HomeMy WebLinkAboutZBA-05/04/2023 Hearing (2) TOWN OF SOUTHOLD ZONING BOARD OF APPEALS
COUNTY OF SUFFOLK: STATE OF NEW YORK
---------------------------------------------------------------------------------------
TOWN OF SOUTHOLD
ZONING BOARD OF APPEALS
---------------------------------------------------------------------------------------
Southold Town Hall &Zoom Webinar Video Conferencing
Southold, New York
May 4, 2023
5:00 P.M.
Board Members Present:
LESLIE KANES WEISMAN - Chairperson
PATRICIA ACAMPORA—Member
ERIC DANTES—Member
ROBERT LEHNERT— Member
NICHOLAS PLANAMENTO—Member (Vice Chair)
KIM FUENTES—Board Assistant
JULIE MCGIVNEY—Assistant Town Attorney
ELIZABETH SAKARELLOS—Senior Office Assistant
DONNA WESTERMANN —Office Assistant
May 4, 2023 Regular Meeting
INDEX OF HEARINGS
Hearing Page
Southold Town Planning Board #7793
(Interpretation-"community water and sewer" and "public water and sewer") 3—12
1
May 4, 2023 Regular Meeting
HEARING#7793—SOUTHOLD TOWN PLANNING BOARD
CHAIRPERSON WEISMAN :Good evening everyone. I'm going to make a motion to resume the
Public Hearings. Is there a second?
MEMBER DANTES : Second
CHAIRPERSON WEISMAN : All in favor?
MEMBER ACAMPORA : Aye
MEMBER DANTES : Aye
MEMBER LEHNERT: Aye
MEMBER PLANAMENTO : Aye
CHAIRPERSON WEISMAN Aye. The next application before the Board is for the Southold
Town Planning Board. The Southold Town Planning Board has requested that the Southold
Town Zoning Board of Appeals make an interpretation determination pursuant to Article VI
Chapter 280-35B(4) of the Town Code relating to sewer requirements of transient hotels or
motels, resort hotels or motels or conference facility 1) for the meaning of the phrases
"community water and sewer" and "public water and sewer" as it relates to the minimum lot
area per guest unit for hotels and on-site wastewater treatment systems in General Business
(B) Zoning District. This application is the town's application, they are the applicant and any
determination that the Zoning Board makes .will have town. wide applicability and is not
specific to the application that predicated this particular request from the Board. In order to
further clarify this I'm going to just read into the record a little bit more of what the
comments were from the Planning Board. They go on to explain to us that the Town Code
requires a minimum of 6,000 sq. ft. per guest unit when there is not community water and
sewer or guests units are allowed when community water and sewer are provided at 4,000
sq. ft. per guest unit. The interpretation we seek is, what type of wastewater system meets
the intent of the code when it calls for community water and sewer a.k.a. public water and
sewer. Then they attach a series of relevant codes. The immediate need for this Code
Interpretation is due to an application currently before both,of our Boards, Mattituck Hotel
SCTM#1000-122-6-22.1. The proposal includes an on-site wastewater treatment plant to
serve the hotel and its accessory uses. The proposal from the applicant interprets our code to
mean that the 4,000 sq. ft. per guest unit figure is applicable because they are proposing an
on-site wastewater treatment plant. The subject parcel already has public water, community
May 4,2023 Regular Meeting
water from the Suffolk County Water Authority. The Planning Board is Lead Agency under
SEAR is seeking to confirm the number of hotel units that the Zoning Board allows on this
property before undertaking the SEAR process. The total number of hotel rooms affects the
degree of potential impacts therefore a more certain determination on the permitted number
is useful both for the applicant and the Lead Agency. This interpretation will also identify
whether the proposed number of guests units would require an area variance. They conclude
with this the main question is, whether an on-site waste water treatment system of the type
and circumstance proposed by this)applicant meets the code requirement for public water
and sewer and or community water and sewer. Do those phrases mean the same thing? If so,
does an on-site wastewater treatment system designed to serve a specific property meet the
requirement of the bulk schedule to allow for more guest units? It goes on to say thank you.
So again, that is the application that is currently before the Planning Board. There will be a full
public hearing on that application ongoing, eventually it will return to the Zoning Board for a
hearing on that application. This application is the town's application and it is strictly and
narrowly to determine what the interpretation of public sewer actually means because it's
unclear in our current code. This determination as I said will apply not only to the current
application before the Planning Board but will apply town wide. So to assist the Board in
making this determination we've requested that our Town Engineer provide us with both
written comments and testimony this evening in order to help further clarify that definition.
I'm going to ask Michael Collins to please come to the podium and Michael if you would be
kind enough to please state your name for the record and what your credentials are as an
expert witness in this matter.
MICHAEL COLLINS : Michael Collins, I'm a licensed Professional Engineer in the State of New
York and I serve as the Town Engineer for the Town of Southold.
CHAIRPERSON WEISMAN : From your point of view then, what would you like us to know
about the way in which community sewer or a sewage system is defined?
MICHAEL COLLINS : In approaching this some of the terminology that we're looking for isn't
actually defined practically within Town Code but the issue of putting in sewage treatment
systems on properties is held by Suffolk County Department of Health services, that's the
relevant code to refer to in this specific case. What I pulled was directly from Article VI of the
Sanitary Code. I'll just read directly from the memo that I sent to the ZBA. Please note that
sewers and water supplies in the Town of Southold are regulated by the Suffolk County.Health
Services Section 760-603 (Definitions) of the Suffolk County Code states the following :
Community Sewerage System means a system utilized for the collection and disposal of
sewage or other waste of a liquid nature, including the various devices for the treatment of
such wastes, serving more than one parcel whether owned by a municipal corporation,
May 4, 2023 Regular Meeting
private utility, or otherwise. Community Water System means a source of water and
necessary appurtenances together with a distribution system serving more than one parcel,
whether owned by a municipal corporation, private utility or otherwise. It is clear from these
definitions that Community Sewerage System and Community Water System are terms
applied to systems that serve more than one parcel. Now when it comes to the term_ Public
Water and Sewer that's where you can find the definition straight out of the Town Code
Section 280-4 (Definitions) of the Code of the Town of Southold states the following, public
water or public sewer are communal sewage disposal systems and communal water supply
systems as approved by public agencies having jurisdiction thereof. It seems pretty
straightforward that the intent here for each definitions was that community would be
serving more than one parcel and public simply refers to the system being approved by a
public agency which would be the case for any sewage system that was put in Suffolk County.
CHAIRPERSON WEISMAN : Thank you Michael that's very helpful. Let's see if any of the Board
Members have any questions about those definitions? I think some of us are familiar with the
Suffolk County definitions already. Anything from the Board at this time?
MEMBER LEHNERT : One question, are the two different systems held to different standards
of discharge?
MICHAEL COLLINS : Meaning a community system versus
MEMBER LEHNERT : Versus an on-site wastewater treatment.
MICHAEL COLLINS : Yes, in general a community sewer would have a much higher standard of
disinfection and treatment prior to discharge than an on-site system does.
MEMBER LEHNERT : So basically the community system you can discharge into a you know by
the time it's done you can almost discharge it into a water body.
MICHAEL COLLINS : In most cases they are.
CHAIRPERSON WEISMAN :They're that cleansed from impurities.
MICHAEL COLLINS : Usually there's three levels of treatment which is the whole point of the
code in granting a density bonus to something that would have a community system they're
no longer disposing of any sewage on site, sewage which is disposed of off-site is treated to a
much higher standard.
MEMBER LEHNERT : Are those systems would a big building or something like usually have
something like that?
May 4, 2023 Regular Meeting 11
MICHAEL COLLINS : It just depends on the amount of flow that's on site. Each level of system
like from a traditional untreated septic system then you have the Article XIX units which are
residential ones that treat to a higher standard. There's something called the Appendix A
systems which are larger still but still on-site but they all have the same characteristic it's
meant to be on-site serving waste generated on-site not to treat waste coming from more
than one parcel.
MEMBER PLANAMENTO : Michael can you give me an example of each what community
sewer systems are and community water and public? In theory also if we don't have one
that's an exact example something that we can all relate to, something that
MICHAEL COLLINS : Community water is just Suffolk County Water would be considered
community water systems that's very straightforward. Community sewer your best example
would be Greenport.
MEMBER PLANAMENTO : As a sewer district?
MICHAEL COLLINS : Yes
MEMBER LEHNERT : Which discharges into Stirling Harbor.
MICHAEL COLLINS : Actually it discharges to the Sound.
CHAIRPERSON WEISMAN : Eric anything from you? Pat?
MEMBER ACAMPORA : Not at this time.
CHAIRPERSON WEISMAN : Is there anything else Michael at the moment that you'd like to tell
us? I think you've kind of covered what's in your memo.
MICHAEL COLLINS : I think it's pretty straightforward.
CHAIRPERSON WEISMAN : Then I'm going to see if there's anyone else in the audience who
wants to address this application for a Code Interpretation.
WILLIAM GOGGINS : I would. William C. Goggins 13325 Main Rd. Mattituck, New York.
Listening to Mr. Collins there is also an area in Suffolk County Section 240-47 which states, all
wastewater treatment systems shall be installed in accordance with plans approved by the
Suffolk County Health Department. Such systems shall provide each residence and other
structures containing plumbing fixtures with an adequate and safe method of sewage
treatment. If a public sewage treatment system is not available an adequate private
wastewater treatment system approved by Suffolk County Health Department shall be
provided. That's important because it's the Health Department that has jurisdiction over
May 4,2023 Regular Meeting
wastewater not the Town of Southold. We don't have a' public sewage system here like
Greenport does therefore the sewage is up to the Health Department not up to us. Even the
town recognizes that definition, public water, public sewer communal sewer disposal systems
and communal water supply systems as approved by public agencies having jurisdiction
thereof. So it's the Health Department that controls the event not the Town of Southold, not
Planning Board so based upon this language it's really the Health Department. When
Mattituck Hotel who I represent started this application we had a meeting with the
Supervisor, the Building Inspector, Heather Lanza from the Planning Board, the Town
Attorney Mr. Duffy I don't know if anyone from the Zoning Board was there but we had a
meeting where we were trying to figure out what we're able to do before we submit our
application in a formal meeting and it was the consensus at that meeting that if we applied
for a sewage treatment system through the Health Department that we would meet the
criteria for one unit per 4,000 sq. ft. of land. So based upon that the last five years the
applicant has been pursuing a water treatment system with the Health Department. They
have been pursuing their application with the town, they paid $30,000 to an Engineer hired
by the town to look into this. Now all of a sudden this becomes an issue so it's a little
disappointing for the applicant especially when on June 17, 2020 we received a letter from
the Zoning Board of Appeals which enclosed a memorandum from Carrie O'Farrell of Nelson,
Pope and Voorhies who was the Environmental Consultant as you know for the Zoning Board
of Appeals. Enclosed in that correspondence is this correspondence from Nelson, Pope and
Voorhies dated March 20, 2020 and in that communication they state referring to Mattituck
Hotel, subject property is located on the north side of Main Rd. east of Hobson Drive west of
Sigsbee Rd. and directly north of the intersection of Main Rd. and Old Main Rd. property
address is 9025 Main Rd. Mattituck, New York and the tax map number for the property is
1000-122-6-22.1. The property is 7.467 building acres zoned General Business and contains an
existing vacant one story building and parking lot that was originally developed as a shopping
center which later was used as a bank office and now vacant. The proposed action under
consideration does not include a _detailed narrative detailing what is proposed in the
application (inaudible) often unclear or contradictory based upon the sanitary system layout
and floor plans. Then it goes on and states, site plan Special Permit Zoning. The cover letter
dated February 7, 2020 states, in order to avoid a variance the additional guest units will
proceed with 125 guest units as of right. The project site is located in the General Business
Zoning District, hotels are allowed in the B Zone by Special Exception Use Permit pursuant to
280-48B(2) of the Southold Town Code. When they are designated in accordance with the
requirement of the resort residential zoning district which states, the maximum number of
guest units shall be one unit per 6,000 sq. ft. of land without public water or sewer or 2) one
unit per 4,000 sq. ft. of land for the public water and sewer. Since the project will connect is
the operative part since the project will connect to public water supply and an on-site sewage
May 4, 2023 Regular Meeting
treatment facility will be installed to conform to SCDHS (Suffolk County Department of Health
Services) density flow requirements no more than one guest unit per 4,000 sq. ft. of land is
permitted. So based upon the work done by the Engineers that were hired by the town
they've determined also that one unit per 4,000 sq. ft. applies. Based upon (inaudible) the
applicant continued to proceed with their,application. So they're upset about it but it seemed
that when the Town Engineers that the applicant had to pay$30,000 to help the town make a
decision they recommended that it was the one unit per 4;000 sq. ft. We thought the issue
was put to bed.
CHAIRPERSON WEISMAN : I'm very familiar with that letter but Bill I don't really want to stray
too farJnto the actual specifics of the proposed application before the Planning Board that
will be coming back here. I know it's very hard to draw a distinction but what we've been
asked to do is to simply define because it is not clear in our code what should be in our code
relative to what constitutes a public sewer system. You're right it's governed by the Suffolk
County Department of Health but what they're looking for the Planning Board is looking for
how would you define a communal sewage system because it relates town wide to the bulk
schedule in terms of the number of units.That's what they're really looking for and I presume
what happened is things got a little bit murky and confused and they're going through SEAR
and they want to make sure everything is right for the applicant and everything is right for the
town. Thus the request for a Code Interpretation, it's very narrowly defined. Again, as I say it's
very hard to draw a distinction because this application clearly precipitated that request. I
know the lengthy process you've all been through but I really want to try and keep us very
narrowly focused tonight and you can understand why.
WILLIAM GOGGINS : I can. So when I started thinking about this interpretation I started to
think about Syntax and how the English language deals with Syntax. There's something called
an attributive adjective and that's an adjective that's directly adjacent to a noun it modifies.
So here we have the adjective of public that modifies water and then we have a conjunction
the word and without a modifier, sewer. So based upon a simple reading what the code is
saying is, public water and sewer and if-you refer back over to the definition of public water
and public sewer they talk about the Health Department having jurisdiction of it. So just
based upon the semantics it appears that it's very clear that public water means public water
and sewage means whatever sewage would be approved by the Suffolk County Health
Department. Some examples of that would be you know grab your coat and hat that's okay
you're going to grab your coat and hat that's an easy one but if you say grab your fedora hat
and coat that's different because there's no such thing as a fedora coat there's a fedora hat so
logically you read that sentence, grab your fedora hat and coat you can't apply a fedora hat
and fedora coat. It's the same thing here, you're saying public water and if you want to say it
May 4, 2023 Regular Meeting
also means public sewer we don't have public sewer in our town so why would it ever come
to that level where we would interpret that sewer means public sewer we don't have it here.
CHAIRPERSON WEISMAN : It's because it relates to the bulk schedule in our code and I feel
like you're starting to sound like the nuns Bill, parsing sentences. I understand what you're
saying, it would have been clearer if they would have said public water and public sewer.
However it believe there's an implication here, there is a definition in the you know the
County defines it and certainly the Zoning Board would rely upon an existing legal definition
by a municipality who has the authority and jurisdiction to make such decision. That's why we
asked Michael to clarify it for us.
WILLIAM GOGGINS : It's also you know we talk about communal systems as far as I know
we've got two of them, one is at Founder Village the communal sewage system that was
passed in the 1980's and recently we've got Harvest Point in Cutchogue which is also a
communal sewage system where separate units are sharing the same cesspools. That's
already happening and I think that's what they're talking about in residential context, we have
these communal sewage systems because it's better for our groundwater and that's what it's
all about. We want to protect our groundwater and you know not just talking about my
clients but if you're going to put a (inaudible) sewage treatment facility on your commercial
property I can't imagine you can't get a better way of treating waste and bringing clean water
back into the ground than that.
CHAIRPERSON WEISMAN : I don't disagree particularly but I am suggesting that these
different systems relate to the different number of allowable units. That's basically it in a
nutshell.
WILLIAM GOGGINS : 'Right, well if you interpret that the 4,000 sq. ft. would require public
sewage then why would they even put that in the code because we don't have a public
sewage system here. It just doesn't seem logical it doesn't make sense. It's like I'll put in a
(inaudible) they wouldn't have put that in the code if you needed public sewage but we don't
have it here.
CHAIRPERSON WEISMAN : Well there are areas in Greenport West which is part of the Town
of Southold's government that are adjacent to the sewer district and the Village of Greenport.
So there are some properties that would have that kind of sewage treatment plant hookup
available. No one in the world can speak to why the code was written the way it was. Those of
us who deal with it all the time understand that it's a living document and needs to be
updated on a regular basis because change happens all the time. The technology changes, the
environmental impacts change as we have severe weather events so
May 4, 2023 Regular Meeting
WILLIMA GOGGINS :Thank you for listening.
CHAIRPERSON WEISMAN : Thank you Bill, appreciate your comments. Anything else from the
Board at this point? No, okay is there anybody on Zoom? Nobody is on Zoom. Okay then I'm
going to ask Michael, would you please come up and give us your closing comments.
MICHAEL COLLINS : To address a few of the comments that were made, one just to reiterate
what I said before, the definitions are pretty straightforward. The public water, public sewer is
not even worth getting hung up on because it literally says in the definition, communal
sewage disposal systems and communal water supply systems. Again communal referring
back to more than one parcel so whether it's public or not really doesn't even matter at this
point. It's whether or not it's serving more than one parcel whether it's communal. To that
end, these are not considered communal systems nor those I believe we're referring to the
condo complex in Cutchogue those are not communal systems. Those are just in fact they put
in IA systems but they're not even required those were voluntary, they're a bunch of separate
commercial systems that collectively have less than 30,000 gallons of capacity. The reason
that's important, these fall under the portion of the code called Appendix A Systems where
you can have up to 30,000 gallons of flow on the site and in fact when I was involved in the
other condo complex they said if the whole site went over thirty it would actually need a full
blown sewer. Again driving the distinction between what constitutes a community sewer and
what constitutes an on-site system. The letter that was referenced from 2020 1 understand
the point that's being made but the letter itself if internally inconsistent again for the same
reasons. On page three is says you know it's quoting our code, maximum number of guests
units shall be one unit per 6,000 sq. ft. of land without public water or sewer or one unit per
4,000 sq. ft. of land with public water and sewer. Again, this site doesn't have sewer, it
doesn't have a communal sewer so it doesn't matter whether we're trying to parse whether
public applies to water or it's meant to apply to water and sewer it's irrelevant, it's only
serving one parcel. Another thing I'd like to point out about this letter is, the system that
they're talking about the H2 it says, the proposed flow is supposed to be 31,400 that wouldn't
be approved it's higher than Suffolk County's code. So again if this were put in it would be
rejected because it doesn't meet the requirements of the on-site surface system which is
what this is. Final point, going back to Suffolk County's Article VI Code, again in the
development section there's multiple references to this but just to give you one, when they
talk about the definitions for other types of sewage treatment systems so this one is for
innovative and alternative. It says innovative and alternative on-site waste water treatment
systems means an on-site decentralized waste water treatment systems that at a minimum is
designed to reduce total nitrogen (inaudible) affluent to 19 milligrams per liter. An IA on-site
wastewater treatment system can' serve more than one parcel shall not be considered
sewering, shall not be considered a community sewage system or a modified subservice
20
May 4, 2023 Regular Meeting
disposal system by the department. So again I know that that's not the specific type of system
we're talking about but notice that they put that in the list of items; community sewage
modified subservice Article XIX. These are all very different things. What's being proposed for
this site is not a community sewer and would not be entitled to the density of the 4,000 sq. ft.
That's all I have unless there's more questions.
CHAIRPERSON WEISMAN : Anything else from the Board? Julie do you have anything you
want to add or? There's no one on Zoom. Okay would you like to come forward and state
your name please.
DWAYNE PRIETO : Dwayne Prieto I'm part of the development group. So there were several
things that were just mentioned that were contradictory. First of all these are two separate
lots that are being joined together. I know that we're not referencing a specific location but
and he used the document that was created by the town as a method to adjust the
(inaudible). It is by the definition of sewer code it disqualifies as an industrial grade sewage
treatment plant servicing two separate lots. I just want to be very clear about that.
CHAIRPERSON WEISMAN : If you well I don't want to your now getting into the specifics of the
project and those lots will have to be merged to get the yield you're looking at. They are not
now merged so we are only talking about what currently exists that's number one and if
they're merged then it's one parcel not two. So no matter which way you look at it it's one
parcel if you're moving forward with this project at a certain point when and if you decide to
merge those parcels there will still be just one parcel. So having said that I really want to
redirect this back toward the definition of sewage treatment. Again I appreciate your concern
and I understand how long this has been the process for everybody, it's ongoing. This is really
intended to be helpful to the SEAR process for the Planning Board so the project can move
forward and it's helpful to the town because there are other applications pending for which
this definition will then have precedence and will apply. So there will be clarity for all property
owners in the future which is very important cause nobody wants to have anybody before any
of the town agencies investing time and money on an assumption that isn't clear. Therein lies
in essence of what we're trying to do here in a nutshell. Michael was that all you had to say at
this point? Okay well then I'm going to hearing no further questions or comments make a
motion to close the hearing reserve decision to a later date. Is there a second?
MEMBER LEHNERT : Second
CHAIRPERSON WEISAMAN : All in favor?
MEMBER ACAMPORA : Aye
MEMBER DANTES : Aye
May 4, 2023 Regular Meeting
MEMBER LEHNERT : Aye
MEMBER PLANAMENTO : Aye
CHAIRPERSON WEISMAN : Aye, the motion carries. Thank you all for your time this evening.
Thank you Michael very much.
May 4,2023 Regular Meeting
CERTIFICATION
I Elizabeth Sakarellos, certify that the foregoing transcript of tape recorded
Public Hearings was prepared using required electronic transcription
equipment and is a true and accurate record of Hearings.
Signature
Elizabeth Sakarellos
DATE : May 8,2023