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HomeMy WebLinkAbout5051 nnnm A~ £A~TNI l~l ~Nor. th S~a Dr., Southold 3/2/84 CA-construct add. to restaurant leaving an insuff, frontyard setback. ~ ,/~/~ ~. APPEALS BOARD MEMBERS Lydia A. Tortora, Chairwoman Gerard P. Goehringer George Horning Ruth D. Oliva Vincent Orlando Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971-0959 ZBA Fax (631) 765-9064 Telephone (631) 765-1809 http://southoldtown.northfork.net BOARD OF APPEALS TOWN OF SOUTHOLD FINDINGS, DELIBERATIONS AND DETERMINATION MEETING OF JUNE 5, 2003 Appl. No. 5051 -.Cliff and Phil's Lobsterhouse CTM Parcel 1000-54-5-22. Location of Property: 50 NoAh Sea Drive, Southold. Zone DiStrict: R-40 Low-Density Residential. VARIANCE RELIEF REQUESTED: Applicant is requesting: (a) an Interpretation under Article XXIV, Section 100-243 of the Zoning Code for a Reversal of the Building Department's Notice of Disapproval, o_r (bi Variances under Sections 100-31A, 100-242, 100-243, and 100-244B, authorizing proposed addition/alterations to the existing restaurant, a nonconforming business use in a nonconforming footprint, with a front yard setback proposed at 21 feet (including roof overhangs) at its closest point to the northerly front lot line. SEQRA DETERMINATION: The Zoning Board of Appeals has visited the property under consideration in this application and determines that this review fails under the Type II category of the State's List of Actions, without an adverse effect on the environment if the project is implemented as planned. PROPERTY FACTS/DESCRIPTION: The applicant's 21,932 sq. ft. parcel has 115.17 ft. frontage along the east side of Kenney's Road and 183.48 feet along the south side of NoAh Sea Drive, Southold. The property is improved with a one-story restaurant building, situated at 22.8 feet from the front lot line facing NoAh Sea Drive and +-14 feet from the front lot line facing Kenney's Road, at its closest point, as shown on the December 6, 1983 site map prepared by Donald J. Brown, R.A. BASIS OF APPLICATION: Building Department's November 13, 2001 Notice of Disapproval, amended November 14, 2001, February 13, 2002, and October 22, 2002, citing Sections 100-31A, 100-243 and 100-244, in its denial of a building permit application to construct addition/alterations to the existing restaurant building. The reasons stated in its denial for the new construction are: (a) an approximate 48 percent increase is proposed of the existing building containing an existing nonconforming use, instead of the code limitation, when located in a noncommercial zone district (R-40 Residential); (bi the front setback will be less than the code requirement of 40 feet. FIND NGS OF FACT The Zoning Board of Appeals held a public hearing on this application on February 28, 2002, November 14, 2002, and January 16, 2003, at which time written and oral evidence were presented. Based upon all testimony, documentation, personal inspection of the property, and other evidence, the Zoning Board finds the following facts to be true and relevant: Page 2 - June 5, 2003 Appl. No. 5051 -Cliff & Phil's Lobsterhouse 1000-54-5-22 at Southold FINDINGS 1. The applicant has applied for a use and area variance in order to expand the size of its non-conforming restaurant located on the corner of North Sea Drive and Kenney's Road. 2. The property is improVed with a 2,860 square foot restaurant with small bar/lounge/waiting area. According to the applicant, the restaurant presently has 74 dining seats and 18 bar/lounge/waiting area seats. 3. The applicant seeks to add an additional 1,418 square feet. This would be a 49.5% increase to the existing building. 4. Under Section 100-243 the applicant could increase the size of its building by 15% or 429 square feet "as of right." With Planning Board approval, the building could be expanded by 30% or 858 square feet without the need for a use variance. 5. Thus, the applicant is seeking a use variance from this Board that would permit expansion of an additional 560 square over what would be permitted with approval from the Planning Board and without approval of this Board. 6. The applicant requests this additional 560 square feet of expansion in order to create bathrooms that are compliant with the requirements of the Americans with Disability Act; to increase the volume of business at the restaurant; and to improve the appearance of the property by redoing the exterior of the building and maintaining a mature landscaping plan. 7. To obtain a use variance, an applicant must show that it cannot realize a reasonable return on its property if used in compliance with zoning; that its alleged hardship is unique; that the variance, if granted, would not alter the essential character of the district or neighborhood; and that the alleged hardship is not self- created. In granting a use variance, the Board is obligated to grant the minimum variance deemed necessary and adequate to address the applicant's unnecessary hardship and, at the same time, preserve and protect the character of the neighborhood. 8. Three public hearings were held on this application. The Board was presented with substantial evidence and memoranda both in support and in opposition to the application. Page 3 - June 5, 2003 Appl. No. 5051 - Cliff & Phil's Lobsterhouse 1000-54-5-22 at Southold 9. Based upon the record before it and its own personal observations and familiarity with the property and neighborhood, the Board makes the following findings: a. it is undisputed that the restaurant, located in a residential neighborhoOd, is and has been a non-conforming use. b. the applicant has presented substantial evidence that it is not able to realize a reasonable return from the property without an expansion. Among other evidence, the applicant presented a report from its certified public accountant and its tax returns that show that the property has operated at a loss or at marginal profit over the past several years. An expansion would permit additional tables and thereby permit the applicant to generate greater revenue. The applicant further produced evidence from a real estate appraisal as to the value of residential property to show that the cost of converting this non-conforming restaurant property to a conforming, residential use is cost prohibitive. Based upon this showing, the Board finds that an expansion of the already non-conforming use is warranted to allow the applicant to realize a reasonable return from its property. c. the Board finds that the applicant's plight is unique in this district. It is the only restaurant in the neighborhood. The grant of a use variance here will not create a precedent that would apply to a substantial portion of the district or neighborhood. d. with respect to preserving the essential character of the neighborhood, it is undisputed that the character of the neighborhood is residential. The restaurant's relative size and location on a corner has made it a good neighbor to the adjoining and nearby homes. This has been the case in large measure due to the operation of the premises as a family restaurant and not as a night club or bar. The applicant's plan, as proposed, would substantially increase, among other things, the badlounge/waiting area of the restaurant. This has raised justifiable concerns that the nature of the use could change and resulting in the premises becoming a nuisance to the adjoining neighborhood. The Board finds that in order to preserve the nature of the neighborhood, any expansion of the existing premises, including its badlounge/waiting area, must be limited in both in size and with respect to hours of operation to ensure that the use of the premises as primarily a family restaurant does not change. In light of this, the Board finds that the additional 580 square feet sought by applicant, above the 858 square feet that could be approved with Planning Board approval but without a variance, is not the minimum vadance necessary to alleviate the hardship claims and at the same time maintain the character of the neighborhood. Properly configured, a use vadance of 286 square feet over the 858 permitted with Planning Board approval would provide the applicant a total 3 Page 4 - June 5, 2003 - Appl. No. 5051 -Cliff & Phil's Lobsterhouse 1000-54-5-22 at Southold expansion of 1,144 square feet resulting in the building having a total of 4,004 square feet. e. To further ensure that the nature of the non-conforming use remains unchanged, any reconfiguration of the restaurant due to this expansion will be required to limit the expansion of the seating capacity in the bar/lounge/waiting area to a maximum seating capacity of 23 seats to generally maintain existing accessory use ratio between seats in the bar/lounge/waiting area and dining seats. Thus, if the dining seating capacity is enlarged to a maximum of 94 seats, the bar/lounge/waiting area seating can be expanded to a maximum capacity of 23 seats. This limitation will maintain the seating ratio that presently exists between bar/lounge/waiting area and dining seating. f. The Board finds that a total expansion of 1,144 square feet, coupled with the limitation on the expansion of the number of seats in the dining and the bar/lounge/waiting area will be the minimum variance necessary to alleviate the applicant's financial hardship while at the same time not adversely impact on the surrounding residential neighborhood. The applicant will be able to either achieve or come very close to achieving the increased restaurant seating it seeks and thus increased revenue it anticipates. g. To further ensure that the nature of the use does not adversely change and create negative impacts on the surrounding residential community, the Board finds that a limitation on the hours of operation is warranted. It appears that currently the last seating at the restaurant is generally at 8:30 p.m. The applicant has requested hours from 9:00 a.m. to 1'00 a.m. from Sunday through Thursday and from 9:00 a.m. to 2:00 a.m. on Fridays and Saturdays. The hours sought are not consistent with those of the current use and would dramatically and adversely impact on the quietude of the surrounding residential area. The Board finds that a closing at 11:00 p.m. on Sundays, and on Mondays through Thursdays at 11:30 p.m. and on Fridays and Saturdays at 1:00 a.m. is consistent with the current use of the property and will not adversely impact on the residential neighborhood. h. The applicant's hardship is not self-created. The restaurant has been in existence for many years. The need to upgrade the premises to comply with the requirements of the A.D.A., to improve its aesthetics, and to generate more revenue are outgrowths of the pre-existing nature of the use. 10. The area variance sought from the front yard set back requirements for the extension of the building does not increase but maintains the current front yard set Page 5 -June 5, 2003 Appl. No. 5051 - Cliff & Phil's Lobsterhouse 1000-54-5-22 at Southold back of the existing building. Thus, the grant of the area vadance will not result in any significant change to existing character of the neighborhood, nor will it have any adverse affect on the physical or environmental nature of the area. Since a use variance permitting the expansion of the building is warranted, the feasible means of expanding the premises is by extending the existing building line. Thus there is no meaningful alternative here to the area variance sought. As already indicated, the need for the variance is not self-created. 11. Based upon these findings and criteria, the Board grants a front set back variance at a minimum of 21 feet, maintaining the existing building line, and grants a conditional use variance RESOLUTION OF THE BOARD: Based upon the findings and criteria set forth under New York Town Law, motion was offered by Member Oliva, seconded by Member Odando, and duly carried, to: GRANT a front yard set back variance at a minimum of 21 feet, maintaining the existing building line from North Sea Drive; DENY the requested use variance permitting an expansion of an additional 580 square feet over the 858 square feet that could be obtained with Planning Board approval and without a use variance, and ALTERNATIVELY GRANT a minimum use variance permitting the applicant to add an additional 286 square feet, over the 858 square feet that it could obtain with Planning Board approval and without a variance, subiect to the followin.q conditions.'. a. The seating capacity of the badlounge/waiting area shall not exceed 23 seats. b. The hours of operation shall be from 9:00 a.m. to 11:00 p.m. on Sundays; and on Mondays through Thursdays from 9:00 a.m. to 11:30 p.m. and on Fridays and Saturdays from 9:00 a.m. to 1.'00 a.m. c. Simultaneously with the expansion of the building, the applicant shall improve the exterior of the building consistent with the renderings submitted as applicant's Exhibit 5. d. Any expansion shall be subject to Planning Board site plan approval. 5 Page 6 - June 5, 2003 Appl. No. 5051 - Cliff & Phil's Lobsterhouse 1000-54-5-22 at Southold e. Deliveries for the premises shall be on weekdays between the hours of 9:00 a.m. and 8:00 p.m. f. All HVAC units shall be sound proofed and all exhaust from the restaurant must be filtered to control cooking odors. g. There will be no further expansion of the footprint of the building. h. The applicant will prepare a declaration of covenants and restrictions containing these conditions, in a form suitable for recording in the office of the Clerk of Suffolk County and acceptable to the attorney for the Zoning Board. Vote of the Board: Ayes: Members Tortora (Chairwoman), Goehringer, Orlando, and Oliva. (Absent was: Member Homing.) This Resol,u.tiorr-~Tas~uly adopted (4-0). Lydia A. T,~ora, Chairwoman 61/o /03 LEGAL NOTICE SOUTHOLD TOWN BOARD OF APPEALS THURSDAY, JANUARY 16, 2003 PUBLIC HEARING NOTICE is HEREBY GIVEN, pursuant to Section 267 of the Town Law and Chapter 100 (Zoning), Code of the Town of Southold, the following public hearing will be held by the SOUTHOLD TOWN BOARD OF APPEALS at the Town Hall, 53095 Main Road, Southold, New York 11971, on Thursday, January 16, 2003, at the time noted below (or as soon thereafter as possible): 3:45 p.m. Appl. No. 5051 - Cliff And Phil's Lobster House. (This Headng is limited to New York Town Law's standards pertaining to Use-Variances and Zoning Board's evaluation, questions, and/or request for information pertaining to a reasonable financial return on this property.) Based on the Building Department's Notice of Disapproval issued November 13, 2001, amended/updatad October 22, 2002, applicant requests zoning determinations for: (a) an Interpretation under Article XXIV, Section 100-243 to Reverse the Building Department's determination which states that the proposed addition/alterations to an existing restaurant establishment is not permitted in a Residential R-40 District, or alternatively a Vadance authorizing the proposed addition to the existing restaurant, a nonconforming use in a nonconforming building; and (b) a setback vadance is also requested under Section 100-244B for an addition to the existing building which will be less than 40 feet from the front property line. Location of Property: Corner of the east side of Kenny's Road and the south side of North Sea Ddve, Southold; Parcel 1000-54-5-22. The Board of Appeals will hear all persons, or their representatives, desidng to be heard at each hearing, and/or desidng to submit wdtten statements before the conclusion of each hearing. Each hearing will not start eadier than designated above. Files are available for review dudng regular Town Hall business days from (8:00 a.m. to 3:00 p.m.). If you have questions, please do not hesitate to call (631) 765-1809. Dated: December 19, 2002. Southold Town Board of Appeals 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 (tel. 631-765-1809) %, / / ? ? NOTICE OF DISAPPROVAL TO: Elbow East PO Box 985 Southold. ~ 1197i DATE: November 14, 2001 Amended: Februm3.~ t~,.20~~ . Please take notice that your application dated November 6, 2001 For permit to make additions/alterations to an existing restaurant ar Location of property 50 North Sea Drive, Southo]d.. County Tax Map No. 1000 - Section 54 Block5 Lot 22 Is returned herewith and disapproved on the following grounds: The proposed addition/alteration to a non-conforming building with non-conformir g use, on a 21,932 square foot lot in the R-40 District, is not permitted pursuant to Article XXIV Section 100-243A. 1, which statesk "Nothin g in this article shall be deemed to prevent the remodeling, reconstmctio~r enlargement of a noncor/formino_ or conforming nonresidential building with a nonconform~g nonresidential use or consrructmn of an addition to existing buildings or additional bullgirr~on the premises, so l_on~ as said increase tn aze o£the buildings created by enlargemenC6~{he existing buildings or structures or bv the construction of a new and separate building or structure does not result in an increase in the overall building footprint(s) of more than 15%, except that said increase shall not exceed the applicable maximum lot coverage. In addition, all other setback and area requirements shall apply." The existing footprint of the existing building is +~-2.780 square feet and the proposed addition is noted as being +/-1.311. an approximate increase ot'48 percent. A restaurant is not a pemfitted use in the residential R-40 district pursuant to Article III. Section 100 3lA. In addition, the proposed addition to an existing non-conforming building notes a front yard setback of twenty-one (21) feet. maintaining the existing front yard setback, and a total lot coverage of 21.5 percent. Therefore. the proposed addition/alteration is not permitted pursuant to Article XXVI Section 100-244 Which states that non-conforming lots less than 20,000 square feet in total size, require a front ,lard setback of thirty-five (35) feet and a to~al coverage of 20 percent. u orize Signature CC: file, Z:B.A.