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HomeMy WebLinkAbout14696-zFORM NO. 4 TOWN OF SOUTHOLD BUILDING DEPARTMENT Office of the Building Inspector Town Hall Southold, N.Y. CERTIFICATE OF OCCUPANCY No Zt9137 Date JUNE 12, 1990 THIS CERTIFIES that the building Location of Property. 32400 C.R. 948 House No. County Tax Map No. 1000 Section 074 Subdivision RETAIL SERVICE STATION PECONIC Street Hamlet Block 04 Lot 07 Filed Map No. Lot No. conforms substantially to the Application for Building Permit heretofore filed in this office dated JANUARY 6, 1986 pursuant to which Building Permit No. 14696Z dated MARCH 25, 1986 was issued, and conforms to ail of the requirements of the applicable provisions of the law. The occupancy for which this certificate is issued is RETAIL SERVICE STATION The certificate is issued to TARTAN OIL CORP. (owner) of the aforesaid building. SUFFOLK COUNTY DEPARTMENT OF HEALTH APPROVAL PE~10 JUNE 1, 1990 UNDERWRITERS CERTIFICATE NO. N792127 FEBRUARY 4, 1987 PLUMBERS CERTIFICATION DATED W.HIM PLUMBING & HEATING JANUARY 22, 1990 B ilding Inspector Rev. 1/81 TOWN OF SOUTHOLD BUILDING DEPARTMENT TOWN HALL SOUTHOLD, N. Y, BUILDING PERMIT (THIS PERMIT MUST BE KEPT ON THE PREMISES UNTIL FULL COMPLETION OF TIlE WORK AUTHORIZED) 14696 Z Permission is hereby granted to.,:-~ . ...... ~.....~.:.......~......~....~..~'.~ ......... ......~...~....v..~.~ .................................................... ,o at premises located at ..~.....~...~.....4~.. ................................................... County Tax Map No. 1000 Section ..... ..C~...?...k/ ........ Block..............,.......0 ~ Lot No, .....0.....~ ............. pursuon, ,o application doted .....~..~.~....~. .................. , Jg.'.~....~.., ond approved by the Building Inspector. Fee $../ ......... t ......... Building Inspector Rev. 6/30/80 FORM NO. 6 TOWN OP SOWEUOLD B1JILDING DEPARTMENT TOWN UALL 76.5- 1802 APPLICATION FOR CERTIFICATE OF OCCUPANCY INSTRUCTIONS This application must be filed in typewriter OR ink and submitted to the Building Inspector with the following; for new buildings or new use: ]. Final survey of property with accurate location of all buildings, property lines, streets, and unusual natural or topographic features. 2. Final approval of Health Dept. of water supply and sewerage-disposal(S-9 form). 3. Approval of electrical install~Eion from Board of Fire Underwriters. 4. Sworn statement from plumber certifying that solder used in system contains less' than 2/10 of IZ lead. S. Commercial buildings, industrial buildings, multiple residences and similar.' buildings and installations, a certificate of code compliance from the Architect or Engineer responsible for the buil'dlng. 6. Submit Planning Board Approval of completed site plan requirements. For existing buildings (Prior to April 9, 1957] non-conforming uses, or buildings and "pre-existing" land uses: I. Accurate survey of property showing all property lines, streets, buildings and unusual natural or topographic features. 2. A properly completed application, a consent to inspect signed by the applicant and a certified abstract of title issued by a title company which shall show single and separate ownership of the entire lot prior to April 9, 1957. · If a Certificate of Occupancy is denied, the Building Inspector shall state the reasons therefor in writing tn the applicant. 3. Date of any housing code or safety inspection of buildings or premises, or other pertinent information required to prepare a certificate. For Vacant Land Certificate of Occupancy: i. An application for vacant land Certificate of Occupancy shall be submitted, and a certified abstract of title issued by a title company showing single and separate ownership of,the entire lbt prior to April 9, J957 shall also accompany the application. If a Certificate of Occupancy is denied, the Building Inspector shall state the reasons therefor in writing to the applicant. FEES: I. CERTIFICATE OF OCCUPANCY - New Dwelling $25.00, Additions to Dwelling $25.00, Alteration to Dwelling $25.00, Swimming Pool, $25.00. Accessory building $25.00 Addition to Accessory buildings, $25.00 - Businesses $50.00. Certificate of Occupancy on pre-existing dwelling - $100.00. Copy of Certificate of Occupancy - $5.00 - over $ years - $I0.00 Vacant Land Certificate of Occupancy - $20.00 Updated Certificate of Occupancy - $50.00 Temporary Certificate of Occupancy -$]5.00 Residential Commercial er. I0/14/88 TOWN OF SOUTHOLD BUILDING DEPAKTHENT TOWN HALL SOUTNOLD, NER YORK 765 - 1802 I BLDG. DEPT. TOWN OF SOUTHOLD APPLICATION FOR CERTIFICATr~ OF OCCUPAt~C¥ Location of Propercy ..: .................... .. ~0 NO. STREET ~AMLET ~SecCzon ...... Block ..... LoC' . ...... Subdivision ............. i ........ ~iIed ' ' ' ~3P ........ LoC .......... Permi: No ...... Da~ie of Permit ..... aontican~ IL ~ .................. ~nd~r~ri~ers Approva Request £or Temporary Ce:r~,,z£1caCe ....... Final Fee Subm:[::ed: $~.~.L.C~..: ............. rev- 10114/88 THE NEW YORK BOARD OF FIRE UNDERWRITERS  BUREAU OF ELECTRICITY 00740 85 JOHN STREET, NEW YORK, NEW yORK 1003B "o,~ ~ob~y 04. 19~7 Ap,.,,~.,,o. Na...~,,~ ~/~ N 792127 THIS CERTIFIES THAT o~y t~ e~ctrica/equipment ~ &scribed be~w and i~trodaced by the appl~a~t ~d on the a~ve application number in the premises o~ Tart~ Oil Co., ~iddle Road, & ~lio ~ad, Peconi~, ~,~. ~S examined on J~&~a~ 29 t ~987 and found to be in cootpllance a'it h the reqtt~reotent s of this Board. FIXTURE FIXTURES RANGES OVENS OUTLETS SWITCHES FLUORESCENT Lot EXHAUST FANS 32 6 21 DRYERS SYSTEMS NO. OF FEET E )THER APPARATUS: Ele¢. Water Hea~ers: l-l.6$kw Motors: 2-3h~ 1-1bp, 8-Fhp A w G NO OF HI-LEG A W G INO ~OF NEUTRALS OF CC, COND OF HI.LEG __ 3/0 Redmond El~c. CO~. 242B Rt. 109 Fazmingdal~, N.Y. 11735 Lio~863 GENERAl. MANAGER THis certificate must not be altered in any mann.~; return fo the office of the Board if incqrrect. Inspectors may be identified by their credentials. COPY FoR BU~ILDING DEPARTMENT. THIS COPY OF CERTIFI~,M~$T~iNOT BEii~I~,tERED IN ANY ~NNER i - Signature WILLIAM ~), MOORE PATR[CIA C. MOORE MOORE & MOORE ATTORNEYS AT I.AW SUITE 3 CLAUSE COMMONS MAIN ROAD P,O. BOX 23 MATTITUCK, NEW YORK 119S2 September 21, 1989 Southold Town Planning Board Town Hall Main Road Southold, NY 11971 Re: Tartan Oil / Peconic Mobil Dear Members of the Board: I am writing to confirm that your Board has authorized the Building Department to issue a Certificate of Occupancy for the Peconic Mobil station. Please advise me if this is not correct information. VetZ tr%~l-~yours, William D.'-Moore WDM/mr cc: Tartan Oil Corp. Building Department/Vic Lessard Permit No. 14696z STATE OF NEW YORK: COUNTY OF SUFFOLK ss.: I, William H. Mauff, being sworn, say; W.H.M. Plumbing & Heating Contractors, Inc., D/B/A Your Plumbing Company, hereby certifies that at the Mobil Gas Station on County Road 48 in Peconic (the corner road being Pauls Lane) we installed all copper domestic water piping using 95/5 solder as per New York State Code. W.H.M. Plumbing & Heating Contractors, Inc. D/B/A Your Plumbing Company Sworn to bef..ore me o~m~ Notary Public LAURA A. BUSH Notary Pubhc, State of New York No. 4817063 Qua{ified in Suffolk County Commission Expires May 31 W.H.M. Plumbing & Heating Contractors, Inc, D/B/A Yofir Plumbing Co. 16 Hulse Road East Setauket, New York'11733 (516) 473-3568 Fa~ # (516) 473-3762 Unico Service 57 Mall Drive Comm~ck, N.Y. 11725 Attention: Bill January 4, 1990 Dear Bill, W.H.M. Plumbing & Heating Contractors, Inc., D/B/A Your Plumbing COmpany, hereby certifies that at the Mobile Gas Station on COunty Road 48 in Peconic (the corner road being Pauls Lane) we installed all copper domestic water piping using 95/5 soder as per New York State Code. Sincerely, ' / William H. Mauler President WM/j lh FIELD INSPECTION DATE COMMENTS F OU~D~ I~ -- (1st) ~ FOUNDATION (2nd) - P~F_ ~ ROUGH FRAME & PLUMBING INSULATION PER N. Y. STATE ENERGY CODE 4. ADDITIONAL COMMENTS: 'FORM NO. 1 TOWN OF SOUTHOLD BUILDING DEPARTMENT TOWN HALL $OUTHOLD, N.Y. 11971 \ TEL.: 765-1803 Examined..~J4...a~....~..~..., 19~..~. Approved.... . . 19 5. Permit No. 5..% Received ........... ,19... Disapproved a/c ..................................... ................................ ..... (Building Inspector) APPLICATION FOR BUILDING PERMIT Date . ~a..n.u.a.r.y..6 ...... ,198..6. INSTRUCTIONS a. This application must be completely filled in by typewriter or in ink and submitted to the Building Inspector, with 3 sets of plans, accurate plot plan to scale. Fee according to schedule. b. Plot plan showing location of lot and of buildings on promises, relationship to adjoining premises or public streets or areas, and giving a detailed description of layout of property must be drawn on the diagram which is part of this appli- cation. c. The work covered by this application may not be commenced before issuance of Building Permit. d. Upon approval of this application, the Building Inspector will issued a Building Permit to the applicant. Such permit shall be kept on the premises available for inspection throughout the work. e. No building shall be occupied or used in whole or in part for any purpose whatever until a Certificate of Occupancy shall have been granted by the Building Inspector. APPLICATION IS HEREBY MADE to the Building Department for the issuance of a Building Permit pursuant to the Building Zone Ordinance of the Town of Southold, Suffolk County, New York, and other applicable Laws, Ordinances or Regulations, for the construction of buildings, additions or alterations, or for removal or demolition, as herein described. The applicant agrees to comply with all applicable laws, ordinances, buildir~g,j~e, housing co~d~, and regulations, and to admit authorized inspectors on premises and in building for necessary inspectj!ffnfij~/,y //[/~ _ .//_ (Signature of applicant, or name, if a corporation) ...~ q: .~.o..~...q~¥ .... ¥~..~..~.o..<~.~. ~..,q..~..//.f). (Mailing address of applicant) State whether applicant is owner, lessee, agent, architect, engineer, general contractor, electrician, plumber or builder. Allen W. Ovsianik .. ............................. Name of owner of premises ..................... - ......... (as on the tax roll or latest deed) If applicant is a corporation, signature of duly authorized officer. ............ .~/.% .............................. (Name and title of corporate officer) Builder's License No .......................... Plumber's License No ......................... Electrician's License No ....................... 1. Location of land on which proposed work will be done.. ?lfi..d.d.l.?..R.o.a..d.,..P..e. 9.o.n.J:9,..~]e.V' .Y. qr..k ............ House Number Street Hamlet County Tax Map No. 1000 Section ..... .7.4 ........... Block ........ 4. ......... Lot ...... 7 ............ Subdivision ........ ~/A ......................... Filed Map No ..... .- ......... Lot ..... .- ......... (Name) State existing use and occupancy of premises and intended use and occupancy of proposed construction: a. Existing use and occupancy N/A b. Intended use and occupancy ...~ '~ z~- .~...~..~..~/~ C 5f?..~..w? .Q.~. ............ 3. Nature of work (check which applicable): New Building ...X ' Addition .......... Alteration .......... Repair . .".'~ .......... Removal ...... '7.- ...... Demolition ...-.'7 ......... Other Work. :-.'~ ........... (Description) 4. Estimated Cost ..... .$.5.3. ,. 0..09... Q .0 ..................... Fee ...................................... (to be paid on filing this application) 5. If dwelling, number of dwelling units ...bI/A ......... Number of dwelling units on each floor .... N./.A ......... If garage, number of cars ....N/.% ................................................................. 6. If business, commercial or mixed occupancy, specify nature and extent of each type of use ~.~.g.~.]-. %~...rv..i~...S~.t;i. gn 7. Dimensions of existing structures, if any: Front... N/3% ........ Rear .... 'z ......... Depth .... ? ........... Height -.-. ............. Number of Stories .... .-.-. ................................................. Dimensions of same structure with alterations or additions: Front .... .7.7 ........... Rear ....-.'z ............ Depth..-.': .................. Height ..... ':7 ....; .......... Number of Stories .... ':.7 ................ 8. Dimensions of entire new construction: Front .... .3.z. ........ Rear .... 3. .~. ' .. Depth ~- v ' Height -/'/cO" NTumher of ~tnrle~ / 9. Size of lot: Front ....1.9.4[ ...5.4..f.O~.t ...... Rear...J.~.5...5.0. f~qgl .... i Depth .1.8.2., ~..f,~o~: ......... 10. Date of Purchase (.Io~c~). P, prj.,1, 24.,. ,l,9.85. ........ Name of Former Owner .. J.erry..V..i llani ........... 11. Zone or use district in which premises are situated....B.r J: .............................................. 12. Does proposed constmction violate any zoning law, ordinance or regulation: ...~J9 ........................... 13. Will lot be regraded ..... Y..e.s .................... Will exq~ss fill he re0a~oved from premises: Yes No 14. Name of Owner of premises .A~.i..e~. J.q:..O3,~..i..a_~. '.~5... Address .~oc~,cl .S ,y .... Phone No...7.3. 4- 56.0. 2. .... Name of Architect ........................... Address ................... Phone No ................ Name of Contractor .......................... Address ................... Phone No ................ PLOT DIAGRAM Locate clearly and distinctly all buildings, whether existing or proposed, and~indicate all set-back dimensions from property lines. Give street and block number or description according to deed, and show street names and indicate whether interior or comer lot. SEE DRAWINGS. STATE OF NEW YORK, COUNTY OF..SUI~F.O. LI5 ....... S.S ALLEN W. OVSIANIK ................................................. being duly sworn, deposes and says that he is the applicant (Name of individual signing contract) above named. He is the ........................................................................................ .. (Contractor, agent, corporate officer, etc.) ~'fxsl~il~ owner or owners, and is duly authorized to perform or have performed the said work and to make and file this application; that all statements contained in this application are tree to the best of his knowledge and belief; and that the work will be performed in the manner set forth in the application filed therewith. Sworn to before me this ...... .6.t.h. .............. day of ..... q.a.n.u.a..r¥ ......... 19 .8.6. ./~~~ Notar,5,.Public, ... ~ ........ .S.u.f..f.o.l.k. ............ County //~ ~ Notary Public BAP, n~',P~A Db',CHUN (Signature of applicant) Notary Pubiic, State o~ flew York No. 52-4635190 Suffolk Countu ~ommission Expires March 30, 19~ Permit No. A~,?.Z3 ...... PERMIT UNDER SECTION 136 of ARTICLE VI of HIGHWAY LAW WHEREAS, a certaln highway known as the Middle Road C.R. No. 48 has been improved and is on the Suffolk County Road System end Tartan Oil WHEREAS, P.O. Box 1017, Melville, NY 11747 re uests er ission to build 210LF-+ of concrete curb, 6" asphalt paving, driveways to be signed ~r r~g~t turns in & right turns out; restore County R.O.W. All per S.C. Specs & Typical Sections. On aspersketchormepeltached, the s/s/o Middle Road, C.R. 48, @ s/w/c of Public Road, Hamlet of Peconic, Town of Southold. NOW, THEREFORE, permission is hereby granted to said Tartan Oil to do said work upon the following conditions: CONDITIONS AND RESTRICTIONS 1. When concrele Is removed, cul concrete wtfh concrele saw Iwo feel outside the limits of Ihe proposed excavagon and for Ihe full panel width. When Ihe cut is made In pavement wllhln 10 teal of the panel Jolnf, Ihe pavement shall be removed for lull panel width Iron the cut on the far side el the excavation to the panel joint. 2. Backllll and thoroughly compact IIII using POWER TAMPER, placing soils so that various types of soil are In same relative position as before excavallng. Grade to original surface. 3. Replace pavement, sidewalk or surface same as existing; if concrete, replace using 1:1:3/4:3 1/2 mix siena mix concrete; if bilumlnous material, replace using same lype aa removed. 4. tf concrete curb Is removed, replace with similar curb 1:1 3/4:3 1/2 mix. 5. Edge of Jacking Pits or any olher excavation shall be not less lhan 5 feel Iron Edge of Pavement. No undercutting allowed In Pit. 6. Noilly Ihe Department at Yaphank924-3451 when Ihe workls to begin so that enlnspecllon canbe made el the operegon. This permit shall not be assigned or transferred without the written consent of the Commissioner of Public Works. The work authorized by this permit shall be performed under the supervision and to the satisfaction of the Commissioner of Public Works or his representative. Particular attention is called to the necessity of thoroughly compacting the back fill, which will be required by the Commissioner of Public Works. The Commissioner of Public Works shall be given one week's notice by said applicant of the date when it intends to begin the work authorized by this permit, and prompt notice of its completion. The said applicant hereby agrees to hold the State, County and Town harmless on account of damages of any kind which may arise during the progress of the work authorized by this permit or by reason thereof. Applicant certifies all persons concerned with actual work under this permit are duly covered by Workmen's Compensation Insurance and the State, County and Town shall be held harmless on account thereof. The Commissioner of Public Works reserves the right to at any lime revoke or annul this permit should the said applicant fail to comply with the terms and conditions upon which it is granted. The appllcant agrees to pay all necessary expenses Incident lo supervision and inspection by reason of the granting of'such permit as certified by the Commissioner of Public Works, such payment to be made within ten days from the rendering of the certified account. Work under this permit to be commenced within Ihirty days from the date of permit and continued in an expeditious manner. The applicant shall submit a detailed plan of structure to be built, with a description of proposed method of construction. It is understood that should future changes in the alignment or grade of the highway require changes in the work covered by this application and permit, th~ applicant shall on reasonable notice from the Commissioner of Public Works make such necessary changes at his own expense within the time so specified in notice. Traffic shall be maintained by the applicant on this section of the highway while the work is in progress and until its final completion. Certified Check . 0 0,00 A ~ ~ in the sum of $ ...~,..0 .............................. payable to the County Treasurer of Suffolk County is ~en~fiol:ited assecv t~thatthehtghwaywillberestorndtottsorigina condt onwheredisturbedattheexpenseoftheapplicant, aasoonas tbe workhas* Yc pl;sd. endthesaid CommissionerofPuh,cWorkslsherebyautborizedtoexpenda, orasmucbolsuchdepo ,as may be neck'?ertl ~l.ha~ purpose, sbould the said applican! neglect or *eluse to perform the work. In cons~der~ib ~qf.g~nting this permit the undersigned accepts it subject to conditions described. .......... l>~¢m e~:. 22,. J. Olt6 ................. Date TO AVOID SERI~ ~S DAMAGE TO VITAL UNDERGROUND FACILITIES, PLEASE CALL LONG ISLAND LIGHTING COMPANY AT JUNIPER 2-9000 :1 FOR TELEPHONE FACILITIES CALL N.Y. TEL. CO. FLORAL PARK 2-OFFICIAL 25 BEFORE STARTING THE WORK AUTHORIZED BY THIS PERMIT. CC: Town of Southold Form P-136 4~.~or: .,3 william D. Moore Patrlcla C. Moore MOORE & MOORE Attorneys at Law Clause Commons Suite 3 Main Road P.O. Box 23 Mattitnck, New York 11952 Tel: (516) 298-5674 Fax: ($16) 298-5664 MAR I 31990 Margaret Rutkowski Secretary March 9, 1990 Southold Building Department Town Hall Main Road Southold, NY 11971 Re: Tartan Oil / Peconic Mobil B.P. No. 14696Z Dear Ladies/Gentlemen: Enclosed please find two (2) letters from the plumber regarding the solder used at the above premises. It is our understanding that all that is necessary for the issuance of a Certificate of Occupancy for the premises is Health Department approval. We will forward same to you under separate cover. Please advise if there is anything further that you need. WDM/mr Encls. Our file # 163-87 cc: Tartan Oil Corp. MOORE & MOORE ATTORNEYS AT LAW MAIN ROAD P.O. BOX 23 (S 16) 298- 567~ · ",,,~ u~ ~r2L,,THOLD August 2, 1988 Southold Town Planning Board Southold Town Hall Main Road Southold, New York 11971 Re: Tartan Oil/Peconic Mobil Dear Members of the Board: In response to your letter of May 18th, the owner of the Peconic Mobil Station commissioned a lighting study to be done based upon concerns that had been raised regarding the amount of light on the property. Enclosed please find the specifications with respect to the lighting in Peconic. Also enclosed is a copy of the lighting study which was done. The original lighting at Peconic consisted of the "Riviera" model of lighting which consists of drop lenses with glass on five sides. After conversation with Valerie Scopaz it was agreed to replace this style of light with the "Marquis" style of light which is a one sided lens which is a flush lens with metal shields around all sides. The lighting study was done after these lights were replaced and the results are indicated on the study itself. The replacement lighting fixtures have corrected the lighting problems at Peconic and the lighting survey bears this out. The site does comply with the requirements of the Town Code and we respectfully request that the Board authorize the Building Department to issue a certificate of occupancy. If I may provide any additional information please do not hesitate to contact me. WDM:er encl. cc:Tartan Oil Corp. Southold Building Dept. DocId:080288.2 mo, rquis/Riviero, PRODUCT FEATURES Lurninaire-One piece welded ak~minum housing, Com- pletely waterproof. The extruded aluminum refractor frame is mitered and sealed with adhesive to the refractor. Re- fractor frame is hinged to luminaire w~th concealed alumi- hum h,~ges and locked with stainless steel % turn fasteners. Neoprene gasketing seals housing and refractor Neoprene backed stainless steel washers assure a waterproof seal between lummalre and ca~opy. Lampholder-Enclosed, qlazed porcelain socket with spring- loaded, nickel-plated center contact and lamp grip mogul screw shell. Integral Ballast-Starting rated to -20OF; mercury vapor and metal halide lamp ballasts are constant wattage autotrans- former type. Finish-White, baked-on alkydmelamine. All finished sur- faces are degreased, deoxidized and etched before finishing. Whiteway's finish is guaranteed for 5 years. Lamps-Furnished with a single lamp; 250 or 400 watt deluxe mercury vapor or 400 watt metal halide and high pressure sodium lamp, Marquis--Flat Prismatic Glass. Riviera-2" Drop Symmetrical Clear Acrylic. ~ , · This report has been prepared in accordance with lES guides on testing procedures. It is representative of luminaires tested under standardized LUMINAIRE SERIES 390§9-09 2 (Flat Glass} LAMP 400W Clear Metal Halide RATED LUMENS 32,000 LUMINAIRE SERIES 39099-46 4 (Drop Symmetric Refractor} LAMP 400W Clear Metal Halide RATED LUMENS 32,000 ORDERING SELECTION LUMINAIRES MERCURY VAPOR 250W Luminaire w/C73 Flat Glass 33 30059~03 5 250W Luminaire w/Acrylic Drop Symmetric Refractor 33 39059-42 3 400W Luminaire w/C73 Flat Glass 33 39059-05 0 39059-43 1 400W Luminaire w/Acrylic Drop Symmetric Refractor 33 METAL HALIDE 400W Luminaire w/C73 Fiat Glass 39 390S9-09 2 400W Luminaire w/Acrylic Drop Symmetric Refractor 39 39059.46 4 HIGH PRESSURE SODIUM 400W Luminaire w/C73 Flat Glass 55 39059-33 4 400W Luminaire w/Acrylic Drop Symmetric Refractor 55 39059~49 8 Note~ Specify t~ll~st vo~ta~e--120, 20~,, 240, 277 or 480. OPTIONS Recess Kit 15 47045-01 8 Plaster Frame 6 47026-01 8 Pendant Mounting Kit 12 47090-01 4 For Quartz Auxiliary Lighting System Add Suffix QZ AVAILABLE WITH QUARTZ AUXI LIARY LIGHTING SYSTEM Adaptor 24" Rough Opening Piaster Recessed Pendant 4 Southo!d Town Board of Al peals HAIN RI3AD STATE RnAD 25 SOUTHOLD, L.l., N.Y. APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRtGONIS, JR. SERGE DOYEN, JR. ROBERT J, DOUGLASS JOSEPH H, SAWIC~41 William D. Moore, Esq. Clause Commons, Suite 3 Main Road, Box 23 Mattituck, NY 11952- April 4, 1987 Re: Appl. No. '3597 - Tartan Oil Co. (Special Exception) Dear Bill: Thi'~ letter will confirm that the board members have reviewed your recent correspondence at our Regular Meeting held last evening concerning the above matter. With reference to your second and third paragraphs, please be advised that the .board members would not offer a motion to reconsider our previous decision based on the reasons given in your request in order to allow self- service kerosene and diesel. Although "partial self- ser¥ice'~asoline service stations" are listed as a permitted use by Spec~l' Exception under Article VII, Section 100-70(B)[5], the self-service operation of diesel and kerosene fuels is not spe.cifically listed as a permitted use (by Special Exception). The.specifics necessary to permit the self- service operation for the sale of kerosene and diesel did not appear sufficient in the Board's opinion and the Board accordingly disallowed it as indicated in our March 5, 1987 decision. With reference to paragraphs 4 and 5 of your letter, please be advised that the amendments requested were not p.art of the previous application under No. 3597, and accordingly, may not be .considered except by separate Page 2 April 4, 1987 To: William D. Moore, Esq. Re: Tartan Oil Co. Appl. No. 3597 formal application. Enclosed for your convenience are packages for a variance application and special exception application in the event you choose to file in the near future. Your's very truly, GERARD P. CHAIRMAN GOEHRtNGER lk Enclosures cc: Building Department Planning Board 29 IRVING DRIVE WOODBURY, NEW YORK 117,9~7 PHO~F* ($16) 692-8~16 AU~ObIATIC,FIRE EXTIngUISHeR REP,ORT LOCATION/NAME__ Mobil ~il , S6und Rd & S~ST~M Pemall Paul Lane PGS-70 Peconic NY GaS s~&tion system We have completed the installation of the automatic fire extinguisher system at the above location. Installation was completed and tested: 12/17/86 Disposition (How Tested) 12/17/86 physcial ~est Date Town Permission to install %, Zns~&llation was done in accordance with: PEMALL PGS-70 Manual N~te's Installation Company Name? Notary ~ ~-~-.~_~.-w / County / Title ,,, ELITE ACTION EXTINGUISHER EQUIPMENT & SERVICE INC ~omi~llssioa ~xpires June Term Expires T WN EI'F S El,_ UTH O "'' ' rIFFlE:E: OF,BUILDING INSPEDTr"IR.r Dote .......... 0 ~ ........ ,~,, .............../c~(o Suffolk County Yaphank Ave., Yaphank, N. Y. Deqr Sir: In. accordance with Section 239K of the General Municipal Low of the consolidated Laws of the State of New .York, this is to noti{y the Commis- sioner of Public Works of the County of Sulfa k that ....T...a..r...t..a...n....O...z..1....C..o...m. pany, P.O. ;Bo× 1017, MeZville/'N¥ 11747 has applied to the Town of Southold for a permit to construct n building on Co.u...n,%.l~...R.o.u, te 48, 'Peconic, Tax Map No. 1000-74-4-6. as shown on the attached plot plan, submitted in triplicate, d~ted ~Sz ........ .... ¢..~.,.....Z.~.,8..6. ..................... and titled ..'i..~..~.,,~.~...~.....O.~..1....C...°.,m,~.,~.,~.~.~] ........... We shall withhold further action on this application for ten days or as otherwise provided in the aforementioned Section 25C)K. i0/20/86-AP~ROVED.~ To the Tow~ of Southold pursugnt to Section 239K.of th~""General VeW truly yours, Municipal Law subject to ,-the stated co~d±tions: As per revisions & comments in red..A ~ermit,/ 'is required pursuant' to Section 136 of th~; Highway Law. ,Only one (1) access to C.R~,.,'48 'will be allowed. ,Right turns' in and right turns out SUFFOLK COUNTY DEPT. OF PUBLIC Building Ir~spector only; ~. WORKS. Town o~ Southold, N. Y. signed ' A. BARTON CASS, COMMISSIONER accordingly. ,. *As per phone com~aunication of 10/3/86 with the Town · (D.' Sch~l~,.ze, Planning ;Board, 765-1938) CHIEF ENGINEER ,, -,. - .... December 23, 1986 Bennett Orlowski, Jr., Chairman Southold Town Planning Board Southold Town Hall Main Road Southold, NY 11971 Dear Mr. Orlowski:'" Re: Tartan Oil amended site plan This letter is being submitted to the Southold Town Planning Board in compliance with the conditional site plan approval requiring a detailed list of the items intended to be sold in the sales area of the kiosk. The station will offer for sale only those items permitted for sale in the B-1 zoning district in which the property is located. The items to be offered are those commonly found in a small convenience store; such items will include the following: soda, beer, milk, bread, butter, eggs, hot coffee, newspapers, magazines, and sundry items and notions. No foodstuffs that would require a food service permit from the Suffolk County Department of Health for sale will be offered. Very truly yours, Barry Tattering President, Tartan Oil Corp~ FORM NO, 3 TOWN OF SOUTHOLD BUILDING DEPARTMENT TOWN CLERK'S OFFICE SOUTHOLD, N.Y. NOTICE OF DISAPPROVAL File No ........ ~ ...................... ~o~Z~..~ .~.~....%.. ~ ~ .... ....z~-..~...~... ~.~..... PLEASE TAKE NOTICE that your application date~. '.~.[St-~. b~ ........19. ~... for pemdt ,o construct. ~.. ~.~~. ~~..~ ....... at Location of Property . .~.~.~.~ .... County Tax Map No. 1000 Section ..'.~.~ ...... Block .... O. ~ ..... Lot . ~.~,.[ ...... Subdivision .................. Filed Map No ................. Lot No .................. is returned herewith and disapproved on tile following grounds..~...~... ~.~. k ~ :.T~ 3 ~.~...~ .... ~ ......... Building Inspector RV 1/80 T D Southold, N.Y. 11971 (516) 765-1938 August 27,1986 Mr. Allen Leo~ Secretary Tartan Oil Corp. 150 Broad Hollow Road Melville, NY 11746 Re: Site plan for Tartan Oil at Peconic Dear Mr. ~eon: The following action was taken by the Southold Town Planning Board, Monday, August 25, 1986. RESOLVED that the Southold Town Planning Board approve the amended site plan for Tartan Oil Corporation (formerly Allen Ovsianki) for construction of a gas station located at County Route 48, Peconic, survey dated May 31, 1986, tax map no. 1000-74-4-6; subject to: detailed list indicating those items sold in the sales area of the kiosk. Receipt and approval by the Planning Board of a intended to be If you have any questions, please don't hesitate to contact our office. cC~~ndgL~erpkar tment Very truly yours, BENNETT ORLOWSKI, JR., CHAIRMAN SOUTHOLD TOWN PLANNING BOARD By Diane M. Schultze, Secretary T' iLD Y Southold, N.Y. 11971 (516) 765-1938 August 7, 1986 Mr. Victor Lessard Executive Administrator Town Hall Southold, NY 11971 Re: Tartan oil Dear Mr. Lessard: The following action was taken by the Southold Town Planning Board, MOnday, August 4, 1986. RESOLVED that the Southold Town Planning Board refer the amended site plan of Tartan Oil Company, for construction of a gas station located at North Road, County Route 48, Peconic to the Building Department for certification. Survey dated as amended 5/31/86. Enclosed are three copies for your review pursuant to certification. Please contact this office if you have any questions. Very truly BENNETT ORLOWSKI, JR., CHAIRMAN SOUTHOLD TOWN PLANNING BOARD By Diane M. Schultze, Secretary Southold Town Board of Appeals MAIN RnAD- sTATE R{3AD Z5 SE3LITHE]LD, L.I., N.Y. 11971 TELEPHONE (516) 765-1809 APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONI$, JR. SERGE DOYEN, JR. ROBERT .J. DOUGLASS JOSEPH H. SAWICKI June 24, 1988 ~.CENED jUN 24 1988 TO: RE: Office of the Town Clerk Notices of Petitions, Petitions in the Matter of Tartan Oil Co., Main Road, Mattituck Appl. No. 3633 and No. 3636 Transmitted for your record are copies of the above two Notices of Petition, Petition, etc. received today at approximately 2:50 p.m. Copies of same have been hand-given to the Town Attorney's Office at this time al~o. lk SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK TARTAN OIL CORP., Petitioner, - against - BOARD OF ZONING APPEALS OF THE TOWN OF SOUTHOLD, Respondent. cc: Town, Board Town Attorney Chief of Police Super. of Hiqhways Grlffing & .~outhwick McMann PrIce William Mullen Bldg. Dept. NOTICE OF PETITION 'Index No. PLEASE TAKE NOTICE, that upon the Petition of Tartan Oil Corp. ("Tartan"), verified on the 23rd day of June, 1988, and upon the annexed Affidavit of Barry Tallering, sworn to on the 23rd day of June, 1988, the annexed Affidavit of Joel H. Joseph, Esq., sworn to on the 23rd day of June, 1988, and the exhibits attached thereto, and upon all testimony, papers and proceedings had before the Respondent, Board of Zoning Appeals of the Town of Southold, ("Board"), with respect to the matters set forth in the Petition herein, the undersigned will move this Court at an IAS Part thereof, to be held in and for the County of Suffolk, at the Suffolk County Courthouse, located at 235 Griffing Avenue, Riverhead, New York on the /~day of July, 1988, at 9:30 A.M. or as soon thereafter as counsel can be heard for: 1 !) a review of the determination of the Respondent! Board denying Petitioner's application for an Interpretation of Article VI, S100-62.B, Chapter 100 of the Code of t~e Town of Southold ("Zoning Code") referring to retail sh,~opping centers, or, in the alternative, for a Variance f~om said Article VI, S100-62.B of the Zoning Code, to permit ~stablishment of a retail shopping center on a less than one-aCre lot, so as to establish a convenience store as an accessory to the existing gasoline service station on the premises, ilocated at the south side of Main Road along the west sideI of Marratooka Lane and" along the east side of Sunset Avenue, Mattituck, New York, and, 2) for a judgment annulling such determination and directing the Respondent Board to grant Petitioner's applieati6n for such rel£ef upon the grounds that the determination of the Board under review herein, is illegal, arbitrary,i capricious, unjust, contrary to law, and an abuse of discretlion; and i3) such other and further relief as this Court deems justi and proper. PLEASE TAKE FURTHER NOTICE, that demand is hereby made that Respondent certify and send to this Court within the time ?resoribed by C.P.L.R. S7804(e), all actions and proceedings of the Board in designated Appeal No. 3636, 2 the above-entitled matter and with a certified copy of all petitions, appeals, applications, documents, letters, affidavits, diagrams, any and all other papers before or acted together with a certified copy of determinations, decisions and opinions of minutes of all proceedings, hearings, and reports, notices, plans, drawings and upon by the Board all resolutions, the Board and the the reports of all inspections and examinations and all other matters and things considered or acted upon by the Board in arriving at the determination now under review for the purpose of reviewing all the acts and proceedings of the Board in the matter of the Application of Tartan Oil Corp~'% Appeal No. 3636. PLEASE TAKE FURTHER NOTICE that answering papers, if any, must be served on the undersigned at least five (5) days before the return date of this Petition. Dated: Mitchel Field, New York June 23, 1988 Yours, etc., LEVINE & ROBINSON, P.C. 50 Charles Lindbergh Boulevard Mitchel Field, New York 11553 (516) 794-6900 Attorneys for Petitioner To: Board of Zoning Appeals Town of Southold Main Road - State Road 25 Southold, New York 11971 (516) 765-1809 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK TARTAN OIL CORP., Petitioner, - against - BOARD OF ZONING APPEALS OF THE TOWN OF SOUTHOLD, Respondent. '~ : PETITION Index No. ii TO THE SUPREME COURT OF THE STATE OF NEW YORK: Petitioner, Tartan Oil Corporation,- by its attorneys, Levine & Robinson, P.C., as and for its Petition pursuant to Article 78 of the C.P.L.R. to review a Decision and determination of Respondent Board of Appeals filed May 27, 1988, in Application No. 3636, respectfully alleges as follows: 1. Petitioner, Tartan Oil Corporation ("Tartan" or "Petitioner") , is a corporation duly organized and existing under the laws of the State of Delaware and duly licensed to do business in ~.~ Yo'rk, with principal offices at 150 Broad Hollow Road, Melville, New York 11747. 1 Respondent, Zoning Board of Appeals ("Board"), is the dui~ly constituted Board of Appeals of the Town of Southold, ~ounty of Suffolk, established pursuant to $267 of the Town Law. ~. Petitioner is the owner in fee of certain real property ~ocated within the hamlet of Mattituck, Town of Southold, County of Suffolk, and situated at the corner of Main Road,i Marratooka Lane and Sunset Avenue, Mattituck (the "Premises"!). The Premises are presently operated as a full service st.lation in compliance with the Zoning Code. :!4' The Premises were the subject of an Application to Respondent Board requesting an interpretation and/or Variance of Article VI, $100-62.B, of Chapter 100 of the Town of Southold ("Zoning Code") concerning the Code 6f the establishment of a convenience store as an accessory use to an existing gasoline service station. i5. The aforesaid Petition was presented and heard on February. 18, 198~ and continued on April 14, 1988, at the Town Halli of the ~own of Southold, in conjunction with a companionl Application No. 3633-S;E. filed by Petitioner to review the denial of a Special Exception on the same Premises. i6. On or about May 30, 1988, Petitioner's attorneys[ received a copy of Respondent's Decision dated May 12, 1988~ denying. Petitio~ the Variance requested, and indicatin~ that the original thereof had been filed in the Office of the Town Clerk on May 27, 1988. (A photocopy Of the Decision is annexed herewith as Exhibit No. "1".) 7. The Premises is located in the "B-l" General Business Zoning District and is identified on the Suffolk County Tax Map as District 1000, Section 115, Block 3, Lot 9, containing a total area of approximately 34,700 square feet or approximately three quarters (3/4) of an acre. 8. The' Premises fronts along three streets as follows: along the south side of Main Road (State Route 25) 201.82 feet; along the west side of Marratooka Lane 185.95 feet; and along the east side of Sunset Avenue 158.89 feet. 9. Petitioner, which is in the business of owning and operating or leasing to operators gasoline service stations throughout the counties of Nassau and Suffolk, has been the fee owner of the Premises since 1970 and has continuously maintained thereon a gasoline service station. 10. The Board in its Decision found that the Premises comprised "a previously established full service gasoline station" (Exhibit No. "1", ~ll), and that as far back as 1956 the Premises "was used as a gasoline sales office and minor vehicle repairs and that existed". (Exhibit "1", ~4(a).) 11o On May 30, 1986, one gasoline pump or island the Town of Southold Building Inspector duly issued a "Certificate of Occupancy- Nonconforming Premises'~?#Z14455. stating that the nonconforming Premises "existed on the effective date the present Building Zone Code of the Town of Southold, and may be continuled pursuant to and subject to the applicable provisions 'of said Code." (A photocopy of this document is annexed hereto as Exhibit No. "2".) 112. On or about March 17, 19~87, Petitioner applied to the Town Building Department for a permit to perform in order certain construction and renovation to the Premises self service operation as an accessory use. and to to convert~' it to a partial ' ' store" install a convenience ~3. By Notice of Disapproval dated April 1, 1987, the application was denied by the"Building Inspector on the grounds, relevant herein, that "Artiole VI 100-62.B requires ZBA Varianlce for Shopping Center Status." (A photocopy of this document is annexed hereto as Exhibit No. "3".) ~4. Petitioner took the position then, and still does, thait a "convenience store", i.e., a small retail operationi selling various food and non-food items in conju~ctiolh with a gasoline service station, is a recognized accessory !and incidental use, and as such does not require a Variance, i~permit, or Special Exception from the Town. (See photocopy, of August 19, 1987 letter from Petitioner's attorney to Board of Appeals, annexed hereto as Exhibit No. i15. A "retail shopping center" is a permitted use in a B-1,'District by virtue of Article VII, Sl00-70.A(1)(d) of the Z~ning Code, which relates back to Article VI, Sl00- 4 62. That section permits such usage subject to requirements A. through I. 16. Article VI, ~100-62 defines a "retail shopping center" as "a building or a combination of buildings containing retail stores, mercantile establishments, offices, banks and financial institutions, commonly known as shopping centers .... " 17. Clearly the phrase "commonly known as shopping centers", characterized by multiple independent retail uses in one or more buildings, such as Roosevelt Field, Walt Whitman Mall, Smith Haven Mall," etc., or smaller local establishments commonly consisting of a supermarket "anchor" with satellite specialty shops, or even the relatively new "strip centers" being Constructed on Long Island and elsewhere, cannot be compared with a single building with a principal and accessory retail use by the same owner. The interpretation of a gasoline accessory convenience store as a illogical, contrary to experience, service station with an "shopping center" is thus and, frankly preposterous. (See photocopy of Memorandum in Support of hereto as Exhibit No. "5".) 18. Subparagraph B of Article VI, the establishment of that for Appeal, annexed §100-62 provides a retail shopping center" ... the lot area shall be not less than one (1) acre and the lot width shall be not less than~he hundred fifty (150) feet". 19. Petitioner's parcel meets the width requiremen:t but is about 20% short of the area requirement. i20. Accordingly, on or about May 13, 1987, PetitionerI caused to be filed an Appeal from the decision of the Building Inspector in which: i "Interpretation of Zoning Ordinance is irequested for reasons that a retail igasoline service station with a iconvenience store has been ruled to be a Iretail shopping center necessitating compliance with S100-62.B which requires minimum lot size of one acre. It is irequested that this Board establish by inter, pretation that the Cbnvenience store ~use is an accessory use to the gasoline !service station and not an additional or iseparate use establishing a retail !shopping center of multiple independent fuses. In the alternative, appellant iseeks a variance from the one acre lot irequ~rement for retail shopping centers." i(A photocopy of the Appeal is annexed hereto as Exhibit NO. "6".) 121. In its decision the Board considered Petitioner's citation of the Board's prior decision in the ApplicatiOn of SUKRU ILGIN AND OTHERS ("ILGIN"), Appeal No. 3618, dated April 23, 1987. (A photocopy of this Decision is annexed h~reto as Exhibit No. "7".) 122. In ILGIN, the applicant applied for a Variance of Article VI, ~t00-62.B of the Zoning Code for the establishl~ent of a "convenience store" for the on-premises sale of food and non-food~%tems, as a permitted "retail shopping ~center", in conjunction with an existing gasoline 6 service station. The applicant was located in the same Zoning District ("B-l" General Business) and on the same road (Main Road - State Route 25) as Petitioner's Premises. 23. In ILGIN the premises contained a total area of only 11,984 square feet or approximately 27.5% of one-acre required under ~100-62.B. (The decision does mention whether the premises meets the at a total area of under 12,000 square that it could do so (it would have to long!)). 24. In ILGIN the Board'' unanimously Variance, finding that a "convenience store" is and incidental to the gasoline minimal conditions. (Exhibit "7", 25. In its decision lot the not 150' width rule, but feet, it is doubtful be 150' wide by 80' granted the "accessory service station use", with p. 2.) the Board noted without comment that a Certificate of Occupancy existed, and that a site plan application was presently pending before the Town Planning Board (in accordance with ~100.62.A). (Exhibit "7", II6. ) 26. The Board made the following additional findings: "(a) that the use as proposed is consistent with and will promote the general purposes of the zoning code and maps; (b) the circumstances of the property are unique; (c) there will not be a substantial change in the essential character of the neighborhood; (d) there is no other method feasible for appellants to pursue other than a variance; (e) the relief requested is 7 ~substantial in relation to the :requirements; (f) the relief as icond~tlonally granted will not prevent ithe orderly and reasonable use of this idistrict or. adjacent use districts; (g) ithe safety, health, welfare, comfort, iconvenience and order of the Town will ~not be adversely affected by the proposed ibusiness use and its location; (h) the iinterests of justice will be served by !allowing the variance, as conditionally :~noted below." (Exhibit "1", ~[7.) i27. In its May 12, 1988, Decision herein, the Board att.empted to distinguish its decision in ILGIN by describin~ that application as: "an area variance for'~ approval of a convenience store for the sale of packaged and non-food items (without food preDaration or on-premises food services), in conjunction with the !existing gasoline station with minimal !floor area for retail sales (less than !700 sq. ft.). In that application an :interpretation was not requested, and a iconditional variance was granted for the ismall-scale retail sales area and further. :required that the use be related, l'accessory and incidental to the existing Igasoline station use.' There is no .interpretation of record by this Board idetermining any retail use to be an !accessory use to a gasoline station." i[emphasis in original] (Exhibit "1", ~19) 1'28. The Zoning Code, ~i00-13.B "Definitions" defines "Accessory" as: "A building or use clearly incidental or subordinate to and ~customary in connection with, the ipr~nc~pal building or use on the same lot." 8 Specifically in a "B-l" District "accessory uses" are defined as: "Accessory uses on the same lot with and customarily incidental to any permitted use and not involving a separate business." (Section 100-60.C(1), made applicable by ~100-70.A(1)(c)). 29. Nowhere in the Zoning Code is there a list of specific accessory uses which are either permitted or prohibited with a gasoline service station. 30. Nowhere in the Zoning Code is there definition, or even mention of, a "convenience store". 31. There is ample evidence in the record that uses are increasingly convenience stores are now commonly accepted accessory to gasoline service stations and that they "customarily incidental" thereto. 32. In its decision herein the Board made the following additional findings: "(a) the variation is substantial in relation to the requirements, being 8900+ sq. ft. or 20% less than the requirement; (b) a substantial change will be produced in the character of the residentially-zoned neighborhood; (c) a substantial detriment will be created to adjoining residential properties; (d) strict ~a'pplication of the ordinance will not prevent a reasonable return upon the property for the existing a ~se or other use permitted in this Zone istrict; (e) the project as submitted is not compliance with all other zoning ~egulat~ons of the Town of Southold; i (f) the variance, if allowed, may cause traffic hazards at both street intersections, and accordingly will be 9dverse to the health, safety, order gonven~ence and welfare of the town; : (g) in view of the manner in which khe difficulty arose and in considering all the above factors, the interests of ~ustice will be served by denying the Variance, as applied, without prejudice.". ~'(Exhibit "1", ~4) ~o The action.~ of the Building Inspector in grant the application of the Petitioner for a refusing building permit for the construction of a convenience store and in interpreting such use to be a retail shopping center subject tO the one-acre area requirement of ~100-62.B rather than a permitted accessory use, and the action of the Zoning Board of Appeals in affirming the decision of the Building Inspector and denying the application of the Petitioner to said Zoning Board of Appeals were arbitrary, capricious, unreasonable and unwarranted for the following reasons: a) Both the Building Inspector and the Board were arbi~'trary and capricious in categorizing the proposed use as al"retail shopping center" in the face of a Zoning Code definition which clearL~was inapplicable by reason and experience. b) Both the Building Inspector and the Board were arbitrary and capricious in refusing to accept the status of the proposed convenience store as a normal accessory use customarily incidental to a gasoline service station. c) The Board acted illegally and beyond its authority by setting up its own arbitrary and subjective standards as to what constitutes an acceptable convenience store (e.g., "packaged and non-food items" versus "on- premises food services") in the absence of objective standards in the Zoning Code. d) The Board improperly held that a retail convenience store is not an accessory use because it "is not necessary for the operation of a gasoline service station" [emph. supp.] thereby arbitrarily overriding the Zoning Code standard of "customarily incidental" with its own irrelevant and subjective standard ("necessity"). e) The Board acted arbitrarily, capriciously and illegally by determining in the ILGIN case that a convenience store could lawfully operate on a lot only about one-quarter (¼) of the required size of a "retail shopping center" as an accessory use to the gasoline service station in a B-1 Zoning District, without doing harm to the character of the neighborhood or the general purposes of the Zoning Code, but that a convenience store could not lawfully operate in a lot approximately eighty (80%) percent of the required - 11 size in the circumstan6es. same Zoning District This determination was made under the same upon an arbitrary finding that "the variance is substantial in relation to the requirements" herein (where the difference is approximately twenty (20~) percent) whereas no such finding was made in the ILGIN cas~ wherein five (75%): percent. f) the variation was approximately seventy- The Board acted illegally in its that the Variance "may cause traffic of support in the record for such a arbitrary! finding hazards" iin the absence finding. The Board acted illegally in arbitrarily denying t~e validity of a validly issued Certificate of Occupancy-iNonconforming Premises and of raising the issue of numerous alleged violations, all of which had no bearing upon the s.~ubject application and were beyond the authority of the Board!to make rulings upon in its determination herein. iWHEREFORE, Petitioner prays that this Court issue a judgment ~ursuant to Article 78 of the C.P.L.R. directing said Zonihg Board of Appeals to issue a determination that Petitioner's proposed convenience store is a permitted use accessorylto its gasoline service station in a "B-i" Zoning District 9r in the alternative issue a Variance of Article VI, ~100-~2.B of the Zoning Code permitting Petitioner to establish a convenience store as accessory to a gasoline 12 service station on a parcel of less than one (1) acre as a retail shopping center, and for such other and further relief as to this Court may seem just and proper, together with costs of this proceeding. Dated: Mitchel Field, New York June 23, 1988 Yours, etc., LEVINE & ROBINSON, PoC. 50 Charles Lindbergh Boulevard Mitchel Field, New York 11553 (516) 794-6900 13 STATE OF NEW YORK ) ) ss.: COUNTY OF NASSAU ) BARRY TALLERING, being duly sworn, deposes and says: That I am the President of Tartan Oil Corp., Petitioner iin the above-entitled proceeding; that I have read the foregoing Petition and know t'he contents thereof; that the same i~ true to my own knowledge except as to the matters therein stated to be alleged upon information and belief, and that as tO those matters I believe them to be true. The grounds of: my belief as to all matters in the foregoing Petition, Stated upon information and belief, are based upon the books and records of Petitioner. Deponent further says verification is not made by the him, is that the Petitioner is a Sworn to b.~fore me this 23rd day o~ June, 1988 ~ARY pUBliC, 5rate of ~eW YO~ No. 30-4630269 Quo],f:ed ~n Nassau Cou W Commiss on E~p,res ~ that the reason why this Petitioner, and is made by foreign corporation. BARRY TA_~.LERING, as. Pr~sJ.d'ent of Tartan-Oil Corporation TO: Wtl. liam. D. Moore. Esq. T^.TA. O~L CORP. Mattituck, NY )19§2 ~Appellant (s) ] taken Access to Property At a Meeting of the Zoning Board of Appeals held on May 12, 1988, the above appeal was considered, and the action indicat---~d belo-~'w--as on your [ ] Request for Variance Due to Lack of New York Town Law, Section 280-a [ ] Request for Special Exception under the Zoning Ordinance Request for Variance to the Zoning Ordinance Article V! , Section ~X~ -.. ~3 ;~.. ~.~', ~;- ~., ~ ~- r:' ~'~ -~,~ '~':4 ~~' -- ~.~r .~Z ~ , Public hearings were held In APplication of T~R~AN OIL COR under Appl. February 18, ]gaa,'%~-a--~Ti-~i, ]g88; and ~REAS, at said hearing all those who desired to be heard were heard and their testimony recorded; and WHEREAS, wrftte, statements have been submi%ted for the record in favor and in opposition of the pending application; and WHF~[&$, the Ouard nas carefully considered all testimony and documentation submitted concerning this application; and WHEREAS, the Board Members have personally viewed and are familar With the premises In question ~ts presen~ zoning, and the surrounding areas; and ' WHEREAS, the ~O~rd made the fo)lowing f~ndfngs of fact: l. This fs an lication requesting {al tion lon.~/~ ..~ an Interpreta. ~lon t00-62 B) referring to shopping tenters; and {b) as an alternative, a Variance to the Zoning Ordinance, Article III, Section 1DO-122, From the one-acre lot requirement for a retail shopping center. Z. The prooerty in question is ]oo{J~ted in the ,~enero) Business Zoning District and is identified on the Suffolk County Tax ~aps as District lO00, Section Il5, Block 3, ~ot g, containing ~ total area of apDroxiniataly . 34,x0~ sq. ft. (CONT_~INU£D ON PAGE T~O) ~ATZD: May Form ZB4 (rev. 12/8I) CHAirMAN, SOUTHoLD TOWN ZONING BOARD OF APPEALS the Matter of the No. 3636 on ~aneJ~x~. Awl. NO. 3636 Decision R~-~dered May 3, The subject premises fronts along three streets as follow: along the south side of the Main Road (or State Route 25) 201.82 feet; along the west side of Marra~ooka Lane 1B5.95 feet; and along the east side of Sunset Avenue 158.8g feet. The premises is surrounded by properties zoned "A" Residential and Agricultural. 4. ?he following information is furnished concerning the premises, the existing building and structures, and previously existing construction for the record: ia) During lg$6, the premises was improved with an one-story frame building set back 21 feet from the northerly front property line [along the Main Road] and 71~ feet from the easterly front property line [along Marratooka Lane], a~ more particularly shown by survey prepared by Otto W. VanTuyl & Son surveyed June 8, 1956. Although there is no gasoline pump shown on this 19G6 survey, it is the Board's understanding that that building was used as a gasoline sales office and minor vehicle repairs, and that one gasoline pump or island existed to the north of that building. (bi Some time subsequent to'lg57, the building was removed, and another building was placed as more particularly shown on the june 15, 1970 Survey prepared by Vanluyl & Son which shows setbacks from the northerly front property line at 60 feet and from the easterly front property line aL 40 feet. The record is unclear as to whether or not Lhis building was constructed under a buildi~9 permit and ~pproval by any ether town departments. Town records do sh~w ~hat the subject premises during 1970 was zoned "A" Residential and Agricultural, and that a gasoline-service station was not listed as ~ "permitted use" [except in the "B-l" Business Zone District] since April 1957) (c) On or about June 7, 1965, the Zoning Ordinance provisions for the "B-l" Business District were amended to require a Special Exception approval by the Board of Appeals for a building or prumises to be used as a gasoline service station or public garage [Section 420-2]; (d) On or about November 23, 1971, the Zoning Maps were amended to include the rezoning o~'~-6'(-~ property from "A" Residential-Agricultural to "B-l" General Business, and including the requirement for Site-Plan approval by the Planning Board in addition to Special Exception approval by the Board of Appeals, etc. (e) No town approvals have been found during the above time periods for the new~ located buildinqand~o_g-C,r .... ~ site as existed sin~e__]~s dh~n__g_Q_~n 19_8~ to ~.~ (fi The record is unclear as tO iss~ permits for~ co~ii)J~cial buildin~ and sit~ prior to lg70~ (g) D~_?rin9 l~B~ ~ tJ~Le~&, the site b_uJ_ ~LJ_L~oj_~were c.h~d, and as of this date, s~te-plan approval has not been received from the Planning Board as wel) as other zoning criteria which have not been Complied with, ab fullows: Page 3-- Appl. No. 3636 Ma~ter of TARTAN OIL CORP. Decision Rendere~-~-~'y~--lgo8 wooded areas and extensive blacktopping, eliminating natura! other natural landscaping; 2. relocation of one gasoline island from the previous loc~tion to a point lO feet from the northerly property line; 3. creation of a second gasoline island approximately 19 feet north of the building in the front- yard area; .. front yard area; relocation of air pump in the westerly 5. creation of new colonnade with roof of a size 24' wide by 59' deep in the frontyard area with an insufficient setback of two feet [2'] from the northerly front property line, and extending over existing building; (Article VII of the Zoning Code requires a minimum setback for buildings at not less than 35 feet from the front lines); 6. strucutural alterations of building, including, hut not limited to, removal of two garage vehicle overhead doors, placement of large picture window{s) new store front, etc. · 7. new placement of three or more pole lights which create glare beyond the lot lines; 8. new placement of florescent (unshielded) wall lights along the sides of the exist(rig building for a total running length of approximately 36 feet which do appear to be adverse Co Surrounding properties when used in conjunction w~bh the overhead lighting unde, r the roofed colonnade and the separate lighting poles; 9. conversion of garage bays and front office area into a retail store for sales of beer, prepared foods, and other items which are not incidental or accessory to the gdsoline-service station use [see this Board's action rendered under Appl. No 3633 same date hereofJ. · lO. location of a booth at the most northeasterly near the Main Road; glass-enclosed telephone corner of the premises ll. placement of new ground signs at the most northeasterly corner of the premises near Main Road. the 5. Also noted for the record is a Certificate of Occupancy for Nonconforming Premises #Z14455 dated May 30, 1986 which appears to have been based or, the June 8, 1956 Survey of Otto W. VanTuy) & Son for ~he P,~mises and building as existed prior to 1957, but which does not apply Since the bu~]~i~g referred Co has been removed frnm its origina? footprint based upon informatinn sub~i~ted. ~ Pa~e 4 -.Appl, No. 3626 .Matter of TARTAN OIL CORP. Decision R~'~ered May'T2~-', lg88 6. Based on the facts in the record, it appears that the applicant proceeded, as noted above, without appropriate authorizations. The Board notes that there appear to be several areas of noncompliance under the Zoning Code {inc)udtng but not limited to Article VII, Sections 100-70, lO0-11, Bulk and Parking Schedule, Article ×I, Section lO0-119, Article XIII, Article XIV), such as setbacks, site-plan consideration and approval by the Planning Board, appropriate screening from the residential properties. appropriate t~affic access and safety consideration, building and sign permits, unobstructed corners at each intersecLion, curbing, shielded lighting). 7. In researching Town records, it is noted that the only building permit issued appears to be for the construction of. the "canopy" under Permit #15833Z issued April l, lga/. 8. Article V~, Section 100-62 of the Zoning Code reads as follows~ 100-62, Retail Shopping Centers. Notwithstanding any other provisions of this Article, a building or a combination of buildings containing retail stores, mercantile establishments, nffic~s, banks and financial institutions, commonly known as shopping centers, may be erected or altered in the B Business District, subject, however, to the ~ollowing requirements: A. Approval of site development plans by the Board in accordance with Article ~II! hereof. B. The lot area shall and the lot width shall fifty {1BO) feet, Planning be not less than one il) acre be not less than one hundred C. At leas{ twenty-five percent {25%} of the lot area shall be landscaped with grass and plantings. D. The required front yards shall be not less than thirty-¢ive {25) feet, except that where the property is in the vicinity is partly built up with permanent buildings and an average setback line has been established, no building shall project beyond the line of the average setback so established. E. The required side yards shall be not less tha~ twenty-five (25) feet. F. The required rear yard shall be not )ess than twenty~five (25) feet. G. Parking shall be provided in off-street parking areas which shall provide one (1) parking space, three hundred fifty (350) square feet in area, for each one hundred {100) square feet of sales fl(~or area or office Clear area in e~ch buildings. H. All rainfall and stormwater accu~ulated on the premises s~all be returned to the ground within ~he boundaries of the premises. I. The total floor area For each re~a,F~t or service establ~h,;ent located therein shall not exceed ten thousand (lO,O00) sq. ft. 'Page 5 -.Appl,. No. 3636 ,Matt,er of TARTAN 01L CORP. Deci sion R~'~-r~-~qa-Tl'~. 1988 9. It has been noted as part of the applicant's testimony that the subject variance should be granted based upon a prior Aopeal rendered April 23, 1987 under Appl. No. 3618 for premises now or formerly of Sukru llgin. Under consideration before the Board at that time was an area variance for approval of a convenience store for the sale of ~acka~ed and non-food items {without food -,-o~,'~,ion ~r o'~-oremises food services), in conJu~tion ~ ,,~-l~no ~'a~'~ll~-~'~-~tation with minimal floor area for retail sales (loss than yuu sq t:.l, . c application an interpretation was not requested, and a conOitional variance was granted for Lhe small-scale retail sales area and further required that the use be reldCed, "accessory and incidental to the existing gasoline station use." There is no interpretation of record by this Board determining any retail use to be an accessory use to a gosoline staKion. lO, I~ is the interpretation of this Board that the definition of a retail shopping center is clearly deemed to be "a building"Or a combination of buildings" containi)~ retail stores~ mercantile establishments, offlce~j__.banks and f~nanc~aT ~nstitutlons, and that ~'-F~6~l cS~Ent-T6-~-6 ~6-F6 use. for th~urposes of selling prepared foods, alcoholic beverages, prepack- ages foods, and many non-food.items, is not necessary for tho operation of a gasoline-service statton~ and ~herefore is not an accessory qse incidental thereto. ll. The application requests, as an alternative, a variance for the retail store, on less than the required 43,560 sq. ft. of lot area. The lot in question contains a lot area of 34,700 sq. ft., and the amount of relief requested is approximately 8900 ~q. ft. 12. The amount of floor area for the retail sales convenience store has not been furnished. 13. The site plan submitted has not been certified to comply with Subsections A, C, G, and H of Article VI, Section 100-62 noted above and appears deficient. No information has been furnished as to compliance with Article XI, Sections C, D, K, loadin9 and unload- ing. 14. In considering the variance requested, the Board finds: ia) the variation is substantial in relation to the requirements, being 8900~ sq. ft. or 20% less than the requirement; (b) a substantial change will be produced in the character of the residentially-zoned neighborhood; (c) a substantial detriment will be created to adjoining residensial properties; id) strict'application of the ordinance will not prevent a reasonable return upon the property for the 'Pag~ 6 Appl.'No. 3636 ~atte'r of TARTAN OIL CORP. Decision R~-~ May i~1988 existing use or other use permitted in this Zone District; (e} the project as submitted iS not in compliance with all other zoning regulations of the Town of Southold; (fl the variance, if allowed, may cause traffic. hazards at both street intersections, and accordingly will be adverse to the health, safety, order, convenience and welirare of the town; {(Il in view of the manner in which the difficulty arose and in considering all the above factors, the inturests of justice will be served by denying the variance, as applied, without prejudice. Accordingly, on motion by Mr. Goehringer, seconded by Mr. Doyen~ it was RESOLVED, to DENY the Application under Appl. No. 2626 in the Matter of ?~-~]/kN OIL CO_R_P.,` WITI(~UT ~_R.£JUDICE, as appl led, Vote of the Board: Ayes: Messrs. Goehringer, Gri~onis, Doyen and Douglass. (Member Sawicki was absent.) This resolution was duly adopted. TOWN OF SOUTIIOLD OFFICE OF BUII.DING INSI'ECTOII TOWN IIALL SOUTIIOLD, NEW YOPd'2 CERTIFICATE OF OCCUPANCY NONCONFORiMING PREMISES TIIIS IS TO CERTIFY that the ~_.! Land / / Building(s) /-/ Usc(s) 9O located at 16850 Pre C.O. ~- Z14455 Date- May 30, 1986 Marratooka Lane Main ~d, Mattituck shown on County tax map as District 1000, Section Street I-tamlet 115 Block 3 Lot does(not]conform to the present Building Zone Code of the Town of Southold for the following reasons: On the basis of information presented to the Building Inspector's Office, it bas been determined that the above nonconforming /~[ Land [Z/Building(s) /Z/Use(s) existed on the effective date the present Building Zone Code of the Tox~m of Soutbold, and may be continued pursuant to and subject to the appli- cable provisions of said Code. IT IS FURTHER CEi~TIFLED that, based upon information presented to the occupancy and use for which this Certffi- Proper~y contains a one-story wood-framed in front. Property is situated in the B-1 the Building Inspector's Office, cate is issued is as follows: buildin~ with gas pumps General Business Zone with access to Main Rd.; a state maiutained road and Marratooka Rd.; a town highway. The Certificate is issued to of the aforesaid building. TARTAN OIL CORP. Suffolk County Department of t{ealth Approval N/A UNDERWRITERS CERTIFICATE NO. NOTICE IS IIEREBY GIVFN that the owner of the above premises tL~S NOT CONSENTED TO AN INSPECTION of thc premises by the Building Inspec- tor to determine if the premises comply with all applicable codes and ordin- ances, other than the Building Zone Code, and therefore, no such inspection has beeu conducted. This Certificate, therefore, does not, and is not intended to certify that the premises comply with all other applicable codes and regula- tious. l;uiid:ng mspector FORM NO. 3 TOWN OF SOUTIlOLD IIUIIA)ING I)1':1'^ RTM I:.NI' 'i'O1¥N CL. ERK'S OFIqCE $OUTIIOLI), N.Y. NOTICE OF DISAI'I'ROVAL File No ................................ · ~o .co~.,...'~ ..~. ~..v....o~.....~....co. · '~..9.~.., ./V..~,, .U.%'.~ ....... ~ ~- ~-~ ~'~EAs~ ~'~ ~O~'~cc ~t~ yo,,~ ~p,~tio~ U~i~d .. ~.~.. ! ~ ......... ~9 .~ 7.. rot permit to construct . N . ~.~... ~O~t uo.. ~o. ' ....... ~}/e~i ................ ~,;,~ Cou.iy Tax Mup No. 1000 Section . .'.. !/.~7 ..... Blouk ..... ~ .~ .... Lol . .9.~ ......... Subdivision ............... Filed Map No .............. Lot No ............... is roil.ned hcrewifl, and tlisal,provcd on lhe lbllowing l~roumls ~~ ,~ ~.(~ 7 7.q~ .~-) . ,~.~ . ~ Building Inspector nV 1180 WILLIAM D. MOORE August 19, 1987 Southold Town Board of Appeals Southold Town Hall, Main Road Southold, New York 11971 Att: Linda Kowalski Re: Applications ~3636V and #3633SE Tartan Oil Corp, Our File #161-87 Dear Linda: Enclosed please find one print of the site plan for the Mobil station in Mattituck showing the lights and previous location of the pump island. I have requested additional copies of the site plan and will foward them upon receipt. Permits have not yet been received for the use of the property as a self-service gasoline station, and, in fact, that use has been terminated on the premises. With respect to permits for the occupancy for the convenience store, there has been misunderstanding and disagreement with respect to just what permits are necessary to operate the convenience store. Applicant was advised that the convenience store was permitted on the property as an accessory use which applicant proceeded to do. Subsequently, applicant received notice of disapproval indicating that the renovation to establish the convenience store required a variance from the Zoning Board for shopping center status pursuant to Article VI 100-62 B, and that the partial self- service use required a special exception from the Board. Application has been made to this Board for approval of a partial self-service gasoline station pursuant to the requirements for a special except.ion use. Application has also been made for an interpretation that a gasoline station/convenience store does not constitute a retail shopping center. The convenience/~tore use is accessory to the principal use as a gasoline station, and as such does not require a variance by this Board. , Southold Town Board Of Appeals August 19, 1987 i In the alternative,! applicant has requested a variance from the one acre minimum lot!size required for a retail shopping center. If a necessary building permit for the renovations done was not obtained, proper application will be Building Department ~o remedy such error. which were made to the Very truly yours, / tlI 27 , "' ~-~.' ~ore WDM:er encl. DocId 081987.1 -2- SOUTHOLD TOWN BOARD OF ZONING APPEALS In the Matter of the Application of TARTAN OIL CORP. MEMORANDUM IN SUPPORT OF APPEAL NUMBER 3636 FOR TARTAN OIL CORP. Introduction This memorandum is offered in support of Appeal number 3636 made by the Tartan Oil Corp.. The property which is the subject of this appeal'is located at the intersection of the Main Road and Marratooka Lane in Mattituck. The property has the Suffolk County Tax Map designation District 1000, Section 115, Block 3, Lot 9. The gasoline service station located at this site pre-dates the enactment of the Southold Town Zoning Code. The property is presently zoned General Business (B-l). A building permit was requested to perform certai~ renovations to the interior of the building on the site in order to provide a convenience store in the station. This was to be accomplished by renovating the service bays in the garage. The building permit was denied/ on the basis that a gasoline station which includes a convenience store is considered to be a retail shopping center which must comply with Section 100-62 of the Southold Town Zoning ordinance. Appeal number 3636 is a 1 :request for an ~nterpretation of the definition of "retail shopping center"~ and in the alternative, for permission to operate a convenience store as an accessory use to the gasoline service station.: Section Definition of Retail Shoppin~ Center 100-13 of the Southold Town Code sets forth definitions to be used in the zoning ordinance. This section does not provid~ a definition of a retail shopping center. ~Instead, Section 100-62 which sets forth the requirements of a retail shoppingicenter, attempts to define a retail shopping center as follows: "A building or combination of buildings containing retail stores, mercantile establishments, offices, banks and financial institutions, commonly known as shopping centers" A reasonabie interpretation of the phrase "commonly known as shopping centers" cannot conceivably include a gasoline station with a convenzence store. No reasonable person would define such use as a shopping center. The A&P and King Kullen centers with their multiple independent uses are more accurately described as retail shoppingicenters. A single building with a principal and accessory use cannot be considered a retail shopping center. Certainly therei is no clear cut definition in the Southold Town Zoning Ordinanc~ that compels an interpretation that a gasoline station a ~onvenience store constitutes a retail shopping with center. A gasoline station with a convenience store is no more a 2 retail shopping center than a hardware store which sells televisions, washers and dryers or a marine store selling boats, trailers and, at the same time selling and servicing lawn mowers. It is therefore requested that the Zoning Board of Appeals establish an interpretation Of a retail shopping center which does not include properties used in conjunction with an accessory use as in this case a gasoline station with convenience store. Operation of a Convenience store i~ CqDjunction with a Gasoline station is an accessory use ~ Section 100-70(C) of the Southold Town Code permits accessory uses as follows: "Accessory uses on the same lot with and customarily incidental to any permitted use and not involving a separate business." In appeal number 3618 in an application by Sukru Ilgin and Mine Peksin d/b/a ~cean Holding Corp., the Zoning Board stated that it was "the consensus of the Board... to permit the establishment of a "convenience store" in the southerly half of the existing structure to be used accessory and incidental to the gasoline- service station use, and not as a separate principal business use." (Emphasis added) existing vehicle lifts, and replaced with this The board also stated that "the vehicle-repair areas will be eliminated accessory convenience store' use." Thus in appeal number 3618, the Zoning Board determined that a convenience store in conjunction with a gasoline station is an 3 accessory and incidental use to the principal business. Having determined that the convenience store use is accessory, it was unnecessary for the board to have considered a request for a variance under thc retail shopping center provisions requiring one acre lots. Requiring such a variance was inconsistent with the previous determination that the convenience store was'an accessory use. A~cessory uses by their definition do not constitute retaillsh0pping centers consisting of multiple, independently operated retail stores. Furthermore, an accessory use need not be a~proved by the Zoning Board of Appeals or the Planning Board Pursuant to Section 100-70(C). Planning Board and/ or Zoning Board approval is required only for those uses established in 100-70(A) and (B) where such requirements are set forth. There is bo such requirement set forth in sub-paragraph (C) for accessoryluses. The operation of a small convenience store in combination with the sale of ~asoline has become common place throughout the country over the ~ast few years. At present, in excess of 70% of all sales of gasoline are conducted-from self-service pumps and some 55,000 gasoline stations are being operated in conjunction with a convenienc~ store. Furthermore, as referenced above, this board had previously approved the combined uses of a gasoline service station' w~th a convenience store as an accessory use. Alternative Rglief In the event that the Zoning Board of Appeals rejects the argument that thel convenience store is a permitte~d accessory use 4 as set forth above, petitioner seeks a variance from Section 100- 62B requiring "retail shopping centers" to be on at least one acre in size. The subject proDertY is approximately 36,000 square feet in size so that the variance requested in light of the requirement is minimal. In appeal number 3618 this board granted a similar variance to Ocean Holding Corp. for a parcel containing a total lot area of 11,984 square allowed, there will be no on available governmental feet. If the variance as requested is increased population density produced facilities, nor.will a substantial change be produced in the character of the neighborhood. The property has been used as a gasoline-service station since prior to the enactment of zoning and has continued as such throughout. The small convenience store operating in conjunction with the service station requires, property of one acre in size even though the proposed use shall be accessory and incidental to the principal use~ Sales records indicate that gasoline sales typically exceed convenience store sales on a ratio of 4:1 up to 10:1. With the convenience store sales making up this small portion of total sales, the impact of a convenience store added to gasoline service is minimal. The uses proposed are consistent with and promote the general purposes of the zoning code and maps. The variance, if granted will not prevent the orderly and reasonable use of the district or adjacent use districts. The use for which the variance is requested is an accessory use and will remain incidental to the principal use as a Gasoline 5 station. CONCLUSION It is respectfully requested that the Zoning Board of Appeals provide {n interpretation of the zoning ordinance with respect to retal~ shopping centers in such a way that princiDal uses combined wi~h an accessory use are not considered to be retail shopping denters. In the alternative, petitioner requests this board grantlan area variance of the one acre lot requirement of S~ction 100-62B to permit the convenience store in conjunction with the existing gasoline-s~rvice station. DocId:021888.4 6 TOWN OF SOUTHOLD, NEW YORK APPEAL FROM DECISION OF BUILDING INSPECTOR APPEAL NO. DATE .............................. TO THE ZONING BOARD OF APPEALS, TOWN OF SOUTHOLD, N. Y. 1, (We) TARTAN OIL CORP. of 150 BROAD HOLLOW ROAD Name of Appellant Street and Nur:nber MELVILLE NY ......................................................................................................................... HEREBY APPEAL TO Municipality State THE ZONING BOARD OF APPEALS FROM THE DECISION OF THE BUILDING INSPECTOR ON APPLICATION FOR PERMIT NO ..................................... DATED ...................................................... WHEREBY THE BUILDING INSPECTOR DENIED TO (x) ( ) ( ) WILLIAM D. MOORE, ESQ. Nome of Applicant for permit of S.U I.T.E.. ~ .. ~LA-U S13 .. C.OMR O.~S.,...MAT.T.I ~.UC ~, ..i~ EW... 2{.O ~ .......................... Street and Number Municipality State PERMIT TO USE PERMIT FOR OCCUPANCY I. LOCATION OF THE PROPERTY Marratooka Lane & Main Road, Mattituck, NY B-1 Street /Hamlet / Use District on Zoning Mop District 1000 Section llSB10ck3 Lot 9 ~ . Tartan Oil Corp. .................................................................................. current Owner Mop No. Lot No, Prior Owner 2. PROVISION (S) OF THE ZONING ORDINANCE APPEALED (Indicate the Article Section, Sub- section and Paragraph of the Zoning Ordinance by number. Do not quote the Ordinance.) Articles vi &xz~ecti0ns 100-62b 100-122 3. TYPE OF APPEAL Appeal is made herewith for (please check appropriate box) ( x} A VARIANCE to the Zoning Ordinance or Zoning MaJ~ ( ) A VARIANCE due to lack of access (State of New York Town Law Chap. 62 Cons. Laws Art. 16 Sec. 280A Subsection 3 (x) Interpretation of zoning ordinance re: retail Shoppinq c~nter definit; 4. PREVIOUS APPEAL A previous appeal (ff~) (has not) been mode with respect to this decision of the Building Inspector or with respect to this property. Such cppeol was ( ) request for o special permit ( ) request for a variance and was mode in Appeal No ................................. Doted .........................~ ............................................. REASON FOR APPEAL A Variance to Section 280A Subsection 3 ×) A Variance to the Zoning Ordinance X) Interpretation of zoning ordinance requested for the reason that a retail gasoline service station with a convenienc store has been ruled to be a retail shopping eenter necessitating complia with section 100-62B which requires minimum lot size of one acre. It is requested that thie Board establish by interpretation that the convenienc store use is an accessory use to the gasoline service station and not an additional or 'separate use establishing a retail shopping center of multiple independent uses. In the altermative, appellant seeks a varianc FOrTh ZBI (Continue On other side) from the one acre lot requirement~r retail shopping centers. REASON FOR APPEAL Continued 1, STRICT APPLICATION OF,~THE ORDINANCE would produce practical di!flculties or unneces- sary HARDSHIP because .... use for a convenience store is accesso~ry to the primary rTne proposeu ~ · use as a retail gasoline station~.~?' The property is aipproxlmately 34,500 square feet in area making the requested variance small in relation to the required 40,000 square feet. The owner does no~ own adjoining property which could be used to increase square footage to the required area. The property complies with the lot size required for B-1 and it is solely because the gasoline station use coupled With a convenience store is de~med a retail shopping center that the v~.riance is necessary. 2. The hardship created' is UNIQUE and is not shared by all properties alike in the immediate vicinity of this property and in this use district because other B-1 zoned properties need only comply with the 30,000 square foot requirement. The gasoline station with convenlen e store is treated uniquely to require compliance with the retail shopping center provision requirin! 40,000 square feet. 3. The Variance would observe the spirit of the Ordinance and WOULD NOT CHANGE THE C}.tARACTER OF THE DISTRICT because the proposed uses are ~ermitted in the B~i zone and the 40,000 square foot requirement for t~ese combined uses is; more onerous than the requirements of other B-1 uses. The combination of a gasoline station with convenience store is n6t unique to business zoned property. Such uses have become commonplace as the demands of the motoring public have changed. STATE OF NEW YORK ) ) COUNTY OF Suffolk ) SS Signqture william D. Moore Sworn to this ................. day of ........................................................ 19 Notary Public Southolcl Town Board of Appeals MAIN ROAD-STATE ROAD 25 SI:3UTHOLD, L.I.o N.Y, 11971 TELEPHONE (516} 765-1809 ACTION OF THE ZONING BOARD OF APPEALS Appeal No. 3618 Application Dated February 19, 1987 TO: Andrew E. Go6dale, Esq. as Attorney for SUKRU ILGIN Main Road, Box lEA .._ Mattituck, NY 11952 &'OTHERS [Appellant(s)] At a Meeting of the Zoning Board of Appeals held on! ~3, ]987, the above appeal was considered, and the action indlcate--~l~ was taken on your [ ] Request for Variance Due to Lack of Access to Property New York Town Law, Section 280-a [ ] Request for Special Exception under the Zoning Ordinance Article , Section Request for Variance to the Zoning Ordinance Article VI , Section 100-62 [ ] Request for Application of SUKRU ILGIN AND MINE PEKSEN d/b/a OCEAN HOLDING CORP. for a Variance to the Zoning OrJinance, Article VI, Section ~2 for permission to operate convenience store in addition to existing gasoline service station uses at 7400 Main Road, Laurel, NY; County Tax Map District 1000, Section 122, Block 7, Lot Ol.. WHEREAS, a public hearing was held and concluded on April 2, 1987 in the Matter of the Application of SUKRU ILGIN and MINE PEKSEN d/b/a OCEAN HOLDING CORP. under Appeal No. 3618; and WHEREAS, at s'aid hearing all those who desired to be heard were heard and their testimony recorded; and WHEREAS, the board has carefully considered all testimony and documentation submitted concerning this application; and WHEREAS, the board members have personally viewed and are familiar with the premises in question, its present zoning, and the surrounding areas; and WHEREAS, t.he board made the following findings of fact: 1. By this application, appellants request a variance under the Provisions of Article VI, Section 100-62, (which requires a minimum lot area of one acre for a shopping center), in order to establish a "convenience store" for the on-premises sales of packaged food and non-food items (without food preparation or on-premises food services), in conjunction with the existing gasoline-service station use. 2. The premises in question is a described parcel of land located in the "B-l" Genem-aj~Business Zoning District, containing a total lot area o~ 11,984~. ft. 3, The subject premises is improved with the following structures: (a) two islands with full-service fuel-dispensing ICONTINUED ON PAGE TWO) DATED: April 23, 1987. CHAIRMAN, SOUTHOLD TOWN OF APPEALS Form ZB4 (rev. 12/81) ZONING BOARD Page 2 -'Appeal No. 2'618 Matter of SUKRU ILGIN AND OTHERS Decision Ren-"~ April 23, 1987 pumps; (b) gasoline station office and two-bays, all as shown on survey prepared FUbruary 13, 1987 by Peconic Surveyors & Engineers, P.C. ~ 4. The area ~o be used for the "convenience store" is at the southerly half of the existing structure of a size 27.6 ft. x 28.9 ft. iThe most northerly half will continue to be used as a gasoiine-station office area, 5. The consensus of the Board is to permit the estab- lishment of a "convenience store" in the southerly half of 'the existing structure to be used a~cessors and inciden[Q1 'to the gasoline-service station use,' an~-~='~o~_s_~_separ~ principal business u~e. It shall be understood that only one exterior entranceway shall be permitted at the,west side of the existing building which is presently for the gasoline- station office area,land a second entranceway which the owner finds necessar~ shall be located only at the east side of the existing building. The minimum eight parking spaces must remain open and!unobstructed at all times to allow safe and convenient parking for customers. 6. It is noted for the record that a site-plan applica- tion is presently pe!nding before the Southold Town Planning Board, and Certificalte of Occupancy #Zl0810 was issued by the Southold Town Buildi!ng Department on December 9, 1981 to Peter J. Warren and !Linda L. Ryan (predecessors in title) for a gas service stlation. 7. It is als!o understood that the existing vehicle lifts and vehicle-r~pair areas will be eliminated and replaced with this accessory:"convenience store" use. In considering this application, the board also finds and determines: (a) that the use as proposed is consistent with and will promote the general purposes of the zoning code and maps; (b) the ¢ircumstances of the property are unique; (c) there will notibe a substantial change in the essential character of the neighborhood; (d) there is no other method feasibl6 for appell6nts to pursue other than a variance; (e) the relief requested is substantial in relation to the require- ments; (f) the relief as conditionally granted will not prevent the orderly:and reasonable use of this district or adjacent use districts; (g) the safety, health, welfare, comfort, convenienc¢ and order of the Town will not be adversely affected bY the proposed business use and its location; (h) .th~ interests of justice will be served by allowing the v~.r~an~e, as conditionally noted below. Acco~dingly,lon motion by Mr. Sawicki, seconded by Messrs. Douglass an~ Goehringer, it was RESOLVED, tol GRANT a Variance under the Provisions of :Article VI, Sectlion 100-62 for the establishment of a "convenience store"i accessory and incidental to the existing gasoline-service station use in this "B-l" General i!8us'iness Zoning Dis,~trict., as applied under Appeal No. 3618, i~Matterof SUKRU ILGiIN and MINCE PEKSEN dL~/.a OCEAN HOLDING \~CORP., SUBJECT ~O~.T,HE FOLLOWING CONDITIONS: 1. Any addi!tional proposed exterior entranceway shall be located onl the east side of the existing building, (only one as exists! shall be permitted on the west side); 2. The parkiing area(s): (a) shall be paved along the '~age'3 - Appeal No. 3618 Matter of SUKRU ILGIN AND OTHERS Decision R6~der~d April 23, 1987 east side of existing building; (b) shall remain open and unobstructed at all times for customers use; (c) shall be sufficiently lighted; 3. All outside lighting shall be sufficiently shielded from the highway and neighbors; the front side) FOR A maximum four sq. ft. sign shall be of building indicating "PARKING AT THE CONVENIENCE STORE CUSTOMERS; )laced on REAR" (east 5. The "convenience store" use granted hereunder is permitted only accessory and incidental to the gasoline- service station use presently established, and not .as a separate principal business use; 6. No food service or sales of prepared foods, no cold cut/deli items, or other food services (except pre-packaged); 7. No expansion or further construction without reapplication or new application for consideration to both the Planning Board and Zoning Board of Appeals, and any other department or agency having jurisdiction thereof. 8. This' variance is temporary for a maximum period of two years, EXCEPT where a building permit has been properly issued and construction commenced to convert this building as proposed herein, within this limited two-year period. Vote of the Board: Ayes: Messrs. Goehringer, Grigonis, Douglass and Sawicki. (Member Doyen of Fishers Island was absent.) This resolution was duly adopted. ~ P. G--O-~-HR-~-~-~ER, CHAIRMAN April 28, 1987 INDEX NO ............................................................................. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK TARTAN OIL CORP., Petitioner, -against- BOARD OF ZONING APPEALS OF THE TOWN OF $OUTHOLD, Respondent. NOTICE OF PETITION and VERIFIED PETITION LEVINE & ROBINSON, P.C. Petitioner Attorneys for CHARLES LINDI3ERGH BLVD. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK TARTAN OIL CORP., Petitioner, - against - BOARD OF ZONING APPEALS OF THE TOWN OF SOUTHOLD, : Respondent. : AFFIDAVIT Index No. STATE OF NEW YORK ) )SS: COUNTY OF NASSAU ) BARRY TALLERING, being duly sworn, deposes and says: 1. I am the President of Tartan Oil Corp. ("Tartan"), Petitioner herein, and accordingly have personal knowledge of the facts and circumstances set 2. This Affidavit is submitted Tartan's Petition, pursuant to Article 78 of review the determination of the Southold Town Zoning Board of Appeals ("Board") in denying Tartan's application for Interpretation or Variance to use its existing gasoline service station at Main Road and Marratooka La~e, Mattituck (the "Premises"), an accessory use. forth herein. in support of the C.P.L.R., to 1 in conjunction with a convenience store as 3i'. Tartan is engaged in the business of owning real property which it operates and/or leases as gasoline service sta:tions throughout Nassau and Suffolk Counties. 4i. Tartan has been in this business, through predecessolr companies, for over forty (40) years, and presently Owns and/or operates and/or supplies approximately fifty~ fiveI (55) gasoline service stations throughout Long Island, thirty (30) of them in Suffolk County. Tartan maintains an experienced staff at its corporate headquarters in Melville, Suffolk County, New York, who are fully familiar with the '%omplexities of operating gasoline Service stations today, including real estate, leasing, petroleum franchising, taxation, environmental regulationi zoning and local controls, etc. 6. Tartan purchased the subject Premises in 1970. At that ti~e it was an existing full service gasoline service station, a~d as the Board found herein, had been a gasoline servi'de station since at least 1956. ~. In 1986 Tartan decided to upgrade the Mattituck istatlon as part of a general program of bringing all of it~ properties up to the latest standards of gasoline service s~ations on Long Island. 18. Before investing the large sums of money necessary to upgrade the property, Tartan wished to make certain t~at it had the legal right to continue the operation as a gasoline service station as had existed at that location 2 for the past thirty (30) years or so. Accordingly, it sought a new Certificate of Occupancy from the Southold Town Building Department, which it received on May 30, 1986, confirming its right to continue operation as a nonconforming use (Petition Exhibit No. "2"). 9. In reliance upon that Certificate Of Occupancy, Tartan commenced a renovation project which during the past two (2) years has involved the expenditure in excess of Three Hundred Twenty-Five Thousand ($325,000.00) Dollars for reconstruction and installation of the latest equipment for the storage~ pumping and sale of gasoline at retail, incorporating the latest environmental protection features and devices, such as new leak-proof double-walled fiberglass underground storage tanks, vapor control equipment, self service dispensing and monitoring equipment and convenience store facilities. 10. Convenience stores -- small retail stores selli'~g various non-food and food items as an accessory use to gasoline service stations -- have become commonplace throughout the county during the last few years. There are now in excess of 55,000 of them nationwide. They provide a service to the public by enabling motorists to make small purchases of milk, cigarettes, snack foods, etc., often at times and locations when supermarkets and grocery stores are unavailable. i: as accessoriy With the proliferation of convenience stores to gasoline service stations it has becpme increasingly necessary for gasoline service station operators to provide i'such facilities in order to remain competitive, since motoriists will tend to seek out such facilities for their gasoline purchases and avoid service stations which lack them. 1~. Accordingly, Tartan has been converting its properties ~!on Long Island to convenience store facilities. For example, within the past year its gasoline service station ioclated in Peconic, Town of'~Southold, within the same Zoning Dist.lrict ("B-l") was constructed as a combined partial self-servi~e gasoline service station and convenience store, precisely !as requested in this matter. Because of the partial sielf-service feature a Special Exception was required, as here, and was granted by the same Board (Town of Southold zoning Board of Appeals) with no requirement by the Building D~partment or the Board that the convenience store feature cobform to the "retail shopping center" requirements of the Zen ng Code. ~3. Since there is no provision in the Southold Zoning Cg'de either prohibiting or regulating convenience stores, an.~d since it seemed obvious that such a use should be considere~ accessory and customarily incidental to the permitted iuse of gasoline se~,~ice station, and based on the recent approval by the Town of a similar facility in Peconic without the issue having been raised by the Board, Tartan requested the same interpretation from the Building Inspector in this Application. 14. The Building Inspector refused to interpret Tartan's proposed convenience store as an accessory use and instead interpreted it as a "retail shopping center" under a Code section which requires a one-acre site. Tartan's existing gasoline seruice station has operated continuously for over thirty (30) years on its approximately three- quarter (3/4) acre site. 15. We believe that ~e interpretation of a convenience store operated on the same premises by the same operator of a gasoline service station as a "shopping center" flies in the face of reason, experience, and common sense, and is a patent absurdity. Common experience teaches that a shopping center is a building or group of buildings containing multiple independent retail sales operations, typically a supermarket or discount store, surrounded by smaller shops. Under the Town's strained definition, any single owner retail facility, no matter how small or self contained, could be considered a shopping center as long as it devotes separate sales areas to different types of products, such as a garden supply store with a lawn mower department, or a department store with an on-premise cafeteria. This is certainly not What is commonly known as a shopping center. 16. In order to protect itself from the possibility that the Board might agree with the Building Inspector'~ strained interpretation, Tartan sought, in the alternative, a variance of the one requirement of a shopping center which the Building Inspector found lacking, the one- acre site.i 17. The Board adopted the Inspector's reasoning that the !proposed convenience store would actually be a shopping !center, requiring a variance, instead of an accessory Ito a permitted use, and denied the variance, on grounds Which as Tartan's Peti"~ion and its attorney's Affidavit! have demonstrated, are arbitrary and capricious and lacking in substantial evidence. 118. During all the years that Tartan has owned and operated this facility, we have no record of ever having been issued any "violation" of the Zoning Code by the Town Building Department, and none was introduced in evidence at the ~eari~g for the variance, either in connection with previous work done on the Premises or the renovation here described,i No representative of the Building Department was even call9d as a witness. 119. We believe that the objections raised by the Board are'not based on substantial evidence in the record and are irrelevant to Tartan's status as a legally recognized non-conforming use which is ready, willing, and able to conform tO any reasonable standards required by the Town for a convenience incidental use station. 20. the Town's approximately case, .granted store operated as an accessory and customarily to its established use as a gasoline service Tartan's position is further strengthened, and weakened, by the fact that the Board, one (1) year prior to its decision in this permission to a gasoline service station to operate a convenience store as an accessory use on a lot within the same Zoning District, on the same road, but on a lot approximately one-third the size of Tartan's (and only about one-quarter (1/4) of the reqaired one-acre site for a shopping center!), and by the fact that the Town permitted a similar operation by Petitioner (Peconic) without even raising the issue. WHEREFORE, your deponent respectfully requests that the relief sought in this application be granted in its entir6ty. Sworn to before me this 23rd day of June, 1988. No. 30-4630269 Qualified m Ncssau County Ca~nm,s~,on Expires ~2 7 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK TARTAN OIL CORP., Petitioner, - against - BOARD OF ZONING APPEALS OF THE TOWN OF SOUTHOLD, AFFIDAVIT Index No. Respondent. : STATE OF NEW YORK ) ) ss.: COUNTY OF NASSAU ) JOEL H. JOSEPH, being duly sworn, deposes and says: 1. I am an attorney admitted to practice before the courts of the State of New York and am counsel to LEVINE & ROBINSON, P.C., attorneys familiar with the facts and Article 78 Proceeding. 2. I instant Petition, for Petitioner. As such, I am circumstances surrounding this make thi~..~,affidavit in support of the pursuant to Article 78 of the C.P.L.R.t to 1 review the ]etermination of the Southold Town Zoning Board of Appeals ("BOard") dated May 12, 1988, and filed in the Office of the Townl Clerk May 26, 1988, under Application No. 3636. 3:~. The determination denied the Application Of Petitioner ,Tartan Oil Corporation ("Tartan" or "Petitioner") i i . for an nt~rpretatlon and/or Variance of Article VI, 62.B of C~apter 100 of the Code of the Town of Southold ("Zoning COde") concerning the one-acre lot requirement for a "retail shopping center". 4. Petitioner's primary concern, as indicated in its Appeal l from the Decision of ~'he Building Inspector and its memorandum in Support of Appeal submitted to the Board, was for regiew of the designation by the Building Inspector of its proposed convenience store as a "retail shopping center", Which requires a one-acre lot under Article VI, S100-62.B.~ Petitioner's existing, nonconforming/gasoline service station has been in operation for over thirty (30) years on ai lot of approximately 34,500 feet in a "B-i" Zoning District, Where a gasoline service station is a permitted use (S100-70.B,:(4)). Petitioner introduced evidence that convenience stores, i.e., small retail stores selling various small inexpensive food and non-food items, are increasingly common thrloughout the country as well as throughout Suffolk County, ~s accessory uses~%~o gasoline service stations. There are]over 55,000 such combinations nationwide and they are a growing segment of the retail gasoline industry. 6. Nowhere does the Zoning Code prohibit convenience stores. In construing a zoning regulation "the issue is not whether the use is permissible but rather whether it is prohibited". C. DeMarco Scrap Iron & Metal Corp. v. Zirk, 62 A.D.2d 92, 405 N.Y.S.2d 260 (2nd Dept. 1978), aff'd 46 N.Y.2d 864 (1979). 7. The Zoning Code defines "retail shopping center" as "a building or a combination of buildings containing retail stores, mercantile establishments, offices, banks and financial institutions, commonly known as shopping centers .... " [emph. supp.]. In its decision the Board focuses on the language "'a building or a combination of buildings' oontainin~ retail stores, mercantile establishments, offices, banks and financial institutions .... " [emphasis in original] , conveniently ignoring the key modifying phrase "commonly known as shopping centers." (Exhibit "1", ~ll0). 8. The Board's failure to deal with the Code's language "commonly known as shopping centers" is crucial. Shopping centers are "commonly known" to be one or more buildings containing various multiple independent retail uses. An individual gasoline service station with an accessory convenience store is no more a shopping center than is a department store with many different selling areas or a hardware store which also has an appliance department or a pharmacy wi~h a soda fountain. The Board's "interpretation" flies in th~ face of reason, logic, and most of all, common experience, 'rendering it arbitrary and capricious. 9.' The Board goes on in its "interpretation" to state that: "a retail convenience store use, for the purposes of selling prepared foods, al coho 1 i e beverages, prepackages [sic] food and many non food items is not necessary for the operation of a gasoline service station, and therefore is not an accessory use incidental thereto." [emphasis added]. (Exhibit "1"~' ¶10.) 1:0. The Board thus injects a new standard into the concept of~ accessory uses - "necessity~". ~ But the Zoning Code defihes "accessory" as "a building or use clearly incidental lot subordinate to and customary in connection with the principal building or use on the same lot." (~100-13.B.) In a"~ "B-1" District "accessory uses" are defined as ,,customar%ily incidental to any permitted use and not involving ~ separate business." (S100-60.C(1).) Nowhere is there a requirement that the use be "necessary" to the permitted use, let alone even related to it in any directly connected manner. Indeed, such a requirement is foreign to the concep? of accessory use. iil. The Board in its determination is restricted the to the sta:ndards or criteria contained in the sections of 4 Zoning Code before it, and cannot arbitrarily "invent" new standards. Zoning regulations may not be extended by implication, Monument Garage Corp. v. Levy, 226 N.Y. 339 (1935). 12. There is no requirement in the Zoning Code that an accessory use be one that is "necessary to" the permitted use, nor even that it be "related" to it; had the Town intended to impose such a condition it could have easily done so. Allen v. Adami, 39 N.Y.2d 275 383 N.Y.S.2d 565 (1976). The courts of this state have expressly rejected such a connection. For exampYe, the First Department recently held that a Board of Appeals, in considering an application for a convenience store as accessory to a gasoline service station, could not arbitrarily impose a requirement that the use "must directly relate to the care and maintenance of automobiles" in the absence of language to that effect in the Ordinance. Exxon Corporation v. Board of Standards and Appeals, 128 A.D.2d 289, 515 N.¥.S.2d 768 (lst Dept. 1986); leave to appeal denied, 70 N.Y.2d 614 (1988). A fortiori, ~the Board herein cannot impose a standard of "necessity" which does not exist in the Zoning Code, and having done so its decision is rendered arbitrary, capricious and unlawful. 13. Petitioner, in its application to the Board, emphasized the need for an ~-~rpretat~.on of its proposed use as accessory and incidental to the permitted use, and in the 5 process a rleversal of the Building Inspector's determination that the proposed accessory use transformed an ordinary gasoline service station into a "retail shopping center". In the alternative, Petitioner sought a Variance of the one-acre requirement! which the Building Inspector's interpretation had imposed upon it. Obviously had the Board seen the irrationaliity and illogic of labelling a convenience store as a shopping center it would not have been necessary to deal with the qulestion of a Variance. 1:4. If the Board is deemed correct in its interpretation, then the type of Variance thus required is an "area v&riance", rather than a "use variance", which does not involve a use which is prohibited by the zoning ordinance. Friendly Ice Cream Corp. v. Barrett, 106 A.D.2d 748, 483 N~Y.S.2d 782 (3rd Dept. 1984). An applicant for an area variance need not prove "unnecessary hardship", a burden carried by one who seeks a use variance. Village of Fayettevil~e v. Jarrold, 53 N.Y.2d 254, 440 N.Y.S.2d 908 (1981). Rlather, an applicant for an area variance need only show that i strict compliance with the zoning ordinance will cause prac~tical difficulties. Consolidated Edison Co. of N.Y.v. Ho~fman, 43 N.Y.2d 598, 403 N.Y.S.2d 193 (1978). i15. In determining whether to grant an area variance the Board must consider: "(1) how ~!~,bstantial the variance is i~ relation to the requirement, (2) whether a substantial change will be 6 produced in the character of the neighborhood, (3) whether the difficulty can be obviated by some method feasible for the applicant to pursue other than a variance, and (4) whether, in view of the manner in which the difficulty arose, the interest of justice will be served by allowing the variance." (See 2 Anderson, New York Zoning Law and Practice [3d ed], S23.34, DD. 208-209); Friendly Ice Cream Corp., supra. 16. As to requirement (1), the Board found that the variance is "substantial in relation to the requirements, being 8900+ sq. ft. or 20% less than the requirement" (Exhibit "1", ~ll4(a)). Whether 20% is "substantial" or not will be discussed, infra, in relation to another decision by the Board in similar circumstances. 17. As to requirement record to sustain a finding that be produced in the character of (2) there is nothing in the a "substantial" change will the neighborhood, since the use is not being changed from that of one already permitted in the Zoning District and existing there for over thirty (30) years. 18. As for requirement (3), Petitioner had already sought to obviate the difficulty by having the use of a convenience store declared an accessory use to a permitted one, without success; it was the Building Inspector's refusal to do so which necessitated this application for a Variance. · As for requirement (4), the Board made a finding in this respect (Exhibit "1", ¶14(g)) but the finding is wholly . conclusory in nature and not supported by substantialievidence in the record. 20. In its Decision the Board considered Petitioner'~ citation of the Board's prior decision in the Appll. catl. on of Sukru Ilgin and others ("ILGIN"), Appeal No. 3618, Aprill 23, 1987. (Exhibit "7".) 21. In ILGIN, the applicant applied for a variance of Article VI, S100-62.B of tt~'e Zoning Code for the establishme'nt of a "convenience store" for the on-premises sale of fgod and non-food items, as a permitted "retail shopping center", in conjunction with an existing gasoline service station. The applicant was located in the same Zoning District ("B-i" General Business) and on the same road (Main Road[- State Route 25) as Petitioner's Premises. · " ~2. In ILGIN the premises contained a total lot area of o~ly 11,984 sq. ft. or approximately 27.5% of the one-acre required under ~100-62.B. 23. In ILGIN the Board unanimously granted the variance, iflnd~ng that a "convenience store" is "accessory and incidental to the gasoline service station use", with minimal colnditions. (Exhibit "7", p. 2.) 8 findings: 24. The Board made the following additional "(a) that the use as proposed is consistent with and will promote the general purposes of the zoning code and maps; (b) the circumstances of the property are unique; (c) there will not be a substantial change in the essential character of the neighborhood; (d) there is no other method feasible for appellants to pursue other than a variance; (e) the relief requested is substantial in relation to the requirements; (f) the relief as conditionally granted will not prevent the orderly and reasona~ble use of this district or adjacent use districts; (g) the safety, health, welfare, comfort, convenience and order of the Town will not be adversely affected by the proposed business use and its location; (h) the interests of justice will be served by allowing the variance, as conditionally noted below." (Exhibit "7", ¶7.) 25. In its May 12, 1988, Decision Board attempted to distinguish its decision describing that application as: herein, the in ILGIN by 9 "an area variance for approval of a convenience store for the sale of packaged and non-food items (without food preparation or on-premises food services), in conjunction with the existing gasoline station with minimal floor area for retail sales (less than 700 sq. ft.). In that application an interpretation was not requested, and a conditional variance was granted for the small-scale retail sales area and further required that the use be related, 'accessory and ln~uental to the existing gasoline statio~¥ use.' There is no interpretation of record by this Board determining any retail use to be an accessory use to a gasoline station." [emphasis in original] (Exhibit "1", 26. A careful reading of this attempt by the Board to distinguSsh its decision in ILGIN from its decision herein reveals little of substance to distinguish. Perhaps the Board, by, underlining the phrase "packaged and non-food items (wilthout food preparation or on premises food ~ervices)" imeant to distinguish a convenience store which does no~ s~ll food items, which it finds to be an acceptable accessory a permitted use, and a convenience store which does sell .~food items, which it ~inds to be a prohibited accessory to a permitted use. If that is what the Board is driving ak, it is of course applying an arbitrary and capricious: standard of its own invention, since no such distinction appears in the Zoning Code. Furthermore, there is nothing! in the record to indicate how the selling of food items can .llead to negative findings as opposed to positive findings for non-food items, nor do the Board's findings and determinations themselves address this question. ~27. The only other distinguishment that can be gleaned f~om the Board's dense prose is the word "related". Apparentl~ the Board is attempting to impose another new standard Of its own invention, that the proposed use be not only accessory and incidental to the permitted use but also "related" Ito it. We have a~bady shown that both by virtue of the absence of such language in the zoning Code, and by 10 virtue of the established concept of "accessory use" as interpreted by current case law, such an interpretation is impermissible, and represents the Board once again applying arbitrary standards of its own invention (see ¶'s 9-12, supra). In brief, "accessory to" does not mean "related to", especially since the Zoning Code does not so provide. 28. As noted in ¶16 supra, the Board found that the twenty (20%) percent variation between the Zoning Code area requirement and the parcel was "substantial", yet in ILGIN a variation of about seventy-five (75%) percent was not found to be sufficiently substantfal to preclude approval. Thus, the application in ILGIN was approved, and the application herein disapproved, despite the fact that: a) Both are located in a "B-l" General Business District, and both along the same road in the same Town; b) the primary usage of both is as a gasol.lne service station, a permitted use in both cases; c) the alleged distinctionsas to the sale of "food" and "non-food" items are impermissible standards imposed arbitrarily by the Board in the absence of such standards in the Zoning Code or of substantial evidence or findings of any harmful effect of one over another in the record or Decision; d) the attempted application of a standard of the accessory use being "related" to the primary use is 11 without foulndation either in the Zoning Code or in case law; e) the application approved by the Board involved aiparcel only about one-quarter (~) of the required size, while the parcel disapproved by the Board involved a parcel ove~ three-quarters (3/4) of the required size; and f) in the one case (ILGIN) the Board found a convenience store operated in conjunction with a gasoline service station to be an allowable accessory and incidental use, and in this case, the instant one, it found just the opposite. ; ~9. An administrative a~ency may not rule in such a way as !to result in inconsistent treatment of similarly situated parties. Society of the New York Hospital v: Axelrod, 1~6 A.D.2d 426, 501 N.Y.S.2d 820 (let Dept. 1986): : "Although the doctrine of stare ~ecisis does not apply to decisions of a~trative bodies, consistency of iadministrative rulings is essential, for itc adopt different standards for similar isituations is to act arbitrarily." R.C. '~ iMotor Lines, Inc. %;. United States, 350 ,:F.Supp. 1169 (MD Florida, 1972), aff'd See, also~ Exxon, supra, in which the First Department was critical 9f the fact that in "a significant number of oases" the New Y6rk City Board of Standards and Appeals had approved of the u~e of a convenience store as an accessory to a gasoline 'service station, but had denied it in the case of Exxon. 12 this WHEREFORE, your deponent respectfully requests that Court issue a judgment pursuant to Article 78 of the C.P.L.R. directing the Zoning Board of Appeals to issue a determination that Petitioner's proposed convenience store is a permitted use accessory to its gasoline service station in a "B-l" Zoning District, or in the' alternative issue a Variance of Article VI, ~100-62.B of the Zoning Code permitting Petitioner to establish a convenience store as accessory to its gasoline service station on a parcel of less than one (1) acre as a retail shopping center, and for such other and further relief as to this Court may seem just and proper, together with costs of this proceeding. Sworn to before me this ~C~ay of June, 1988 ' Notary Public 13 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK TARTAN OIL CORP., Petitioner, - against - BOARD OF ZONING APPEALS OF THE TOWN OF SOUTHOLD, Respondent. : own Attorney cc: ~own ~oard' Chief of Police Supt. of Highways Grilling & Southwick McMann Price William Mullen Bldg. Dept. NOTICE OF PETITION Index No. of Tartan PLEASE TAKE NOTICE, that upon the annexed Petition Oil Corp~ ("Tartan"), verified on the 23rd day of June, 1988, and upon the annexed Affidavit of Barry Tallering, sworn to on the 23rd day of June, 1988, the annexed Affidavit of Joel H. Joseph, Esq., sworn to on the 23rd day of June, 1988, and the exhibits attached thereto, and upon all testimony, papers and proceedings had before the Respondent, Board of Zoning Appeals of the Town of Southold ("Board"), with respect to the matter set forth in the Petition herein, the undersigned will move this Court at an IAS Part thereof, to be held in and for the County of - Suffolk, at the Suffolk County Courthouse, located at 235 Griffing Avenue, Riverhead, New York on the / ~ day of July, 1988, at 9:30 A.M. or as. soon thereafter as counsel can be heard for a Judgment: Zoning District located on the South Side of Main Road, West Side of Marratooka Lane and the East Side of Sunset Avenue, Mattituck, New York, upon the grounds that the Respondent Board's decision was contrary to the law, contrary to the evidence, arbitrary and capricious'7 and constituted an abuse of discretion; and 2) directing that this matter be remanded to the Respondent~Board with a direction that it grant Petitioner's special exception as applied for without further hearing and within thirty (30) days after entry of such judgment and service of a copy thereof upon Respondent; and .3) for such other, further and different relief as the Coulrt deems just and proper. made PLEASE TAKE FURTHER NOTICE, that demand is hereby that Respondent certify and send to this Court within the time iprescribed by C.P.L.R. S7804(o), all actions and proceedings of the Board in the above-entitled matter and designated~ Appeal No. 3633-~,~.~..~ with a certified copy of all petition , appeals, applications, reports, notices, 2 1) annulling and setting aside the Decision of Respondent Board which denied Tartan's application for a special exception, pursuant to Article VII, Section 100- 70.B(5), C~apter 100 of the Code of the Town of Southold ("Zoning Code"), to permit the establishment of a partial self-service gasoline station in a "B-l" General Business documents, letters, affidavits, diagrams, plans, drawings and any and all other papers before or acted upon by the Board together with a certified copy of all resolutions, determinations, decisions and opinions of the Board and the minutes of all proceedings, hearings, and the reports of all inspections and examinations and all other matters and things considered or acted upon by the Board in arriving at the determination now under review for the purpose of reviewing all the acts and proceedings of the Board in the matter of the Application of Tartan Oil Corp., Appeal No. 3633-SE. PLEASE TAKE FURTHER NOTICE that answering papers, if any, must be served on the undersigned at least five (5) days before the return date of this Petition. Dated: Mitchel Field, New York June 23, 1988 Yours, etc., LEVINE & ROBINSON, P.C. 50 Charles Lindbergh Boulevard Mitchel Field, New York 11553 (516) 794-6900 Attorneys for Petitioner . To: Southold Town Zoning Board of Appeals Main Road - State Road 25 Southold, New York 11971 (516) 765-1809 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK TARTAN OIL CORP., Petitioner, - against - BOARD OF ZONING APPEALS OF THE TOWN OF SOUTHOLD, Respondent. : PETITION Index No. TO THE SUPREME COURT OF THE STATE OF NEW YORK: Petitioner, Tartan Oil Corp., by its attorneys, Levine & Robinson, P.C., as and for its Petition pursuant to Article 78 of the C.P.L.R. to review a decision and determination of Respondent Board of Appeals filed May 26, 1988, in Application No. 3633-SE, respectfully alleges as follows: 1. Petitioner, Tartan Oil Corp. ("Tartan" or "Petitioner"), is a corporation duly organized and existing under the laws of the State of Delaware and duly licensed to do business in New York, with principal offices at 150 Broad Hollow Road, Melville, New York 11747. 1 ii is 2 the dully Southold, COunty of Suffolk, the Town La~. 3:. Petitioner is Respondent, Zoning Board of Appeals ("Board"), constituted Board of Appeals of the Town of established pursuant to S267 of the owner in fee of certain real property located within the hamlet of Mattituok, Town of Southold, County of Suffolk, and situated at the corner of Main Road, Marratooka Lane and Sunset Avenue, Mattituck (the "Premises" )i' The Premises service gasoline service applicable zoning code. 4o The Premises were the subject of an ApplicatiQn to Respondent Board requesting a Special Exception ~nder Article VII, Section 100-70.B, of Chapter the! Code of the Town of Southold ("Zoning Code") for 100 of are presently operated as a full station in compliance with the approval of the establishment of a partial self-service gasoline sSrvice station. "~ 5. The aforesaid Petition was presented and heard on February 18, 1988 and continued on April 14, 1988, at the Town Hall of the Town of Southold, in conjunction with a companion Application No. 3636 filed by Petitioner the denialiof a Variance on the same Premises. . attorneys 12, 1988, and to review ~. On or about May 30, 1988, Petitioner's ireceived a copy of Respondent's Decision, dated May idenying Petitioner the Special Exception requested, indicating that the original thereof had been filed in the Office of the Town Clerk on May 26, 1988. (A photocopy of the Decision is annexed herewith as Exhibit "1".) 7. The Premises is located in the "B-l" General Business Zoning District and is identified on the Suffolk County Tax Map as District 1000, Section 115, Block 3, Lot 9, containing a total area of approximately 34,700 square feet, or approximately three-quarters (3/4) of an acre. 8. The Premises fronts along three streets as follows: along the south side of Main Road (State Route 25) 201.82 feet; along the west side of Marratooka Lane 185.95 feet; and along the east side of S~nset Avenue 158.89 feet. 9. The Board found that the Premises comprised "a previously established full service gasoline station" (Exhibit No. "1", ~ll), and that as far back as 1956 the Premises "was used as a gasoline sales office and minor vehicle repairs and that one gasoline pump or island existed" (Exhibit No. "1", ~12, ~14(a)). 10. On or about May 30, 1986, the Town of Southold Building Inspector duly issued a "Certificate of Occupancy- Nonconforming Premises" #Z14455 for the Premises stating that the nonconforming premises "existed on the effective date the present Building Zone Code of the Town of Southold, and may be continued pursuant to and subject to the applicable provisions of said Code." (A photocopy of this document is annexed hereto as ExhibitNo~.4"2".) 3 1i. On or about March 17, 1987, Petitioner applied to the To~n Building Department for a permit to perform certain construction and renovation to the Premises in order to convert it to a partial self-service operation and to install a "convenience store" as an accessory use. 12. By Notice of Disapproval dated April 1, 1987, the application was denied by the Building Inspector on the grounds, relevant herein, that "Article VII, Section 100- 70.B(5) Pa[rial Self Service Requires Special Exception from Z.B.A." (Aiphotocopy of this document is annexed hereto as Exhibit No.! "3".) ~3. Section 100-70.B(5) of Article VII of the Zoning Cod!e, effective April 11, 1978, provides for the approval of a "partial self-service gasoline facility" as a permitted Use in a B-1 District, by Special Exception by the Board of APpeals, subject to requirements (a)-(g) inclusive. $4. In its Application, Petitioner alleged that the changei from full service to partial self-service would have "no .i l:mpact upon the surrounding neighborhood" and that all requirlements of the Zoning Code would be met. It was further polinted out that "self service now accounts for more than eiqhtly (80%) percent of petroleum sales." (A photocopy of the AppLication is annexed hereto as Exhibit No. "4".) The hearing ~iord supports these allegations and there iis nothing therein to dispute them. 16. In its Decision, Respondent Board also noted, solely "upon information and belief" alleged "historical information concerning the premises". (Exhibit "1", ~14.) 17. The Board also alleged in its decision that the Certificate of Occupancy for Nonconforming Premises duly issued May 30, 1986 by the Town Building Inspector "does not apply". (Exhibit "1", ¶5.) 18. The Board in its Decision denying Petitioner the Special Exception, determined: "(a) that the use will adversely affect the safety, health, welfare,'' comfort, convenience and order of the Town, (as noted above); (b) that the use is not consistent with the general purposes, regulations, and intent of Chapter 100 (zoning); (c) that the use will prevent the reasonable use of adjacent or nearly properties; residential (d) that the use will cause disturbing electrical discharges, light, vibration, and noise." (Exhibit "1", ¶8.) 19. Petitioner denies each and every finding set forth above. 20. The Board made no findings whatsoever concerning the standards for partial self-service gasoline service stations enumerated in the section of the Zoning Code under consideration, Sl00-70.B(5)(a)-(g). 5 22. The Board did not explain why a self-service gasoline selrvice station would be likely to "adversely affect the safety', etc., of the Town, "prevent the reasonable use of adjacent residential properties", or "cause disturbing electrical idischarges", etc., to any greater degree than the existing full service gasoline service station, which the Board found had existed on the Premises as a nonconforming use since :at least 1956 (long prior to the passage by the Town of ordinances controlling gasoline service stations) and was subject to a 1986 Certificate bf Occupancy-Nonconforming Premises. ~2. The Board failed to explain how the "use" i.e. partial self-service gasoline service station -- the use which is b~eing applied for as a Special Exception -- "is not consistentl with the general purposes regulations, and intent of Chapterl 100 (Zoning)", when that use is a permitted use in a "B~i" ZQning District under Article VII, S100-70.B(5) of the Zoning Code. Petitione~ a partial 23. The action of the Respondent Board in denying 's application for a Special Exception to establish self-service gasoline service station in a "B-l" Zoning District of the Z~ning contrary to law in accordance with Article VII, S100-70.B(5) Code was arbitrary and capricious, unjust, and an abuse of discretion for the following reasons: a) The Board abused its discretion and acted unlawfully by considering "historical information" solely "upon information and belief" outside the record, concerning a validly existing nonconforming use (full service gasoline service station), concerning the specific determination before it, i.e., an application for a partial self-service gasoline service station under Article VII, ~100-70.B(5) of the Zoning Code; b) The Board acted arbitrarily by going beyond its authority in alleging that a validly issued Certificate of Occupancy-Nonconforming Premises "does not apply", a determination which it lacks the power to render. c) The Board acted arbitrarily and capriciously in not making any findings or determinations in accordance with the enumerated standards of Article VII, S100-70.B 5)(a) through (g); d) The Board acted arbitrarily and capriciously in finding that "the use will adversely affect the safety, health, welfare, comfort and order of the Town, ... will prevent the reasonable use of adjacent or nearby residential properties, ... and will cause disturbing electrical discharges, light, vibration and noise" when there was no evidence in the record to sustain such findings; and e) The Board acted arbitrarily and capriciously in determining that the e~ablishment of a partial self- service gasoline service station is "not consistent with the 7 Southold Town Board o£.4ppeals ~ NtAIN ~Al~- BTATE nO,&D 25 SCIUTHOLD. L.l.. N.Y. TELEPHONE (516} 765-I~09 ZONING BOARD. O¥ Appeal No. 3633-SE Application Dated May 13, 1987 ?Os William D. Moore, Esq. Moore & Moore as Attorneys for , TARTAN OIL CORP. Ma ~ n-]~6-a~x---~j-" Mattttuck, NY 11952 At a Meeting of the Zoning Board the above appeal was considered, on your I1 [] [Appellant (si ] of Appeals held onM_~az_~2_~_j]g88' and the action indicated bel6w was taken Request for Varia~%ce Due to Lack of Access to Property New York Town Law, SectiOn 280-a Request for Special EXception under the Zoning Ordinance A~ticle ¥I! , Section ]00-70(8) Request for Variance to the Zoning Ordinance ~urticle , Section f ] Request for Application of TARTAN 0)/ C.0_RP. for a Special Exception under Article VII, Section ~~)~ 5~-the Zoning Code for approval of the establishment of a partial self-service gasoline station. Location of Property: South Side of Main Road, West Side of ' Marratooka Lane, and the ~ast Side of Sunset Avenue, Mattituck, NY; lO00-116~3.g. Zone: "B-l" General Business. WHEREAS, public hearings were held in the Matter of the Appli- cation of TARTAN OIL CORP. under Appl. No. ~633 on February )8, 1988, and WHEREAS, at sai'd hearing a)l those who desired to be heard were hea).d and their testimony recorded; and written statements have been submitted for the record in favor and in opposition of the pending application; and WHEREAS, the 8oard has carefully considered all testimony and documentation submitted concerning this application; and WHEREAS, the Board Members have personalty viewed and are familiar with the premises in question, its present zoning, and .the surrounding areas; and WHEREAS, tH'e Board made the following findings of fact: 1, This is an application requesting a Special Exception under the Provisions of Article VII, Section lO0-70(B) of the Zoning Code for the approval of newly added self-service pumping stations in conjunction With a previously established full-service gasoline station. 2. The property in question is located in the General Business Zoning District and is identified on the Suffolk County Tax Map as District lOOO, Section ll5, Pluck 3, Lot 9. containing a to~dl area of approximately 34,/00 Sq. ft. !C~ONTIN__UED~ON PAGE TWO) DATED: May l 2, ] 988. CHAIR.~b%N, SOUTHOLD TO~ OF APPEALS Form ZB4 (rev. 12/81} ZONING BOARD Pa~e 2 .- Appl. No.~3633-S£ 'Hatter of TAR~AN..~.~L CORP. Decision R~n~red Ma~-'-i'~'~-1988 3. The subject premises fronts along three streets as follow: along thelsouth side of the ~ain Road (or State Route 25) 201.82 feet; along the west side of Marratooka Lane 185.95 feet; and along the east side of Sunset Avenue 158.89 feet. The premise~ is surrounded by properties zoned "A" Residential and Agricultural. 4. For the record, the following historical information concerning the premises and previous construction is noted upon information aQd belief: {a) Duriqg 1956, the premises was improved with an one-story frame buiilding set back. Z1 feet from the northerly front property line [along the Main Road] and 71t feet from the easterly front Jproperty line [along Marratooka Lane], as mo)'e particularlly shown by survey prepared by Otto W. ganTuyl & Son surveyed dune 8, 1956. Although there is no gasoline pump shown)on this 1956 survey, it is the Board's understanding that ilthat building was used as a gasoline sales office and mi)nor vehicle repairs, and that one gasoline pump or island axis)ted to the north of that building. lb) Some )time sub?q~ent to 1957, the building was removed, and an.bther bulldTng was placed as more particularly shown On the dune 15, lgTO Survey prepared by YanTuyl & Son whfchrs~ows setbacks from the northerly front property line at 601 feet and from the easterly front Property line a: 40i'feet. The record is unclear as to whether ur not this)building was constructed under a building permit andlapProva1 by any other town departments. Town recorUs do sho~ that ~he subject premises during 1970 Was ~oned "A" Residential and Agricultural, and that a gasult~)e-servtce stbtion was no~ listed as a "Permitted use" [except in that"B-1, Business Zone District] since {c) On orlabout dune 7, 196§, the Zoning Ordinance provisions for the 'iB-l" Business District were amended to require a Special E~ception approval by the Board of Appeals for a building or p~emises to be used as a gasoline service station or public garage [Section 490-~]; (d) On or)about November ~3, lgT1, the Zoning Maps w~ro ~mended to incl)'ude the rezoning of this property from "A" Residential.Agriicultura1 to "~-l" General 8~s~ness, and including the requir!ement for Site~Plan approval by the Planning 8oard in adjdition to Special Exception approval by the Board of Appeals), etc. {el N~ tow)n approvals have been found during the above time periods f:or the newly located building and/or site as existed Slncje it~ change in 1986 to the ~resent time {fl The re~ord is unclear as to issuance of pern~its for the Commercial building and site prior to 1970; (g) During)l~86 or thereabout, the site and buildinq were change~, and ~s of this ddte, site-plan approvdl has not beeh received from :no Planning BOard as well as other zoning criteria which have not been con, plied wi;h, as fo lows: Page 3 -,App)J. No. 3633-S£ Hatter of TARTAN OIL CORP. Dec'tsion Ma~ 12~ 1988 1, extensive blacktopping, eliminating natural wooded areas and other natural landscaping; 2. relocation of one gasoline island from previous location to a point ID feet from the northerly property line; the 3. creation of a second gasoline island approximately 19 feet north of the building in the front- yard area; 4, relocation of air pump in the westerly front yard area; 5, creation of new colonnade with roof of a size 24' wide by 5g' deep in the frontyard area with an insufficient setback of two feet [2'] from the northerly front property line, and extendinu over existing building; (Article VII of the Zoning Code requires a minimum setback for buildings a~ not less than 35 feet from the front lines); 6. strucutural alterations of building, including, b~: not limited to, removal of two garage vehicle overhead doors, placement.of large picture window(s) new store front, etc. , 7. new placement of three or more pole lights which create glare beyond the lot lines; 8. new placement of florescent {unshielded) wall lights along the Sides of the existing building for a total running length of approximately 36 feet which do appear to be adverse tO surrounding properties when used in conjunction with the overhead li ' · htlng under the roofed colonnade and the separate )ight~ng poles; 9, conversion of garage bays and front office area into a retail store for sales of beer, prepared foods, and other items which are not incidental or accessory to the gasoline-service station use [see this Bo~rd's action rendered under Appl No. 3633 same date hereof], · 10. location o¢ a glass-enclosed telephone booth at the most northeasterly corner of the pren)ises near' the Main Road; 11. ,,placement of new ground signs at the most northeasterly corner of the premises near Main Road. the 5. Also noted for the record is a Certificate Occupancy for 'Nonconforming Premises #Z14455 dated May 30, ~956 which appears to have been baseo Dn the J~ne 8, 1956 Survey of Otto W. YanTuyl & Son for the premises and building ~s existed prior tu 1957, but which does no~ apply Sln~e th~ bu~'~-~'~g referred to ha~ been rumored from its Original footprint, based upJn information subm3t~ed. of Page 4 - Appl.. No. 3633-SE Matter of TARTAN OIL,'CORP. 6. Based on the facts in the record, it appears that the applicant p~oceeded, as noted above, without appropriate authorizations. The Board notes that there appears to be Several areas of noncompliance under the Zoning Code (including but not limited to Article VII, Sections 100-70, lO0~71, Bulk and Parking Schedule, Article XI, Section lOU-11g, Article XIII, Article XIV), for the suhj.ct self-service gasoline p?p islands as required by Article VII, Section lO0-70B, which reads in part as follows, as well as other siLe plan elements (Art. XIII): 1NO-70 -B. Uses permitted by special exception by the Board of ~ppeals. The following uses are permitted as a special exception by the Board of Appeals, as :hereinafter provided, and, except for the uses set forth in Subsection Bi7) hereof, are subject to site plgn approka) by the Planning Board in accord- ance with Article XII1 heKeof; the 4, Public garages, gasoline service stations, all .subject to the following requirements: (al Entrance and exit driveways shall have an unrestricted width of not less than 12 feet and not more than 30 feet, and shall be located not less than l0 feet from any Iroperty line..., e) NO gasoline or fuel pumps shall be located less than fifteen feet from any .street)or property line. ~. Partial self-se'rvice gasoline service statiohs shall be subject to all of the provis!ons of IOD-7OB(4) [above] and subject to the!following requirements: (al through (gl [inclusive]. 7. In researching Tuwn records, it is noted that the only building permitJissued appears to be for the construction of the "canopy" unde~ Permit ~15833Z issued April l, 1987. 8. Also in considering this application, the Board also determines: : {a) that the use will adversely affect the safety, health, welfare, comfort, convenience and order of the Town, [as noted above]; (bi that the use is not consistent with the teneral purposes, regulations, and intent of Chapter lO0 Zoning]; i (c) that tho use will prevent the reasonable use of adjacent or nearly residential properties; id) that the use will cause disturbing electrical discharges, Tight, vibration, and noise. Accordingly, Mr. Duyen, it was on motion by Mr. Grigunis, seconded by RESOLVED, due to the deficiencies under the zoning ordinance for the existing building and structures, and d structures, that the application for the proposed use an .. ~-n for IARTAN OIL C_~O_O~P~. in the Matter of the Appl~¢~mv., ~er~-'T~-OENI~ under Appl. No. 3633, must oe a~_?~.~). ~-l~e it (WiTHOUT~R~jUDICE to future apP~c~u,~- ,, FURTHBR RESOLVED, that the applicant/property owner upon receipt of this aecision be a~d hereby is notified that all improper operations should cease and desist immediately. Vote of the Board: Ayes: Douglass and Grigonis, (Member resplutiun was duly adopted. Messrs. Goehringer, Doyen, sawicki was absent.) This TOWN OF SOUTIIOLD OFFICE OF BUll. DING INSPECTOR TOWN IIALL SOUTIIOI.D, NEW YORK CERTIFICATE OF OCCUPANCY NONCONFOI~MING PiIEMISES TIIIS IS TO CERTIFY that tile /X_--/ Land [ [ Building(s) I-I Useis) 9O located at 168q0 Marratooka Lane Main ]~d , Pre C.O. ~- Z14455 Date- May 30, 1986 shown on County tax map as District 1000, Section Mattituck Street }tamlet 115 , Block 3 Lot 9 ,, does.~not)conform to the present Building Zone Code of tile Town of Southold for tile following reasons: ,' On the basis of information presented to the Building Inspector's Office, it has been determined that the above nonconforming ~]Land /.~/Building(s) /--/Use(s) existed on the effective date the present Building Zone Code of the Town of Southold, and may be continued pursuant to and subject to the appli- cable provisions of said Code. ~ IT IS FURT}IEt~ CERTIFLED that, based upon information presented to the Building Inspector's' Office, the occupancy and use for which this Certifi~ cate is issued is as follows: buildin~ with gas pumps General Business Property contains a one-story wood-framed in front. Property is situated in the B-1 Zone with access ,I to Main Rd.; a state maintained road and Marratooka Rd.; a town The Certificate is issued to of the aforesaid building. highway. TARTAN OIL CORP. Suffolk County Department of Health Approval N/A UNDEIIWRITEfiS CERTIFICATE NO. N/A NOTICE IS tlEREBY GIVEN that the owner of tile above premises tLtS NOT CONSENTED TO AN INSPECTION of the premises by the Building Inspec- tor to determine if the premises comply with all applicable codes and ordin- ances, other than the Building Zone Code, and therefore, no such inspectioa has been conducted. This Certificate, therefore; does not, and is not hRended to certify that the premises comply witt[~¢ll ,other applicable codes and regula- tions. rz;uildin~ mspector NOI'ICE OF I)ISAI'I'I{OVAL File No ................................ .ro .~,,...'~ ..~. Z.~...o~....~. ~. ....q. ........... your application dated ...~.~9~.. I'I.EASE NOTICE that I.ocation of Property ...................... ~. Itouse No. Streot /lam/et Cotmty Tax Map No. IOOO Section . .'.. L/.~ .... Block ..... ~. ~ .... Lol . ?.~ ......... Subdivision .................. Filed Map No ................. Lot No .................. i~ ~cl,m~d h~vilh ~nd disapproved on lira lbllowin~ groumls ....................... ~.. . .~ ...... ~, .~ .~ ....... Building Inspector TOWN OF SOUTHOLD, NEW YORK Tc'~a C~erk APPLICATION FOR SPECIAL EXCEPTION Application No.',~3 Date Filed: TO THE ZONING BOARD OF APPEALS, SOUTHOLD, NEW YORK: I (We), TARTAN OIL CORP. ofl50 Broad Hollow Rd. (Residence, House No. and Street) Melville, NY c/o William D. Moore, Esq. Suite 3 Claase Commons Mattit (Ham]et, State, Zip Code, Telephone Number) 298-5674 hereby apply to /HE ZONING BOARD OF APPEALS for a SPECIAL EXCEPTION in accordance with the ZONING ORDINANCE, ARTICLE VII , SECTION 100-70 , SUBSECTION b5 for the below-described property for the following uses and purposes (and as shown on the attached plan drawn to scale): partial self-service gasoline station 'at Mobil station at Marratooka Lane and Main Road in Mattituck, NY A. Statement of Ownership and Interest. Tartan oil Corp. is(are) the owner(s) of property known and referred to as Mmrr~onkm T.an~ ~nrt Ma~n $~n~rt M~t~-ituck (House No., Street, Ham/et) identified on the Suffolk County Tax Maps as District ]000, Section llb, Block 3 , Lot(s) 9 ,' which is not (is) on a subdivision Map (Filed , "Map of "Filed Map No. , and has been approved by the Southo'ld Town Planning Board on as a [Minor] [Major] Subdivision). The above-described property was acquired by the owner on 1 ~/~n./~qT-2 B. The applicant alleges that the approval of this exception would be in harmony with the intent and purpose of said zoning ordinance and that the proposed use conforms to the standards prescribed therefor in said ordinance and would not be detrimental to property or ~e.rsons in t.he neig.hborhood fo.r the .fo~l.owing reasons: Site is presentl~ improveo Dy retai, gaso±ine service s~a~on. The self-serVice aspect such use will have no impact upon the surrounding neighborhood. Such a use is reflective of the demands of the public and the costs of gasoline and petroleum products. Self-service now accoun'ts for more than 80 percent of petroleum sales. The proposed use will comply in a. ways with the requirements of sections 100-70 b4 and 5 (see add'l pg.) C. The preperty which is the subject of this application is zoned B-1 ar [ ×] is consisto~lt wi~h the use(s) described in the Certificate of Occupancy being furnished herewith. L ] is not consistent with the Certificate of Occupancy being furnished herewith for the following reason(s): COUNTY OF SUFFOLK) ' . STATE OF NEW YORKi ss.: · Sworn to ~b~fore me this /,~/day of ZB2 (rev. 2/6/86) TARTAN OIL CORP. SPECIAL EXCEPTION APPLICATION PAGE 2 B. cont'd. to insure the safe and orderly use of the property. The proposed use will not adversely affect the health, safety, welfare, comfort, convenience or order of the town. The character of the use and development of uses in this zoning district will not be affected by the approval of partial self-service on this property. Nor will the proposed use adversely affect property values. Partial self-service will not unduly increase vehicular traffic con- gestion. Nor will such a use have effect on the availability and adequacy of water and sewer resources. No additional parking demands will be created by the proposed use and there will be no additional noxious gases, odors, dust~light, vibration or noise by approval of partial self service facilities. The fire suppression system will reduce risk of injury and property damage. The proposed use will not produce overcrowding or undue concentration of people on the property. Petitioner proposes that southerly side of southern is~.and provide full service operation with balance of southern island and northern island to provide self-service. In addition kerosene and diesel pumps are proposed to be self-service. Diesel and kerosene are standard petmoleum products offered for sale at gasoline service stations. Motorists using diesel and keresene are penalized wi~h higher prices if such products must be provided only on a full-service basis. In addition, many operators, particularly truck operators, prefer to pump their own fuel. Such preference is still penalized with higher fuel prices if full-service must be offered at that pump. INDEX NO ............................................................................. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK TARTAN OIL CORP., Petitioner, -against- BOARD OF ZONING APPEALS OF THE TOWN OF $OUTHOLD, Respondent. NOTICE OF PETITION and VERIFIED PETITION LEVINE & rOBINSON, P.C. Petitioner /lttorneys for 50 CHARLES LINDBEIRGH BLVD. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK TARTAN OIL CORP., Petitioner, - against - BOARD OF ZONING APPEALS OF THE TO,tN OF SOUTHOLD, AFFIDAVIT Index No. Respondent. - X STATE OF NEW YORK ) ) COUNTY OF NASSAU ) ss: BARRY TALLERING, being duly sworn, deposes and says: 1. I am the President of Tartan Oil Corporation ("Tartan"), Petitioner herein, and accordingly have personal knowledge of the facts and circumstances set forth herein. 2. This Affidavit is submitted in support of Tartan's'Petition pursuant to Article 78 of the C.P.L.R. to review {!Appeals "Special i' the determination of the Southold Town Zoning Board of ("Board") in denyl~g Tartan's application for a Exception to use its existing gasoline 1 _service station atI Main Road and Marretooka Lane, Mattituck (the "Premises",), as a partial self-service gasoline service station. including taxation, controls, 3. Tartan is engaged in the business of owning real propeity which it operates and/or leases as gasoline service stations throughout Nassau and Suffolk Counties. 4. Tartan has been in this business, through predecesso¥ companies, for over forty (40) years, and presently Owns and/or operates and/or supplies approximately fifty-fivel (55) gasoline service stations throughout Long Island, thirty (30) of them in Suffblk County. 5. Tartan maintains an experienced staff at its corporate headquarters in Melville, Suffolk County, New York, including specialists who are fully familiar with the complexities of operating gasoline service stations today, real estate, leasing, petroleum franchising, environmental regulation, zoning and local ~tc. Tartan purchased the subject Premises in 1970. At that rice it was an existing full service gasoline service station, a~nd as the Board found herein, had been a gasoline service sthtion since at least 1956. 9. In 1986 Tartan decided to upgrade the Mattituck ~station as part of a general program of bringing all of ltd properties up to ~e latest standards of gasoline service stlations on Long Island. 8. Before investing the large sums of money necessary to upgrade the property, Tartan wished to make certain that it had the legal right to continue the operation as a gasoline service station as had existed at that location for the past thirty (30) years or so. Accordingly it sought a new Certificate of Occupancy from the Southhold Town Building Department, which it received on May 30, 1986, confirming its right to continue operation as a nonconforming use (Petition, Exhibit NO. "3"). 9. In reliance upo~ that Certificate of Occupancy, Tartan commenced a renovation project which during the past two (2) years has involved the expenditure of in excess of Three Hundred Twenty-Five Thousand ($325,000.00) Dollars for reconstruction and installation of the latest equipment for the storage, pumping and sale of gasoline at retail, incorporating the latest environmental protection features and devices, such as new leak-proof double walled fiberglass underground storage tanks, vapor control equipment, self-service dispensing and monitoring equipment and convenience store facilities. 10. Self-service has become an increasingly important and competitive feature of gasoline service stations throughout the nation and Long Island, and Tartan has been converting most of ~s stations to incorporate this feature for the past several years. 3 1%. Tartan was aware of the fact that while some communitie~ have no regulations concerning self-service gasoline service stations at all, and others ban them entirely, the Town of Southold allows "partial" self-service gasoline service stations as a permitted use in the "B-I" General BUsiness Zoning District in which its Mattituck station was located, as a special Exception subject to Zoning Boarld of Appeals approval. ~2. Tartan is well aware of this requirement since within th& past year it sought' and obtained a Special Exception from the same Board to operate its facility in Peconic, located within the same Town and within the same "B- 1" Zoningl District, as a partial self-service gasoline service s{ation. In that Application, as here, Tartan installed ~ostly specialized equipment to render it able to meet the requirements of the Zoning Code, which the Board accepf'ed, i 13. Accordingly, Tartan, working closely with the Town Building Department and following the requirements of the Town Zpnlng Code, constructed its facilities in Mattituck so as to ~omply with the Code and simultaneously applied for the Specia!l Exception. 114. The only additional permit required by the Town Building Department was for the "Canopy", a roof-like structure over the dispensing pumps, which besides providing 4 shelter and light, contains a sophisticated and costly automatic "foam" fire extinguishing system necessary for self-service operation. This permit was applied for and duly issued on or about April 1, 1987 (Petition, Exhibit No. "1" at ~7). 15. During all the years Tartan has owned and operated this facility, we have no record of ever having been issued any violation by the Town Building Department, and none was introduced in evidence at the hearing for the Special Exception, either in connection with previous work done on the Premises or the renovation here described. No representative of the Building Department was called as a witness. 16. We understand that a partial self-service gasoline service station is a permitted use under the Southold Zoning Code, subject to the standards enumerated. Tartan has indicated that it is prepared to meet those standards and has in fact, already installed the costly specialized equipment to enable it to do so. 17. We believe that the objections raised by the Board are not based on substantial evidence in the record and are irrelevant to Tartan's status as a legally recognized non-confgrming use which is ready, willing, and able to conform to the additional standards required of a partial self-service gasoline servic~tation. WHEREFORE, the reliefi sought entirety. Sworn to before me this your deponent respectfully requests that in this application be granted in its B ering ~3~day of June, 1988. NOTARY pUBLI~, State of New Yon% No, 30-4630269 QuoJified il Nassau CounbJ SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK TARTAN OIL CORP., Petitioner, - against - BOARD OF ZONING APPEALS OF THE TOWN OF $OUTHOLD, Respondent. AFFIDAVIT Index No. STATE OF NEW YORK ) ) Ss.: COUNTY OF NASSAU ) JOEL H. JOSEPH, being duly sworn, deposes and says: -~ 1. I am an attorney admitted to practice before the courts of the State of New York and am counsel to LEVINE & ROBINSON, P.Co, attorneys for Petitioner. As such, I am fully familiar with the facts and circumstances surrounding this Article 78 Proceeding. 2. I make this affidavit in support of the instant Petition, pursuant to Article 78 of the C.P.L.R., to review the determination of the Southold Town Zoning Board of Appeals ("Board") dated May 12, 1988~ and filed in the Office of SE the Towl. Clerk May 26, (Exhibit. NO. "1"). 1988, under Application No. 3633- 3. The determination denied the Application of Petitioner iTartan Oil Corporation ("Tartan" Or "Petitioner") for a Special Exception under Article VII, ~100-70.B of Chapter 100 of the Code of the Town of Southold ("Zoning Code"), fog approval of the establishment of a partial self- service ga'soline service station on an existing gasoline service station located in a "B-l" General Business Zoning District. 4' The determination w&s illegal, arbitrary and capricious, unjust, contrary to law, an abuse of discretion, and not baBed upon substantial evidence, for the reasons set forth in the Petition and the accompanying Affidavits. B. A "special exception" is not defined in either the enabli~'ng statute (Town Law ~267) or in the Zoning Code. The Zoning' Code simply states that this use, "partial self service galsoline service station' is "permitted as a special exception iby the Board of Appeals" (Article VII, :~100-70.B) [emph. sucp.]. Obviously, then, a partial self service gasoline service station is a permitted use, not a prohibited one or one~ for which a variance is required. 16. The burden of proof on an applicant for a special 0xception is much lighter than the statutory "practica~ difficulty or unnecessary hardship" required for a variance (Town Law ~267.5). The applicant need not show that it has been denied any reasonable use of the property but only that the use desired is one that is "contemplated by the ordinance subject only to 'conditions' attached to its use to minimize its impact on the surrounding area." No~th Shore Steak House v. Board of Appeals, 30 N.Y. 238, 331 N.Y.S.2d 645 (1972). 7. The issuance of a special exception "is a duty imposed upon the Board of Appeals by the terms of the Zoning Ordinance, which duty is to be performed in the manner therein proscribed ... [The Board must] determine whether, upon the proof before it, the prdposed use met all of the standards enumerated in the Ordinance ... if all the standards were met, it was under a duty to grant the request". Syosset Holdin9 Corporation v. Schlimm, 15 Misc.2d 10, 159 N.Y.S.2d (Sup. Ct. Nassau Cry. 1956), modified on grounds, 4 A.D.2d 766, 164 N.Y.S.2d 890 (2nd Dept. other 1957). The Board is restricted to the standards set forth in the Zoning Code in its decision to grant or deny a special excePtion. Koch v. Zonin9 Board, 54 Misc.2d 1090, 284 N.Y.S.2d 177 (Sup. Ct. Westchester Cty. 1957). 9. The standards for the establishment of a partial self service gasoline service station are enumerated under subdivision (a) through Zoning Code, which provide: "(a) Each partial self-service gasoline facility shall have a 3 (g) of ~100-70.B(5) of the c) d) qualified attendant on duty whenever the station is open for business. It shall be the duty of the qualified attendant to control and operate both the console regulating the flow of gasoline to the dispensing equipment thereafter to be operated by the customer at the self-service pump island and the dispensing equipment on the other pump islands. Gasoline shall at no time be dispensed without the direct supervision of the qualified attendant. A control shall be provided which will shut off the flow of gasoline to the dispensing equipme .nt at the self-service pump island whenever the qualified attendant is absent from the control console for any reason whatever, including when he is operating the dispensing equipment on the other pump islands. The console regulating the flow of gasoline to the remote dispensing equipment thereafter operated by the customer at the self-service pump island shall be situated in such a manner as to g ire the q ual i fied attendant controlling said console an unobstructed view of the operation of said remote dispensing equipment. The self-service pump island shall have controls on all pumps that will permit said pumps to operate only when a dispensing nozzle is removed from its bracket on the pump and the switch for this pump is manually operated. (e) (f) (g) The self-service pump island shall be protected by an automatic fire protection system in the form of an approved system of dry power release which will act as an automatic fire extinguisher. No customer shall be permitted to dispense gasoline unless he shall possess a valid motor vehicle operator's license. There shall be no latch-open device on any self-service dispensing nozzle." 10. These standards are.~ssentially operational in nature, and Petitioner indicated in its application to the Village, in its appeal to the Board and in its presentation before the Board, that it was prepared to comply with these requirements and had, in fact, expended substantial sums of money to install the necessary equipment in order to meet these standards (See Affidavit of Barry Tallering, ¶¶ 9-12). There is nothing in the record before the Board, or indeed in the Board's decision, to indicate that Petitioner failed to comply with the standards outlined in the Code or, for that matter, once conversion to partial self-service was implemented. il. As this Court stated in reviewing the decision of the same Respondent Board in an earlier case: "Where ..o the record contains applicant's testimony meet the standards of no evidence which controverts the that he is ready, willing and able to the Ordinance the Board's refusal to 5 ... grant the exception will be reversed by the courts as an abuse of discretion." Baxter v. Gillespi~., 60 Misc.2d 349, 303 N.¥.S.2~ 290 (Sup. Ct. Suffolk Cry. 1969). 12. The Code section referring to partial self- service gasoline service stations also provides that in addition 4o the special provisions of S100-70.B(5) they "shall be ~ubject to all of the provisions of S100-70.B(4)" The latteri sets forth the basic requirements of "(p)ublic garages, g~soline service stations and new and used car lots", presumably ordinary, non self-service, or what we might call !"full service" gasoline ~ervice stations. 13. But a full service gasoline service station had been operated on the premises since at least 1956, by the Board's own findings {and since 1970 by Petitioner) as a nonconforming use, and Petitioner had obtained a Certificate of OccupanCy-Nonconforming Use as recently as May of 1986 {Exhibit No. "3"). It is therefore doubtful that the provi~ionslof S100-70.B(4) would apply to Petitioner. The Board in its decision questioned the validity this Certificate of Occupancy, stating it "does not apply"I. The Board had not the authority to arbitrarily invalidateI this Certificate of Occupancy. In the ease of Bekermus V. Nardy, 123 Misc.2d 378, 472 N.Y.S.2d 570 (Sup. Ct. Suffolk Cty. 1984) this Court declared that a town Board of Zoning! Appeals was without jurisdiction to invalidate a Certificate of Occupancy. 15. The Zoning Code herein gives no specific authority to the Board to override or invalidate a duly issued Certificate of Occupancy ($100-144.A through ~). Furthermore, Bekermus holds that the vacating of a Certificate of Occupancy must be based on substantial evidence and not "based upon conjecture [and] speculation". The Certificate of Occupancy in question was not questioned at the hearing and there is no evidence in the record to support the Board's claim that it "does not apply". 16. The Board, in its Decision, alleged certain "historical information" solely "uDon information and belief" concerning the premises, including undocumented allegations of alleged lack of authorization. However, none of this material was introduced at the hearing and none of it is contained in the record. Neither the Building Inspector nor any Town official was called as a witness, no Town records were introduced as evidence, and the Petitioner had no opportunity to confront these allegations, which have the status of nothing more than unsubstantiated, off-the-record hearsay. The courts have held that it is patently improper for a Board of Appeals to "penalize ... illegality by proscribing application for a validating special exception" where no such authority exists in the Ordinance. Balduf v. Michaelis, 22~ N.Y.S.2d 175 (Sup. Ct. Nassau Cry. 1961). 17. In its Decis,~n, the Board also alleged that "the use will adversely affect the safety, health, welfare, 7 comfort, convenience and order of the Town; ... will prevent the reason.,able use of adjacent or nearby residential properties; ... and will cause disturbing electrical discharges, light, vibration and noise." (Exhibit No. "1", ~18(a),(c), and (d)). There is absolutely no evidence in the reoord to support these determinations. The courts have consistently held that "the denial of a special permit may. not be based upon general objections or conclusory findings without evildentiary support in the record." Sullivan v. Town Board of Riverhead, 102 A.D.2d 857, 476 N.Y.S.2d 577 (2d Dept. 1984); Green v. LoGrande, 96" A.D.2d 524, 464 N.Y.S.2d 831 (2nd Dept. 1983); Tandem Holding. Corp. v. Board of Appeals, 43 N.Y.2d 801, 402 N.Y.S.2d 388 (1977). "Rather the Board may'only act upon substantial evidence indicating, e.g., that the contemplated project is substantially deficient under the legislated criteria governing the issuance a special use permit" [emph. supp.]. Sullivan, supra, at ~81; Robert Lee Realt~ v. Village of Spring Valley, 61 N.Y.2d 892, 474 N.Y.S.2d 475 (1984); Tandem, supra. 118. A major determination of the Board was that "the use is not consistent with the general purposes, regulatiogs and intent of Chapter 100 [Zoning]" (Exhibit "1", ~18(b)). This determination, besides being wholly conclusory and not based on substantial evidence in the record, is unsupportable as a matt~' of law. The courts have consisten%ly held that since a special exception is a use expressly permitted by Ordinance, the inclusion of such use is thus "tantamount to a finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood." North Shore Equities, In~.. v. Fritts, 440 N.Y.S.2d 84, 8 A.D.2d 985 (3d Dept. 1981); North Shore Steak House, supra; Syosset Holding Corp., supra. Denial of a special exception on the grounds that it is "not consistent with the general purposes ... and intent" of the Zoning Code is, therefore, "patently inconsistent", (North Shore Steak House, ~upra; 3 Anderson, American Law of Zoning S15.13), and cannot be sustained a~'a matter of law. WHEREFORE, your deponent respectfully requests that this Court issue a judgment pursuant to Article 78 of the C.PoL.R. directing the Zoning Board of Appeals to issue a Special Exception to Petitioner under Article VII, ~100- 70.B(5) of the Zoning Code of Southold to establish a partial self -bervice gasoline service station in a ~"B-l" General Business Zoning District and for such other and further relief as to this court may seem just and proper, together with costs of this proceeding. Swor~to before me this _~a~y o~f~Jun~e, 19_~88/ Notary P'u b 1~1' 6 9 Sou hold Town Board of Appeals MAIN ROAD- STAT£ ROAD ~.5 SOLITHDLD, L.I., N.Y. 119'71 TELEPHONE (516) 765-1809 ACTION OF THE ZONING BOARD OF APPEALS Appeal No. 3596-85 Application Dated December 26, ]986 TO: William D. Moore, Esq. as Attorney for TARTAN OIL CORP. 370 Terry Southold, NY l1971 [Appellant(s)] At a Meeting of the Zoning Board of Appeals held on the above on your March 5, 1987, appeal was considered, and the action indicated below was taken [ ] Request for Variance Due to Lack of Access to Property New York Town Law, Section 280-a IX] Request for Special Exception ~nder the Zoning Ordinance~ Article VII , Section 100-70(B)[4 & 5] [ ] Request for Variance to the Zoning Ordinance Article , Section Request for Application of TARTAN OIL CORP. for a Special Exception to the Zoning Ordinance, Article VII, Section lO0-70(B)[4-& 5] for permission to establish a partial self-service gas station in conjunction with full-service gas station approved 6/29/72 under Appl. No._~4. Loca- tion of Property: 32400 C.R. 48, Peconic, NY; ,County Tax ~ Parcel No. 1000-74-4-7.1 (6 & 7). WHEREAS, a public hearing was held and concluded on February 5, 1987 in the Matter of the Application of TARTAN OIL CORP., Application No. 3596; and WHEREAS,_~t said hearing all those who desired to be heard were heard and their testimony recorded; and WHEREAS, the board has carefully considered all testimony and documentation submitted concerning this application; and WHEREAS, the board members have personally viewed and are familiar with the premises in question, its present zoning, and the surrounding areas; and WHEREAS, the board made the following findings of fact: 1. This is an application for a Special Exception as permitted by Article VII, Section lO0-70(B), Subsections 4 and 5 of the Zoning Code for a partial self-service gasoline, kerosene and diesel pumping station. 2. The premises in question is located in the 'B-l" General Business Zoning District, containing a total lot area of 34,029 sq. ft. with 194.54 ft. frontage along the south side of Middle Road (a/k/a C.R. 48), Peconic. 3. Requested by this application is the use of: (a) self-service pumps for sales of regular, unleaded, and premium gasoline, on two existing islands located at the westerly portion of the premises with minimum setbacks of 69 feet from the front property line [along C.R. (CONTINUED ON PAGE TWO) DATED: March 5, 1987. Form ZB4 (rev. 12/81) CHAIRMAN, SOUTHOLD TOWN ZONING BOARD OF APPEALS Page 2 - Appl. No. 3596SE Matter of TARTAN O~L CORP.' Decision R~~~ 5, 1987 48], 48 feet from the west side property line, and 100m feet from the rear (south) property line; (b) one self-serve kerosene pump, presently full service; (c) one self-serve diesel pump, presently full service; (d) overhead canopy; all as shown by Site Plan amended January 29, 1987, prepared by Merritt H. Deutzman, P.E. 4. The subject premises is improved with the following structures: (a) full-service island with gasoline pump, just east of the e×isting service building; (b) new 20' by 32' service building set back approx!mately 71 feet from the front property ~ line [along Midale Road], '(c).one .kerosene pump and one diesel pump, .~oth presently f~ull service; (d) two islands just west of the existing servic9 ~uilding; (e) overhead canopy, all also as shown on sit~ plan amended January 29, 1987, prepared by Merritt H. Deutzma~, P.E. 5. ~r the record it is noted that conditional approval was granted by the Southold Town Planning Board August 25, 1986 con- serning the Site Plan, and conditional Temporary Certificate of Occupancy No. Z15158 and Building Permit No. 14696Z were issued concerning these premises. 6. It is also noted for the record that it is the understanding of this Board that the service building will be used for office and sales area incidental to this gasoline service station and will not be operated as a separate business use or entity. By letter dated December 23, 1986, the Town is assured that no foodstuffs requiring a food-service permit from the County Health Department will be offered for sale. 7. It shall be understood further that this project must comply with those conditions set by the Board of Appeals June 29, 1972 under Application No. 1584 for the construction of a gasoline service station, including but not limited to items (b), (c) and (f) thereof: (b) Vehicle lifts or pits, dismantled automobiles, and all parts or supplies shall be located within a building; (ci-'-All service or repair of motor vehicles other than such minor servicing as change of tires or sale of gasoline and oil, shall be conducted in a building; (f) No motor vehicle sales, used car lots, gasoline services or repair shops, or similar businesses, are to be located within 300 feet of a church, public school ... or within 300 feet of any residence district. In considering this application, the board also finds and determines: (a) the use requested will not prevent the orderly and reasonable use of adjacent properties or of properties in adjacent use districts; (b) the use will not adversely affect the safety, welfare, comfort, convenience or order of the town; (c) the use is in.harmony with and will promote the general purposes and intent of zoning. The board has also considered subsections Iai through [1] of Article XII, Section 100-121(C)[2] of the Zoning Code in making this determination. Accordingly, on motion by Mr. Douglass, seconded by Mr. Goeh- ringer, it was RESOLVED, to GRANT a ~pecial Exception in the Matter of (CONTINUED ON PAGE THREE) Page 3 Appl. No. 3596SE Matter.of~A~TAN OIL CORP. Decision Rendered March 5, 1987 the Application of TARTAN OIL CORP., No. 3596, for the estab- lishment of self-se'~vice gasoline sales on the two existing pump islands on the westerly portion of the subject premises as shown on Site Plan amended January 29, 1987, SUBJECT TO THE FOLLOWING CONDITIONS: 1. This Special Exception is limited to the two islands on the westerly portion of the premises (as exists) for the sole purpose of selling regular, unleaded, and/or premium unleaded gasoline; and is not to include self-service pumps for the kerosene or diesel pumps requested; 2. No food service or preparation of foods, as proposed, except by additional applications to this Board pursuant to Article VI, Section 100-62, the Planning Board, County Health Department, and any other agency having jurisdiction thereof; 3. No additional structures or buildings, nor increase of sales/office area, without re-application for consideration to both this Board and the Planning Board, and any other department or agency having~ jurisdiction thereof. 4. Prior Conditions under Special Exception No. 158~ rendered June 29, 1972 for the operation of this gasoline service station. Vote of the Board: Ayes: Messrs. Doyen and Douglass. (Member Sawicki was tion was duly adopted. Goehr~nger, Grigonis, absent.) This resolu- lk GERARD P. GOEHRINGER, C'HAIRMAN March 10, 1987 Permit No. ~r.2,3 ...... PERMIT UNDER SECTION 136 of ARTICLE VI of HIGHWAY LAW WHEREAS, a certain highway known aa the Middle Road C.R. No. 48 has been improved and is on the Suffolk County Road System and Tartan Oil WHEREAS, P.O. Box 1017, Melville, NY 11747 re uests er inside to build 210LF+ of concrete curb, 6" asphalt paving, driveways to be signed ~r r~g~t turns in & right turns out; restore County R.O.W. All per S.C. Specs & Typical Sections. On aapersketchormapaBached, the s/s/o Middle Road, C.R. 48, @ s/w/c of Public Road, Hamlet of Peconic, Town of Southold. NOW, THEREFORE, permission Is hereby granted to said Tartan Oil to do said work upon the following conditions: CONDiTiONS AND RESTRICTIONS 1. When concrete Is removed, cut concrete with concrete saw two feet outside Ihe limits of the proposed excavation and tor the lutt panel width. When the cut is made in pavement wiihln 10 feet of Ihe panel Joint, Ihe pavane nt shall be rem oved for lull panel width from the cui on the far side of lhe excavallon 1o ihe pa nel join t. 2. Backfill and ihoroughly compact fill using POWER TAMPER, placing soils so that various types of sci{ are {n same relative position as before excavating. Grade to original surface. 3. Replace pavement, sidewalk or surface same as existing; if concrele, replace using 1:1 3/4:3 1/2 mix stone mix concrete; If bituminous material, replace using same type as removed. 4, II concrele curb Is removed, replace with similar curb 1:1 3/4:3 1/2 mix. 5. Edge of Jacking Pits or any oiber excavation shall be not less Ihan 5 feet from Edge oi Pavement, No undercutting allowed In Pit. 6. Noilly the Department at Yaphank 924-3451 when Ihe work Is to begin so thai an Inspecilon can be made of the operation. This permit shall not be assigned or transferred wilhout the written consent of the Commissioner of Public Works. The work authorized by this permit shall be performed under the supervision and to the satisfaction of the Commissioner of Public Works or his representat{ve~ Particular attention is called to the necessity of thoroughly compacting the back fill, which will be required by the Commissioner of Public Works. The Commissioner of PubBc Works shall be given one week's notice by said applicant of the date when it intends to begin the work authorized by this permit, and prompt notice of Its completion. The said applicant hereby agrees to hold the State, County and Town harmless on account of damages of any kind which may arise during the progress of the work authorized by this permit or by reason thereof. Applicant certifies all parsons concerned with actual work under this permit are duly covered by Workmen s Compensation Insurance and the State, County and Town shall be held harmless on account thereof. The Commissioner of Public Works reserves the right to at a ny time revoke or annul lhis permit should the said a pplica nt fail to corn ply with the terms and conditions upon which it is granted. The appNca nt agrees to pay all necessary expenses incident to supervis[on and inspect(on by reason ol the g~anting of such permit as certitied by the Commissioner of Public Works, such payment to be made within ten days from the rendering of the cerlified account. Work under this permit to be commenced within thirty days from the date of permit and continued in an expeditious manner. The applicant shall submit a detailed plan of structure to be built, with a description of proposed method of coestruction. It is understood that should future changes in the alignment or grade of the highway require changes in the work covered by this application and permit, th'e applicant shall on reasonable notice from the Commissioner of Public Works make such necessary changes at his own expense within the brae so specified in notice. ' Traffic shall be maintained by the applicant on this section of the highway while the work is in progress and until its final completion. Certified Check ir~ the sum of $ .~, 000.00 payable to the Courtly Treasurer of Sulfolk County is A on file deposited as will be restored to its original condition where disturbed at the expense of the applicant, as soon as and the said Commissioner of Public Works Is hereby authorized to expend all or as much of such deposit as purpose, should the said applicant neglect or ~efuse to perform the work. this permit the undersigned accepts it subject to conditions described. Commissioner of Public Works, Suffolk County .......... .9~ce~e~. 22.,. ................. Oate TO AVOID SERI~S DAMAGE TO VITAL UNDERGROUND FACILITIES, PLEASE CALL LONG ISLAND LIGHTING COMPANY AT JUNIPER 2-9000 OR FOR TELEPHONE FACILITIES CALL N.Y. TEL. CO. FLORAL PARK 2~OFFIClAL 2§ BEFORE STARTING THE WORK AUTHORIZED BY THIS PERMIT. CC: Town of Southold Form P-136 ~RTMENT OF Approval Collstruded H.D. Ref. in compliance w~h ]~1~ plans. JUN 0 i 1990 OL DATE CHIEF OF ~PlGINEERING * lo~.9 ~ ...... ~ ~101,4 + IohO~ t Io2,1 [ ~o~L 0 ~~ Lo~ 4.0" To ~su~ oo~O. J t [ ~e ~Ic ' ' ~ , ' .~o~,4 ..... , , ~ ~. ~c~,J~r~ ~ ~i~',~) ~L~ ~t~ ~ 4e~ cu~.t~ T~ ~ ~ ~9v~ , / ,, ~ ~ ~2'- ~" I ," ~" t G'- ~'' ZC'- ~' ~'- ,3"~' ~ ~;:~ ~4~ UU,T ~F ~ FOLL ~ IS~oO : To ~''W LoTAg~A.34ozg~,~ c~Oo;~o4~ ~l~qaSf. Pnueun~ f2~51 ,, c. : 58 CHERRY LANE 112 HO%RD AVE, ,,~ SMtTHTOWN N Y 11787 MIDDLE~X N.J. CCUPANCY OR USE IS UNI.AM1JL WITHOUT CEmlFICA~ OF OCCUP~J~ PI, IIMI~R C~IfflNcA rloN ON IZAD CONTENT E, EFORE CERTIFICATE OF OCCUPANCY ff ooo~er tuM~ b ~oed APPROVED AS NOTED 765-1802 fl AM TO 4. PM POR THE FOLLOWING INSPECTIONS: I' A F~or ._~E?.,~m_~_! o__P ..... 4-" f 4" ~o o~Z~u~" 0 FII~I. IL WITHOUT RESTRICTIVE,,~ COVENANT. .~UFFOLK COUNTY DEPARTMENT OF ~ H.D. Ref. No, approval is granted for the construction of and water suppJy [aciJitJes pu V~ oqd 7 o[ ;he Suffotk Count/ ~LOW ~9 1985 DATE A .? 0 I '1 I communications to must include the Hnulth Reference I~. und the Tax No. 0 3L4' PVT, ~ RTIFICAlr u--- oCCUPANCY OR USE IS UNLAWFUL WITHOUT CERIIFICgE OF OCCUPNqC¥ If coplw' tubing b uIi4 fa' 'wale' dlltriJxltlng d typJa K er L oNII AppROVED AS NOTED '~/////// ~OTI~¥ BUlLDNG DEPARTMENT 765-1802 9 AM TO 4 PM ~R THE FOLLOWING IN3pECTIONA: 1 FOUNOAqON ~O REQUIRED F~P POLJ~O CONniE J / I[4' FU~FE CL,I~S FI - 4:0" z LAr4p Ft~,og. (.IgOT' F2 - 0:o" t LA~V FL0O~.. Fit, A LLE I.J'..~ 51;.P*LV, C ~. CE,UT'D:~L ALU~ (F'IEL0 INSTAL L~ 24 GA. (5~o~ I F'-,=',OTTO,~ O~ F~c~^ TYPICAL FACIA 2..I b" t Z 2" /:lNc, \ X \ X \ x \ \ 'x PANEL X X X X \ 4 ~.L£VATION5 OF TOPS 5N,NG~-£ ~F..Clrvr'p TO C.nN~..L. SIDE SECTION x,-\ 'x \ \ X\ \ NEL CLIP /Too~ ~,x Ig., Tr...F, ('F~£LD INSTALL) ON TYPICAL END FACIA SECTION As FACIA LA'YOU T F-Ac. IA SECT/ON ..~HALL ~1£ /'~ITE/:~EO ToTNE D~PIE/wSioN$ '\ REVISION FACIA SECTIONS TEA/ HO~VE ~ROTHER~ ~ ~ I ~ OF .~"A LUH/~Um' ,SWlNGLE P&E/~ for r~ "'"7 March 24, 1986 Building Department Town of Southold Town Hall Southold, ATT: New York 11971 Victor Lessard Allen W. Ovsianik - Tartan Oil Middle Road, Peconic, New York Dear Mr. Lessard: Corp. In connection with the above-captioned matter, I am enclosing a Site Plan, DWG# AO-8401-8 which shows the Suffolk County Department of Health Services approval. Kindly let me know if there is any other information you need to issue the building permit. RFL/bd Enclosure Very truly yours, Richard F. Lark FORM NO. 4 TOWN OF SOUTHOLD BUILDING DEPARTMENT Office of the Building Inspector Town Hall Southotd, N.Y. TEMPORARY Certificate Of Occupancy No Zl515.8 Date January 2 ..... 19 87 THIS CERTIFIES that the buiJdhlg .... I~ .E .T A.I.I~, .S ~.Px V. ! ~ ~. ,S. ? .A.T.I.Q N. ................. ~ Location of Property . 3. .2 .4.0.0., .C ~..R.... t! .4 .8 ........ ' ............. .P.E.C.O..N.I.C. .............. County Tax Map No. 1000 Section . .0..7.4 ....... Block .... 9 .4 ......... Lot ...0. 7. ............ Subdivision ............................... Filed Map No ......... Lot No .............. conforms substantially to the Application for Building Permit heretofore filed in this office dated Jan. 6 8.6. p h Buildlng P 14696Z ...................... 19. ursuant to whic ermit No ...................... dated.......................Mar' 25 ..... 19.8.6.,wasissued, andconformstoailoftherequlrements of the applicable provisions of the law, The occupancy for which this certificate is issued is ......... .... Re tg.~.].. $ e.r.x[ ~ c ~..~; O/-.i.o~q ......................................... . ......... The certificate is issued to . .T..A.R.T:~N... p.I.~.. [:.O.R.P.; ...................................... of the aforesaid building. SuffoIk County Department of Health Approval ...... F./.A ................................ Canopy Self Service approval Final coating on paved area . accepted list of items for Building Inspector FORM NO. 6 TOWN OF SOUTROLD Building Department Town Hall Southold, N.Y. 11971 765 - 1802 APPLICATION FOR CERTIFICATE OF OCCUPANCY Instructions A. This application must be firled in typewriter OR ink, and submitted · ~ to the Building Inspec- tor with the following; for new buildings or new use: 1. Final survey of property with accurate location of all buildings, property lines, streets, and unusual natural or topographic features. 2.Final approval of Health Dept. of water supply and sewerage disposal-(S-9 form or equal). 3.Approval of electrical installation from Board of Fire Underwriters. 4. Commercial buildings, Industrial buildings, Multiple Residences and similar buildings and installa- tions, a certificate of Code compliance from the Architect or Engineer responsible for the building. 5.Submk Planning Board approval of completed site plan requirements where applicable. B. For existing buildings (prior to April 1957), Non-conforming uses, or buildings and "pre-existing" [and uses: 1. Accurate survey of pZOperty showing all property lines, streets, buildings and unusual natural or topographic features. 2.Sworn statement of owner or previous owner as to use, occupancy and condition of buildings. 3. Date of any housing code or safety inspection of buildings or premises, or other pertinent informa- tion required to prepare a certificate. C. Fees: 1. Certificate of occupancy $5.00 2. Certificate of occupancy on pre-existing dwelling $15.00 3. Copy of certificate of occupancy $1.00 4.Vacant Land C.O. $5.00 5. Updaled C.O. $Z5.00 Date.. NewC°nstrucL±°n ...... Old or Pre existing Bugding ............ Vacant Land ............. Locatio. of Property. .2. g.q . ¢. ..... .O. ........ Owner or Owners of Property '~--~/~:~J~ f (~) I ~- County Tax Map No. 1000 Section ............ Block /'// Lot 7, Subdivision ................................. Filed Map No ........... Lot No .............. Permit No ........... Date of Permit .......... Applicant .................................. Health Dept. Approval ........................ Labor Dept. Approval ........................ Underwriters Approval ........................ Planning Board Approval ...................... Ret?est for Temporary Certificate....~" .............. Final Certificate ....................... Fee Submitted $ ............................. above described building and per it ts ali ' bio c s and regulations. Applicant ..... . ................. TO FR~DM 4" .~ ,, ..~ ~ .~,,x,,.~,.~/ ~-4~-'-~-.~ . r ~z~ - -- ~ REPLY REQUESTED ~NO REPLY NECESSARY ~ ~/~c ~/~ F~ ~k ~co', [ 4H d ~IOPL~ o~J CUSLl¢ ~.c,. ¢ TITL[ OULy MH. DEUTZMAN PE 58 CHERRY LANE SMITHTOWN N Y 11787 516-265-2256 PETROLEUM ASSOCIATES G.F SCHAEFFNER 112 HOWARD AVE MIDDLESEX N.J.08846 201-356-5188 Of 2 d ,j +la;L4 TITLE G.F SCHAEFFNER , , 11~ HOWARD'AVE. ' MIDDLESEX N,J. O~ 'J Ob' c'oo4 r ~ r~5 ~ ] w? I r Il2" P'-¥wo,, o- '6 ' -4" ~ouz, L -/ / / _! ~L~W~IEL~ ~F ~' ~"~-~;, TITLE PETROLEUM ASSOCIATES M.H, DEUTZMAN f~E. 58 CHERRY LANE SMITHTOWN N.Y. 11787 516-266-2256 G.F SCH~EFFNER 112 HOWARD AVE, MIDDLESEX N.J 088~i OWN SY ~-.~, CH'K'D BY M-~.~. PHONE' DAYS (516) 298-4270 EVENINGS (516) 298-4793 TWIN FORKS FIRE EXTINGUISHER COMPANY, INC. "YOUR PROTECTION IS OUR BUSINESS" MAIN ROAD R.R. #1 BOX 96B MA~FITUCK, NEW YORK 11952 October 23, 1989 Town of Southold Building Department Main Road Southold, N.Y. i1971 Att: Ye. Curtis Horton Recently during my Lnspection of systems, I came upon renovations that were made to the hoods that are contrary to NFPA Cede 96. At present these systems are not properly covered and would present a major problem in case of a fire. I would appreciate meeting with you at your earliest convenience to show you what the problem is and how it can be resolved. I am awaiting your reply. Sincerely yours, LJL: ida Leonard J. Ll[9~vellyn, Jr. / ~/' TW/N FORKS FIRE EXTINGUISHER' C0.;, INC. 17''' P~'r_ FO~M ALuM SHINGLES ~ALNt ,,-,~NAP - IN 'N. CNANN[L ~.4 GA. (5~oP \ X , X \ X \ x \ \ END X \ \ \ \ \ \ \ \ \ X \ X TYPICAL SIDE FAClA SECTION, PANEL ~ c'_-'_J ' I PAN EIJ"'-~ Roof \ \ X \ \ TYPICAL END FACIA SECTION \ ~ CoF~NEF~ \ \ FACIA LAYOUT C F. NT£ R,5 REVISION GENERAL OFFICES -$11 SUNSHINE ROAO KAN$~,S CITY, KANSAS o~w~.e .o. / or / r~ A=Y, ~o?. il m J 2 glo" o.c, TITLE Ior7 ,ay. PETROLEUM ASSOCIATES G E SCHAEFFNER 112 HOWARD AVE MIDDLESEX N.J 08846 201-356-5188 M,H. D! UTZMAN PE. 58 CHE :~RY LANE SMITH' OWN N.Y 11787 516-265 2256 DRAWING NO T-o - ~,doo ~ ~__~~.~__ '~ . ~ ~ ,,,:,~ , ,~..~,._ . ~'1 - · ~ ~ -.. ' ~ " ,o~ ~ ~ ' ,, .-. ~ ~ . .~. ~>B~,) ~ // /_/%¢, t ~'r~ ~'~C~ ~ ~ .-,.-.. ~.-~--.,~-r~.~ ~ ~ % ' 7~, ', T.~, ,t.,~ ' ' , , , , ' .~=~'-~ ----, ~ ................ = .... " ' ................... . _ -- ........ -- ............~- ........ : r' . , ¢~ r'~,. t~~ ~ ~' ..... ' .... ~ PETROLEUM A~SOC~aT~s ' , ' , 4