/es S.u~li.'vision), Cutchoque, Count~ Tax Map No. 1000, Section 111, Block 1, Lot 16. 8:00 p.m. Appl. No. 3960 - THOMAS & ALLISON SARGENT. Variance to the Zoning Ordinance, Article III A, Section 100-30 A.3, for approval of insufficient area, width and depth of parcels, each with an existing single-family dwelling, in this pending division or reseparation of merged properties, and for Page 4 - Notice of Hearings Southold Town Board of Appeals Regular Meeting of September 26, 1990 this district. Fishers Island, Lot 07. approval of reduced yard setbacks between existing structures lots will have insufficient width, depth and total lot area for Property Location: Private Road of Fox Avenue, County Tax Map No. 1000, Section 06, Block 06, 8:05 p.m. Matters of JAMES, PETER & CHRIS MESKOURIS. Appeals No. 3951 and 3957 - Variances to the Zoning Ordinance, Article IIIA, Section 100-30 A.3, Article XXIII, Section 100-239.4 (100-239d), and Article III, Section 100-31A, for proposed deck construction which requires approval as to insufficien~.~ideyards, excessive lot coverage, and reduced setback from the ~n~mum require~f~om the ordinaryb_~ghwater mark of Long Island Sound, and for approval of this substandard merged). Property Location: 1350 Sound Beach Drive, Mattituck, County Tax Map No. 1000, Section 106, Block 1, Lot 36 and Lot 37. Page 5 - Notice of Hearings Southold Town Board of Appeals Regular Meeting of September 26, 1990 8:20 p.m. Appl. No. 3955 - DOMINICK SBLENDIDO & A. ~ Sections 100-30A.2 (100-31A) and 100-30 A.3, Article XXIII, Section 100-230 (A), for interpretation regarding second kitchen and for permit concerning addition to the existing one-faraily dwelling for use as a second dwelling unit. Property Location: 185 Inlet Lane, Greenport, County Tax Map No. 1000, Section 43, X~-Block 004, Lot 37. 8:55 p.m. Appl. No. 3938 - VILLAGE MARINE. Variances to the Zoning Ordinance, Article XI, Section 100-112, Article XII, Section 10071%!C(1), Article XXIII, Section 239.4, and Article XIX, for pezmission to construct ~dditionto existing principal building with insufficient setbacks from the bulkhead, the northerly (side) setback, and to locate boat storage structure (boat rack) with insufficient setbacks from the northerly (side), westerly, easterly property lines, and bulkhead. Also requested is relief, as may be deemed necessary concerning parking and/or landscaping under the current revisions of the site plan regulations. Zone District: Marine I (M-I). Property location: James Creek, east side of Bay Avenue, Page 6 - Notice of Hearings Southold Town Board of Appeals Regular Meeting of September 26, 1990 3, Lot 15.1 The Board of Appeals will at said time and place hear any and all persons or representatives desiring to be heard in each of the above matters. Written comments may also be submitted prior to the conclusion of the subject hearing. Each hearing will not start before time allotted. Additional time for your presentation will be available, if needed. For more information, please call 765-1809. I~ated: Septen~ber 6, 1990. ,BY OPJ)ER=OFTHE SOU~OLD TOWN BOAI~D OF APPEALS CHAIRMAN By Linda Kowalski NO,,TICE IS HEREBY GIVEN. punua~ m ~ 267 of th~ Town La~ and ~.Code of the Tm of Southold. the fullo~ing hearings will be be2d by the SOUTHOLD TOWN BOARD OF APPEALS at a Regular Me~.,~g, at the Southold Town hull. Main Road, Soutbold, NY 11971~ on-WEDNESDAY, JuLY ~.~. I~tho following PH~.IP SALICE, V~ee to the Zoniag Ov~nanee£Artiele 1~ A~ Secti~ 200-30A.4 (200-$3), Anme XXLTI, Seeti0n 100:239.4B~ for permissic~ to, constmc~ an¥.~s- soty shed and deck with gazebo. Accessory shed is less than:3 ft. from a lot linc, gucho is located h are' less'than 75~L imm ~ bulk= head. Pr°Pert]~ .L°cation: 1945 7:35 p.m. AppL Nb. 3960 -- TUO~AS a; ~LrtSON SAS- hence. Article m A. Section 100- 30A.3. for in.mission to_mbdivide a non-conforming lot? Proposed consu~otics~ of new 1o~ will have insufficient width, depth .nd total lot al'~ for this dlst~ct- ~ Location: Private Road of Fox Avenue, Fishers Island, County Tax Map No. 1000, SectiouO6~'Block ~ p.m. App2,~N'~3~5~ ]DOMLNICK SBLEND2DO & A. ! AURICCHIO, Vatimn~to the [ ins Ordinance, Auicle HI A, ~ectiou { 100-30.3, Article XXIII, Section 100-30A.2.A(1) (100-3IA), {o~ per- existing one fdully dw~llingJ Pro~ po~d~ust~ is'not a penuin~d use (2)oneJstnily detached dw~liins no(~0 exceed one' (I) dwullin{ on each lot (a two family dwelling is nm a permiued use). = 10~0_, Se~dm 43, Bloub 004. Lot 37~ for commercial ~'~atie~. Property I000; Sectie~ 55, Block 5, Lot 7. 7:50 p.m. AppL No. 370] -- CHARLES. ZAHRA. Variance to Sectie~ 100-243, Article XXV, Sec- Property Lecation: 140 Pike ~000. Secti~ ~41, Bloc~'4, Lot STATE OF NEW YORK} ) SS: COUNTY OF SUFFOLK} Yvonne Lieblein of MatUtuek, in said County, being duly sworn, says that he/she is Principal Clerk of THE SUFFOLK TIMES, · Weekly Newspaper, published at Mattituck, in the Town of Southold, County of Suffolk and State of New York, and that the Notice of which the annexed Is a printed copy, has been regularly publIshed In said Newspaper once each week for~.~1~ weeks successively, commencing on the day of July 1990 Sw0m/~f°re me thIs~--~-'~'-~ dayof ~ ~C~ 19~C.-~ ~AP, Y K. O£fiNAN NOTARY PU~UC, Stat~ of ~ York Suffolk ~unty No. 4849~60_ 7:55 p;m. Appl. No. 3915 --' 'JORDAN S pARTNERS~ Variance to the Zoning Ordinance, Anlcle! VII, Section 100-71, as di~q~,,ved, ~ . fo~ pem~ission to consttoot ~fic~ ~isuict. I~ny Locations: 1000, Main Street and 160 Main Road Gte=nport, County Tax Map 1000, Se~i,~ 34. Eloch 2. Lot L ~Tbe Board of At:peals will at flute and plac~ hear a~y. and all per s~u or ~p~.sematives desiring to he.mi in each of the abeV= matin W~iuen ~.~nents may also ~ sub mi=ed prior to the ~nclusim of th subject hcAri~. Eich hearing wU not s~n befmc time dlottmf. Addi tica,I ~ne for your p~sm~im~ be aviilable, if necdcd. For more informa~xN plc~se cell D~ted: July 17, 1990 BY ORDER OF THE SOUTHOLD :. TOWN BOARI~ OF APPEAl -q - GERARD R OOEHRINGER t~~ : c~AN . Hy l~zeen Feme~ i 'JUL201990 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 hearings will be held by the SOUTHOLD TOWN BOARD OF APPEALS :~at a Regular Meeting, at the Southold Town Hall, Main Road, Southold, NY 11971, on WEDNESDAY, JULY 25, 1990, at the following times: ~ ,7:30 p.m. Appl. No. 3954--- /',' pHILIP SALICE. Variance to .~.ibe Zoning Ordinance, Article ::~Ill A, Section 100-30A.4 ~ (100-33), Article XXIII, Section :.100-239.4 B. for permission to construct an accessory shed and deck with gazebo. Accessory shed is less than 3 ft. from a lot ,~fie, gazebo is located in the ~ 'front yard and gazeb~ and deck are less than 75 ft. from the bulkhead. Property Location: .1945 Bayvfew Avenue, Matti- tuck, County 'Pax Map No: 1000, Section 106, Block 06, Lot 37. 7:35 p.m. Appl. No. 3960-=- THOMAS & ALLISON SAR- GENT. Variance to the Zoning Ordinance, Article III A, Sec- tion 100-30A.3, for permission to subdivide a non-conforming lot. Proposed construction of new lot will have insufficient width, depth and total lot area for this district. Property Loca- tion: Private Road of Fox Ave- hue, Fishers Island, County Tax Map No. 1000, Section 06, Block 06, Lot 07 ,7,aJOtMn.~.Appl. No; 3955~ ~DOMINICK SBLENDIDO & t~..,~LtRI~*I~O. Variance to ~ithe Zoning. Ordinance, Article :[~:II1 A, Section 100-30.3, Article :~',XXIII, Section 100-230 -ticle III~A, ~Secfi0n ~A(1) (100-3IA), for permission .,~$o construct an addition to eYd~St- ;;lng one famil~ dwelling. Pro- posed construction is not a per- mitted usc (1) one-family de- tached dwelling not to exceed one (1) dwelling on each lot (a two family dwelling is not a per- mitted use). Property Location: 185 Inlet Lane, Grecnport, County Tax Map No. 1000, Sec- tion 43, Block 004, Lot 37. 7:45 p.m. Appl. No. 3956-- LLOYD GATES. Special Excep- tion to the Zoning Ordinance, Article X, Section 100-10lB, for permission to Occupy and usc as a Billiard parlor for commercial recreation. Property Location: 46250 County Road 48, Southold, County Tax Map No. 1000, Section 55, Block 5, Lot 7. 7:50 p.m. Appl. No. 3701- CHARLES ZAHRA. Variance to the Zoning Ordinance, Arti- COUNTY OF SUFFOLK .STATE OF NEW YORK SS: Patricia Wood, being duly sworn, says that she is the Editor, of THE LONG ISLAND TRAVELER-WATCHMAN, a public newspaper printed at Southold, in Suffolk County; and that the notice of which the annexed is a printed copy, has been published in said Long Island Traveler-Watchman once each week for ...................... ~.... weeks successively, commencing on the ........... /.~. ,~. ..... day of. ....... ~ ...... 19 .?.~ . Sworn to before me this ............ ......... --~'/7%~- day of cie XXV, Section 100-243, Arti~ cie X.X.V, Section 100-244 for , perm,ss,on to continue to use .~...~...t~ . .,.~c..~~ the second floor apartment as a . non-conforming use. Property. ' "~'~' ';"' Location: 140 Pike Street, Mat- Notary Publ tituck, County Tax Map No. I000, Section 141, Block 4, Lot BAR~ARA Am SCHNEIDER 5. , , .,:m~.,~ , NOT.~',' i::L'r~UC. State of New York 7:55 p.m. Appl. No. 3915-- .... ~ 'folk Ccun)y / JORDAN'S PARTNERS. Vari- C anco to the Zoning Ordina~ice~ Article VII, Section 100-71, disapproved, for permission to construct office and retail stores. Proposed construction is not a permitted use in this District. Property Locations: 1000, Main Street and 160 Main Road,. Greenport, County Tax Map No. 1000, Section 34, Block 2,, The Board of Appeals wlli at said time and place hear any and ~ all persons or representatives siring to be heard in each of the above matters. Written com- ments may 'also be submitted prior to the conclusion of the subject bearing. Each hearing will not start before time allot- ted. Additional time for your presentation will be available, if needed. For more information.,. please call 765-1809. Dated July 17. 1990 " BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER CHAIRMAN By Doreen Ferwerda,~ IX, 7/19/90 (3) APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. Joseph H. Sawicki James Dinizio, Jr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD ,, ScoTr L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765~1823 Telephone (516) 765-1800 TO WHOM IT MAY CONCERN: Enclosed herewith as confirmation of the time, date and place of the public hearing concerning your application is a copy of the Legal Notice, as published in the Long Island Traveler-Watchman, Inc. and Suffolk Times, Inc. Please have someone appear in your behalf at the time specified in the event there are questions brought up during the same and in order to prevent a delay in the processing of your application. Your public hearing will not start before the times allotted in the attached Legal Notice. Please feel free to call our office prior to the hearing date if you have questions or wish to update your file. Yours very truly, CHAIRMAN dff APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. Joseph H. Sawicki James Dinizio, Jr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SC~OTT L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Soutim~d, New York 11971 Fax ~516) 765-1823 Telephone (516) 765-1800 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 hearings will be held by the SOUTHOLD TOWN BOARD OF APPEALS at a Regular Meeting, at the Southold Town Hall, Main Road, Southold, NY 11971, on WEDNESDAY, JULY 25, 1990, at the following times: 7:30 p.m. Appl. No. 3954 - PHILIP SALICE. Variance to the Zoning Ordinance, Article III A, Section 100-30A.4 (100-33), Article XXIII, Section 100-239.4 B, for permission to construct an accessory shed and deck with gazebo. AQcessory shed is less than 3 ft. from a lot line, gazebo is located in the front yard and gazebo and deck are less than 75 ft. from the bulkhead. Property Location: 1945 Bayview Avenue, Mattituck, County Tax Map No. 1000, Section 106, Block 06, Lot 37. Page 2 - Notice of Hearings Southold Town Board of Appeals Regular Meeting of July 25, 1990 7:35 p.m. Appl. No. 3960 - THOMAS & ALLISON SARGENT. Variance to the Zoning Ordinance, Article III A, Section 100-30A.3, for permission to subdivide a non-conforming lot. Proposed construction of new lot will have insufficient width, depth and total lot area for this district. Property Location: Private Road of Fox Avenue, Fishers Island, County Tax Map No. 1000, Section 06, Block 06, Lot 07. 7:40 p.m. Appl. No. 3955 - DOMINICK SBLENDIDO & A. AURICCHIO. Variance to the Zoning Ordinance, Article III A, Section 100-30.3, Article XXIII, Section 100-230 (A), Article III A, Section 100-30A.2 A(1) (100-31A), for permission to construct an addition to existing one family dwelling. Proposed construction is not a permitted use (1) one-family detached dwelling not to exceed one (1) dwelling on each lot (a two family dwelling is not a permitted use). Property Location: 185 Inlet Lane, Greenport, County Tax Map No. 1000, Section 43, Block 004, Lot 37. Page 3 - Notice of Hearings Southold Town Board of Appeals Regular Meeting of July 25, 1990 7:45 p.m. Appl. No. 3956 - LLOYD GATES. Special Exception to the Zoning Ordinance, Article X, Section 100-101B, for permission to Occupy and use as a Billiard parlor for commercial recreation. Property Location: 46250 County Road 48, Southold, County Tax Map No. 1000, Section 55, Block 5, Lot 7. 7:50 p.m. Appl. No. 3701 - CHARLES ZAHRA. Variance to the Zoning Ordinance, Article XXV, Section 100-243, Article XXV, Section 100-244, for permission to continue to use the second floor apartment as a non-conforming use. Property Location: 140 Pike Street, Mattituck, County Tax Map No. 1000, Section 141, Block 4, Lot 5. 7:55 p.m. Appl. No. 3915 - JORDAN'S PARTNERS. Variance to the Zoning Ordinance, Article VII, Section 100-71, as disapproved, for permission to construct office and retail stores. Proposed construction is not a permitted use in this District. Property Locations: 1000, Main Street and 160 Main Road, Greenport, County Tax Map No. 1000, Section 34, Block 2, Lot 1. Page 4 - Notice of Hearings Southold Town Board of Appeals Regular Meeting of July 25, 1990 The Board of Appeals will at said time and place hear any and all persons or representatives desiring to be heard in each of the above matters. Written comments may also be submitted prior to the conclusion of the subject hearing. Each hearing will not start before time allotted. Additional time for your presentation will be available, if needed. For more information, please call 765-1809. Dated July 17, 1990 BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER CHAIRMAN By Doreen Ferwerda APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. Joseph H. Sawicki James Dinizio, Jr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOT1e L. HARRIS Supe ,rvisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 ?ax (516) 765-1823 Telephone (516) 765-1800 .$.E..O..R.A. July 25, 1990 TYPE II ACTION DECLARATIOM Appeal No. 3955 Project/Applicants: D0minick Sb]endid0 & A. Auricchi0 County Tax Map No. 1000- 43-4-37 Location of Project: ]85 Inlet Lane, Greenport, NY Relief Requested/Jurisdiction Before This Board in ' Construct addition to existing one family dwelling ~ Project: insufficient front yard setback and permission to have a two family dwelling 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. An Environmental Assessment (Short) Form has been submitted with the subject application indicating that no significant adverse environmental effects 'are likely to occur should be project be implemented as planned. It is determined that this Board's area of jurisdiction concerning setback, area or lot-line variances determines this application to fall under the established list of Type II Actions. Pursuant to Section 617.2jj, this Department is -excluded as an involved agency. This determination shall not, however, affect any other agency's interest as an involved agency under SEQRA 617.2jj. For further information, please contact the Office of the Board of Appeals, Town Hall, Main Road, Southold, NY 11971 at (516) 765-1809. mc JUDITH T. TERRY TOWN CLERK REGISTRAR OF VITAL STATISTICS OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 FAX (516) 765-1823 TELEPHONE (516) 765-1801 TO~ SOUTHOLD TOWN ZONING BOARD OF APPEALS FROM: JUDITH T. TERRY, SOUTHOLD TOWN CLERK RE: ZONING APPEAL NO. 3955, DOMINICK $ ANN M. SBLENDiDO & ANGELA AURICCHIO DATE: JUNE 22, 1990 Transmitted is application for variance submitted by Cardinale S Cardinale on behalf of DOMINICK & ANN M, SBLENDIDO & ANGELA AURICCHIO together with notification of adjacent property owners; letter from Cardinale & Cardinale; Notice of Disapproval from the Building Department; Stop Work Order from the Building Department; short environmental assessment form; Zoning Board of Appeals Questionnaire form; copy of Deed; Certificate of Occupancy from the Building Department; and copy of survey, Judith T. Terry Southold Town Clerk MARIE ONGIONI ATTORNEY AT LAW 218 FRONT STREET, GREENPORT, NEW YORK 11944 (5t6) 477'2048 FAX (516} 477-8919 Zoning Board of Appeals Town of $outhold 53095 Main Road Southold, New York 11971 October 1, 1990 Re: Auricchio/Sblendido MO/jb Dear Sir/Madam: Please provide my office with a copy of the transcript of the Auricchio/Sblendido hearing held on September 26, 1990. Thank you for your cooperation. Page 3 - Legal Notice Hearings to be Held November 29, Southold Town Board of Appeals 1990 7:55 p.m. Appl. No. 3987 - H & S ASSOCIATES by Sanford Friemann. Variance to the Zoning Ordinance, Article X, Section 100-102 (Bulk Schedule) for approval of insufficient frontage (lot width) {as exists} along the Main Road of proposed Lot #3 and for approval of insufficient lot depth of proposed Lot #2, in this pending minor subdivision, and for approval of access according to New York Town Law, Section 280A over a private right-of-way. Zone Districts: B-General Business and Agricultural-Conservation. of Main Road, Cutchogue, NY; 1000-102-2-24. Total area: Location of Property: North Side County Tax Map Parcel ID No. 19.596 acres. 8:05 p.m. Appl. No. 3977 - BETTY J. COPIN. Continued from November 1, 1990. 8:15 p.m. Appl. No. 3788 ='SUN REFINING & MARKETING. Variances to the Zoning Ordinance, Article X, Section 100-102: (1) for permission to establish convenience store use in conjunction with and accessory to the existing gasoline station use on this substandard parcel which contains less than 30,000 sq. ft. in lot area; (2) for interpretation as to height limitation of accessory (canopy) structure, and (3) for approval of canopy structure in the front yard location. Location of Property: Corner of the Easterly Side of Factory Avenue and Northerly Side of the Main Road, Mattituck, NY; County Tax Map Parcel ID No. 1000-142-1-27. Page 4 - Legal Notice Hearings to be Held November 29, Southold Town Board of Appeals 1990 8:30 p.m. Appl. No. 3983 - JANET MALONEY. Variance to the Zoning Ordinance, Article XXIII, Section 100-239.4B for approval of deck within 75 feet of bulkhead along Hog Neck Bay. Lot is nonconforming as to lot area in this R-40 Zone District. Location of Property: 30 West Lake Drive and 2505 Little Peconic Bay Lane, Southold, NY; County Tax Map Parcel ID No. 1000-90-1-25; Cedar Beach Park Lot No. 125, filed Map No. 90. 8:35 p.m. Appl. No. 3981 PHYLLIS RAYNE BYER. Variance to the Zoning Ordinance, Article III, Section 100-30A(1), as disapproved, for approval of second dwelling apartment unit, as exists. Building as exists contains two dwelling units and retail store in this Limited Business (LB) Zone District. Lot is nonconforming as to lot arga,.width and depth. Location of Property: Corner of South Side of Main Road and the East Side of Bay Avenue, Cutchogue, NY; County Tax Map Parcel ID No. 1000-85-3-2.1. VICTOR LESSARD PRINCIPAL BUILDING INSPECTOR (516) 765-1802 FAX (516) 765-1823 Town llall, 53095 Main Road P.O. Box 1179 SouO~old, New York 11971 OFFICE OF BUILDING INSPECTOR TOWN OF SOUTIIOLD STOP WORK ORDER TO: ANGELA AURI CHIC (OWNER, OWNERS'S AGENT OR PERSON PERFORMING WORK) BOX 1186, Melville, N.Y. 117'47 YOU ARE HEREBY NOTIFIED TO SUSPEND ALL WORK AT: 185 INLET LANE~ GREENPORT~ N.Y. 11944 TAX MAP NUMBER 043-4-37 Pursuant to section CH100-283 of the Code of the Town of Southold, New York you are notified to immediately suspend all work and building activities until this order has been rescinded. BASIS OF STOP WORK ORDER: 1. No foundation inspection. 2. No second survey. 3. Not being built as per plans submitted. 4. Appears to have insufficient front yard set-backs. 5. Cannot build a 2 family dwelling in a R-40 zone. CONDITIONS UNDER WHICH WORK MAY BE RESUMED: 1. Submit a new survey showing all setbacks and houses within 300' same side of street. 2. New plans showing all details-"Stamped". 3. Eliminate 2 family dwelling. 4. Pay the new fee. Failur~ to remedy the conditions aforesaid and to comply with the applicable provisions of law may constitute an offense punishable by fine or imprisonment or both. DATED: DEC. 5, 1989 ~ ' · -- ~7 Curti~ W. Ho~ton ' -'~,~n~'m~Buildlng Inspector/ Code Enforcement Officer TO~ 0B SOUI'HOLD BUtLDIHG DEPARTMENT TOWN H~U.L SOUTHOLD, N. Y. BUILDING PERMIT (THIS PERMIT MUST BE KEPT ON THE PREMISES UNTIL FULL CO/~PLETION OF THE WORK AUTHORIZED) Permission Is hereby granted ~to: ) County Tax Map No. lO00 Section ,.,.~..~..L:~ ........ Block Building Inspector. TOWN of SOUTHOLD OFFICE OF BUILDING INSPECTOR ...~t ~1o. 036822 Town Hall Southold, New York 11971 o,. 'Z~,..L~,LF.~J. ............. R..iv.~ o~ ...O~.L~....O.~.~JL~ .............................................. ..-r~ ~ ~ ~,. ,~L... ......... ~'~ .......................... .... ~' ' ~I~ "' '*' '''~ ............................................... ~o,~;~.~... J.:?..~.~..~.~.....o..~'~C~b~-/~..a...~....cLo_~.~.~:~,~ ............................................ Fee for Fee for ~] Yerd ~,. [] [] $.........~..~.1.,..:2..o.. ..................... Fee for [] H.I.C. Fee for Certificate J~Building Permit [] of Occumney E~tJC, ............... '-T'-'a'~'ii~i.. O,l~ment l PROJECT I.D. NUMBER 617.21 Appendix C State Environmental Quality Review SHORT ENVIRONMENTAL ASSESSIVIENT FORM For UNLISTED ACTIONS Only PART I--PROJECT INFORMATION (To be completed by Applicant or Project sponsor) 1. APPLICANT/SPONSOR 2. PROJECT NAME blendido, Dominick + Ann + Angela Auricchio 185 Inlet Lane, GreenP°rt, NY 3. PROJECT LOCATION: Municipality Greenport County Suffolk 4. PRECISE LOCATION (SIreet address and road intersections, prominent landmarks, etc., or provide map) SEQR 185 Inlet Lane, approx. 81 feet north of intersection of Inlet Lane and Bay Road, on the west side of Inlet Lane, Greenport, NY 5. IS PROPOSED ACTION: [] New [] Expansion [] Modification/alteration 6. DESCRIBE PROJECT BRIEFLY: alteration to home 7. AMOUNT OF LAND AFFECTED: Initially 6~1 sq. f~. ( . 0]7acres) Ultimately same acres s. WILL PROPOSED ACTION COMPLy WITH EXISTING ZONING OR OTHER EXISTING LAND USE RESTRICTIONS? [] Yes [] NO If No. describe briefly g. WHAT IS PRESENT LAND USE iN VICINITY OF PROJECT? * [~ Residen,*al [] Indus,rial ![] Commercial [] AgricuHure [] ParkJPorestlOpe. s~ace [] elbe, Describe: 10, DOES ACTION INVOLVE A PERMIT APPROVAL, OR FUNDING, NOW OR ULTIMATELY FROM ANY OTHER GOVERNMENTAL AGENCY (FEDERAL STATE OR LOCAL)? [] Yes [] NO If yes, list agency(s) and permit/approvals Southold Town Zoning Board of Appeals, regarding variance for front yard setback lt. ODES ANY ASPECT OF THE ACTION HAVE A CURRENTLY VALID PERMIT OR APPROVAL? [] Yes [~No If ye~, list agency name and permiIlapproval 12. AS A RESULT OF PROPOSED ACTION WILL EXISTING FERMITIAPPROVAL REQUIRE MODIFICAT ON'; I CERTIFY THAT THE INFORMATION PROVIDED ABOVE IS TRUE TO THE BEST OF MY KNOWLEDGE Applicanusponsor name: D. and A. Sblendido and Angela Auricchio June~1990 the action is in the Coastal Area. and you are a state agency, complete the Coastal Assessment Form betore proceeding with this assessment OVER 1 (Continbed on reverse side) The N.Y.S. Environmental Quality Review Act requires submission of this form, and an environmental review will be made by this board before any action is taken. SHORT ENVIRONMENTAL ASSESSMENT FORM INSTRUCTIONS: (a) In order to answer the questions in this short EAF it is assumed that the preparer will use currently available information concerning the project and the likely impacts of the action. It is not expected that additional studies, research or other investigations will be undertaken. (b) If any question has been answered Yes the project may be sig- nificant and completed Environmental Assessment Form is necessary. (c) If all questions have been answered No it is likely that the project is not significant. (d) E_nvironmental Assessment 1. Will project result in a large physical change to the project site or physically alter more than 10 acres of land? Yes xNO 2. Will there be a major change to any unique or unusual land form on the site? Yes ~No 3. Will project alter or have a large effect on an existing body of water? __Yes X No 4. Will project have a potentially large impact on groundwater quality? .__Yes X NO 5. Will project significantly effect drainage flow on adjacent sites? Yes xNo 6. Will project affect any threatened or endangered plant or animal species? Yes X No 7. Will project result in a major adverse effect on air quality? Yes X No 8. Will project have a major effect on visual char- acter of the community or scenic views or vistas known to be important to the community? . Yes ____~o 9. Will project adversely impact any site or struct- u=e of historic, pre-historic, or paleontological importance or any site designated as a critical envircnmental area by a local agency? ~es 10. Will project have a major effect on existing or future recreational opportunities? ___Yes XNo 11. Will project result in major traffic problems or cause a major effect to existing transportation 12. Will project regularly cause objectionable odors, noise, glare, vibration, or electrical disturb- ance as a result of the project's operation? ~Yes _2~_No 13. Will project have any impact on public health or safety? ~Yes x NO 14. Will project affect the existing community by directly causing a growth in permanent popula- tion of more thee 5 percent over a one-year ~Yes X No period or have a major negative effect on the charact~ of the community or neighborhood? 15. Is there public controversy concerning the project? . Representing: QUESTION)~AIRE TO BE COMPLETED AND SUB:fITTED YOUR APPLICATION FO:~IS TO THE BOARD O['~ A[~PEALS Please complete, sign and return to the Office of the Board of Appeals with your completed application forms. If "Yes" is answered to any questions below, please be sure to depict these areas on your survey (or certified sketch), to scale, and submit other supporting documenta- tion. 1. Are there any proposals to change or alter land contours? Yes ~ 2.a)Are there any areas which conumin wetland grasses? (Attached is a list of the wetland grasses defined by Town Code, Ch. 97 for your reference.) Yes ' ~ b)Are there any areas open to a waterway without bulkhead? Yes 3. Are there existing structures at or-below ground level, such as patios, foundations, etc? .There is an existin~ '~ No foundation -- see survey. 4. Are there any existing or proposed fences, cDncrete barriers, decks, etc?.There is an existinq deck, see survey ~ No 5. If project is proposed for an accessory building or structure, is total height at more than 18 feet above average ground level? State total: ft. Yes If project is proposed for principal building or structure, is total height at more than 35 feet above average ground level? State total: .... ft. Yes ,~ 7. Are there other premises under your ownership abutting this parcel? If yes, please submit copy of deed. Yes ~ 8. Are there any building permits pending on this parcel (or abutting land under you~ ownership, if any)? ~ No State Permit % and Nature: % 017923Z buildin~ permit 10. Do state whether or not applications are pending concerning these premises before any other department or agency (State, Town, County, Village, etc.): Planning Board Town Board Town Trustees County Health Department Village of Greenport N.Y.S.D.E.C. Other Yes~ Yes,~ Yes~ Yes ~ Yes Yes Is premises pending a sale or conveyance? If yes, please submit copy of names or purchasers and conditions of sale. (from contract) Yes 11. Is new construction proposed in the area of contours at 5 feet or less as exists? Yes 12. If new construction is proposed in an area within 75 feet of wetland grasses, or land area at an eleva- tion of five feet or less above mean sea level, have you made application to the Town Trustees for an inspection for possible waiver or permit under the ~//~ requirements of Ch. 97 of the Town Code? //~ Yes 13. Please list present use or operations conducted upon the subject property at this time one family hor~ and proposed one family home with extra kitchen and front yard setback Please submit photographs for the record. I certify that the above statements are true and are being submitted reliance by the Board of,Appeals ~n considering my applicatioh. Signature (Property Owner) (Authorized Agent) No for , 1/88 WETLANDS [Amemled 8-26-7(; hy L.L. No. 2-1976; 3-26- 85 by L.L, No. 6-19851: A. TIDAL WETLANDS: (1) All lands generally covered or intermittently cov- ered with. or which bord~r on. thlal waters, or lands lying beneath tidal waters, which at mean Iow tide are covered by tidal waters to a maximum depth of 'five 15) feet. including but not limited to banks. bogs. salt marsh, swamps, meadows, flats or other low lying lands subject to tidal acthm: (2) All banks, bogs. meadmvs, flats and tidal marsh subject to ~uch tides aud upon whictl grows or may' grow some or any of tile following: salt hay. black grass, saltwort, sea lavender, tall cordgrasa, high bush. cattails, groundscl, marshmallow and Iow march cordgrass: and/or (3) All land immediately adjacent to a tidal wetland as defined in Subsection A(2) and lying within seven- ty-five (75) feet landward of the mtmt landward edge of such a tidal wetland. FRESIIWATER WETI,ANDS: (1) "Freshwater wetlands" as defined in Article 2.1, Ti- tle 1, § 2.1-0107, Subdivisions l(a) to l(d) inclusive, of the Environmental Conservation Law of the State of New York; and (2) All land immediately adjacent to a "freshwater wet- [amt," as defined in Subsection B(1)and lying witb- in seventy-five (75) feet landward of tile most land- ward edge of a "fi'eshwuter wetland." 9705 KENNETH C. ROGERS and KATI~RINE ROGERS, his wife, residing at Hoxie House, Stevens Institute of Technology, ~0 tn the City of Hoboken County o~ Hudson to ~ch'~'extent of an undivided 50 per cent; and ANGELA ADRICCHIO, to the extent of an undivided 50 per cent, residing et 6 Clsrk Street in ~he o~ Huntington County o~ Suffolk THIRTY-THOUSAND FIVE HUND~D ($30,500.00) DOLLARS .................... and assigns, forever, ~11 that certain plot, piece ;n t~e Town of Southold County of Suffolk BEGINNING at a point on the Westerly side of Inlet Lane where the is intersected by the Southeast corner of land now or for,aerly of J.' Biddulp, said point being also distant 425 feet Southerly as measured along the Westerly side of Inlet Lane from the Southerly side of Manhenset Avenue; running thence f~om said Point or Plaoe'of BEGINNING along the Westerly side Of Inlet Lane the following (2) courses end distances: (1) South 2 degrees 55 minutes 00 seconds West 75.00 feet (2) South 12 degrees 29 minutes 20 seconds West 50.71 feet to land now or formerly E. Tober; running thence along said land North 87 degrees 05 minutes 00 seconds West 91.57 feet to land now or formerly K. Rogers running thence along said land of Rogers and along land now or formerly G. Drakoulias North 2 degrees 55 minutes 00 seconds East 125.00 feet to lend now or formerly J. Biddulph; and running thence along said land South 87 degrees 05 minutes 00 seconds East 100.00 feet to the Westerly side of Inlet Lane a~.the.Point~0= Place of BEGINNING. BEING the same premises conveyed to the grantors herein by Deed dated April 20, 1961, f~rom Earl A. Loomis, Jr., recorded in the Suffolk County Clerk's Office on April 25, 1961, in Book 4977, Page 228. Jla,... SUFFOLK .- ~ COUNTY .I COUNTY OF & ~ ~.: .... ~ . day ot ' ' ' ~ STATE OF NEI~ JERSEY, I COUNTY OF ~.: BE IT RE~IEMBERED, ~hat on this da}, o[ 19 TOWN OF SOUTHOLD BUILDING DEP.4AtTMENT Town Cleric's Office Sou,lbo!cl. N. Y. Certificate Of Occupancy Date Oct 21 !9 77 No.Z.7??.© .... ... ............................ , .... W/S Inlet Lane Street THIS CERTIFIES that the building located at ............................ ... T xx Green orr N.Y. .... yLx ~lac,k NO ~ .~ot No ............. P .................... built dated . .. b.efore Apr..2~. , 19.57. pursuant to which R~~ No. ~7970- - dated .......... q~- ~.~ ...... , !9~7.., was issued, ~d conforms to ~ of fl~e reqt~m ,~ ' of the appEcable pro~sions of the laxv. ~" ' - m .n,.s ~ ne occupancy for wlnch Cn~s certificate ~ issued is Prlw~te one ~a:~i-y d,~e] li~ g .................... · ' " ~o ¢,rs ~; wife owners The certificate is issued to nenneth C. (owner. lessee or tenmqt) of the aforesaid building. Suffolk County Department of Health Approval .PV~Y~.}~5~'.~r}g ..................... UNDERWRITERS CERTIFICATE No. pre- existing HOUSE NUMBER ..... J ~.~ ..... Street . ·. ~.q~. J~gD9 ..... 9?.~[~P°rt .......... Bffild~g ~pector code : dk~_Ozance o~ lO0 feet to th~ poi:~t or place ,,.f ; ,-~ ~r,,' June ~/~ 1990 Southold Town Board of Appeals Building Dept. Town Hall Southold, New York 11971 Re: Variance Application of Sblendido and Auricchio 185 Inlet Lane, Greenport Gentlemen: the dated order dated 2 3 4 5 6 7 8 9 Please find enclosed the following documents regarding above application for a variance: i. Notice of Disapproval from the Building Inspector, May 29, 1990, together with copy of work suspension dated 12/5/89 and copy of building permit # 017923Z March 14, 1989 · Application in triplicate Notice to Adjoining Property Owners form Environmental Assessment form Z.B.A. Questionnaire Copy of current deed Copy of current certificate of occupancy Four survey prints $150.00 filing fee Please advise as to the hearing date. Sincerely, ...... ,~ © court¥ oe su~OL~ ~. s_OuT, '~---~-J '°° Jreol Properly Tax Service Agency BOARD OF APPEALS, TOWN OF SOUTHOLD In the Matter oT the Petition of Dominic~ + Ann Sblendido + An~ela Auricchio to the Board of Appeals of the Town of Southold TO: J~r. ~ncl Mrs ~ John Mr. and Mrs. George Drakoulias ,E~dw~d and Marie Tober NOTICE TO ADJACENT PROPERTY OWNER YOU ARE HEREBY GIVEN NOTICE: 1. That il is the intention of the undersigned to ~cth~n the Board of Appeals of the Town of Southold to request a~ (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: 185 Inlet Lane, Greenport, NYr Tax map ~, 1000-Sec. 43r Block ~ Lot 37. 3. That the property which is the subject of such Petition is located in the following zoning district: District 1000 Section 43 Block 4 Lot 37 4 lhat h% soclt Petitioo, the ondersign~d will request the following relief: Und_~ Article IIIA sec. 100-30.3 and ~rt.XXIII sec.100-230(A) reqarding insufficient f~% y~-~--~; and under ArticleJIIIa sec. 100-30a.2 a(1) (100-31A~ interpretation of z~ning ordinance regarding having a second kitchen in one family dwelling. 5. That the provisions of the Southold Town Zoning Code applicable to the relief sought by the under- signed are Article IIIA Section 100-30.3 and 100-30A.2' A(1) and [ ] Section 280-A, New York Town Law for approval of access over r~ght(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 ma), then and there examine the same during regular office hours. (5'16) ?~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. Petitioner Dominick and Ann Sblendido and Owners ' Names: Ang'ela Auricchio Post Office Address Huntinqton. New York 117~ Tel . No. [Copy of sketch or plan showing proposal to be purposes.] attached for c0nven'ience PROOF OF MAILING OF NOTICE ATTACH CERTIFIED MAIL RECEIPTS NAMI~ Mr. and Mrs. John Biddulph Mr. and Mrs. George Drakoulias Edward and Marie Tober ADDRESS Inlet Lane, P.O. Box 494, Greenport, NY 11944 200-12 38th Avenue, Bayside, NY 11360 150 West 79th Street, New York, NY 10024 p 249 8&3 791 RECEIPT ¥~)i~RTIFIED MAIL NO INSIJRMIC0 COVERAGE PROVIOEO (See Reverse) P 026 411 721 RECEIPT FC~B.,C..F. M3;IFIED MAIL NO INSURANCE COVERAGE PROVIDED SOT FOR iNTERNATIONAL MAIL (See Reverse) Street and No P State and ZIP Code Postage Date~ and~livery TOTAL/~e~ STATE OF NEW YORK ) COUNTY OF SUFFOLK) SS.: Laurie E. Graeb , residing at 22425 Route 48 (>~utchocrue, NY , being duly sworn, deposes and says that on the __ day of June ., 19 90 , 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 JamesDort, New York ; that said Notices were mailed to each of said persons by (certified) (t~ mail. Sworn to before me this day of :.n~ , , Notary Public SUSAN M. CARDINALE NO]A,,, · '~[~C ~BUC, Stme No. ~1~ In Su~ (This side does not have to property ownerS.) LAURIE E. GRAEB be completed on form transmitted to adjoining ~A Y ROAD MAP OF SETBACKSf WITHIN 300' OF ' PROPER T Y . A T GREEN~ORT TOWN OF SOUTHOLD SUFFOLK ~TY, N. Y. Scale '~" Dec. 11, JOHN C. BIODULPH mv,~z~e &WIFE AVE. MANHANSET t = LOT AREA = 12,289eq. ft. AREA OF HOUSE DECK & AREA = 12,289sq. ft.~ PORCH = 1,649eq. ft. LOT COVERAGE = 13.5~ ~ 9157' N/O/F N 87' O5' 00" W EDWARD P. TOBER & MARIE TOBER BAY ROAD SURVEY OF PROPERTY A T .GREENPOR T. TOWN OF SOUTHOLD SUFFOLK COUNTY, N K 1000 - 43 - 04 - 37 Scale I" = 20' Dec. 6, 1989 JAN. 23, 1990 (set monuments) Aug. 1, 1990(revi#e lot coverage) NY, 89 - 459 ./ ii '11 ]1:'/'~ If copper tubing/" used for water distributing system; p/ping shall be ,of types .K. or L onl~ UNDERWRITERS CERTIFICATE REQUIRED PLUMBING ALL PLUMBING WASI~ ' AL WATER UNES NEED TESTING BEFORE COVERING OCCUPANCY OR USE IS UNLAWFUL WITHOUT CERTIFICATE ~_~:~C)~NCY pER~TT REQUIRED FOR ALARM SYSTEMS UNOER ALARM !.kW APPROVED AS NOTF. D NOTIFY BUILDING DEPARtmENT A: 765-1802 9 AM TO ~ PM FOR THE FOCLOWING INSPEC~IONS I. FOUNDATION - TWO HEQUIREE 5TAI& · PLUMBER CERTIFICATION ON LEAD CONTENT BEFORE CERTIFICATE OF OCCUPANCY SOLDER USED IN WATER SUPPLY SYSTEM CANNOT EXCEED 2/10 of 1% LEAD. FOR POURED CONCRETE , ; 2. ROUGH - FRAMING & PLUMBING; J' 4. FINAL - CONSTRUCTION MUST . BE COMP~LETE FOR C.O. -,-~ ~ CONSTRUCTION SHALL MEET .... THE REQUIREMENTS OF THE N Y. ...... STATE CON~TItUCTION & ENERGY CODE~. NOT RESPONSIBLE FOR DESIGN OR CONSTRUCTION ERRORS A .} %!