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HomeMy WebLinkAboutZBA-03/16/1989 HEARINGAPPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONI$, JR. SERGE DOYEN, JR. JOSEPH H. SAWICKI JAMES DtNIZIO, JR. Southolcl Town Board of Appeals MAIN RDAD- STATE RDAD 2.5 srIUTHE]LD, L.I., N.Y. 1197 TELEPHONE {516) 765-1809 TRANSCRIPT OF PUBLIC HEARING SOUTHOLD TOWN BOARD OF APPEALS MARCH 16, 1989 REGULAR MEETING (CONTINUED) Appl. No. 3785SE - Matter of RAYMOND NINE and CHARLES ZAHRA. Special Exception to the Zoning Ordinance, Article III, Section 100-30B(16) for permission to establish "Bed and Breakfast Use," "an owner-occupied building, other than a hotel, where lodging and breakfast is provided for not more than six casual, transient roomers, and renting of not more than three rooms. Location of Property: North Side of New Suffolk Avenue, Mattituck, NY; County Tax Map Dist~ 1000, Section 114, Block 11, Lot 20. Present were: Chairman Gerard P. Goehringer, Member Charles Grigonis, Jr. and Member James Dinizio, Jr. Also present were: Board Assistant Linda Kowalski, and approximately 10 persons in the audience. I Absent were: Joseph H. Sawicki {out-of-state} and Member Doyen of Fishers Island - {family bereavement}.) 7:51 p.m. The Chairman opened (reconvened) the public hearing. (For the record, it is noted that the previous hearings on this application were held on October 26, 1988, and March 9, 1989.) CHAIRMAN GOEHRINGER: I'll ask Mr. Bressler if there is anything he would like to say before we start with the -- ERIC J. BRESSLER, ESQ.: Net at this time. CHAIRMAN: Thank you. Mr. DeReeder, you are here with your attorney? JOHN DEREEDER: Yes, Sir, I am. CHAIRMAN: Who would like to speak? MR. DEREEDER: I would like to speak first if possible. I can't promise I'm going to be brief. That's not one of my strong ones. I'm a terrible speaker; I write everything out long hand and type it up. takes forever but I think we'll get from one end to the other. I'll keep at it. Page 2 - Transcript of Hearing Appl. No. 3785SE - NINE & ZAHRA ZBA March 16, 1989 Regular Meeting MR. DEREEDER, continued: As a start, I will ask the Board to once again refer to Mr. Bressler's exhibits. These are Polaroid pictures, two of which include a substantial stockade fence. I can understand the considerable glea, which Mr. Bressler's clients erected their fence. It's maximum height, its finished side in and has no gate, but I'd like to point out in the interest of accuracy the word safety contrary to Mr. Bressler's assertion was not used by me at any time during my comments to the Board on this matter. I am sure of Mr. Bressler's ability to read as he was of mind last week when he attempted to deny me opportunity to consult Counsel before speaking here. Should you have chosen to employ his reading Mr. Bressler could have examined the transcripts of last October's hearing and avoided placing words in my mouth that never belonged there. Instead of asserting that the fence provides such safety, as if these gentlemen had any general regard for the safety or well-being of my family, Mr. Bressler might have added to his credibility instead of eroding it, acknowledged that what this provides is.a major of satisfaction to his otherwise frustrated clients. Mr. Nine and Mr. Zahra intended to teach me a lesson with this fence. I hope it is a lesson that neither of them soon forgets. They should cherish their small satisfaction for I'm determined it will be the full measure of their satisfaction regarding this application. The fence is objectionable to say the least--and its erection underscores just how anxious Mr. Nine and Mr. Zahra are, to be the good neighbors that the owner-occupancy requirement in the law is intended to insure. The Zoning Board's first denial of this application is not based as Mr. Bressler asserted in his letter to the Board of January 6th and again at the hearing last week. Simply, "on erroneous reading of the agreement put in evidence and the law applicable thereto," from Mr. Bressler's letter. The denial was made because the Board correctly found and determined last December, and I'm quoting from the denial, "that this Board is without authority to grant a Special Exception use when the project does not meet all of the applicable requirements of the Zoning Code." Nothing within this application has changed to allow the Zoning Board to find and determine different now. Yes, Mr. Bressler is now personally stepping in on behalf of his applicants, and now Pamela Nine has been formally presented to the Zoning Board. And let's not forget the Article 78 Proceeding that has been filed by Mr. Bressler on behalf of his clients in Supreme Court. But the important facts upon which the previous denial was based remain the same as at the last hearing, and they remain clear. Page 3 - Hearing Transcript Matter of NINE & ZAHRA - Appl. No. March 16, 1989 ZBA Regular Meeting 3785 MR. DEREEDER (continued): This property, by any rational standards remains non-owner-occupied. And its use as a Bed and Breakfast under its present ownership, whoever that happens to be, is clearly neitherly incidental, nor subordinate. Mr. Bressler last week addressed only one small part of the deficiency of this application when he attempted to demonstrate that Pamela Nine is entitled to operate a Bed and Breakfast on this property because she is a contract vendee. I'd expect Mr. Bressler to come charging in to last week's hearing, full of landmarked precedents, overwhelming arguments and irrefutable logic. We all know that he's very good at this sort of thing, and frankly, I'd half-feared that he was going to be so formidable that I might take a pretty good trashing. I shouldn't have worried. Instead of landmarked precedents, Mr. Bressler focused nearly as much of his energy last week trying to prevent me from speaking. As he did starring his client's case. And instead of overwhelming arguments in his clients' favor, he sidestepped the of this application and at the heart of its previous denial. Instead of irrefutable logic, Mr. Bressler presented the Board with three Polaroid pictures of the fence. And then he presented Pamela Nine. The Board learned through examination and in giving of testimony, that Pamela Nine is 21 years old, lives with her parents and works in the family card store. She seems like a very nice girl. She likes to cook; she knows how to clean and she thinks she would do a good job running a Bed and Breakfast. She agrees with Mr. Bressler that operating a Bed and Breakfast will allow her to move out on her own. Mr. Bressler's line of questionning also disclosed that she is the same Pamela Nine, who is benefitted by the agreement to operate a Bed and Breakfast, made part of the Board's record that October; and that her father, a one-half owner, will execute a deed to her, in the event that this Board grants a Bed and Breakfast permit. On questionning from the Board, it was learned that she is the same Pamela Nine, who will, under that same agreement forfeit her rights and so-called owner if either Number One, the real owner's decide to sell, or Number Two, she fails to operate a Bed and Breakfast on the premises. Perhaps Mr. Bressler has demonstrated to this Board's satisfaction that Pamela Nine has a legitimate interest in this house. As they have themselves presented the facts; however, neither Charles Zahra nor Raymond Nine occupies, nor intends to occupy these premises which is clear requirement of the Zoning Ordinance. Page 4 - Transcript of Hearing Matter of NINE & ZAHRA - Appl. No. March 16, 1989 ZBA Regular Meeting 3785 MR. DEREEDER (continued): If Mr. Bressler has convinced you that Pamela Nine is an owner of some kind, and now that there are three owners of the property, by extension of the application before you, you are being asked to place your ability to control any use in which owner-occupancy is a requirement in terrible, irrevocable jeopardy. Let's say that instead of three persons, ten persons now own this house. All of whom live elsewhere. Let's say they own four or five houses all around Southold Town. They invite a new class of partner into their partnership. Not as operators per se who might be construed as employees but as .... partners. Maybe these invited partners have to give up their share of ownership should they fail to operate a Bed and Breakfast at the?,e satisfaction of the majority. Maybe they don't. Maybe.these invited partners have to give up their ownership if the majority decides to sell. Maybe they don't. And maybe these invited partners are all worthy, hard-working, local young people who are frustrated that. at. 21 years old, they can't buy houses of their own and may be faced with having to live at home. There are rational, healthy purposes for the requirement for owner-occupancy in zoning ordinances. This requirement is a well defined option available to Towns to pursue legitimate zoning goals. It legally allows some citizens to approve financial benefits that are withheld from others. This is clearly the case inboth the Accessory_ Apartment uses and the Bed and Breakfast uses in residential zones in Southold Town. If the Zoning Board wishes to set this dangerous precedent by granting the Special Exception use to a partnership, the decision-this Board must make lies at the end of a compellingly simple riddle. How many of the owners of a property must live there in order to meet the owner-occupancy requirement of the law? Simple answer: All of them. I see no room for compromise. More important, however, our present Town Attorney, who was on the Code Committee that drafted this law, sees no room for compromise either. I submit to you part of Mr. Schondebare's letter to this Board dated appropriately Pearl Harbor Day 1988, which I quote: "In order for this application to be approved, Mr. Zahra and Mr. Nine will have to state under oath that they both reside on the premises. As they have both listed their addresses as some place else, I fail to see how they can now state otherwise." The first denial of this application, received and filed by the Town Clerk on December 13, 1988, quotes the actual zoning ordinance. The ordinance specifically provides for "the renting of not more than three rooms in an owner-occupied dwelling for lodging and serving of breakfast and not more than six casual and transient roomers, provided that the renting of such rooms is clearly incidental and subordinate to the principal use of the dwelling." Page 5 - Hearing Transcript Matter of NINE & ZAHRA - Appl. No. 3785 March 16, 1989 ZBA Regular Meeting MR. DEREEDER, continued: Now let's review the document provided to the Board by the applicants upon which his attorney builds his case for owner-occupancy. This is the document under which Mr. Nine transferred to his daughter under carefully set conditions one-half of his one-half interest in the Reeve House. Instead of being called a contract of sale, or anything like that, it boldly titles itself and I q~/ote from the underlined capital letters at the top of its first page: "Agreement for Operation of a Bed and Breakfast." Still confused by the way, even after Mr. Bressler's speech last week, I'm not quite sure that it was determined that this was a valid Contract of Sale at all, or whether Pamela Nine is indeed a contract vendee. I hope that my attorney may be able to clarify that for me in a couple of minutes. But it is revealing that this agreement for operation of a Bed and Breakfast includes the following language: In the event purchaser fails to operate a Bed and Breakfast establishment in accordance with this agreement, she shall upon demand execute and deliver a deed reconveying her inter- est to seller. The provisions of this agreement shall survive delivery of the deed. "That the use is clearly incidental and subordinate to the principal use of the dwelling" is one of only a very few conditions placed upon an applicant seeking a Bed and Breakfast use under Southold Town Law. In view of the extreme severability in Pamela Nine's purported rights of ownership, any Bed and Breakfast use of these premises under present ownership simply is not fully incidental and subordinate to its principal use as an owner-occupied dwelling. Instead this use is clearly anything but incidental and subordinate. Pamela Nine must operate this Bed and Breakfast or have a fragile interest in the property revoked under the same agreement for operation of a Bed and Breakfast that grants her this unusual interest in the first place. As explained to this Board five months ago, and as I have again pointed out tonight, this Board very clearly and very simply does not have the authority to grant this application. Even though Mr. Zahra and Mr. Nine were kind enough again tonight to .allow you this new opportunity to consider their case, even though Mr. Bressler may have tenuously placed Pamela Nine in some relation to this application, thi= property remains owner-occupied for purposes of the Zoning Ordinance only in the imaginations of the applicants and their attorney. Page 6 - Hearing Transcript Matter of NINE & ZAHRA - Appl. No. 3785 March 16, 1989 ZBA Regular Meeting MR. DEREEDER, continued: Furthermore, in light of the document upon which Mr. Bressler has based his arguments regarding owner-occupancy, any finding that this proposed Bed and Breakfast use is clearly incidental and subordinate remains outside the boundaries of any honest argument and beyond the reach of any logical conclusion. Neither Mr. Zahra or Mr. Nine went to approach me and my family before making this application. Or at any time before the first hearing in October. After the hearing, I telephoned Ray Nine, whom I considered a good neighbor, if not a close friend, to explain my strong reaction to their surprise application to try to reopen communications between us. Mr. Nine told me he was upset and he couldn't talk to me. I asked him to call me back so he could speak about the hearing after he cooled down. He never called me back, and he hasn't spoken to me since. In the transcripts of the last hearing, you might recall the following: Mr. Nine: me in the driveway, still goes around, but if there's a problem with that we certainly could do something to interrupt it by Mr. Zahra. We could rectify that. Mr. Nine. Rectify that so that they wouldn't be able to go around. Chairman: By nature of a split-rail fence or somethign of that nature. Mr. Zahra: Absolutely. Could put up any type of fence that you'd like. Mr. Nine: Split rail fence. Trees. Concrete wall. Whatever. Whatever you have to do. In the interim after the hearing, among other comments Mr. Nine and Mr. Zahra directed additional remarks to me about the appropriateness of a concrete wall dividing our properties. This winter the Zahra-Nine fence went up, as you can see from Mr. Bressler's exhibits. The fence between our properties is not split-rail fence. It's 6-1/2 ft. high. It's purposely unfriendly. It's a stockade fence. It's directed wrong-side out and has no gate, and it offsets much of the grace and charm of both our houses. My family will live with that fence as we must because the owners are completely within their rights to keep it there. The Zoning Ordinance cannot regulate mean-spiritedness. My family solace is that the person who appreciates the grace of the Eveyln Reeve House enough to purchase it would likely see the inappropriateness of the fence and remove it. There may be those in this Town who look upon Mr. Zahra and Mr. Nine as local heroes of some kind. And part of that is for a very good reason. Mr. Nine's hard work, generosity, and personal loyalty are legendary around Mattituck. Mr. Zahra has demonstrated Page 7 - Hearing Transcript Matter of NINE & ZAHRA - Appl. No. March 16, 1989 ZBA Regular Meeting 3785 MR. DEREEDER, continued: to the joy of many that our governmental process while imperfect occasionally can be remedied in favor of a righteous citizen. When the Zoning Board finds once again against this application, as it must, hundreds of local citizens and at least one newspaper will be eagerly looking forward to Mr. Zahra's next crusade against municipal oppression. And probably at least as many will be wondering how Mr. Nine came to be involved in all of this. I will be watching as well and participating, if need be. If Mr. Zahra and Mr. Nine had shown my family the slightest consideration, or even given me the courtesy of a phone call at any time during this process, we all might have been able to avoid this entire ugly mess, but they've chosen instead to make me their adversary, and I will be as worthy an opponent as I could have been their ally. These gentlemen have 1y misjudged me. I can be sympathetic to and accommodating of other people's needs more than most people, and I will staunchly defend anyone's property rights, even Mr. Zahra's ar Mr. Nine's, but I will not be bullied by tough talk or stockade fence And I become encouraged not coward when someone begins spending his reputation cheaply because he perceives it to be invincable. I will continue to votely assert my views and vigorously defend my rights so long as either Mr. Zahra or Mr. Nine takes the slightest pleasure in compromising my family's lifestyle or uses the faintest indication that they would attempt to run rough shod over our rights to the quiet enjoyment of our home. Mr. Nine owes it to me and to himself to examine the supposed facts as he believes them about our properties and my business affairs, upon which he seems to justify a large measure of personal resentment towards me. They are simply not true. He should also know that I would like to try to become neighbors with him once again, based on the walls of trust and mutual respect we had shared to some degree before all this began. Should they ever wish to discuss this matter further with me, out of the public forum, I invite Mr. Zahra and Mr. Nine to meet with me in my home. I can only believe that through honest communication between us, both my family's concerns and Mr. Zebra's and Mr. Nine's economic needs can be met. Thank you for your time. Page 8 - Transcript of Hearing Matter of RAYMOND NINE and CHARLES ZAHRA ZBA Regular Meeting of March 16, 1989 JOSEPH ATTONITO, ESQ.: Good evening. Joseph Attonino. The firm's name is $cheyer, Jellenick and Attonito. 227 Middle Country Road, Smithtown. Gentlemen, I'm here tonight for the first time and of course I was not present at the other hearings, so that if I ask some rather naive questions, please have some patience because all I did is pick up naturally from the printed record. However, as I see this, this is an application for a Special Exception. This Board knows very well that in an application for a Special Exception, each and every prerequisite must be met. The proofs are very specific. We go through whatever is in the Code and you have a lot of the usual, general language in your Code that the-- as to the prerequisites that are applicable to each and every Special Exception. Then you have Special-- I won't even go into those because I have to assume that Mr. Bressler covered them in previous hearings and if they're not covered to your satisfaction, that you will vote against it. However, there are certain things, as Mr. DeReeder mentioned, that are specific to this application and just really two to three items. And I will be brief. Two or three items that are very surprising to me. It is not surprising to have a Bed and Breakfast statute linked to an owner-occupancy. I'm from Southampton Town. We have the same thing. My partner has something to do with zoning in Islip. They have the same thing for many of theirs. Smithtown has it. Brookhaven has it. That's quite common. I also notice the rather unusual Agreement that is purported to show owner-occupancy, and that's the agreement that Mr. DeReeder referred to which is labeled and is an Exhibit in this-Agreement for the Operation of a Bed and Breakfast. There is also in your files dated January 6, 1989 a letter from Eric J. Bressler and it states that we are the attorneys for Mr. Nine and Mr. Zahra, et cetera, et cetera. Without quoting the entire letter, it states in part: "In the first instance, the Agreement for Operation of a Bed and Breakfast requires Pamela Nine to reside on the premises and operate a Bed and Breakfast. The Board apparently incorrectly focused only on the permission to do the same executed by Charles Zahra. As a matter of law, the Contract Vendee, Pamela Nine has the requisite direct interest in the property, and then he cites "Matter of Commco, Inc. v. Amelkin." First of all, I seriously dispute whether the Agreement labeled "Agreement for Operation of Bed and Breakfast" is a Contract as stated by Mr. Bressler. First of all, it's totally revocable at almost any time. It is certainly revocable if this Board decides that there shall be no Bed and Breakfast at that house. Page 9 - Hearing Transcript Matter of NINE & ZAHRA Appl. No. 3785 March 16, 1989 ZBA Regular Meeting MR. ANTONITO, continued: Secondly, it has no consideration, pamela Nine is not paying anything for it. I assumed that Mr. Bressler did not make the statement or the applicants did not make the statement that she paid anything for it in the beginning, and if she's getting a gift, which she very well might and it's perfectly legal, it is about the most revocable gift in the world because if this Board decides that this application is not to be granted, then Pamela Nine doesn't an interest in the house. And if the other two owners decide to sell Pamela Nine has to go along. So what we have here is not a Contract. But Mr. Bressler makes another statement in the letter that it gives the requisite direct interest in the property. This Board well knows that the interests that have been recognized by Zoning Boards traditionally are the gives one's status to make an application is either ownership or application as a contract vendee. I would legally dispute whether this qualifies as a Contract. I would legally dispute whether Miss Pamela Nine qualifies as a contract vendee. I assume that you will get an opinion from the Town Attorney's Office, and I have every reason to believe that the Town Attorney would agree in that particular matter that it is neither a Contract, nor does it really give her an interest in property. It gi' her a rather illusory interest. In fact it's a rather illusory document. What you have here is they have to get the approval, or she gets no interest in the property. If she doesn't run the Bed and Breakfast, she's out. And if they want to sell, she has to go along with them. Now I don't care what the deed says, The deed, which I've seen a copy of, also refers to this Agreement, so I cannot believe that that's a real and true interest in the property. And you get to the second point on this particular document. A point with which was made by Mr. DeReeder. Your law calls for owner-occupancy. What exactly is owner occupancy? I'm going to go even a step further than Mr. DeReeder. You have 100 people on the deed and one of them is operating a Bed and Breakfast. Is that an ow%%er-occupancy? Here you have two owners that paid money. I would assume their deed carries documentary stamps and shows consideration. You have another person with who purportedly has an interest by virtue of a rather unusual agreement and she is the one who is going to occupy it. Not a person who has paid money, not a person who has an irrevocable gift, but a person who will go in there solely for the purpose of the owner to be an owner occupany so that you can run a Bed and Breakfast. It would seem to me to be the most illusory of interests in real property. And hardly one that goes along with your statute that calls for owner-occupancy. But even--let's assume though for purposes-_ of argument that it qualifies. Let's assume that this agreement qualifies to make Pamela Nine an owner-occupant. Your statute goes further to state, I may have lsot my marking, here we go--that the use as a Bed and Breakfast must be "clearly incidental and subordinate to the principal use of the dwelling." The principal use of Page 10 - Transcript of Hearing Appl. No. 3785SE - NINE & ZAHRA ZBA March 16, 1989 Regular Meeting MR. ANTONITO, continued: the dwelling is as a one-family house. This is an R-40 District. And it is purely a residential district, so that that must be the principal use. If that is the principal use, how can Pamela Nine make an argument that is valid to this particular Board that her using it as a Bed and Breakfast is the incidental use to her primary use of occupancy? She is only in there by virtue of the agreement which is an exhibit before this Board which is labeled an "Agreement for the Operation of a Bed and Breakfast." And that particular agreement states that if this Board doesn't grant it, she's out as an owner. If she doesn't run it as a Bed and Breakfast, she's out as an owner. If the other two people want to sell, she's out as an owner. How can her occupancy of that house be the principal occupation for that house when it very clearly states that her ownership is only linked to running the Bed and Breakfast? I wi~h I could come in with these. It would be very easy to put together an agreement that's purportedly fulfills the four corners of the-Statute, but this doesn't. And I do respectfully submit that if this wereua variance, you would have some discretion as you know, variances on variance applications, Zoning Boards of Appeals are vested with ' relatively broad discretion. But I also submit that this Board is not vested with broad discretion when it comes to a Special Use Permit. The law is clear cases over and over and over again. The Board must make a finding, and that finding must be based upon the evidence submitted by the applicant, the applicant's attorney, or any witnesses that the applicant brings up that the applicant has fulfilled each and every prerequisite for the granting of the Special Use Permit, without again going into the basis prerequisites as found in your Zoning Ordinance, I respectfully submit that the two prime prerequisites have not been met in any way, shape or form. The prerequisite of owner-occupancy and the prerequisite of the Bed and Breakfast being an ancillary use to the prime use as a one-family residence. Thank you, gentlemen. CHAIRMAN: Mr. Bressler? MR. BRESSLER: Thank you, Mr. Chairman. Let me first address the remarks made by Mr. DeReeder. He made several points. I'll address them one by one. Mr. DeReeder first issue was concerning the fence. And says that there are certain motivations behind the fence. Without getting into that, I would just note for the Board--I'm sure the Board recalls--that Mr. DeReeder asked in the original hearing that the Zoning Board consider a modification to the applicants' plan that will minimize the effect on his family--the loss of privacy. Now though Mr. DeReeder may differ as to the means to achieve that end, I think it's clear that the fence was erected, certainly serves the dual purpose of minimizing the effect on his family on the loss of privacy. In fact I can't think of anything that would minimize the effect greater than a six-foot stockade fence. I don't see that there's any complaint. Curiously, an issue was made that there's no deed and the fence. I really don't understand that argument. The whole idea is to Page 11 - Transcript of Hearing Appl. No. 3785SE - NINE & ZAHRA ZBA March 16, 1989 Regular Meeting MR. BRESSLER, continued: insulate Mr. DeReeder from whatever may go on in the property. Secondly, to address a point of both Mr. DeReeder and Mr. Antonito made with respect to the standing of the Contract Vendee. The cases are clear. As cited, you need authority. The Contract Vendee has the requisite standing. I don't think there's any doubt about that. The next argument that was raised was that all owners must occupy. I don't see that in the Code. It doesn't say all owners. It says it must be owner-occupied. If one who owns lives there, it's owner-occupied. That's what the Code says. This Board is bound to apply it that way. Moreover, the reading of the Ordinance urged by the objectants here leads to some fair and peculiar results. For instance, in the case of a Matrimonial, there was a husband and a wife, they had broken up, the husband moves out, the wife wants to operate a Bed and Breakfast. In the objectant's reading, that of course would not be possible because the estranged husband would have to move back into the house. I don't think that that was the intent of the drafters. I can give you anoth~ example. The situation where you have both parents and children akir. our application where they are both on the deed for one reason or another, I don't think that the drafters of the ordinance envisioned everybody moving back in. Owner-occupied. It says owner-occupied. That's what it means. It's owner-occupied. The next issue that was raised is barely worth addressing. I'll just note that whatever the agreement may have been labeled is hardly binding or even relevant. The substance of the agreement is what is important. The next issue that was raised was the fact that there could be a re-conveyance. There's nothing in the Code that says there has to be an ownership interest and it can't be subject to a limitation or a re-conveyance. In this regard, I would note that if Pam Nine doesn't have an interest in the property, I would like to know the title company that would ensure over her deed. The next issue that was raised was a subordinate and incidental issue. This is kind of slippery, a slippery concept since there's no definition of that in the ordinance. But I think the fact that the agreement requires that she operate it as a residence clearly satisfies the principal test. You heard testimony from Miss Nine as to what she is going to do, how she is going to conduct herself, and I think that amply supports the fact that this is an incidental use. Page 12 - Transcript of Hearing Appl. No. 3785SE - NINE & ZAHRA ZBA March 16, 1989 Regular Meeting MR. BRESSLER, continued: Next Mr. Attonito raises an issue regarding consideration. And this as the Board knows and as Mr. Attonito well knows, consideration need not be in the terms of a monetary payment. I think we all know that, so I think the focus on that aspect is misplaced. I think, Mr. Chairman, you asked the question atl the.!ast meeting about that, and I think I amply responded to that issue. Finally, I think that the issue here is getting lost in the ~ objectant's arguments here, and it seems to me that what we are dealing with is the issue that a Contract Vendee has standing. That this person will go on the deed. That this person in required to live there. That this person needs to live there. That the next-door neighbors will have privacy and that the application generally meets each and every test set forth in the Code. Now one additional thing I would like to say about this particular area, is to note for the Board, and I'll be handing these up in a moment; that the area in which this premises is located, and of course the DeReeder premises immediately to the west thereof, was prior to the amendment of the zoning ordinance (1989) surrounded on 2-1/2 sides, if you will, by business property and in near proximity to industrial property. After the amendment to the zoning ordinance, we have the properties again surrounded on 2-1/2 sides by Hamlet Business~ and nearby we have residential office. And it seems that, therefore, the use of a Bed and Breakfast is one of the lesser intrusions that the objectant could be subjected to with respect to the zoning on the" - surrounding properties. I'm going to hand up the two zoning maps~w~ich indicate the subject premises in green and the objectant's premises would be the rectangle immediately to the northwest thereof. In sum, what I think we have is a lot of smoke and no fire. I think that the law is extremely clear on the fact that the contract vendee has standing. The contract vendee is going to have a deed. I dare say that that contract is enforceable and on that issue I find one thing very peculiar in the argument made by objectantso They present this Board with the notion that a contract contingent upon a municipal approval is some how a strang animal. This Board sees them all the time. The Planning Board sees them. Every board sees them. There's nothing peculiar about that whatsoever. And I think that to the extent that attention is focused on that, to some how distinguish this contract, or any other contract, is absurd and it doesn't make it any less binding. What it does, as any contract does, it contains conditions. Whether it be this one or other ones. I'm sure the Board is familiar with the fact that all contracts contain certain contingencies, title, zoning in some instances, Planning Board approval, water, sewer, whatever. And I find that to be completely normal and not Page 13 - Transcript of Hearing Appl. No. 3785SE - NINE AND ZAHRA ZBA March 16, 1989 Regular Meeting out of the ordinary. In sum I think that the arguments presented by the objectants tonight are without substance and I think the Board has before it a sufficient record to grant this application. CHAIRMAN: Any rebuttal, Sir? MR. ATTONITO: I don't want to beat a dead horse and I'm not partioularly interested in fences. They may make good neighbors, but I'm not entirely sure and I don't think it's particularly pertinent here, one way or the other. I have to get back to the statute. Let's get right back to the statute, and the agreement that's been presented here. The statute says, as a prerequisite of the grant, this Board must find that the use as a Bed and Breakfast is clearly incidental and subordinate. Clearly incidental and subordinate. The applicant has made the point that this contract is enforceable. I'm not going to arqu whether it is or it isn't. What I'm saying, the point was made that the contract requires the young lady to live there. That's true. That's true. She has to live there. But what it really requires is, purchaser, that is Miss Nine, "agrees to establish and operate a Bed and Breakfast establishment in accordance with the Southold Town Zoning Ordinance and the approvals therefore." The contract is unusual in a number of instances. It is not the standard conditional contract tha contains conditions subject to a variance, conditions subject to a map filed, site plan being approved. This contract doesn't give -- is not requiring her to live there, it's requiring her to live there only if the Zoning is granted, and that can't possibly fit in the four corners of this statute that says that the applicant must prove that the use as a Bed and Breakfast is clearly incidental. It makes the use as Bed and Breakfast the primary and the only way that Pamela Nine can get title to this property. If you people turn her down, she has no right to get title to this. It's only if you approve her, and she operates the Bed and Breakfast, then she gets a color of title because I have heard nothing, and I don't know anything before this Board that says that if this is every sold, that Pamela is going to get 25% of the proceeds. It says it's revocable, and she has to go along with it. It doesn't say that anybody has paid anything for it. That's all right. Then Mr. Bressler is right. She didn't have to pay anything for it. What happens at the end product? If it isn't payment and bought it, is it a gift? And if it is a gift, what happens if it's sold. Does she get 25%? I don't know. I don't know. But I do know one thing, that this particular agreement does not call for her to live there. It calls for her to live there only if she runs a Bed and Breakfast. That is not incidental. And that's certainly not clearly incidental. So, again, I get back to this. I feel that this is an illusory instrument only to give a color of right to get before this Board, and I believe that even if it does give the right to get before this Board, give Miss Nine or the applicants the right to get before this Board, that it must fail. Because on its own face, it simply says: Miss Nine, you can live the~ if we are successful and if you run a Bed and Breakfast. 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