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HomeMy WebLinkAboutZBA-01/12/1978Southold Town Board of Appeals SOUTHOLD, L. I., N.Y. 119~1 TELEPHONE 76§-2660 APPEALS BOARD MEMBERS ROBERT W. GILLISPIE, JR., CHAIRMAN MINUTES ROBERT BERGEN CHARLES GRIGONIS, JR. Southold Town Board of Appeals SI=RGE DOYEN, JR. FRED HULSE, JR. January 12, 1978 A regular meeting of the Southold Town Board of Appeals was held at 7:30 P.M. (E.S.T.), Thursday, January 12, 1978, at the Town Hall, Main Road, Southold, New York. There were present: Messrs: Robert W. Gillispie, Jr., Chairman; Fred Hulse, Jr.; Charles Grigonis, Jr.; Serge Doyen, Jr. Also present: Steve Katz, Long Island Traveler-Mattituck Watchman. 7:30 P.M. (E.S.T.) - Appeal No. 2380 - Postponed decision upon application of John Malinowski, Second Street, New Suffolk, New York for a variance in accordance with the Zoning Ordinance, Article VI, Section 100-60, Article VII, Section 100-70, and Article VIII, Section 100-80 for permission to use existing business building for assembly of parts. Location of property: west side Second Street, south side King Street, New Suffolk, New York, bounded on the north by King Street; east by Second Street; south by H. Aponik and other land of applicant; west by Third Street. THE CHAIRMAN: My own view of this is that the applicant has been unable to sell, rent or insure a building, formerly a supermarket discontinued in October, 1976, for economic reasons and the building adjoins his residence centrally located in New Suffolk. The business at peak operation required 25 employees, at times, and 10 to 15 daily truck deliveries at peak operation. The residential area surrounding the operation was subject to some hundreds of vehicle trips daily by customers using the store. Recently, a possible purchaser has appeared whose operation will, if permitted, virtually eliminate on-street parking and whose business will require only an occasional van-type truck delivery or shipment. The applicant requires a use variance permitting the assembly of pre-fabricated electrical stove components and the assembly of other patented gadgets used in the building trade. The nature, size and shape of these pre-fabricated parts will not be changed. The applicant states that he will not require more Southold Town Board of Appeals -2- January 12, 1978 five local employees and a secretary. The largest stove to be assembled will not exceed 6' by 2' by 2'. The owner's cir- cumstances appear to me to be unique and a severe economic hardship. The proposed limited use will improve rather than deteriorate the neighborhood by greatly decreasing traffic, noise and congestion. It's my view that this Board should grant permission for this operation subject to a number of conditions in order to protect the surrounding area and any future developments. I'm suggesting the following conditions: #1. Manufacturing as defined in the Ordinance may not be conducted on the premises except that assembly and/or packaging of pre-fabricated electrical oven parts be conducted on not more than 2/3 of the estimated 7,500' of floor space contained in the building. The other 1/3 of the building may be used for display of assembled products and for demonstration. Light work should be permitted in connection with the oven project, light cabinet work should be permitted in connection with the oven project. Various small gadgets patented by the applicant and used in the building and related industries may be assembled on the premises and displayed. 42. Ail uses permitted by this action including display and sale of merchandise and storage shall be confined to the fully enclosed building or premises. 93. At least 10 parking spaces shall be provided for employees. Loading and unloading of trucks will be conducted on the premises. 94. Not more than 8 full or part-time employees, including office help, may be employed on the premises. 45. Any change in the applicant's conduct of the business as herein described shall be referred for approval or disapproval to the Board of Appeals. Any question regarding interpretation of the foregoing shall be referred to the Board of Appeals. 96. The Board of Appeals shall review this application within two years from the date the action becomes final. Any con%~ents by any members of the Board? Any other conditions you think should be in this? If not, I'll offer a resolution granting this application as applied for and subject to the findings and conditions that I've enumerated here. CHARLES GRIGONIS, Jr.: I'll second it. (The Board voted and the resolution was passed.) ANDREW GOODALE, ESQ.: May I make a statement on behalf of the people who have objected? I would appreciate the Board, for Southold Town Board of Appeals -3- January 12, 1978 the record, stating and including in the record their conclusions and their determinations under the Zoning Ordinance and their conclusions as effected specifically in connection with Article XII, Section 100-114, "Prohibited uses in any district, noise to the injury, annoyance or disturbance of any surrounding prop- erties.'' Also in connection with Article XII of the Zoning Ordinance, Section 100-121, that the Board shall consider and determine, before approval, that there will be no interference with the use of the adjacent properties and that the legally permitted uses in the district will not in any way interfere with the proposed use in that district and that the safety, health and welfare of the Town will not be adversely affected and that the Board of Appeals in giving approval shall determine the peculiar suitability of such district for the permitted use, the conservation of the surrounding property values, and the effect of the proposed use on the streets and the traffic in addition to any of those that are specifically used as guidelines in Article XII for the deter- mination of the Board so that when the final determination is printed, that these particular items are met and answered for the benefit the surrounding townspeople. THE CHAIRMAN: I think the Board has considered these points that you mentioned and they are all part of the Ordinance, Mr. Goodale, and you have very eloquently repeated what we all know is in the Ordinance. The things that you have mentioned are points that we have considered carefully. I myself have discussed this with a number of people who are knowledgeable, including the County Planning Board and the Town Counselor and one or two members of the Town Board so that I think our decision adequately covers, and I have indicated to our counsel what I thought this decision should be and he has indicated that he agrees with the points that I've made here. But I'll be glad to take your statement and discuss it with him again. ANDREW GOODALE, ESQ.: If you will, and will you poll the number of people who are here who are in opposition to it inasmuch as I believe that there are several who are now here who were not here the last time. THE CHAIRMAN: I think, Mr. Goodale, that it would be very simple to operate this Board or to make a decision if it was based on a popularity contest. It isn't. We are fully aware that many people are against this application and we are also of the opinion that this solving of the problem of using this building will be far better for the Town or hamlet of New Suffolk than leaving it vacant and subject to vandalsim and uninsured, perhaps a fire hazard. THOMAS FLURRY: It's not empty, there's somebody upstairs. ANDREW GOODALE, ESQ.: And this is all in connection with the operation that is maintained in Southold so in the event that this were a question of economics, I think it would be an area open as to the actual economic injuries suffered. Be that as it may, when $outhold Town Board of Appeals -4- January 12, 1978 you mention a popularity contest, Mr. Gillispie, the people who are here have property and it is their contention that their property will be damaged in terms of, shall we say, value by having a use which is industrial in a residential area. THE CHAIRMAN: I think what you're doing, Mr. Goodale, is re-opening the hearing and that is not the purpose of this. All these things were mentioned before. MR. KARG: Do you mean to tell me when we were down here the last hearing we had and we had so many people objecting to it, four people can sit up there and they can tell me, who owns property near it and these other people that own property by it that you know what is good for our property Valuation? THE CHAIRMAN: No. MR. KARG: Well then, how can you vote yes? How can you say to us that this is good for us? THE CHAIRMAN: Just our opinion. MR. KARG: That's your opinion but I'm trying to say now here you've got how many people, if we ever polled it we'd have at least 75% of them against it. THE CHAIRMAN: That's right. This is not a vote. MR. KARG: It may not be a vote but you're practically saying you're recon%mending it, you're going to run it right through. THOMAS FLURRY: New Suffolk. I've seen some of your decisions down in JOHN GLANDER: May I ask a question? How did you arrive at your opinion? THE CHAIRMAN: We analyzed the public hearing and all that we know about the property. JOHN GLANDER: Who did you talk to? THE CHAIRMAN: In my case I talked to Mr. Newman, who's in charge of this at the County Planning Board. JOHN GLANDER: Is he Mr. Koppleman's assistant? THE CHAIRMAN: They deal with some 3,000 a year. I'm a member of the County Planning Commission. JOHN GLANDER: That may be so, but I doubt that Mr. Koppleman would recommend industrial use in a residential area. I have worked with Mr. Koppleman many times. $outhold Town Board of Appeals -5~ January 12, 1978 THE CHAIRMAN: This is not an industrial use in the sense that it's manufacturing, this is permission to assemble parts. Now, our definition of manufacturing includes that as well as changing and processing. JOHN GLANDER: This is not a residential use, is that correct? THE CHAIRMAN: Neither is a grocery store. JOHN GLANDER: That's true, but a grocery store is an adjunct to, it's a neighborhood store. THE CHAIRMAN: That's right, and if the grocery store can't be filled by a grocery, what do you do with it? JOHN GLANDER: So you're saying that your expertise is based on Mr. Newman's opinion? THE CHAIRMAN: I don't know, I've been here 25 years and perhaps learned a little something. I'm sure Mr. Newman, who's made a life career out of it, has learned something. JOHN GLANDER: It seems very interesting to me that you can take an industrial use, and this is an industrial use, and put it in a residential area and tell me it's not bad. THOMAS FLURRY: They're just a bunch of political hacks, that's all. MR. KARG: I don't know, everybody's objecting to it and they think it should go through, I don't understand it. ANDREW GOODALE, ESQ.: Well, if the hearing is closed, will you kindly take the remarks that I have said in connection with the facts as you have found them and the determination so that the matter might be, shall we say, reviewed. THE CHAIRMAN: It will be referred to counsel. Thank you very much for coming in. JOHN GLANDER: Excuse me, will this continue in the future? THE CHAIRMAN: No, this will be specifically ... we have placed conditions on this so that nothing, a future Board of Appeal can, by use of these conditions, control exactly what goes in there. We know of no other way to handle it. We can't change the zone. THOMAS FLURRY: How are you telling me you're going to control anything if they're coming in and they're going to assemble and they're going to ship throughout the whole United States, we're not going to have trucks or anything in there then, right? And you can control it? Who are we going to call up when they're suddently b~nging and making noise, and there's an 18-wheeler Southold Town Board of Appeals -6- January 12, 1978 in there, who are we going to call up that's coming down within 10 minutes to see if they're there. THE CHAIRMAN: Call the Building Department. THOMAS FLURRY: Who's gonna do it, come on now. You own the parking lot down there next to my nieces and you told the man that he had to put up a fence. Nothing has been done in that parking lot for two years. There's no fence. Now, where do we go? THE CHAIRMAN; The Building Department. We're not enforcement agents here. THOMAS FLURRY: When I come up here, I suppose I'll get the run around because we're dealing with a Board that we can't have anything, we can't put on, we don't put on and we can't take off, they're just appointed political hacks and that's what you're dealing with. With that I say good night. After investigation and inspection, the Board finds that the applicant requests permission to use existing business building for assembly of parts, west side Second Street, north side King Street, New Suffolk, New York. The findings of the Board are that the applicant has been unable to sell, rent or insure a building, formerly a supermarket discontinued in October, 1976, for economic reasons and the building adjoins his residence centrally located in New Suffolk. The business at peak operation required 25 employees, at times, and 10 to 15 daily truck deliveries at peak operation. The residential area surrounding the operation was subject to some hundreds of vehicle trips daily by customers using the store. Recently, a possible purchaser has appeared whose operation will, if permitted, virtually eliminate on-street parking and whose business will require only an occasional van-type truck delivery or shipment. The applicant requires a use variance per- mitting the assembly of pre-fabricated electrical stove components and the assembly of other patented gadgets used in the building trade. The nature, size and shape of these pre-fabricated parts will not be changed. The applicant states that he will not require more than five local employees and a secretary. The largest stove to be assembled will not exceed 6' by 2' by 2'. The owner's cir- cumstances appear to be unique and a severe economic hardship. The proposed limited use will improve rather than deteriorate the neighborhood by greatly decreasing traffic, noise and congestion. The Board finds that strict application of the Ordinance would produce practical difficulties or unnecessary hardship; the hardship created is unique and would not be shared by all properties alike in the immediate vicinity of this property and in the same use district; and the variance will not change the character of the neighborhood, and will observe the spirit of the Ordinance. Southold Town Board of Appeals -7- January 12, 1978 On motion by Mr. Gillispie, seconded by Mr. Grigonis, it was RESOLVED, John Malinowski, Second Street, New Suffolk, New York, be GRANTED permission to use existing business building for assembly of parts, west side Second Street, south side King Street, New Suffolk, New York, as applied for, subject to the following conditions: #1. Manufacturing as defined in the Ordinance may not be conducted on the premises except that assembly and/or packaging of pre-fabricated electrical oven parts be conducted on not more than 2/3 of the estimated 7,500 sq. ft. of floor space contained in the building. The other 1/3 of the building may be used for display of assembled products and for demonstration. Light cabinet work should be permitted in connection with the oven project. Various small gadgets patented by the applicant and used in the building and related industries may be assembled on the premises and displayed. 92. Ail uses permitted by this action including display and sale of merchandise and storage shall be confined to the fully enclosed building or premises. ~3. At least 10 parking spaces employees. Loading and unloading of on the premises. shall be provided for trucks will be conducted ~4. Not more than 8 full or part-time employees, including office help, may be employed on the premises. #5. Any change in the applicant's conduct of the business as herein described shall be referred for approval or disapproval to the Board of Appeals. Any question regarding interpretation of the foregoing shall be referred to the Board of Appeals. #6. The Board of Appeals shall review this application within two years from the date the action becomes final. Vote of the Board: Ayes: - Messrs: Gillispie, Hulse, Grigonis, Doyen. PUBLIC HEARING: Appeal No. 2379 - 7:45 P.M. (E.S.T.) Recessed hearing upon application of Meyer Rosenberg, Indian Neck Lane, Peconic, New York for a variance in accordance with the Zoning Ordinance, Article III, Section 100-30 and Bulk Schedule for permission to construct dwelling on lot with in- sufficient width. Location of property: south side Indian Neck Lane, Peconic, New York, bounded on the north by Indian Neck Lane; east by Rust, Cohen; south by Peconic Bay; west by Seagyan Club, Inc. Southold Town Board of Appeals -8- January 12, 1978 THE CHAIRMAN: Is Dr. Rosenberg here? MRS. ROSENBERG: I am. THE CHAIRMAN: My understanding is, or recollection is that the people from Seagyan Club were interested in obtaining a plot plan, or seeing a plot plan, and the proposed plot plan is part of the application now. In other words, we have one. Is there anybody here from the Seagyan Club? CHARLES GRIGONIS, JR.: Mr. Chairman, I had a visit from the president of the Seagyan Club this evening before I left home. I took him that sketch about a week ago or 10 days ago and they have no objections at all to what they want to do. They just were hoping that he'd be 150' back from the beach. MRS. ROSENBERG: We are. THE CHAIRF~N: I think that the sketch here shows the location of the southerly ... the southerly side of the building will be, I don't know whether it's 150' or 180', I can't read this here. It's 150'? MRS. ROSENBERG: At least if not more. THE CHAIRMAN: And that the building will be 30' in width and of considerable length. Deducting the 30' from the 65' width of the property would indicate that there are 35' remaining for what are technically the front and rear yards. I think it would be my suggestion that the rear yard be at least, no portion of the rear of the building to be constructed should be closer than 15' to the westerly side line. MRS. ROSENBERG: In other words, there should be a separation of at least 15' from the borderline of the Seagyan Club. THE CHAIRMAN: I think that is approximately the same distance the greenhouse is from the borderline now. Access to this, I believe, is ... you don't need access to this, do you? You haven't applied for it. You're coming in over the regular road that's been used for years. MRS. ROSENBERG: Right, a driveway which goes approximately down the center to the property. THE CHAIRMAN: Is there anyone who would like to look at this plot plan? (There was no response.) After investigation and inspection, the Board finds that the applicant requests permission to construct dwelling on lot Southold Town Board of Appeals -9- January 12, 1978 with insufficient width, south side Indian Neck Lane, Peconic, New York. The findings of the Board are that this division of the property provides Dr. Rosenberg with a plot of 1.42 acres. The total area of the Rosenberg property is 7.9. This action will protect the Seagyan Club and the property will conform to the character of the area. The Board finds that strict application of the Ordinance would produce practical difficulties or unnecessary hardship; the hardship created is unique and would not be shared by all properties alike in the immediate vicinity of this property and in the same use district; and the variance will not change the character of the neighborhood, and will observe the spirit of the Ordinance. On motion by Mr. Gillispie, seconded by Mr. Hulse, it was RESOLVED, Meyer Rosenberg, Indian Neck Lane, Peconic, New York, be GRANTED permission to construct dwelling on lot with insufficient width, south side Indian Neck Lane, Peconic, New York, as applied for, subject to the following condition: The rear of the dwelling to be constructed shall be at least 15' from the westerly side line adjoining the Seagyan Club, Inc. Vote of the Board: Ayes: - Messrs: Gillispie, Hulse, Grigonis, Doyen. 7:55 P.M. {E.S.T.) - Appeal No. 2373 Postponed decision upon application of John Xikis, 32-55 Steinway Street, Astoria, New York for a special exception in accordance with the Zoning Ordinance, Article VI, Section 100-60 B l(b) for permission to construct motel and restaurant. Location of property: south side CR27, Greenport, New York, bounded on the north by CR27; east by J. Poliwoda; south by L. Hodor; west by Cornell, Caiola, and Papantoniou. THE CHAIRMAN: We still do not have the recommendations of the County Planning Board and, accordingly, my suggestion, with which counsel for the applicant concurs, is that this application or decision be postponed again until February 2nd. On motion by Mr. Gillispie, seconded by Mr. Grigonis, it was RESOLVED that the Southold Town Board of Appeals RESERVE DECISION on Appeal No. 2372, John Xikis, to February 2, 1978, at 7:30 P.M. (E.S.T.). Vote of the Board: Ayes: - Messrs: Doyen. Gillispie, Hulse, Grigonis, Southold Town Board of Appeals -10- January 12, 1978 On motion by Mr. Gillispie, seconded by Mr. Grigonis, it was RESOLVED that the Southold Town Board of Appeals approve minutes dated December 22, 1977, subject to minor correction. Vote of the Board: Ayes: - Messrs: Gillispie, Hulse, Grigonis, Doyen. On motion by Mr. Gillispie, seconded by Mr. Doyen, it was RESOLVED that the Southold Town Board of Appeals approve minutes dated December 30, 1977. Vote of the Board: Ayes: - Messrs: Gillispie, Hulse, Grigonis, Doyen. PUBLIC HEARING: Appeal No. 2385 - 8:10 P.M. (E.S.T.) upon application of Robert L. Hyatt a/c Karl Baunach and wife, Pine Street, Mattituck, New York for a variance in accordance with the Zoning Ordinance, Article III, Section 100-30 and Bulk Schedule for permission to construct addition with insufficient front yard setback. Location of property: west side Pine Street, Mattituck, New York, bounded on the north by Stopinski; east by Pine Street; south by Bergen; west by Bergen. The Chairman opened the hearing by reading the application for a variance, legal notice of hearing, affidavits attesting to its publication in the official newspapers, and disapproval from the Building Inspector. The Chairman elso read statement from the Town Clerk that notification by certified mail had been made to: Mrs. Sophie Stopinski; Mrs. Bertha Bergen. Fee paid $15.00. THE CHAIRMAN: The sketch accompanying the application indicates an addition of 8' which will exceed the present front porch by 4' is comtemplated. The side yard to the north is 15', the distance from Pine Street isn't available here. Is there anyone present who wishes to speak for this application? ROBERT HYATT: Only if you have any questions, I think it's rather plain. THE CHAIRMAN: When was this house built? ROBERT HYATT: I would guess it must be 20 years old, but don't hold me to it, I really don't know. THE CHAIRMAN: I think it was prior to zoning because it doesn't look as though it's 35' from ... it could have been built after zoning, it could have been 35' because there's no, you know, in the rear. It's just the way they located it. Southold Town Board of Appeals -11- January 12, 1978 ROBERT HYATT: Actually, what we're talking about is what you brought out, coming out 4'. I don't think in any way that it would impede any activities of any neighbors or any views or anything like that. You gentlemen probably saw it, I think you're aware of what I'm talking about. THE CHAIRM~/q: It looks to me as though the street infringes on the property judging from the position of the telephone poles, they generally put them in 5' from the property line. It looks as though the street has edged over there. I don't see any other difficulties with it. I don't think that it will seriously under- mine the neighborhood. Is there anyone present who wishes to speak against this application? (There was no response.) After investigation and inspection, the Board finds that the applicants request permission to construct addition with insufficient front yard setback, west side Pine Street, Mattituck, New York. The findings of the Board are that the Board is in agreement with the reasoning of the applicants. The Board finds that strict application of the Ordinance would produce practical difficulties or unnecessary hardship; the hardship created is unique and would not be shared by all properties alike in the immediate vicinity of this property and in the same use district; and the variance will not change the character of the neighborhood, and will observe the spirit of the Ordinance. On motion by Mr. Grigonis, seconded by Mr. Doyen, it was RESOLVED, Karl Baunach and wife, Pine Street, Mattituck, New York, be GRANTED permission to construct addition with in- sufficient front yard setback, west side Pine Street, Mattituck, New York, as applied for. Vote of the Board: Ayes: - Messrs: Gillispie, Hulse, Grigonis, Doyen. PUBLIC HEARING: Appeal No. 2384 - 8:20 P.M. (E.S.T.) upon application of Stanley J. Waimey, 1035 Alvahs Lane, Cutchogue, New York, for a special exception in accordance with the Zoning Ordinance, Article VI, Section 100-60 C (6) for permission to erect side wall sign. Location of property: Main Road and Pequash Avenue, Cutchogue, New York, bounded on the north by Main Road; east by Pequash Avenue; south by J. Elliott Dawson; west by G. Fleet Est. $outhold Town Board of Appeals -12- January 12, 1978 The Chairman opened the hearing by reading the application for a variance, legal notice of hearing, affidavits attesting to its publication in the official newspapers, and disapproval from the Building Inspector. The Chairman also read statement from the Town Clerk that notification by certified mail had been made to: John Elliott Dawson; George H. Fleet Est. Fee paid - $15.00. THE CHAIRMAN: I think the expression used to be that the building is catty-cornered to the, the building that Mr. Waimey occupies is catty-cornered, oddly located in relation to the plot. It more or less faces the northeast corner of the property line. Is there anyone present who wishes to speak for this application? STANLEY WAIMEY: Since then, I've gotten a copy of a survey showing the building more clearly than mine showing it pointing to the sharp corner which is an acute corner, it's not even a right angle. It shows the front of the building facing away from the on-coming traffic. THE CHAIRMAN: You said in your application there were three sides there. You have a sign now that faces the corner. STANLEY WAIMEY: There's one over here (on map) which the fellow that rents in the back, the used car man, has. The auto repair man rents the front of this, he has a sign there. THE CHAIRMAN: So there are three businesses on the corner. You also have a sign there for your solar business, right? STANLEY WAIMEY: That's right. It's combined, it'll be the two of them on the one. THE CHAIRMAN: They'll be on your building, and you want to put both of your signs on the west side. STANLEY WAIMEY: No, I want to have one over here. Instead of having one on this side which serves no purpose at all, I just wanted the one that was permitted here and this one here in lieu of this side. THE CHAIRMAN: So you'll wind up with a sign oo. STANLEY WAIMEY: Facing the acute corner here, and one on this west wall here. This building isn't parallel with the road either, it projects a little so that visibility will be from about here. THE CHAIRMAN: And no ground sign. STANLEY WAIMEY: No ground sign, right. THE CHAIRMAN: And where will the solar heating sign be? Southold Town Board of Appeals -13- January 12, 1978 STANLEY WAIMEY: That will be one line on the main sign. THE CHAIRMAN: As it is now, you have two separate signs now. STANLEY WAIMEY: That's right. THE CHAIRMAN: You're going to consolidate them into one sign. STANLEY WAIMEY: This one here, as I understand it, is permitted. I wanted the real estate one this way facing the on-coming traffic because it doesn't serve any purpose on this side. THE CHAIRMAN: Everybody understand that? Anyone wish to object to this location of signs? (There was no response.) After investigation and inspection, the Board finds that the applicant requests permission to erect side wall sign, Main Road and Pequash Avenue, Cutchogue, New York. The findings of the Board are that the Board is in agreement with the reasoning of the applicant. The Board finds that the public convenience and welfare and justice will be served and the legally established or per- mitted use of neighborhood property and adjoining use districts will not be permanently or substantially injured and the spirit of the Ordinance will be observed. On motion by Mr. Gillispie, seconded by Mr. Grigonis, it was RESOLVED, Stanley J. Waimey, 1035 Alvahs Lane, Cutchogue, New York, be GRANTED permission to erect side wall sign, Main Road and Pequash Avenue, Cutchogue, New York, as applied for. Vote of the Board: Ayes: - Messrs: Gillispie, Hulse, Grigonis, Doyen. PUBLIC HEARING: Appeal No. 2383 - 8:30 P.M. (E.S.T.) upon application of Irene Cardinal, South River Road, Calverton, New York for a variance in accordance with the Zoning Ordinance, Article III, Section 100-30 and Bulk Schedule for permission to divide property with insufficient width and area. Location of property: CR27 and Sound Avenue, Mattituck, New York, bounded on the north by CR27; east by Berdinka; south by Sound Avenue; west by McHugh, Private Road. The Chairman opened the hearing by reading the application for a variance, legal notice of hearing, affidavits attesting to Southold Town Board of Appeals -14- January 12, 1978 its publication in.the official newspapers, and disapproval from the Building Inspector. The Chairman also read statement from the Town Clerk that notification by certified mail had been made to: Joseph Berdinka; Bertha McHugh. Fee paid $15.00. THE CHAIRMAN: The application is accompanied by a survey indicating that the three lots that the applicant is referring to are respectively 27,000+ sq. ft. on Middle Road, CR27A; 21,000+ sq. ft. on Sound Avenue, and an additional area of 15,803 sq. ft. on which a framed horse stable exists. On the first two lots are a two-story framed house, on each of them, and out buildings. Anyone present who wishes to speak for this application? IRENE CARDINAL: I'm here for it. THE CHAIRMAN: Which one are you going to sell, the one on Sound Avenue? IRENE CARDINAL Yes, the one on Sound Avenue. THE CHAIRMAN: And this lot division was established long ago? IRENE CARDINAL: Yes. THE CHAIRMAN: The area is one in which many of the lots vary from the sizes now required in the Ordinance. In fact, this lot appears to be the largest one in the block between Sound Avenue and Middle Road. Anyone else wish to speak for this application? (There was no response.) Anyone wish to speak against it? BERTHA McHUGH: May I ask what the vacant lot is going to be used for? THE CHAIRMAN: YOu're a neighbor to the west, is that correct? BERTHA McHUGH: To the south and west, the north and west. The property is south of me. THE CHAIRMAN: According to the application, the applicant proposes to sell a lot with a house on it on Sound Avneue, and it also has a framed garage and a framed building on it, and retain the lot on the middle road. The other lot is just going to be retained, she doesn't indicate, or I guess has no plans for it at the moment. The framed horse stable, it was a little difficult to look, is that there now? CHARLES GRIGONIS, JR.: That's the one that was up halfway from both roads. THE CHAIRMAN: Does that answer your question, Mrs. McHugh? Southold Town Board of Appeals -15- January 12, 1978 BERTHA MCHUGH: I think so, I didn't learn anything, but there's no plans for it. JOSEPH BERDINKA: May I ask a question concerning this horse stable. Are there going to be any more horses added? THE CHAIRMAN: Are there any horses there now? IRENE CARDINAL: Yes, there is one horse, but that isn't the problem that faces us today, it's the house and the lot. JOSEPH BERDINKA: It's a problem facing us, we don't want a bunch of horses in there. THE CHAIRMAN: One horse is what you have there now, you don't plan to put any more in? IRENE CARDINAL: No. BERTHA McHUGH: Then why change from residential to agricultural? THE CHAIRMAN: Nobody's changing it, it is residential and agricultural now. Anyone else? PAUL MICHALECKO: Yes, me, I'm on the west. THE CHAIRMAN: As far as we can determine, the purpose here is to sell a house, an existing residence. PAUL MICHALECKO: We're talking about a horse stable on the lot and the building, that building has no right there. I brought this up a couple of years ago. THE CHAIRMAN: I'm not familiar with it, it has no right there? PAUL MICHALECKO: No, ~t doesn't. That building was supposed to be built into a bungalow and they had a year's time to do it in. THE CHAIRMAN: Is there any explanation for that? IRENE CARDINAL: We had plans to build a bungalow back there at one time, but plans can be changed. In fact, we had renewed it about five times and things never jelled. But, as I say, this has nothing to do with tonight. The only problem tonight is just the dividing line between the other two houses. THE CHAIRMAN: You own the horse? IRENE CARDINAL: Yes, I do. THE CHAIRMAN: Anyone else? I don't think I can solve the horse problem for you. $outhold Town Board of Appeals -16- January 12, 1978 PAUL MICHALECKO: How big a lot, how much area do you need to have a horse on a lot? I think it's one acre. THE CHAIRMAN: How long have you had the horse there? IRENE CARDINAL: I've horses on and off there for about 15 years. JOSEPH BERDINKA: That horse had to be removed before under the same circumstances. IRENE CARDINAL: Like I say, this meeting has nothing to do with the horse at all. THE CHAIRMAN: I'm just trying to answer his question. They have changed the horse regulations several times. PAUL MICHALECKO: I saw my lawyer this morning. THE CHAIRMAN: Did he look it up for you? What did he say? PAUL MICHALECKO: You have to have one acre. THE CHAIRMAN: This would be a pre-existing situation. I think the horse part of the Ordinance was revised more recently than 15 years a~o. PAUL MICHALECKO: I talked to Mr. Wickham this morning. THE CHAIRMAN: There are a lot of Wickhams. PAUL MICHALECKO: Mr. Bill Wickham. THE CHAIRMAN: "The keeping of not more than two (2) horses and/or ponies owned and used by the owner of the premises for his personal use, provided that the land area devoted to such use shall not be less than forty thousand (40,000) square feet." That's the maximum permitted under the present Ordinance. Where somebody had a horse prior to this revision of the Ordinance, they would have a prior non-conforming use. I can't answer you any more than that. For instance, any use that was occurring before there was a zoning ordinance, obviously the zoning ordinance can't wipe out a use, you have prior rights to use your property, if a lot is too small for instance. If you have a grocery store and the whole area is zoned residential, you'd still have to grocery store. This is the same type of thing. PAUL MICHALECKO: That area we're talking about down Sound Avenue, that is residential now? THE CHAIRMAN: Sound Avenue? As far as I know, most of it is residential. Residential and agricultural, we combine the two zones in our zoning. JOSEPH BERDINKA: When did this happen? Southold Town Board of Appeals -17- January 12, 1978 THE CHAIRMAN: It's always been that way. way zoning applies to a rural community. This community or suburban. Anyone else? That's the usual is not an urban (There was no response.) After investigation and inspection, the Board finds that the applicant requests permission to divide property with insufficient width and area, CR27 and Sound Avenue, Mattituck, New York. The findings of the Board are that the Board is recognizing an existing situation. The applicant owns two houses and wishes to sell one. This property was set up prior to Zoning. The Board finds that strict application of the Ordinance would produce practical difficulties or unnecessary hardship; the hardship created is unique and would not be shared by all properties alike in the immediate vicinity of this property and in the same use district; and the variance will not change the character of the neighborhood, and will observe the spirit of the Ordinance. On motion by Mr. Gillispie, seconded by Mr. Grigonis, it was RESOLVED, Irene Cardinal, South River Road, Calverton, New York, be GRANTED permission to divide property with insufficient width and area, CR27 and Sound Avenue, Mattituck, New York as applied for. Vote of the Board: Ayes: - Messrs: Gillispie, Hulse, Grigonis, Doyen. (After the hearing was closed, Mr. and Mrs. Michalecko, Mr. and Mrs. Berdinka and Mrs. McHugh came up to the Board to ask if anything could be done about the horse situation. They stated that conditions are very unsanitary and that the whole situation was an annoyance to the neighborhood. The Chairman suggested that they get in touch with the Board of Health and the Building Department. They also stated that Mrs. Cardinal has blocked off a right-of-way with a fence.) PUBLIC HEARING: Appeal No. 2381 - 9:00 P.M. (E.S.T.) upon application of Baxter Properties, Inc., Main Road, Mattituck, New York for a variance in accordance with the Zoning Ordinance, Article III, Section 100-30 and Bulk Schedule, and Town Law, Section 280A for permission to set off lot with insufficient width and approval of access. Location of property: right-of- way, north side Oregon Road, Cutchogue, New York, bounded on the north by Long Island Sound; east by Simcik; south by Krupski; west by Gallagher. Southold Town Board of Appeals -18- January 12, 1978 The Chairman opened the hearing by reading the application for a variance, legal notice of hearing, affidavits attesting to its publication in the official newspapers, and disapproval from the Building Inspector. The Chairman also read statement from the Town Clerk that notification by certified mail had been made to: Michael J. Gallagher; Veronica Czebotar; Isidore Krupski; Est. of Amelia Simchick c/o Wesley Sinchick; Est. of Amelia Simchick c/o Stanley Simchick. Fee paid - $15.00. THE CHAIRMAN: Is there anyone present who wishes to speak for this application? ABIGAIL WICKHAM, ESQ.: We have here a piece of property with a very awkward shape and in order to do anything with it we feel this division is necessary. The access would be over the right-of-way as shown on the map. THE CHAIRMAN: I believe the right-of-way has been approved up to ... has it been improved all the way to this lot? ABIGAIL WICKHAM, ESQ.: I know it's been improved up to the point where it takes the turn. It would have to be improved in accordance with the Building Inspector's specifications. THE CHAIRMAN: It should be improved, the topsoil stripped and 6" of bank run put on it for a width of at least 15' extending from the northerly end of the right-of-way which enters from Oregon Road and borders the property of Isidore Krupski for a distance of 1128'. That's been improved. ABIGAIL WICKHAM, ESQ.: I believe so, if not it would have to be brought up to specifications. THE CHAIRMAN: It will take another 260' to get over to the property that you're talking about. You're going to sell that? Is there anyone else who wishes to speak for this application? (There was no response.) The property is well over 40,000 sq. ft., the property to be sold. It is divided by an adjoining lot from the balance of the property which consists of 4.63 acres. Does that 4.63 acres in- clude the ... ABIGAIL WICKHAM, ESQ.: It includes the right-of-way. THE CHAIRMAN: And this lot~too, right? The whole property is 4.63 so you will be taking off, approximately, a section which is 95' of shoreline by 580' of depth, 582'+. Everyone understand that? Anyone wish to object to this division of property? (There was no response.) Southold Town Board of Appeals -19- January 12, 1978 After investigation and inspection, the Board finds that the applicant requests permission to set off lot with insuffi- cient width and approval of access, right-of-way, north side Oregon Road, Cutchogue, New York. The findings of the Board are that the Board is in agreement with the reasoning of the applicant. The Board finds that strict application of the Ordinance would produce practical difficulties or unnecessary hardship; the hardship created is unique and would not be shared by all properties alike in the immediate vicinity of this property and in the same use district; and the variance will not change the character of the neighborhood, and will observe the spirit of the Ordinance. On motion by Mr. Gillispie, seconded by Mr. Grigonis, it was RESOLVED, Baxter Properties, Inc., Main Road, Mattituck, New York, be GRANTED permission to set off lot with insufficient width and approval of access, right-of-way, north side Oregon Road, Cutchogue, New York, as applied for, subject to the following condition: The unimproved right-of-way extending from the presently improved right-of-way to the lot created by this action shall be improved to a width of at least 15' with 6" of topsoil removed and replaced with 6" of bank run scarified into the surface. Vote of the Board: Ayes: - Messrs: Gillispie, Hulse, Grigonis, Doyen. PUBLIC HEARING: Appeal No. 2382 - 9:05 P.M. (E.S.T.) upon application of Elizabeth Froede, 48465 North Road, Southold, New York for a variance in accordance with the Zoning Ordinance, Article III, Section 100-30 and Bulk Schedule for permission to divide property with insufficient area. Location of property: North side CR27, Southold, New York, bounded on the north by L. Sawiski; east by J. A. Droscoski; south by CR27; west by L. Sawiski. The Chairman opened the hearing by reading the application for a variance, legal notice of hearing, affidavits attesting to its publication in the official newspapers, and disapproval from the Building Inspector. The Chairman also read statement from the Town Clerk that notification by certified mail had been made to: W. Sawicki; J. A. Droscoski. Fee paid - $15.00. THE CHAIRMAN: Is there anyone present to speak for this application? Southold Town Board of Appgals -20- January 12, 1978 ELIZABETH FROEDE: I'm here. THE CHAIRMAN: The houses on the lots directly to the east of yours, one of them appears to be about 10,000 sq. ft. and the next one appears to be about 14,000 sq. ft., that's Droscoski immediately adjoining and Volinski, is that correct? ELIZABETH FROEDE: Volinski? Oh, this is going back to the estate of Joe's father. THE CHAIRMAN: That's what it says on this survey here. The property that you own has 215', from the proposed division you have 215' of road frontage on one lot and 303' of road frontage along the North Road on the other lot. The total ap- proximate area of one of your lots would be about 38,000 or 39,000 sq. ft. and the other would be 30,000 sq. ft., roughly 3/4 of an acre. The way this property is laid out it's impossible you don't own the property in back of this, do you? ELIZABETH FROEDE: No. This is all of mine on the North Road. THE CHAIRMAN: It's impossible to enlarge these lots. Across the street are less than 40,000 sq. ft. dwelling lots on which are houses. Is there anyone else for this application? Anyone wish to speak against this application? (There was no response.) After investigation and inspection, the Board finds that the applicant requests permission to divide property with insufficient area, north side CR27, Southold, New York. The findings of the Board are that the Board is in agreement with the reasoning of the applicant. The Board finds that strict application of the Ordinance would produce practical difficulties or unnecessary hardship; the hardship created is unique and would not be shared by all properties alike in the immediate vicinity of this property and in the same use district; and the variance will not change the character of the neighborhood, and will observe the spirit of the Ordinance. On motion by Mr. Grigonis, seconded by Mr. Hulse, it was RESOLVED, Elizabeth Froede, 48465 North Road, Southold, New York, be GRANTED permission to divide property with insufficient area, north side CR27, Southold, New York, as applied for. Vote of the Board: Ayes: - Messrs: Gillispie, Hulse, Grigonis, Doyen. Southold Town Board of Appeals -21- January 12, 1978 (The Board read Mr. Fischer's letter in connection with the Murphy application stating that he was a neighbor who had not received notification of the hearing. Mr. Lark, Attorney for Mr. Murphy, said he had notified the neighbors listed on the tax roll. The Chairman stated that the Board is not responsible for notification of neighbors and does not have to delay a hearing because of inadequate notification.) PUBLIC HEARING: Appeal No. 2387 - 9:20 P.M. (E.S.T.) upon application of James J. Murphy, 3617 Johns Street, Wantagh, New York for a variance in accordance with the Zoning Ordinance, Article XI, Section 100-118 E & F for permission to re-construct non-conforming dwelling. Location of property: north side Horton Lane, Southold, New York, bounded on the north by Long Island Sound; east by A. Derosa; south by Horton Lane Beach; west by Horton Lane Parking Lot. The Chairman opened the hearing by reading the application for a special exception, legal notice of hearing, affidavits attesting to its publication in the official newspapers, and disapproval from the Building Inspector. The Chairman also read statement from the Town Clerk that notification by certified mail had been made to: Margaret Dow; Eugene L. Fischer, Jr.; Town of Southold; Frank Wagenbrenner; Kevin Moloney; Thomas J. Kelly. Fee paid $15.00. THE CHAIRMAN: The application is accompanied by a survey of November 5, 1970, by Van Tuyl, showing that the easterly dimension, or the westerly dimension of this property bordering the Town of Southold from Horton's Lane to Long Island Sound is approximately 344.5' The easterly dimension bordering the land of Dow and Horton and Fischer, according to this survey of 1970, is a distance of 344.13' from Horton Lane to Long Island Sound. There are 90.83', a straight line, front property line, and an arc consisting of 29' so that the width of the property appears to be 120', approximately. The easterly and westerly boundaries appear to be roughly parallel. This gives an acreage, total acreage of approximately 41,280 sq. ft. This is slightly over the 40,000 sq. ft. minimum required presently for a residence in the Town. Prior to passage of the Zoning Ordinance, these cottages were, four cottages referred to by the applicant were located bt the southerly end of the property near to Horton's Lane on about 1/3 of the acreage, the other 2/3 being beach and also intercepted, I believe, by a right-of-way of the Town of Southold. The applicant, the present applicant's cottage was demolished for whatever reason and the Board, basically, without going into the decision in great length of the previous application, some of the findings of the Board are that the applicant "has an undivided interest with three others on approximately 41,280 sq. ft. adjacent to the Town Beach on Long Island Sound. The use of the premises greatly exceeds the present density requirement of 40,000 sq. ft. per residential dwelling. The applicant demolished his house against the adviee of the Building Inspector and commenced the building of an enlarged two-story, two-apartment structure without obtaining a building permit. He was issued an order ..." I might say at this Southold Town Board of Appeals -22- January 12, 1978 point that the two-story, two-apartment structure was our description of the structure, the applicant's description was that this was a two-story, one-family apartment. However, there were identical indications on the upstairs and downstairs plans that indicated that the bedrooms, bathrooms, and kitchen were all over each other and we suspected that it was a two-family apartment. At least that was the thought, whether it was or not is really immaterial as far as the present application is concerned. "He was issued an order to stop construction prior to the public hearing. The applicant's hardship is self-inflicted. Neither public water or sewage is available. Even without the applicant's proposed new house, density provided by the three remaining houses greatly exceeds maximum density permitted." I might say at this point that in some cases in the Town we have looked perhaps less harshly at heavy density where it's related to summer use, which is entirely different from year-round use comsuming only a fraction of the water and only a fraction of the sewage requirements for a year-round house. "Even without the applicant's proposed new house, density provided by the three remaining houses greatly exceeds maximum density permitted. The lot is composed principally of beach sand and gravel and is b~sected by a 25' right-of-way running east and west." The Board went on to say that they denied this. "IT WAS FURTHER RESOLVED that James J. Murphy shall be required to remove all footings, concrete work, and block foundation from the premises and restore the lot to its natural ground level with earth fill." That was the previous decision on this and I think one of Mr. Lark's main differences in the new application is that it's his belief that the original application should have been in the form of a special exception which is used to relieve hardship in cases of non-conforming, cases of non-conformance. It's somewhat of a technicality. I might read, I'll get through with all my reading here in a minute ... The proposal here now is to build a one-story framed cottage that will not exceed the outside dimensions, I presume, of the original cottage and plans are presented, I'll say again that this is one-story. This presumably would be lo- cated exactly where the old cottage was. There is one other thing that I should read here, perhaps out of order because generally we hear from people who are for an application before we hear from those who object, but this is a formal affidavit. It's an "Objection to Application for Special Exception" dated January 6, 1978, to the Zoning Board of Appeals: "I, Frank W. Wagenbrenner of 88-25 74th Avenue, Glendale, New York does hereby object to the application for a special exception submitted by James J. Murphy dated December 28, 1977. The applicant's cottage was razed without a variance or permission from the Town of Southold. The applicant started a new structure consisting of two floors which were identical, without a building permit. Southold Town Board of Appeals -23- January 12, 1978 The present plans submitted by the applicant are still not the original structure but are about two hundred (200) square feet larger than the original structure. Further, the new plans would bring the applicant's proposed structure of four feet closer to the structure of Ann Kelly and present a fire hazard. The land south of Horton's Lane is owned by the applicant and has been mentioned in the applicant's petition. The coHcrete blocks and debris which were removed from the applicant's original cottage were dumped into said "low lying and vacant" area. Said area contains a large pond and might well be within the Wetlands Act. The holes and walls could have been repaired. It is submitted that the main intention of the applicant's intention to build the proposed cottage is to rent the proposed cottage out the strangers. It is repeated, that the proposed cottage would be two hundred (200) square feet larger than the original cottage and such contruction would be in violation of the Zoning Ordinance of the Town of Southold." /s/ Frank W. Wagenbrenner That is the objection from Mr. Wagenbrenner. I think that about covers everything that's in the file. Is there anyone present here who wishes to speak for this application? RICHARD LARK, ESQ.: As obvious from the Board's reading they are familiar with the application. At the outset I want to state that this is an application for a special exception and not a variance and it's not a mere technicality, the difference between the two. There is a slight error in the legal notice which states it's a variance and I want to reiterate that it is a special exception. THE CHAIRMAN: You mean our legal notice this time? RICHARD LARK, ESQ.: Yes. As stated by the Chairman, the prior initial application for a building permit back in January, 1977, was for a two-story structure and he's now re-applying, as seen from Exhibit 7 which the Board has before it, for a one-story one-family cottage. The notice of disapproval which you read into the record, dated December 28th, does state that the reason that it was denied was because the "premises are non-conforming and the dwelling demolished cannot be rebuilt.", a categorical statement in the Building Inspector's Notice of Disapproval. OK, although I per- sonally feel that the issue in this case is the Board, I think we'll see a little later on this evening from the testimony is not whether or not a special exception should be granted, I think it should, but the issued I think is whether this pre-existing use shall be allowed Southold Town Board of Appeals -24- January 12, 1978 to continue, I think that's the real heart of the whole matter that you have to consider this evening. THE CHAIRMAN: Could I interrupt you just a moment. The Notice of Disapproval from the Building Inspector dated February 1, 1977 ... RICHARD LARK, ESQ.: That was the original one. I was quoting from the one dated December 28, 1977. Do you have that one? If you don't I have one and I will hand it up as an exhibit. I have the original, I'll hand it up and ask you to mark it Exhibit A. THE CHAIRMAN: I've got it. It states that, "Premises are non-conforming and non-conforming dwelling demolished cannot be rebuilt." I think you're correct that that is wrong, it may not be rebuilt in excess of 50% of fair market value without a special exception. RICHARD LARK, ESQ.: I don't want to labor the point because, in order to avoid any procedural difficulties because the courts in this State have stated that building inspectors may not continue or extend non-conforming uses so that's why I feel that the Board of Appeals does have jurisdiction and that's why we're here under, for a special exception pursuant to Section 118 E and F of the Zonin~ Ordinance which states, "Unless otherwise authorized as a special exception by the Board of Appeals ... the following ... shall apply to nonconforming uses." The Ordinance goes on, in subsection E, to state, "A nonconforming building may not be reconstructed or struc- turally altered during its life to an extent exceeding in aggregate cost fifty percent (50%) of tbs fair value of the building, unless the use of such building is changed to a conforming use." Subdivision F, which is also applicable here, says "A non- conforming building which has been damaged by fire or other causes to the extent of more than fifty percent (50%) of its fair value shall not be repaired or rebuilt unless the use of such building is changed to a conforming use." I wish to draw the attention to the Board of Appeals to Section 100-13 of the Zoning Ordinance which is definitions, we'll go back to basics. In our particular code in Southold Town, under definitions of word usage they say, "Words in the present tense include the futur~; the singular number includes the plural, and the plural the singular." That's Section 100-13, right in the beginning of the Ordinance. THE CHAIRMAN: That sounds like a lawyer. RICHARD LARK, ESQ.: That was written by you people. For the record, and to save a lot of time, there's no question that I'm willing to admit on behalf of the petitioner that the cottage which was formerly there is no more. The Board, I believe, has inspected the property and that's a fact, we can start right with that. I'm not going to dwell at the present time on the standards of the Zoning Ordinance for a special exception, I'll come back to that after the Southold Town Board of Appeals -25- January 12, 1978 witnesses have testified. I want to submit that the words "fair value", although not defined in the Ordinance, the ~ourts have more or less defined them for us and I submit that "fair value" means fair market value of the entire use and all buildings on the property must be considered. Restoration or rebuilding must be permitted unless the damage exceeds the perscribed percentage, in our Zoning Ordinance 50% of the value of all the buildings taken as a whole. THE CHAIRMAN: Have you got a specific case on that? RICHARD LARK, ESQ.: Yes, I do, I'll recite it to you a little later on. In this particular case, prior to 1977, there were four cottages on the parcel of land located, more or less, in a compound towards the rear of the property away from the water. The buildings are located in a group together and, as I said, standing on the back portion of the property. The main proposition in the initial phase of this presentation that I'm submitting to you is that Mr. Murphy should be permitted to be allowed to restore his cottage on the basis of the limiting criteria in our Zoning Code of 50% means to apply to the whole property rather than any singular part thereof. In other words, that 50% of the restoration limitation as called for in the Zoning Ordinance of fair value be applied to the com- plex as a whole rather than to any singular part because to do otherwise, in this particular case before you, would be taking Mr. Murphy's property without due process of law. There is no question that this is a unique problem and a unique case that's come before the Board but I submit to you that the Board will have to consider, in making its deliberation, to compute what percent of the applicant's property was destroyed taking into consideration all the structures on the property. I submit to the Board that if it finds that the percent of damage to the petitioner~'s property, his cottage, exceeds 50% of the total value of the property then the Board still is not, still does not have to deny the petitioner his application, they can still grant him the relief under a special exception because if it just merely exceeds 50% the Ordinance does give the power, a special exception for the Board to continue a non-conforming use. But I fully recognize that the Board has the right, under the special ex- ception provision, to place any reasonable restrictions on the rebuilding'of Mr. Murphy's cottage. Now, I have three witnesses that I'd like to proceed with in order and then after that I have a small summation and that will conclude our presentation. The first witness that I'd like to call is Mr. Murphy himself. THE CHAIRMAN: Ail right. If Mr. Murphy's here, he can come forward and be sworn. You want the witnesses sworn? RICHARD LARK, ESQ.: Yes, I believe so. (Mr. Murphy approached the dais.) Southold Town Board of Appeals -26- January 12, 1978 THE CHAIRMAN: Raise your right hand, Mr. Murphy. Do you swear to tell the whole truth and nothing but the truth so help you God? JAMES MURPHY: I do. RICHARD LARK, ESQ.: Mr. Murphy, are you the petitioner, James J. Murphy, the applicant rather in the application sworn to before a notary public on the 28th day of December, 19777 JAMES MURPHY: That's correct. RICHARD LARK, ESQ.: And you have read this application? JAMES MURPHY: Yes. RICHARD LARK, are true today as 19777 ESQ.: And all the statements in there contained they were when you swore to it on December 28, JAMES MURPHY: That's correct. RICHARD LARK, ESQ.: Now, Mr. Murphy, could you tell the Board a little bit about your property, when you bought it? JAMES MURPHY: I bought the property back in December, 1970 as a group. I was approached by Mr. Kelly and asked if I wanted to be one of the partners to buy this piece of property along with Mr. Donnelly and Mr. Wagenbrenner. Mr. Kelly, he always rented the premises there and ... THE CHAIRMAN: Mr. Kelly was a long-time renter and knew the premises? JAMES MURPHY: That's correct. At the time I was approached Mr. Wagenbrenner was renting a piece of property there and Mr. Donnelly. THE CHAIRMAN: Did you know both of them prior to this? JAMES MURPHY: No, I didn't, but I went ahead with this piece of property with these three other gentlemen and enjoyed it immensely throughout the years. THE CHAIRMAN: Would you ever own property jointly again? JAMES MURPHY: With the problems I'm having now I'd have to say no, but with the enjoyment I had before, yes. THE CHAIRMAN: You would. In other words, there were no disagreements. JAMES MURPHY: No, none at all. $outhold Town Board of Appeals -27- January 12, 1978 THE CHAIRMAN: Nobody was enlarging their house or changing their house particularly. JAMES MURPHY: Later on as time when on, there was work done on two of them, enlargments and improvements ... THE CHAIRMAN: Small additions? JAMES MURPHY: Yes, that's correct. THE CHAIRMAN: And these were OK with you? JAMES MURPHY: Yes, I guess they were, I had no idea they'd filed for it. THE CHAIRMAN: Did you have a formal proceeding in which you OK'd these things or approved these additions. JAMES MURPHY: There's an agreement we have where everybody is supposed to, there's supposed to be 3/4 approval on any im- provement, large or small, done by each one, to agree or not to agree. THE CHAIRMAN: And did you get a chance to approve? JAMES MURPHY: No, I didn't. THE CHAIRMAN: They just went ahead and did it, but it didn't bother you. JAMES MURPHY: No. THE CHAIRMAN: Excuse me, I didn't mean to take over. RICHARD LARK, ESQ.: That's quite all right. THE CHAIRMAN: There's one thing in this application that isn't quite as we understood it. I'd like clarification on what the Building Inspector told you. He told you not to demolish the building, didn't he? JAMES MURPHY: No, I have not heard a word from him at all. THE CHAIRMAN: No, I mean originally, when you got in this trouble in the first place. JAMES MURPHY: When I originally filed for the application I came into the Town Board and I asked them if there's any problem with the subject plan that I'm presenting because I had the under- standing that I was limited to space as to how much I could build and how much I could go out. So with that in mind, I had an architect draw it to get the best floor area and enjoyment that I could have out $outhold Town Board of Appeals -28- January 12, 1978 of it for the limited space that I had. I'm looking for weekend retreats, I have a business and I'm looking to enjoy it and that's my purpose in doing what I did in the beginning. THE CHAIRMAN: Did you always use it for seasonal use, you didn't use it for winter? JAMES MURPHY: Just seasonal use. THE CHAIRMAN; April to October? JAMES MURPHY: During the summer months from May to October. THE CHAIRMAN~ Is that the way the others used their property? jAMES MURPHY: Yes, that's correct. THE CHAIRMAN: "The contractor, due to a misunderstanding of the procedure in the Town of Southold, and believing he was doing your applicant a favor, demolished the cottage." Are we expected to believe that the builder thought he was doing you a favor in demolishing the cottage? Is that a serious statement? JAMES MURPHY: I believe there was a complete misunderstanding along those lines. I contacted my builder to do the job there, it was during the winter months. THE CHAIRMAN: He knew that you would want to demolish the whole thing, is that what youfre saying here? JAMES MURPHY: No, I didn't want to demolish the whole thing. I only had in mind two walls to come down. THE CHAIRMAN: And you were going to add something on top? JAMES MURPHY: Yes, but I was leaving the other two walls there. But that's with the approval which, if I didn't have, I was going to put back to the same level. That was only two walls that I wanted taken down and, lo and behold, he took the whole thing down. THE CHAIRMAN: Well, it seems to have been not a comedy but a tragedy of errors. The Building Inspector thinks that he told you, he said this several times to me and to the rest of the Board that he warned you if you demolished the building you couldn't rebuild it. Well, we all know from statements that Mr. Lark has made and from what we know here on the Board, that isn't true either. But that's a statement he's supposed to have made. JAMES MURPHY: He's made it to me, and believe me if I heard it I would never have gone through with it. THE CHAIRMAN: I shouldn't think you would. Southold Town Board of Appeals -29- January 12, 1978 JAMES MURPHY: If I had known, for example, if I had a gun and somebody said, "Don't pull the trigger, there's bullets in it" I certainly wouldn't do it. THE CHAIRMAN: We also heard that somebody else in town told you that it didn't matter what the Building Inspector told you, you could go ahead and demolish it anyway, and I think that angered the Building Inspector. But without going into that ... I don't think I have any other questions but I'll reserve my right, as the senators do, to question you later. RICHARD LARK, ESQ.: Mr. Murphy, prior to 1977, how is the water supplied to the four cottages that were on there at that time? JAMES MURPHY: To the unit which is four cottages, that complex there, there's one pumphouse and everybody is supplied water by the pumphouse. RICHARD LARK, ESQ.: Where is the well~ point? JAMES MURPHY: The well point is in the far corner of the property away from the buildings and all. RICHARD LARK, ESQ.: Would that be the southeast corner of the property, the north being the Sound? JAMES MURPHY: Let me see, southeast, that's right. RICHARD LARK, ESQ.: And one well point supplies the four cottages through a pump house, is that right? JAMES MURPHY: Yes. RICHARD LARK, ESQ.: And what about cesspools? JAMES MURPHY: The cesspools are there for the purpose of four cottages. Two cottages, mine and Mr. Kelly's, are on one cesspool and two cottages operate on another cesspool. RICHARD LARK, ESQ.: Is it my understanding that the cottages prior to 1977 were intertwined, that more than one cottage used the cesspool, is that correct? JAMES MURPHY: Yes, they're still using the cesspools now. THE CHAIRMAN: You hage a unified cesspool system then, unified among the four cottages, with a coordinated water supply. JAMES MURPHY:As a matter of fact, we used the same electric when we first bought it. It was all in my cottage and now it's broken up where each one has its own. Southold Town Board of Appeals -30- January 12, 1978 THE CHAIRMAN: The same electricity? JAMES MURPHY: Yes, it was off of one meter. RICHARD LARK, ESQ.: So this was more or less a common usage of the electric, the water, and the sewage, is that right? JAMES MURPHY: Yes. RICHARD LARK, ESQ.: And you also share the taxes? The tax bill is 1/4 each, is that correct? JAMES MURPHY: Yes, that's correct. RICHARD LARK, ESQ.: And the use of the property other than the cottage per se is jointly by everybody? rent JAMES MURPHY: Yes, RICHARD LARK, ESQ.: JAMES MURPHY: Yes, RICHARD LARK, ESQ.: JAMES MURPHY: did rent it. THE CHAIRMAN: JAMES MURPHY: all. THE CHAIRMAN: JAMES MURPHY: the property is used generally. Did you ever rent your particular cottage? I have. With this addition, did you intend to it to perspective tenants to use during the season? Only in the same manner as I did before if I What was that manner? It was friends or relatives or whoever, that's You didn't rent it by the month? Oh no, weekly. RICHARD LARK, ESQ.: It was primarily limited to friends and relatives? JAMES MURPHY: Yes. THE CHAIRMAN: I don't think that Mr. Lark brought out the question of, that's been raised here and one of the objections about you're being 200 sq. ft. larger than the original plan, the original floor plan. JAMES MURPHY: This goes back several years, I had intentions of doing this, what I filed for in the beginning. I had placed a foundation and a walk ... Southold Town Board of Appeals -31- January 12, 1978 THE CHAIRMAN: I noticed these plans are dated October, 1976. This is somewhat prior to your application. JAMES MURPHY: Five years it goes back that I put this trench down and put cement in the front and on the east side, the north and the east side with the intention of having the cottage built up with a footing underneath. THE CHAIRMAN: In other words, that would enlarge it a little bit, is that correct? RICHARD LARK, ESQ.: You say this was done prior to your application? JAMES MURPHY: Oh yes. THE CHAIRMAN: You put down footings some years ago? JAMES MURPHY: About five years ago. RICHARD LARK, ESQ.: And that was on the east and where? JAMES MURPHY: The north. THE CHAIRMAN: And that would account for this 200 sq. ft. enlargement, that's 10' by 20', a substantial enlargement. JAMES MURPHY: It's 4' by 3' out front and 4' on the side. THE CHAIRMAN: Only 4'? JAMES MURPHY: On the side and 3' in the front. RICHARD LARK, ESQ.: When you say "out front" so the Board is not confused, could you orient yourself to either north or ... JAMES MURPHY: Toward the water, north, it was 27' and 3' would make it 30', and on the east I went 4' more to make it 20'. RICHARD LARK, ESQ.: Do you want a plan to refer to? JAMES MURPHY: Well, I could be more specific. (The Board and Mr. Murphy referred to the plans.) I went 3' out front here and 4' on the side out. This cement was here in that corner there. There was cement along here which I broke apart and recemented. There's a footing there, I did that five years ago. THE CHAIRMAN: 3' to the north and 4' to the east and it looks like 4' to the east would make about 24'? Southold Town Board of Appeals -32- January 12, 1978 RICHARD LARK, JAMES MURPHY: I'm sorry, by 30'. THE CHAIRMAN: JAMES MURPHY: THE CHAIRMAN: this is replacing ESQ.: 30' by 20' it should be. 30' long by 20' across. That's 24' across, 24' by 30' Yes, that's correct. Minimum dwelling size ... I mean 850 sq. ft., is 750 sq. ft., of course this is replacing some- THE CHAIRMAN: RICHARD LARK, photograph taken? JAMES MURPHY: thing. You don't have the size of the original, do you? JAMES MURPHY: The size was 3' shorter and 4' shorter. FRED HULSE, JR.: 27' by 20'. RICHARD LARK, ESQ.: What were the walls made of in the original structure? JAMES MURPHY: They were cinder block. RICHARD LARK, ESQ.: I wanted to show you this photograph, maybe this will help out, it's not there for the Board to see. The photograph that I'm showing you, is that a.fair and accurate representation of the cottage before it was knocked down? JAMES MURPHY: That is correct. RICHARD LARK, ESQ.: And you want to show it to the Board and they'll mark that as Exhibit 8. This was the original structure? ESQ.: That's correct. How long ago was that JAMES MURPHY: RICHARD LARK, JAMES MURPHY: wood rafters. RICHARD LARK, I would say, approximately, two years ago. RICHARD LARK, ESQ.: And that is a fair and accurate representation of the cottage as it existed at that time? That is correct. ESQ.: And what were the walls constructed of? They were constructed of cinder block and ESQ.: In your application you stated to the Board that some of the walls had deteriorated and had holes in them and were nesting places for various vermin, is that not correct? Southold Town Board of Appeals -33m January 12, 1978 JAMES MURPHY: Yes, that was verified when my builder knocked it down, there were nests inside the b~ocks. A hurricane had caused the front of it to sag which was built up again. RICHARD LARK, ESQ.: What hurricane was that, do you know? JAMES MURPHY: I think '38 or maybe '48, somewhere in there. RICHARD LARK, ESQ.: These cottages existed at that time? JAMES MURPHY: Yes, that's right. RICHARD LARK, ESQ.: Unless the Board has any other questions, I don't want to belabor the point except that everything in his application, it would be the same as if he testified to each and every item. THE CHAIRMAN: Yes. There's a slight difference, discrepancy here in the statement given us by Mr. Wagenbrenner. He says 200 sq. ft. and it looks as though this difference here is 180 sq. ft., it's a minor difference. Any other questions from the Board? OK, you want to bring on your next witness? RICHARD LARK, ESQ.: Mr. Stahlber9. THE CHAIRMAN: Would you give your name to the secretary please. RICHARD LARK, ESQ.: And your address~ HAROLD STAHLBERG: Harold Stahlberg, 3 Heather Drive, Northport. THE CHAIRMAN: so help you God? Do you swear to tell th~ truth, the whole truth, HAROLD STAHLBERG: Yes sir, I do. RICHARD LARK, ESQ.: Have a seat. Are you acquainted with the applicant,,Mr. James Murphy? HAROLD STAHLBERG: Yes, I am. RICHARD LARK, ESQ.: Could ~ou tell the Board how you are acquainted with him? HAROLD STAHLBERG: He's my insurance man and friend of the family. RICHARD LARK, ESQ.: Did he contact you to do some work for him out in Southold on Horton's Lane? HAROLD STAHLBERG: Yes. RICI~ARD LARK, ESQ.: Could you tell the Board when that was? Southold Town Board of Appeals -34- January 12, 1978 HAROLD STAHLBERG: I would say roughly around November, in that range. RICHARD LARK, ESQ.: What year? HAROLD STAHLBERG: 1976. RICHARD LARK, ESQ.: And what were you to do? HAROLD STAHLBERG: I was to knock down this building he had there, I hadn't seen it yet, we were just talking about it, and build this new building for him. RICHARD LARK, ESQ.: Did he show you any plans for this new building? HAROLD STAHLBERG: He did. RICHARD LARK, ESQ.: And were the plans for a one or two-story structure? HAROLD STAHLBERG: It was two-story. RICHARD LARK, ESQ.: Did you give him an estimate as to what it would take to erect it? HAROLD STAHLBERG: Yes, I told him something roughly around $20,000. RICHARD LARK, ESQ.: And did there come a time that you came to inspect this cottage in Southold? HAROLD STAHLBERG: I did. RICHARD LARK, ESQ.: When did that occur? HAROLD STAHLBERG: Probably around December or something like that, November maybe, that I went out there to take a look at it. RICHARD LARK, ESQ.: Did you go back at all in February of the following year? HAROLD STAHLBERG: That's correct. RICHARD LARK, ESQ.: Could you tell the Board how you went back or why you went back and what you did when you were there? HAROLD STAHLBERG: I was more or less given the job at the time to go and tear the building down, part of the building anyway. From then on I was going to start building the new one and that's exactly what I did. I went out there in February, I guess it was, and tore it down. In the process of tearing it down the da~nn thing was so bad that you couldn't, instead of knocking down one thing the ceiling and roof came down when we started tearing Southold Town Board of Appeals -35- January 12, 1978 it down and knocking out the walls on the other side, so I just proceeded to go ahead and knock the whole thing right down. THE CHAIRMAN: Was it your understanding that he was going to try to preserve two walls and then add something overhead? HAROLD STAHLBERG: That's correct. THE CHAIRMAN: Your conclusion was that two walls were inadequate. HAROLD STAHLBERG: They were definitely inadequate. RICHARD LARK, ESQ.: When you went out there in February, did Mr. Murphy know you were going out there? HAROLD STAHLBERG: He didn't know the exact date and stuff like that, not the exact day, no. RICHARD LARK, ESQ.: Well, when you decided to knock down all the walls on the premises on the cottage in question, did you obtain his permission prior to doing so? HAROLD STAHLBERG: Yes. RICHARD LARK, ESQ.: And he gave you permission to knock down all the walls? HAROLD STAHLBERG: No. The east side, the north side were to come down. The others were supposed to be left and I was supposed to add block onto those and bring the building around, only make it a little bit larger because of the fact that he had footings in there that added 3' on the east side of the building and I think 3' or 4' on the north side of the building toward the water. RICHARD LARK, ESQ.: Those footings were already there? HAROLD STAHLBERG: They were already there. RICHARD LARK, ESQ.: So you didn't call him up on the phone or communicate with him for permission to tear down the rest of the building, did you? HAROLD STAHLBERG: No. RICHARD LARK, ESQ.: And then I understand from having con- versations also with the Building Inspector that you proceeded then to lay some new cement block, is that correct? HAROLD STAHLBERG: That's right. RICHARD LARK, ESQ.: Did you have a building permit to do that? Southold Town Board of Appeals -36- January 12, 1978 HAROLD STAHLBERG: Jimmy said he was going to take care of the permits and that's all I knew. RICHARD LARK, ESQ.: Jimmy being Mr. Murphy? HAROLD STAHLBERG: Yes. The trouble is, he might not have figured I was going to go as fast as I did, when I start doing something I go. I went out there and knocked the thing down and I knew he wanted this building built and I just went ahead and I started building. The next thing I know, the Building Department's red-tagging it. That's when I got hold of Jimmy. RICHARD LARK, ESQ.: How long did it take you to knock it down? HAROLD STAHLBERG: Day and a half, approximately. RICHARD LARK, ESQ.: So it wasn't much of a cottage, was it? HAROLD STAHLBERG: No. RICHARD LARK, ESQ.: As I understand it then, you did this all on your own, Mr. Murphy didn't have knowledge that you were out here knocking down hi~ building and then starting a new one, is that correct? HAROLD STAHLBERG: Not when we exactly started doing it, he knew I was going to do it, but not when I did do it. RICHARD LARK, ESQ.: And how far did you get before, as you said, the Building Department red-tagged the site? You said you did lay some cement b~ock, is that right? HAROLD STAHLBERG: Yes, I had it about half-way up. The foundation was about half-way done. THE CHAIRMAN: Was that a slab was there originally? HAROLD STAHLBERG: Yes, sir. THE CHAIRMAN: How thick? HAROLD STAHLBERG: The slab was in there, I'd say, probably, I didn't check the slab, probably about 4" I guess. THE CHAIRMAN: You thought it was adequate, you were going to lay blocks right on the slab, is that correct? HAROLD STAHLBERG: The blocks are on footings, we've got footings under all of those. THE CHAIRMAN: Outside the slab? HAROLD STAHLBERG: Underneath the block walls there's footings 3' down in the ground. Southold Town Board of Appeals -37- January 12, 1978 THE CHAIRMAN: You put those there? HAROLD STAHLBERG: On the side that I wasn't supposed to knock down I put the footings. That was the west side and the south side. The other footings were already in from a previous time. THE CHAIRMAN: But on the west side there were no footings under the slab, is that correct? HAROLD STAHLBERG: No, sir. Nothing under the chimney, the chimney went down. This thing was a matchbox. THE CHAIRMAN: The slab was just laid on the sand? HAROLD STAHLBERG: That's correct. THE CHAIRMAN: Who put the footings down on the other three sides before you got there, somebody else? HAROLD STAHLBERG: I think he did and his neighbor. FRANK WAGENBRENNER: Mr. Murphy here put those he was having a big problem and I gave him a hand. ago. footings in, That was years THE CHAIRMAN: Any other questions? I think we understand how it happened. RICHARD LARK, ESQ.: At this time I'd like to call Mr. Psota. Oh, one more question of Mr. Stahlberg. Have you seen the new plans that Mr. Murphy has submitted to the Board? HAROLD STAHLBERG: Yes, sir. RICHARD LARK, ESQ.: Has he asked you for an estimate as to what it would take to construct that dwelling? HAROLD STAHLBERG: Yes. RICHARD LARK, ESQ.: And what is the estimate? HAROLD STAHLBERG: About 15 grand. RICHARD LARK, ESQ.: About $15,000 to erect that new one, the one-story one as submitted? HAROLD STAHLBERG: Yes. THE CHAIRMAN: And where did you come from, Mr. Stahlberg? HAROLD STAHLBERG: Northport. (Mr. Psota approached the dais.) $outhold Town Board of Appeals -38- January 12, 1978 SECRETARY: Could you spell your name, please? ANTHONY PSOTA: P-S-O-T-A, Anthony C., Sag Harbor, New York. THE CHAIRMAN: Do you swear to tell the truth, the whole truth and nothing but the truth? ANTHONY PSOTA: I do. RICHARD LARK, ESQ.: Mr. Psota, were you employed by me to make an appraisal of the fair value or the market value of the property on the northerly side of Horton's Lane owned jointly by Mr. Murphy and others? ANTHONY PSOTA: Yes, I was. RICHARD LARK, ESQ.: Did you make such an appraisal? ANTHONY PSOTA: Yes. RICHARD LARK, ESQ.: When did you do that? ANTHONY PSOTA: I started November 4, 1977. RICHARD LARK, ESQ.: Have you any interest in this property? ANTHONY PSOTA: No, I do not. RICHARD LARK, ESQ.: Are you related to any of the parties in this action, or this proceeding before the Board? ANTHONY PSOTA: No, I am not. RICHARD LARK, ESQ.: What is your occupation, sir? ANTHONY PSOTA: A real estate consultant and appraiser. RICHARD LARK, ESQ.: How long have you been engaged in the appraisal of real estate? ANTHONY PSOTA: 42 years. RICHARD LARK, ESQ.: Could you tell the Board what positions you'Ve held in the appraisal of real estate? ANTHONY PSOTA: I'm an associate of the State Board of Equalization, I was Assistant Chief of the Corps of Engineers, the Appraisal Branch. I retired as Director of the Appraisal Branch, General Service Administration, 26 Federal Plaza. RICHARD LARK, ESQ.: Have you any direct education in appraising such as appraisal courses offered by the American Institute of Real Estate Appraisers at various universities? Southold Town Board of Appeals -39- January 12, 1978 ANTHONY PSOTA: Yes, I took the American Institute of Real Estate A-praisers course at Harvard University in 1955. I also took the course for the Acquisition of Real Estate at Saratoga, New York. RICHARD LARK, ESQ.: Have you written any articles in connection with appraisal subjects? ANTHONY PSOTA: Yes, I have. I've written articles for the American City Magazine on assessments and tax procedures, also for local newspapers. RICHARD LARK, ESQ.: Would you please just give a sampling to the Board of various persons or firms that you've been employed as an expert on evaluation of property? THE CHAIRMAN: I think the Board is willing to concede that Mr. Psota is an expert, you don't have to go through all his history. RICHARD LARK, ESQ.: What was the purpose of the appraisal of the property for Mr. Murphy? ANTHONY PSOTA: The appraisal was to estimate the fair market value of the property. RICHARD LARK, ESQ.: What is fair market value? ANTHONY PSOTA: Oh, the value that a willing buyer, not forced to buy and a seller not forced to sell would arrive at for the purchase of a parcel of property. RICHARD LARK, ESQ.: How do you determine that? ANTHONY PSOTA: From knowledge, from sales if possible, there are three classic approaches to value. One is the cost approach, one is the market approach and one is the income approach. In property such as this you would use the market approach and the cost approach. THE CHAIRMAN: You wouldn't consider this an income property. RICHARD LARK, ESQ.: In assuming the market approach to value, how did you proceed in this particular case? ANTHONY PSOTA: I first contacted real estate brokers in the area and the Lusk Realty Service, which publishes all the sales in the County. I went to the Assessors Office and spoke to Mr. Fox, he was there then, I think he has retired since. I obtained the assessors' chart of the property. I investigated sales. I went through the area although I know the area very well, I've had dinner at one of the summer residences, Mrs. Cart, her son's house next door on Horton's Lane. I've eaten many times at the Seafarer, I know the area there has a lot of building which coincide, to a $outhold Town Board of Appeals -40- January 12, 1978 certain respect, with the subject property. I looked at sales and so forth. RICHARD LARK, ESQ.: Based on all these factors that you just described to the Board, what is your considered opinion as to the value of this property. ANTHONY PSOTA: The value of this property as of November 4th, 1977, I would say was $62,000. THE CHAIRMAN: $62,000? You're speaking of the entire four cottages? ANTHONY PSOTA: Three cottages, there were only three there. THE CHAIRMAN: The remaining three cottages and the property, approximately an acre. RICHARD LARK, ESQ.: And what value did you prescribe to the land portion in that $62,000 appraisal? ANTHONY PSOTA: In arriving at the land value, real estate brokers in the area and so forth claim that if the property were vacant it would have a value of about $300 a front foot on the Sound. The property having about 120 front foot would be about $36,000. But due to the right-of-way which practically cuts across the center of the property and the Town Beach on the left side of the property there towards the Sound, it would have a certain obsolescence that would be caused to the property, so in my esti- mation, the value of the land was only $25,000. RICHARD LARK, ESQ.: That's of the land. Could you tell the Board what you appraised the value of the improvements and how you went about that? ANTHONY PSOTA: The value of the improvements, the existing improvements, were based on the Marshall Swift Evaluation Service and figuring that there's about 1,600 sq. ft. remaining between improvements, it came up to about $33,000 for the three remaining improvements. Adding to it improvements such as the well house, shower stalls, the walks, drives, and so forth it would be an additional $3,000 or about $37,000 total for the improvements on the property. Add that to the land value of $25,000 and it would give you $62,000. Also, if I may explain, in arriving at the land value it is taken that there's no value as good as the value of the property itself, the subject property. I was very fortunate in acquiring a sale in August of 1977 of a one-quarter interest of the property for $15.000. That being the case with only three cottages on it and being sold for $15,000 according to the revenue stamps would place a value of $60,000. But in my opinion, $62,000 would be the value as of November 4th. Southold Town Board of Appeals -41- January 12, 1978 RICHARD LARK, ESQ.: Are you familiar with Mr. Murphy's application before the Board to erect a one-family cottage? ANTHONY PSOTA: Yes. RICHARD LARK, ESQ.: Have you looked at what is'Exhibit 7 before the Board, the plans of Harry Brown? ANTHONY PSOTA: Yes, I have. RICHARD LARK, ESQ.: And in looking at that plan, have you been able to determine as to what, from your experience as an appraiser, as to what the cost would be to erect that structure. ANTHONY PSOTA: Based again on Marshall Stevens' service, I also looked at Dow's and various other services, but this seemed the most applicable to this type of construction, from the plans it looked like the construction was going to be of concrete block almost the same as one of the existing structures, that I used $1.80 a cubic foot. There's about 8,890 cubic feet in this new construction of about 752 sq. ft. as I figure it. Prior to this there was 505 sq. ft. It's about $16,000 rounded. RICHARD LARK, ESQ.: If I understand you correctly, you estimated that the fair value of the existing improvements above ground including the pump house and the other improvements there was $37,000, is that correct? ANTHONY PSOTA: That is correct. RICHARD LARK, ESQ.: And you've estimated that the cost of reconstructing this building as presented to the Board is $16,000, is that correct? ANTHONY PSOTA: That's correct. RICHARD LARK, ESQ.: Could you then tell the Board if you've made a calculation as to what this percentage of the improvement would be to the existing structure? The proposed improvement. ANTHONY PSOTA: The improvement would be about 43%. RICHARD LARK, ESQ.: That based on applying existing improvements at $37,000 and the projected cost of the new improvement at $16,000 is that correct? ANTHONY PSOTA: Yes. RICHARD LARK, ESQ.: In the course of your appraisal, did you prepare a written report? ANTHONY PSOTA: Yes, I did. RICHARD LARK, ESQ.: Do you have a copy of that report with you? Southold Town Board of Appeals -42- January 12, 1978 ANTHONY PSOTA: Yes, I have. RICHARD LARK, ESQ.: This is the original report signed by you? ANTHONY PSOTA: Yes. RICHARD LARK, ESQ.: Determining the fair value as you just testified? ANTHONY PSOTA: Yes. RICHARD LARK, ESQ.: I'd like to offer this as Exhibit 9 and have it marked into the record. I have no further questions unless the Board would like to ask any of Mr. Psota. THE CHAIRMAN: I don't have any questions, I don't know whether the rest of the Board does. I think Mr. Psota has given us a very able demonstration. RICHARD LARK, ESQ.: As I said at the outset, I'll try to be brief. I realize this is a rather unique and difficult case because this type of thing doesn't come before the Board every day and I do understand the philosophy of eliminating non-conforming uses not only in our Town but in other townships where there are similiar provisions of Zoning Ordinances. I think it's well to look at exactly what a non-conforming use is and I submit to you that the lawful use of the property existing on the effective date of the Ordinance. 'In this particular case, the four cottages going back into the 30's were there prior to the enactment of zoning ordinances in the Town of Southold. The continuance of the use after the time that the Ordinance is effective, therefore it be- comes a non-conforming status. In other words, what was legal before is not legal at the present time pursuant to the Code. I'm well versed in the philosophy being that when non-conforming uses are destroyed, for any reason, that the owner should be expected to conform to the existing Ordinance. In other words, if he wants to rebuild he should rebuild his structure according to the existing ordinance. This is fine and it's a nice legal theory but it's only applied, when you think about our Ordinance and you reflect on it, where the casualty of the destruction of the structure would happen on a one-plot situation where you have a plot of land and the structure gets destroyed. It really isn't applicable when you think about it in a case such as you have before you. The reason that the courts have sustained the ordinances such as ours where we have a 50% evaluation limitation is because it's the casualty or the destruction of the structure and not the Zoning Ordinance that prohibits it from being erected again. In other words, the property in a normal case would have approximately the same value as if it were vacant to start with and the owner was starting all over again. The public interest, of course, would then be served if the property owner would then conform his new building to any future existing requirements of the Zoning Ordinance. As I say, Southold Town Board of Appeals -43- January 12, 1978 this is fine as far as theory is concerned but when you apply it to a particular case such as Mr. Murphy's, it never happens. To apply the Ordinance in the vacunun, as the Building Inspector has done, would be unconstitutional and would be the Ordinance, not the casualty, not the destruction that would prevent Mr. Murphy from rebuilding his cottage. Now, why do I say this? Well, if all four cottages were destroyed, then the Board, in my opinion, could pro- vide if they were so inclined that the owners would have to comply with the current standards. But when only one cottage is destroyed and the other three are still non-conforming to the existing standards of the Ordinance and the use still is remaining in a residential fashion, which it is here, you'll never have a con- forming use there, it is not conforming at the present time. The three structures there do not conform, not only to the square footage of the structures but to the side yard, rear yards, and the total 40,000 sq. ft. requirement for an individual household. But as I say, when you read the Ordinance in a vacumn it applies to a singular structure on a singular lot or if you consider it in the totality. Now, the 50% limitation, as I said, is valid if applied to one building or a separate non-conforming use. However, I submit to you it is not valid if applied to and including a building on a parcel of land with other buildings involved with it, in this case four cottages on 40,000 sq. ft. of land. As I said before, I recognize it's a difficult case but the elimination of one cottage doesn't eliminate the non-conforming use. You're never going to eliminate the non-conforming use unless at least three of the cottages or two more of them are destroyed. Now, when Mr. Psota testified, he testified that the fair market value of the entire property in his opinion was $62,000 and the value of the land, by itself, was $25,000, leaving the value of the existing improvements that are on there today as $37,000. He testified that he expected the estimated cost of the proposed one-story structure that's before you in the application would be $16,000. This figures out that Mr. Murphy's proposed im- provement to the existing improvements would be 43.3%. That appraisal which is before you as Exhibit 9, that's what it states. I submit when you take the total value of the property, I think he literally confined himself to the Zoning Code when he did that to come up with this 43% when he just applied it to the structures because if you were to apply it to the land and the structures as a unit, that $16,000 would only represent a 25.8% increase. So I think his appraisal is really fair and I want to point out that it is under the 50% requirement. As I said, I promised you some citations on this and they dwell on the fact that, in our definition, the singular includes the plural and the plural the singular, so when they talk about building in Section 100-18 E and F you can read that building as plural so you consider all four buildings on the parcel as one. The three remaining buildings and this improvement will not exceed 50% of the value. Now, an aggrevated case which I did find is Richards vs Robeson, 41 Misc. 2nd 850, and it really drove the point home. Up in Oneida County, there was a migrant Southold Town Board of Appeals -44- January 12, 1978 labor camp that had seven buildings on it. One of the buildings ... the migrant labor camp was established prior to zoning. Zoning came in and zoned the area where the labor camp was as residential. Neighbors had been trying to eliminate the Zoning Ordinance but it continued, I mean eliminate the migrant labor camp but it had con- tinued as a non-conforming use. One of the buildings was destroyed leaving the six remaining as non-conforming. The township in that case had an identical ordinance to ours where it described the definitions and described the 50% of the value, the fair value, it was absolutely identical in all respects. There the court stated, well, first of all the Building Inspector denied the application for the migrant labor owner to rebuild the seventh building. It went before the Board of Appeals and the Board, after numerous hearings and you can imagine in a case like that the crowds that were attracted, they finally allowed him to rebuild. Naturally, the neighbors took the Board to court and the court said that the Board applied the correct tests. They had to consider this building that was being replaced as part of the whole with the other six buildings. Since it did not exceed the cost of improvement, in testimony it did not exceed the 50% limitation, the Board could and should have granted it, and so they sustained the Board in that particular case. THE CHAIRMAN: Didn't the migrant labor camp have a special operating permit? RICHARD LARK, ESQ.: Not by the town but by the county. The county dictated as to the sanitary requirements, there were specific ones in that one. They were licensed by the county in that particu- lar case, that is correct. When it went into court, it all revolved around the point as to whether or not you have to consider that singular-plural business and whether you had to consider the one with the whole with the rest of the remaining six buildings. The court said that you do. That's the only case I could find really on all fours with the case that you have here tonight. There are other zoning codes that talk in terms of volume and everything but the courts, there was a country club up in Westchester County where one of the buildings in the country club burned down, they were trying to eliminate this country club, there had been litigation going on for years. It went all the way to the Court of Appeals, and the Court of Appeals finally told, on a remand back to the local board, that you had to take testimony as to whether the volume, it was a volume statute as opposed to a fair value statute, you had to consider whether on the rebuild application you had to consider that building, in this case the restaurant portion of the club, in re- lationship with all the other improvements on the country club. That's why Mr. Psota insisted with'me when I discussed this case with him that you couldn't take the land by itself and then try to add on the improvements, he insisted that you had to appraise the improvements separately and it does, it raises it up to that 43%. THE CHAIRMAN: I'd like to say at this point that I think we are probably persuaded that we can act on this favorably for your Southold Town Board of Appeals -45- January 12, 1978 applicant and that ... my recollection of the Board's reasoning last winter in denying this was that it was denied pretty largely on the basis of density, excessive density due to four houses on roughly 1/3 of the property. We were also reinforced by the non-conforming use provision of the Ordinance, but you go ahead. RICHARD LARK, ESQ.: That's all that I have to dwell on that, I think I've explained my position. I won't dwell on it to just mess up the record with a lot of voluminous words, but if the Board would go through each and every one of the requirements of the special exception that are stated in Section 100-141 C of the Zoning Ordinance, and before the Board can grant approval the Board has to determine and consider those under the special exception statute, I submit that the allowing of Mr. Murphy to build this cottage as he's proposing here will not adversely, it does comply with all those sections, subsections there, and will not adversely affect it. We're not involved, as you are in a variance and that's why I made the distinction earlier, with hardship or anything of that nature, or even practical difficulty but he does have to meet the standards of the Ordinance if the Board decides that the valuation of his improvement will exceed 50% of the valuation of the property. If they do make that determination, then they would have to go to each and every one of the items under the special exception. I submit to you that, since it is a rebuild of, in essence, what was there before and it really didn't bother anybody nor was it a nuisance and it is a residential and primarily a seasonal use, I submit to you that it will not be a derogation of those standards and most of them are covered in the petition. I won't go through each of them because I think they were covered adequately in the petition and Mr. Murphy did state exactly what he wanted to do with it. I submit that the health and safety and welfare and comfort, as they say in the statutes, will not be affected if he is granted this. It's not like a brand new cottage going up where there wasn't one there before, it's a replacement primarily of a fourth cottage that was there. I submit to you that it does meet the standards. Unless the Board has any questions, I'll be quiet. THE CHAIRMAN: this application? Is there anyone else who wishes to speak for DANIEL FISCHER: I think you may have covered this before I arrived, I wrote a letter. My sister and I were both concerned and not only was the legal notice in the paper in error, but also we were not notified by Mr. Murphy. THE CHAIRMAN: Well, the assessment in the tax office is what they go by and that's all that's legally required. This Board isn't required to furnish a legal notice. DANIEL FISCHER: Mr. Murphy is, at least according to Renny Terry. THE CHAIRMAN: It would not affect this hearing, but that's neither here nor there, you're here. $outhold Town Board of Appeals -46- January 12, 1978 DANIEL FISCHER: I'm here belatedly. Didn't the Town pass an Ordinance saying that they had to, someone seeking a variance had to notify adjoining property owners. THE CHAIRMAN: That's correct. Originally, the thinking was that all the neighbors within a certain area, say 100' or 500' would be notified. In going over the possibilities or what might happen if this were a legal requirement for a public hearing, we discovered that on one street in the community within 100' of the owner!s residence, the neighbors, one was in Mexico and one was in England. Similar situations, like that exist here, particularly in the winter time. DANIEL FISCHER: Two of us live in Southold and one in Greenport. THE CHAIRMAN: A lot of people are away at different times of the year and there are a lot of seasonal residences. DANIEL FISCHER: We've all been here since August. THE CHAIRMAN: We couldn't conduct the business of the Board of Appeals if this were a legal requirement, as far as we were concerned, to hold a public hearing. DANIEL FISCHER: Fine, but isn't Mr. Murphy required to do this? RICHARD LARK, ESQ.: He did. DANIEL FISCHER: He did not. RICHARD LARK, ESQ.: Yes, he did. They define property owner in Zoning, just to clarify it, it says, "The words owner and property owner mean the owner as shown on the current assessment role of the Town of Southold." I understand, in your particular case as it turns out, that the current assessment role of the Town of Southold might not be exactly right but this was unknown to the petitioner. DANIEL FISCHER: The tax role has been changed over the last several years and they still have not gotten it right. RICHARD LARK, ESQ.: OK, but that is not Mr. Murphy's fault ... DANIEL FISCHER: Except that Mr. Murphy was notified by my sister and was assured that you would duly notify her as to the time and place of the hearing. THE CHAIRMAN: I think that's outside this hearing, I'll be glad to go along with it, but it's outside the hearing. Southold Town Board of Appeals -47- January 12, 1978 DANIEL FISCHER: My other point was, you asked if anybody was in favor of the application, and I just did want to say that at one time there were six cottages on that property and the hurricane of '55 took two away leaving only four. It may become more of a conforming piece of property if there's another hurricane. THE CHAIRMAN: So you're speaking now in favor of ... DANIEL FISCHER: I have no objections, I don't care if he puts a house of ill repute up there, I just want to be let known. THE CHAIRMAN: Anyone else wish to speak for this application? (There was no response.) Anyone wish to speak against this application? I might say that after we've heard from the people against this application, we':ll have some opportunity for rebuttal. I'll be glad to hear now from anybody who wants to speak against this application. MRS. KELLY: As a former owner, I represent my son Thomas Kelly, I would like to know who sold a house for $15,000. THE CHAIRMAN: You're Mrs. Kelly? KATHLEEN WILLMAN: Her name is Mrs. Kelly, she's representing her children who are now the owners of the property, I am one of the owners. THE CHAIRMAN: And you are now one of the owners? KATHLEEN WILLMAN: I am one of the four children who now own the property. THE CHAIRMAN: So you own 1/16th. I was once in a situation where I owned 1/13th. MRS. KELLY: My question was, I would like to know who sold the property of the four owners for $15,000. Mr. Lark stated that one of the ... RICHARD LARK, ESQ.: I might help clarify that. I didn't state that, the appraiser did. AS it turns out and I have a photocopy of a deed dated August 11, 1977, from Thomas Kelly and Ann Kelly to a Thomas J. Kelly, Patricia~Bates, Kathleen Willman, and Nancy Fetherston. It was recorded in the Suffolk County Clerk's office on August 11, 1977, and it shows New York Real Estate Transfer Tax of $16.50 which com- puted at $1.10 a thousand would indicate a consideration of $15,000. It does refer to an undivided 1/4 interest in the property we're talking about. I'd be glad to offer the photocopy of that. THE CHAIRMAN: I think Mrs. Kelly can explain it. Southold Town Board of Appeals -48- January 12, 1978 ANN KELLY: Mr. Kelly and I have been out in Southold for many years. We own the property, we bought it in 1970. My husband died in August 21, 1977. RICHARD LARK, ESQ.: Before the deed, I hope. ANN KELLY: NO. My husband was ill with a brain tumor, he spent all summer out here. He went into the hospital in August, he had an operation. He begged us not to sell the cottage, he insisted that it always stay in the family, it was his wish and mine. The two of us deeded it, signed it over to my four children as a gift, strictly as a gift. RICHARD LARK, ESQ.: Mrs. Kelly, the record reflects that you received $15,000. I have it right here, I'm not making it up. ANN KELLY: It says no such thing. JOHN COMERFORD: That shows the payment of a transfer tax of $16.50 and it came out of the top of the head. ANN KELLY: I did it. RICHARD LARK, ESQ.: I don't want to get into this but I don't think you want to admit for the public record as a fraud. THE CHAIRMAN: What you're saying is that Mrs. Kelly had to estimate the value of the gift off the top of her head and she said $15,000, correct? JOHN COMERFORD: It was a vague, something that was snatched out of thin air. ANN KELLY: There was no money exchanged. It was his dying wish that this happen and it was mine, too. THE CHAIRMAI~: Are you a resident down there? JOHN COMERFORD: I was a resident but not now. I'm related to the Kelly family and I was present when this deed was drawn, I know why it was drawn and I know who drew it and who filed it and Mr. Lark knows who drew this deed. RICHARD LARK, ESQ.: No, I don't. JOHN COMERFORD: Well, I could inform you. THE CHAIRMAN: against this? Is there anyone else who would like to speak KATHLEEN WILLMAN: One of the main objections is when we bought this, when the original owners bought the property, they knew that they weren't conforming structures and they had no intention or they Southold Town Board of Appeals -49- January 12, 1978 knew it was impossible to change them. Mr. Murphy went ahead and enlarged, what is there now is not what was there when he bought it. In other words, the four walls that are going up right now were not the same, the measurements are enlarged all around. THE CHAHRMAN: I think he said that. KATHLEEN WILLMAN: I can't understand how he would have informed his contractor to break down two walls when he was en- larging ... THE CHAIRMAN: He was going to enlarge it on two walls and keep two walls, as I understood it. KATHLEEN WILLMAN: He couldn't. He had put what he calls a patio in the back and all the way in the side, he enlarged the front, there is no possible way that you can put two walls up and then bring it out further and build, around those two interior walls. THE CHAIRMAN: Let's ask Mr. Murphy. JAMES MURPHY: I had intentions of taking down the two walls, the one in the north and the one in the east. I was leaving the wall with the fireplace there and the wall in the back there and build up the other walls on the outer footing that I had put down. KATHLEEN WILLMAN: You build on the south on a slab that you added so that wall had to come down anyway, so that's three walls. JAMES MURPHY: Two walls, the east side and the north side. THE CHAIRMAN: I really don't think that this matters too much. KATHLEEN WILLMAN: In view of what Mr. Murphy is doing, he's conforming or not conforming, could I, as an owner now, Mr. Murphy is doing? Or the Donnellys or the Wagenbrenners? whether do what THE CHAIRMAN: Mr. Murphy isn't doing anything, that's why he's here. KATHLEEN WILLMAN: He's enlarging what he had, the house he had before. After he bought the house, he had cement laid. A couple of hears later, now he's filling in around ... THE CHAIRMAN: We covered this earlier in the hearing. KATHLEEN WILLMAN: We can't build on one side, we're on the property line. Can we put a patio down and build on the other side of our house as Mr. Murphy has? THE CHAIRMAN: You can certainly apply for it. ANN KELLY: There's no room for it now, Mr. Murphy has stopped us from ever doing that. Southold Town Board of Appeals -50- January 12, 1978 THE CHAIRMAN: This isn't a ... JAMES MURPHY: Can I interrupt just a moment? They're asking if they can add on, they already have. They enlarged the porch and they enlarged the ... THE CHAIRMAN: I'll have to suggest that there's no way we can solve the difficulties between the common owners here, and that you'll have to solve them yourself. We are only concerned with the Zoning aspects of the case which Mr. Lark has been talking about. As to whether you could add on to your cottage or patio or whatever, you could apply to the Building Inspector for a permit and I presume that you would first have to get permission from the other co-owners of the property. But I'm out of that as far as common ownership. KATHLEEN WILLMAN: Our basic objection then would be density and fire hazard, the proximity from one house to the other is just absurd. THE CHAIRMAN: We didn't put them there. KATHLEEN WILLMAN: But they are there and that's what we're talking about. THE CHAIRMAN: Now you're objecting to somebody rebuilding a house. KATHLEEN WILLMAN: To his enlarging it, the proximity. THE CHAIHMAN: Suppose the same thing had happened to your house. ANN KELLY: This house is se close to ours, it really is a fire hazard, if they cook something and the frying pan goes on fire, according to the way it is now. It's encroaching on our property. He will be 8' closer to their kitchen. KATHLEEN WILLMAN: The walls are being extended out from what they were. ANN KELLY: And there's an encroachment, it's 4'. There's an encroachment on our property, the density, there's no privacy, and it is a fire hazard. KATHLEEN WIL~: And in the future, if any one of us did decide that we would like to do what Mr. Murphy has done over the past couple of years, I am sure it would not even be taken into consideration. THE CHAIRMAN: Is there anyone else who would like to speak against this application? Southold Town Board of Appeals -51- January 12, 1978 FRANK WAGENBRENNER: I'd just like to make a few remarks about the contractor. Any contractor knows if you're going to do any kind of alterations on a house, if it's a repair you get a repair permit, it it's a complete job you get a new permit. This permit must be displayed on the premises, if there is no premise there you put it on a tree or a stick in front of the house. Any contractor knows this. Now let me state how the contractor tore down his house. As Mr. Murphy stated, he was going to take down two original walls and' extend the house out to the north toward the Sound and towards the east, all well and good. THE CHAIRMAN: Was that all right with the other ~o-owners of the property?' FRANK WAGENBRENNER: We didn't know about it. He spoke about this past years, doing this. THE CHAIRMAN: The other owners of the property had also made some additions, according to the record. FRANK WAGENBRENNER: Yes, with a building permit and we have C.O.s for this. We both, the Kellys and the Wagenbrenners, took out a permit, it was inspected, and we have certificates. Let me ask you gentlemen, if you were having an alteration on your house or a dormer put in, let's say you want to take down two walls. You cut away the roof, take the shingles off, the sheathing and all the rafters, and then take down the two walls, right? Would you let a contractor come in to work on your house with a backhoe on a payloader? That's how the contractor tore down his house. Another thing, he stated the house fell down easily. Ask the contractor, isn't it so that he had to go and get an air compressor and a jack hammer to rip away some of the concrete which he stated was porous and falling down. That house was built 30 years ago or more. I've got the same type structure with cinder block walls. That cement and concrete is as hard as the day it was put in there. If it was so overrun with rats and mice and full of holes, how come for the last seven years Mr. Murphy rented this place, sometimes for two weeks, sometimes for a month? Last year, he had a tenant that was taking it for the entire summer, but when Mr. Murphy came out to collect the rent, the tenant had taken off without paying Mr. Murphy. The place couldn't have been that bad if people kept coming back year after year. As far as putting all these houses together to come to a figure, I don't think that's fair at all, for the simple reason that Mr. Kelly and myself, in the last seven years or so, have spent at least $10,000 on improvements. He put in a nice bathroom, tiled floor, shower, porch and windows. I have had~.my house completely plastered inside, all paneled, electric baseboard heating, thermal pane aluminum windows that were all made to order. Mr. Murphy, in the past seven years the only thing he ever did to that house to improve it was to put a hot water heater in there so he could rent it out to people. THE CHAIRMAN: I don't think we came here to compare your house to Mr. Murphy's. $outhold Town Board of Appeals -52- January 12, 1978 FRANK WAGENBRENNER: How can you come around and say there's a total value of all three houses? THE CHAIRMAN: The man who did that was a real estate appraiser, qualified as an expert. FRANK WAGENBRENNER: I'm not going against his opinion or the next person's. We own the land in common as tenants, I agree, but we own each house individually. We have a deed for it, so how can you put three houses together and come up with a percentage for Mr. Murphy? Sure, we share one well and cesspools, we all had our own separate power lines coming in, we all had 100 amp adequate service, we did that when we originally bought the property. At one time there was one supply line coming in to Mr. Murphy's house and all the other houses drew their current from there. Naturally, when somebody wanted to put the heater and toaster on at the same time, the lights went out. As I said, we own the land as common tenants, but the houses are individually owned with a deed. I ask you again, gentlemen, would you let a contractor come in and work on your house with a backhoe and a payloader? As a contractor, he knew that he had to have a permit. THE CHAIRMAN: I don't think we're here to answer questions about what we'd do in that situation, we're trying to find information as to what has happened here in the past. Is there anyone else who would like to speak against this application? (There was no response.) If not and if there are no more rebuttals, do you want to answer any of the points that have been raised, Mr. Lark? RICHARD LARK, ESQ.: I'll start with Mr. Wagenbrenner, he was the one just before you. He's more or less buttressed Mr. Psota's appraisal of the improvements and it even leads me to suspect that Mr. Psota was too low in improvements because of the vast improvements that Mr. Wagenbrenner has made to his house. THE CHAIRMAN: I'm not sure whether in an appraisal you consider all the interior ... RICHARD LARK, ESQ.: But it buttresses the conservative nature of Mr. Psota's appraisal, and so if he is low, then of course the three improvements that are there, the three cottages that are there would be worth more and therefore Mr. Murphy's percentage would be even less. That's the point I wanted to make, Now, as to Mr. Wagenbrenner's statement that the contractor wasn't too bright, I'll admit for the record to that, it's a classic in stupidity, but that's not what we're here for as you had indicated. Now, as to his statement as to a deed, that's not true. The original deed to the property ... Southold Town Board of Appeals -53- January 12, 1978 THE CHAIRMAN: Just a moment. As an answer to Mr. Wagenbrenner's remark about the contractor, we have had contractors here in the Town of $outhold for 25 years who've done incredible things. You wouldn't believe them, we have a long list of those things which we won't bother you with, but it's not unusual for a contractor to do something you wouldn't expect or that's entirely against the Zoning Ordinance or that the man who hired him doesn't expect him to do, either. I don't think we can fault Mr. Murphy for that nor do I necessarily fault the contractor. I think frequently contractors work as fast as they can and as quickly as they can and get as much money as they can for the job, that's the only way they can stay in business. RICHARD LARK, ESQ.: As to the statement that they own the deed to the house, this is not correct. Originally when they bought the property back in 1970, I've got a photocopy of the deed from the County Center although it's a poor photocopy it shows that they all own it as tenants in common as represented to the Board. Since that time of the original deed in Liber 6862, page 373, back in December of 1970, there's been two deeds that affect the property on the public record. One was from a James Donnelly to a Kevin Molony which was in October 9, 1974, and recorded in Liber 7748, page 30. Curiously enough, Mr. Donnelly one of the common owners in the original deed, got the permission from the other three owners when he transferred the title over to Mr. Molony in 1974. The other deed of record transferring a 1/4 interest is the deed I referred to from Thomas and Ann Kelly dated August 11, 1977, in Liber 8287, page 462, to Thomas Kelly, Patricia Bates, Kathleen Willman, and Nancy Fetherston which the stamps were on there and which Mrs. Kelly has said that they had estimated that quarter interest worth $15,000 for purposes of a gift. Now, these deeds which I will submit show that the property · s owned as tenants in common and that it isn't a split out as to the cottage per se. I wanted to straighten that out for the record. They own all the land and the cottages which situate thereon. Curiously enough, and it absolutely flabbergasts me that the Kelly family is opposing this because this deed which I referred to was done without the consent or permission of the other joint owners which is required by this loose arrangement that they ha~e. But we're not here, as you said before, to settle any squables among owners of the property, it's a matter of record, we're talking about the Zoning Ordinance and non-conforming uses and again, I just want to address myself to the valuation problems and the evidence I've presented. I think there's ample evidence here that the Board can grant the application as presented to it. I will, for the record, submit these photocopies so you do have them as part of the record since questions have been raised, they will be Exhibits 10, 11, and 12. JOHN COMERFORD: Mr. Lark placed a lot of second deed that he mentioned which I said was indicate a sale. importance on that a gift and did not Southold Town Board of Appeals -54- January 12, 1978 RICHARD LARK, ESQ.: No, it does indicate a sale. JOHN COMERFORD: You said it was in keeping with consents ... RICHARD LARK, ESQ.: No, I said it was done without consent. JOHN COMERFORD: I don't recall your exact words, I believe you said, "loosely defined setups" or the transfer of property stamps, you had to have consents. RICHARD LARK, ESQ.: That's right, that's what their agreement said. JOHN COMERFORD: And you did admit that it was a loosely defined thing. RICHARD LARK, ESQ.: I couldn't agree with you more, it's pretty ineptly drawn. JOHN COMERFORD: Actually, there was no binding or formal doc%%ment indicating that they, that one had to obtain ... there was no recorded instrument that established any findings, reasons why one had to consult the other as far as consent is concerned. THE CHAIRMAN: We understand that, I think it was a verbal agreement. JOHN COMERFORD: Verbal. It was never formalized into a formal agreement. THE CHAIRMAN: Frequently, a verbal agreen~ent is better than a written agreement. KATHLEEN WILLMAN: It was totally unnecessary to have, I think, to have turned it over to us that way, he could have willed it to us. · HE CHAIRMAN: The only reason Mr. Lark brought it up is to establish some value, some idea of value. ANN KELLY: The value is more than that to me, it's double that to me. The market value is double what he just said. THE CHAIRMAN: It often is. Is there anyone else? Any other rebuttals or counter rebuttals? I'm going to suggest to the Board that they reserve their opinion on this to absorbe all the informa- tion that we've taken in here. I'm sure I can't sort it all out and deliver a legal opinion in five minutes that will stand up through all the courts this might go through. I would say, per- sonally, that it seems to me the Board should consider granting Mr. Murphy his request to replace approximately what he had there before. It's too bad that a lot of hard feelings developed among the owners, but that's my impression, and I'd also like to say that the Board's original thinking was based pretty much on density as well as the non-conforming use because we had density there which $outhold Town Board of Appeals -55- January 12, 1978 approximately the original density permitted in the Ordinance, 12,500 sq. ft. per lot. Since 1957, we're supposed to have advanced to 40,000 sq. ft., some places we can do it, some places we can't. So it's my opinion that all of us should think about this for the next three weeks and come back prepared to make a decision on February 2nd. On motion by Mr. Gillispie, seconded by Mr. Hulse, it was RESOLVED that the public hearing upon application of James J. Murphy, Appeal No. 2387, be RECESSED to February 2, 1978, at 8:00 P.M. (E.S.T.). Vote of the Board: Ayes: - Messrs: Gillispie, Hulse, Grigonis, Doyen. (After the hearing was closed, Mrs. Willman stated that her family would have no objection to Mr. Murphy rebuilding what was there originally, but they would object to the building of a larger structure.) PUBLIC HEARING: Appeal No. 2386 - 11:20 P.M. (E.S.T.) upon application of E. L. Wagner Co. a/c William D. Campbell, Private Road, Fishers Island, New York for a variance in accord- ance with the Zoning Ordinance, Article III, Section 100-32 for permission to construct swimming pool in front yard area. Location of property: Private Road, Fishers Island Estates, Fishers Island, New York, bounded on the north and east by Private Road; south by Eleanor Thatcher; west by Fishers Island Sound. On motion by Mr. Hulse, seconded by Mr. Grigonis, it was RESOLVED that the Southold Town Board of Appeals dispense with the reading of the legal notice for this hearing. Vote of the Board: Ayes: - Messrs: Gillispie, Hulse, Grigonis, Doyen. The Chairman opened the hearing by reading the application for a variance, disapproval from the Building Inspector, and statement from the Town Clerk that notification by certified mail had been made to: Eleanor Thatcher; Francis Adams; Christopher Roosevelt. Fee paid - $15.00. THE CHAIRMAN: Anyone wish to speak for this application? Anyone wish to speak against this application? (There was no response.) Southold Town Board of Appeals -56- January 12, 1978 After investigation and inspection, the Board finds that the applicant requests permission to construct swimming pool in front yard area, Private Road, Fishers Island Estates, Fishers Island, New York. The findings of the Board are that the Board is in agreement with the reasoning of the applicant. The Board finds that strict application of the Ordinance would produce practical difficulties or unnecessary hardship; the hardship created is unique and would not be shared by all properties alike in the immediate vicinity of this property and in the same use district; and the variance will not change the character of the neighborhood, and will observe the spirit of the Ordinance. On motion by Mr. Doyen, seconded by Mr. Hulse, it was RESOLVED, William D. Campbell, Private Road, Fishers Island, New York, be GRANTED permission to construct swimming pool in front yard area, Private Road, Fishers Island Estates, Fishers Island, New Y6rk, as applied for. Vote of the Board: Ayes: - Messrs: Gillispie, Hulse, Grigonis, Doyen. Five (5) Sign Renewals were reviewed and approved as submitted. On motion by Mr. Gillispie, seconded by Mr. Hulse, it was RESOLVED that the next meeting of the Southold Town Board of Appeals be held at 7:30 P.M. (E.S.T.), Thursday, February 2, 1978, at the Town Hall, Main Road, Southold, New York. Vote of the Board: Ayes: - Messrs: Gillispie, Hulse, Grigonis, Doyen. On motion by Mr. Grigonis, seconded by Mr. Doyen, it was RESOLVED that the Southold Town Board of Appeals hold a special meeting at 11:00 A.M. (E.S.T.), Friday, January 20, 1978, at the Town Hall, Main Road, Southold, New York. Vote of the Board: Ayes: - Messrs: Gillispie, Hulse, Grigonis, Doyen. Southold Town Board of Appeals -57- January 12, 1978 The meeting was adjourned at 11:25 P.M. (E.S.T.). ResPectfully su~itted, Mgry~ Dawson ~ Secr~ary