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ZBA-02/01/1990 HEARING
1 2 3 4 5 6 7 8 9 10 11 12 SOUTHOLD TOWN ZONING BOARD OF APPEALS COUNTY OF SUFFOLK : STATE OF NEW YORK SOUTHOLD TOWN ZONING BOARD OF APPEALS PUBLIC HEARING Main Road, Route 25 Southold, New York February 1, 1990 7:30 P.M. BEFORE : GERARD P. GOEHRINGER, Chairman 11971 ( 14 16 BOARD MEMBERS: CHARLES GRIGONIS, SERGE~DOYEN, JR. JOSEPH H. SAWICKI JAMES DINIZIO, JR. JR. Doreen Ferwerda, Secretary to Board 23 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 2 THE CHAIRMAN: This is the regular monthly meeting of the Southold Town Zoning Board of Appeals. We welcome you all here. Appeal Number 3902, on behalf of Henry Hunstein. The notice reads as follows: Application Number 3902, variance to the Zoning Ordinance, Article III A, Section 100-30.3, (100-33), for permission to construct building in front yard area. as disapproved, accessory Property Location: Bayview Road, 1000, Section I have 90 Kimberly Lane and 135 North Southold, County Tax Map No. 70, Block 13, Lot 20.20. a copy of the survey, the most recent date, May 18, 1989, indicating a two- story fPame house and garage, and the nature of this application is a storage building approximately 60 feet in the rear of this premises and approximately 60 feet from High Neck Road. I have a copy of the Southold Town Tax Map indicating the surrounding properties of the area. Is there anyone who would like to be heard? Mr. Hunstein, could you give the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 approximate size of MR. HUNSTEIN: THE CHAIRMAN: 3 electricity? MR. HUNSTEIN: THE CHAIRMAN: Just electricity. We have a normal process that we put a restriction on, that it is only to be used for storage. Do you have an objection to that? MR. HUNSTEIN: No. THE CHAIRMAN: Thank you very much. Anybody else who would heard on behalf of like to be Anybody who would application? Any members? Not having any further questions, make a motion to close the hearing. All favor ... BOARD MEMBERS: Aye. THE CHAIRMAN: We will have a decision for you in a few weeks, sir. We thank you very much for coming in. Appeal Number 3901, on behalf of this application? like to speak against the I in the building, sir? Sixteen by twenty. Will you have any facilities in this building at all, such as 1 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 have copy of dicates this in the area. 4 Thomas Eschmann. The notice reads as follows: Upon Application Number 3901, on behalf of Thomas Eschmann, variance to Zoning Ordinance, Article III A, Section 100-30 A.4, (100-33), as disapproved, for permission to construct accessory building in the front yard area and accessory shower in side yard area. Property Location: 495 Mesrobian Drive, Laurel, County Tax Map Number 1000, Section 145, Block 4, Lot 10. I have a copy of the survey, dated October 27, 1989, which is produced by Robert Van Tuyl, P.C., which indicates on the survey and the nature of this applica- tion, a two and a half story frame house, in the front yard area a shed approximately three and a half feet from the west property line, and a shower in the side yard on the east side. We asked the applicant the approximate size of the structures and I the County Tax Map which in- and the surrounding properties Is there anyone who would like to 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 be heard? MR. ESCHMANN: Yes. THE CHAIRMAN: Are you the applicant? MR. ESCHMANN: Yes. My name is Thomas Eschmann. THE CHAIRMAN: Thank you. MR. ESCHMANN: I would like to correct the record on the first one. The accessory building ... I have a copy of the C.O., which is dated 1973. THE CHAIRMAN: That is the one that is presently there? MR. ESCHMANN: Yes, a metal shed approximately six feet by ... approximately six feet by six feet. It is a metal shed on the right-hand side. I bought the house in '87. In approximately two months, I guess, January of '88, I hired a handyman to put the shower, which is approximately 15 feet from the house. It was through a real estate agent I did it. I was never informed, and he didn't tell me, that a permit was needed at the time. Its approxi- mate size is approximately three ... 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 three by four feet. It is set in concrete ... four posts ... which is approximately two feet in the concrete post and there is gravel and a catch basin underneath it. It is away from the house, about ten or twelve feet mainly so it won't run in the founda- tion. It is used quite a bit. The street I live on is a private road and the road ends right at the edge of my house. This ... from the survey you can see it is ... I would say the shower is approximately twelve feet from the front line of the house, road. 84 feet from the private I notice that the letters went out. I have not heard any objection, as far as the neighbors are concerned. The neighbor behind me, there is a seven foot hedge that can't be seen. It is an ideal spot for that, because on the other side of the house there is no place for it and the only other thing to put it is against the house. It is all grass on that side, which I can show you in the picture. I guess that's about it. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE CHAIRMAN: Eschmann, the shower is feet from your house. MR. ESCHMANN: THE CHAIRMAN: 7 YOU said, Mr. approximately 15 To the right, yes. The only thing we are concerned about is closing up side yards on any waterfront areas, mainly so that access can be gained to the rear yard area ... which is the waterfront area ... for either emergencies, bulkheading purposes, or for access if you are to have a fire on the main part of the dwelling. MR. ESCHMANN: I had a room. The inspector came down. I added a room on the months, as we added that, good 15 feet between house. The concrete pour front of the house facing the water. They drove the concrete truck between this shower and my house to put the foundation in, which I got the permit. That was about six and there is a the shower and my truck went through to the foundation. THE CHAIRMAN: So in granting this application, assuming the Board does, we 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wouldn't do it tonight, but assuming ... there would be a restriction you would not be permitted to close up that side yard any more than what it is closed up now ... okay, to allow for that access. MR. ESCHMAN: Fine. THE CHAIRMAN: Just so that you are aware of that. Secondly, the only other thing I might suggest, as maybe part of this decision, if the Board is so inclined to grant it, is that you possibly plant some privet along the shower itself so as to take some of that stark effect away from the cylindrical type of building as you look at it from the road. I will offer that when we are actually deliberating on the applica- tion. Apart from that, I have no objection. MR. ESCHMANN: Do you want a copy of the certificate of occupancy? THE CHAIRMAN: Sure. Thank you. We thank you very much, sir. Is there anybody else that would like speak in favor of this application? to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Anybody who would like to speak against application? Anything from the Board members? No. Having no further questions, motion closing this hearing and reaching a decision at a later time. BOARD MEMBERS: THE CHAIRMAN: BOARD MEMBERS.: THE CHAIRMAN: Second. All in favor? Aye. The next appeal is 9 the I make a survey, feet from the 2260 Great County Tax 4, I have a copy of the sketch of the which I can't read a date on it, struction will be less than 75 bulkhead. Property location: Peconic Bay Boulevard, Laurel, Map Number 1000, Section 145, Block Lot 4. Number 3905, on behalf of Anthony J. Mercorella. The legal notice reads as follows: Application Number 3905, Anthony J~ Mercorella, variance to the Zoning Ordinance, Article XXIII, Section 100-239.4B as disapproved, for permission to construct deck addition to dwelling, proposed con- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 Do you have any idea the proposed deck is on the west side of this particular dwelling which sits almost directly in the center of the lot and it is surrounded by water on two sides; on the west side and on the south side. I have a copy of the Suffolk County Tax Map indica- ting this and surrounding properties in the area. Could I ask you a couple of questions? (Marie Mercorella appearing for Anthony J. Mercorella,) MRS. MERCORELLA: Sure. THE CHAIRMAN: Thank you. Is the deck going to be enclosed in any way? MRS. MERCORELLA: No. THE CHAIRMAN: It will be open? MRS. MERCORELLA: Open deck. THE CHAIRMAN: Do you know the approximate size? MRS. MERCORELLA: Well, we wanted to make it the length of the house. I think that is about 44 ~eet, something like that, and about 12 ~eet wide. THE CHAIRMAN: 1 2 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 what the closest point to the water would be? It is nothing you have to do right now, but would you just ... when you put that stake 12 feet out, would you measure it from there to the bulkheading and give us a call if you wouldn't mind, please? It would be helpful in dealing with the decision. We thank you very much. Is there anybody else that would like to speak in favor of this application? Anybody that would like to speak against the application? Hearing no further comments, I make a motion to close the hearing and reserve decision until a later time. All in favor? BOARD MEMBERS: Aye, THE CHAIRMAN: This appeal is in behalf of Harriet Spilman, Appeal Number 3904. The legal notice reads as follows: Application Number 3904, Harriet spilman, variance to the Zoning Ordinance, Article XXIII, Section 100-239.4 B, for permission to construct addition to existing dwelling. Proposed construction will be less than 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 2t 22 23 24 25 -- /7-- 12 75 feet from the bulkhead. Property loca- tion: 1730 West Creek Avenue, Cutchogue, County Tax Map Number 1000, Section 110, Block 1, Lot 7.3. I've got a copy of the survey, most recent dated January 2, 1990, produced by Robert Van Tuyl, P.C., indicating a one and one half story frame house on West Creek Avenue, in Cutchogue. The house is basically bulkheaded on all sides, except for the road beside the bulkhead. The nature of this application is addition. In this particular be the side yard of the house, a proposed case it would which would be towards the west the house. mately 11 and on the south side of The west side would be approxi- feet at its closest point; on the south side would be about 11 1/2 feet at its closest point. I have a copy of the Suffolk County Tax Map indicating this and surrounding DEC permits. like to be heard on this application? MS. HAGEN: Karen Hagen, P.O. properties in the area and per Is there anybody that would Box 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 1424, Main Road, Mattituck, New York. I think the hardship is clear in this case, as you said, because it is surrounded on the three sides by the bulkheads and also because of its proximity to the street. I believe it is about 18 feet from the street. I think that the purpose of this particular code section is to protect the surrounding wetlands and the DEC waiver, which you have in there, accounts for that and I have been advised by the Trustees' office that waiver will be forthcoming from their office as well, within the next couple of days. So I urge you to keep the record open until you receive a copy of that waiver, which they have instructed me they will deliver to you. THE CHAIRMAN: approximate size of we could scale them, I don't have the these decks. Of course, if you don't have them handy tonight. Could you just either call us or send us a brief notice indicating the lineal feet of the deck, of the addition? MS. HAGEN: Yes, I can get the plans 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 and I can call on that. THE CHAIRMAN: Wonderful. Is there anybody else that would like to speak in favor of this application? Anybody that would like to speak against the application? Yes, from a Board member. MR. DINIZIO: Yes, I would like to see the elevation map on this too, if we could. MS. HAGEN: add them, if you feel MR. elevation. MS. MR. I could have the surveyor it is necessary. DINIZIO: I would like to see the HAGEN: Can I ask the reason? DINIZIO: I am concerned about the bul~head and just how high above the mean high water ... MS. HAGEN: Well, I'll have the surveyor add that. THE CHAIRMAN: Let me ask you a question, Karen. There is, of course, probably no possibility of any type of basement being placed in this structure. think I am correct on that. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 MS. HAGEN: That is correct. THE CHAIRMAN: So these additions would be mainly above or in line with the present grade that the house is on, at this particular time. MS. HAGEN: Yes. THE CHAIRMAN: Could we refer to this as a cottage? Is this going to be made into a year-round house? MS. HAGEN: Yes, it is. THE CHAIRMAN: Thank you very much. MS. HAGEN: Okay. THE CHAIRMAN: Hearing no further ~comments, I make a motion closing the hearing pending the receipt, of the elevation map and the lineal footage that we request in reference to the size of the addition and the Trustees' waiver. Hearing no further comments, I make a motion to close the hearing subject to these particular conditions. BOARD MEMBERS: THE CHAIRMAN: BOARD MEMBERS: Second. All in favor? Aye. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~~map WaS ... I'm sorry ... on the map was August 1, THE CHAIRMAN: The next appeal 16 is in behalf of Gerhard Schremmer, Appeal Number 3900. The legal notice reads as follows: Upon Application Nunmber 3900, Gerhard Schremmer, variance to the Zoning Ordinance, Article XXIV, Section 100-244 B, for per- mission to construct a one family dwelling, proposed construction will have insufficient front and side yard setbacks, lot has in- sufficient width. Property location: 1380 Oak Drive, Southold, County Tax Map Nuntber 1000, Section 080, Block 02, Lot 001. A copy of the survey indicating the most recent date 1988, produced by Croaeric~.Surveyors, indicating a proposed house 28 feet from West Shore Drive, 27 feet from Oak Drive, property line, side yards. I 10 feet from the rear and 35 feet from the other have a copy of the Suffolk County Tax Map indicating this and surrounding properties in the area. Is there somebody who would like to speak? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BRUER: Rudolph Bruer, of the application, Main Road, Southold, P.O. Box 1466. The problem here is that the property here was developed in 1931, known as Radiant Shores, 27 years prior to the existence of zoning in Southold Town. My clients had entered into a contract on June 30, 1988, with respect to the purchase of this pro- perty for a purchase price of some $85,000. What their initial reaction was, that they know and knew that the property was small with.respect to the present requirements of %he Town, but also knew that they liked living in Radiant Shores, having friends there and that this was a valid lot. I believe the Board has in its file a 17 on behalf vacant land certificate of occupancy, issued by the Town of Southold, I believe dated 1984, and it was based upon that representa- tion of that vacant land C.O. that we entered into this contract of construction. We know that the C.O. requires that you get the various, and it so states, the various 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 --CI~ - 18 other approvals with respect to the require- ments of a building. The contract that we have is a contract that is conditioned upon being able to build and, as you know from the application here, there are two things that we must do: One, we have a 65-foot lot in an area that requires 80 feet in width. We also have a unique situation in that the property is fronting on two roads, which requires two front yards. If it was on an interior lot, we would not need. Next, the second variance we would just be asking the Board for is a variance with respect to the lot width. Without the variance for the side yards, we would be stuck with a 15-foot wide house, which I don't think anybody in this town particu- larly wants, and it would look like a long, long trailer. It would look like something from way down west or the early Queens, and I don't think anybody would be particularly interested in owning or living in such a residence. The first thing that we did was that 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 we realized that we had a problem with the Suffolk County Health Department, and we spent a great deal of time to date with the Health Department. To wit, we made the application to the Health Department. It was denied, with the request that ii you wanted a variance you could go to the Board of Review. I believe the Board knows the length of time it takes to get to and through the Board of Review, which we have gone through, and they have approved the water systems. I will submit, along with a copy of the contract, the Board of Review's letter of approval. I will also show the Board, I think ii you have not looked at the Tax Map, we have highlighted the various lots area showing the lots that are of size or smaller. At this point would like to submit those maps, the C.O., a copy of the contract, Board of Review's letter. THE CHAIRMAN: Thank you. MR. BREUR: Here are three copies to in the similar I think I a copy of and the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 20 pass around, the Board of Review's approval of the water and, as promised, highlighted maps of the subdivisions showing the lots similar. THE CHAIRMAN: Could I just ask you one question, Mr. Breur? MR. BREUR: Yes. THE CHAIRMAN: This lot was never part of any of the two surrounding lots. It is continuous, is that correct? In other words, it was never divided from any one of those two lots. MR. BREUR: I have a single and separate search, if you would like to see that, and it would show that in 19 -- ! think it was '88 -- Mr. Schre~er purchased the property from, I believe, the estate of Toothacker (phonetic spelling), and Tooth- acker owned this lot, and I guess the lot to the south, we believe, but in looking at that it would be this lot here (indicating), that would be this lot to have been imprac- tical in its existence. I would like to point out that we 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 have proceeded to this point and have recently inquired of the Building Inspector again of this C.O. of 1984. As far as they can see, it is a proper C.O. and of which based upon ... which today Mr. DeSalvo (phonetic spelling) has spent over 2,470 some-odd dollars fees, fees. one, if you want. THE CHAIRMAN: for the various application test wells, border review, and various I could give you a breakdown of every No, it is not necessary. Could you just afford us a copy the single and separate search? MR. BREUR: You will notice it only goes back to, I think, the point, but I think 1982. Not to belabor the Board can see the financial hardship here. The other lot that was purchased from Toothacker has already been sold, I think in '88. I had nothing to do with that transaction, but it has been :;~ sold. It has been mortgaged. It has a new owner. It is not in the control of Mr. Schremmer at this time. The hardship, as you can see, is 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 22 that this lot will be useless. It is worth $85,000. It is a nice lot. We already expended, as we said, $2,471.50 on this. Again, the practical difficulty is that the lot again was created in 1931, and the financial hardship is already stated, as you can see from the signed contract before you. The few remaining points I would like to say is that this application here is very unique. There are very few lots, very few lots left in this subdivision. They all have been built upon. The community has developed from what was su~ner commaunity ... it once strictly a is almost a majority of all year-round residences. A house, one of this one structure on this lot, would not change the character of the community and that you would just be adding one house, probably meeting the more modern standards of the Town and the community than the existing houses that are there. For the Board's review, I would like to show a picture of the proposed house the DeSalvos intend to put on the premises. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE CHAIRMAN: you very much, Mr. Breur. decision for you in a appreciate it. Is there anybody Thank you, sir. 23 Thank We will have a couple of weeks. We else that would like to speak in favor of this application? Is there anybody that would like to speak against the application? MR. SCHAEFFLER: My name is Mr. Schaeffler. I live on Oak Drive, 1245 Oak Drive. Is there any restriction on the size of the building property due to that would go on this the fact that it doesn't ~meet the requirement size lot? In other words, I would hate to see a two and a half story building go on a tiny little lot. THE CHAIRMAN: Well, I believe the code, and I could stand corrected, I believe the code says he could build a 35 feet. What they have given us is a picture of a two story dwelling, look at. MR. SCHAEFFLER: enhance the area. which you are welcome to It appears it would I see. Thank you much. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2t 22 23 24 25 - ~9- 24 It is much ... you know ... I have seen some of these narrow, huge rows here. THE CHAIRMAN: I think that is what they are trying to prevent. MR. SCHAEFFLER: I appreciate the type of house. Thank you. MR. BREUR: You're very welcome, sir. MR. COMANDO: My name is Michael Comando. I have the property adjacent. I only want to express my speaking for or against my well will have to be concern. I am not the situation, but relocated, I am assuming. I have had several correspon- dences from Mr. Breur indicating that was the case and my concern is that the expense that could be involved after relocating my well, in the event I have a problem with the new well, and subsequently have to dig another well, where that will be located in relation to the other wells in the neighbor- hood. is how each other. The only other thing I was concerned far will the houses be apart from I don't know what the Town code 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is on that, certain distance that houses. THE CHAIRMAN: 25 if there is a certain length, a has to be between the questions, it is 35 MR. COMANDO: concern. ! am just contamination and I To answer your feet on your side. But that is my only concerned about the assume he would be concerned about well from my cesspool, THE CHAIRMAN: Mr. Breur, MR. BREUR: the contamination of his as well. Thank you. anything in rebuttal? Not really. I gave you a copy of the Health Department Board of Review letter, didn't I? Okay. THE CHAIRMAN: Anybody else that would like to speak on this application, for or against? Seeing no hands, I make a motion closing the hearing, reserving decision until later. BOARD MEMBERS: THE CHAIRMAN: BOARD MEMBERS: MR. Second. All in favor? Aye. BREUR: Thank you very much. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 3/- 26 THE CHAIRMAN: The next appeal is in behalf of J. Parker Wickham, Appeal Number 3897. The legal notice reads as follows: An Application Number 3897 J. Parker Wickham. Variance to the Zoning Ordinance, Article XIII, Section 100-132, for permission to construct a building for antique vehicles, proposed construction will have bulk, area and parking regulations and insufficient side yard setback. Property location: 410 Airway Drive, Mattituck, County Tax Map Number 1000, Section 123, Block 01, Lot 02. I have a copy, actually plan of the entire airport. that belongs to Mr. Wickham. it is a site It is a copy You just want to read the date off that serial number one, October 5, 1989, by Robert Van Tuyl, P.C. The nature of this application is a proposed storage building on the west side of the property adjacent to an existing storage building which antique cars are housed, and I have a copy of the Suffolk County Tax Map indicating this and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 surrounding properties in the area. anyone like to be heard? Mr. Wickham? MR. WICKHAM: The cars just 27 Would keep coming, so we have a place for them. THE CHAIRMAN: Could I just ask you a question, Mr. Wickham? I notice that you penned in this other area here (indicating). Now this is the existing cement. of MR. WICKHAM: THE CHAIRMAN: this application, That is correct. This is in the nature which is what you want to enclose right here (indicating)? MR. WICKHAM: That is correct. asked about this too, at the same What we are doing ... said we might as well for this too, at the same I time. the builder already go ahead and submit time. THE CHAIRMAN: just didn't notice. MR. WICKHAM: THE CHAIRMAN: L-shaped addition; approximately 18 by the north side, approximately 20 by 40 Thank you, sir. I We added this after. Okay. This is an 80 on on 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. the west side. Is there anybody else to speak in favor of this application? there anybody who would like to speak against? Hearing no further comments, I make motion closing the hearing and reserving decision later. BOARD MEMBERS: Second. THE CHAIRMAN: All in favor? BOARD MEMBERS: Aye. THE CHAIRMAN: Thank you very much, Wickham. Our next appeal is and Cheryl Pagnozzi, Appeal Number 3899. The legal notice reads as follows: Upon Application Number 3899, Agnes and Cheryl Pagnozzi, variance to the Zoning Ordinance, Article XXIV, Section 100-244 B, for per- that would like Is mission to construct an addition to dwelling, proposed construction will insufficient side yard. Property 1450 Jockey Creek Drive, Southold, Tax Map Number 1000, in behalf of Agnes existing have location: County Section 70, Block 5, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Lot 7. I have a copy of a survey dated August 20, 1972, with contours added on November 13, 1989. We have on this piece o[ paper, on Jockey Creek, a one story frame house which is approximately 101 feet from Jockey Creek Drive, 21 feet [rom ... let's see ... I assume that is the west property line or thereabouts, and 21 feet, plus or minus, from the south property line almost directly in the center of the property. I have a copy of the Suffolk County Tax Map indicating this and surrounding properties in the area. Is there anybody that would like to be heard on behal[ of the application? Is the applicant here? MRS. PAGNOZZI: Yes. THE CHAIRMAN: How do you do, Mrs. Pagnozzi. MRS. PAGNOZZI: I just wanted to say most of the information is in the application. It is to construct a second garage to the one car garage we currently 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 have on the house. built leaving the additional garage, 30 The house was originally 11 feet necessary for the so that I would have sufficient side yard space at the time of the building. As you gentlemen apparently know, the rules were changed January 1st, which now has put me five feet more against the variance. That is basically what I am asking for, the five to add the garage. THE CHAIRMAN: feet in order ... just Can I just ask you a question? This It is strictly shaped ... is not an additional house. for a garage. It is an L- MRS. PAGNOZZI: It will just come out. There is a rectangle, basically, and it will just come out one side ... a continuation of the house. THE CHAIRMAN: It will remain a one story house? It will remain one story? MRS. PAGNOZZI: Yes. THE CHAIRMAN: Thank you very much. Anybody else that would like to speak in favor of the application? Anybody 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 against the application? MEMBER OF THE AUDIENCE: Yes. THE CHAIRMAN: Kindly come up and state your name for the record. MS. SCHNABEL: My name is Louise Schnabel. I live at 1600 Jockey Creek Drive, and I am opposed to the variance for the reason I stated in my letter, which is in your file. I feel that present resolution myself mine. closer limiting the distance to 15 feet from the property line is to protect people like from having a building too close to As it is now, our two houses are together than any others in our immediate neighborhood. I do not want to look out my window and see a blank wall so close. If you grant this variance I feel that and I speak against the application? from the Board members? it will lower the value of my property, am very much opposed. THE CHAIRMAN: Thank you very much. there anybody else that would like to Questions 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 --5?-- 32 Hearing no further questions, I make a motion to close the hearing, reserve decision until later, and thank you all for coming in. I appreciate you coming. BOARD MEMBERS: THE CHAIRMAN: BOARD MEMBERS: THE CHAIRMAN: behalf of Peconic Number 3898. The Second. All in favor? Aye. This next appeal is in Bay Vineyards, Appeal legal notice reads as follows: special Exception to the Zoning Ordinance, Article VII, Section 100-71 B(6), for permission to use existing barn for winery production and storage. Property location: 32180 Main Road, County Tax Map Number 1000, Block 01, Lot 19.2. Copy of produced by Nancy Cutchogue, Section 103, a site plan , registered architect, most recent date October 2, 1989. We have here an existing house and surrounding buildings which are in the nature of this application, and in it includes one large barn. I have copy of the Tax Map indicating this and surrounding 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 properties in the area. Is there someone here ... to represent ... how do you do? MR. BLUM: Ray Blum, from Main Road, No, the property was I am leasing it It comprises this of these buildings? Correct. What building would this property? MR. BLUM: purchased by relatives and from the relatives. THE CHAIP~4AN: entire piece, all MR. BLUM: THE CHAIRMAN: in Cutchogue; I am the applicant and I wanted to remind the Board that it doesn't say that, and it was not mentioned that this is an extension of an existing special exception which I already have from the property next-door and this is just expanding it into this particular parcel without the addition of putting up some other buildings. THE CHAIRMAN: Can you tell me which building you are anticipating ... first o~ all, are you leasing this property or buying 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you be doing MR. BLUM: use on the parcel building we use for the winery is a larger one as was stated before. about a three acre parcel 27 acre parcel which is what THE CHAIRMAN: And all We are talking joined on another is existing ... of the existing buildings in some way will be used for winery purposes. The house will house the people that work for you? MR. BLUM: The house is currently rented, and the other barns are used for equipment storage, farm equipment, tractors. THE CHAIRMAN: What about the farm stands? MR. BLUM: The farm stand is up there operating. That was rented, also. THE CHAIRMAN: That will continue as a farm stand? MR. BLUM: Yes. I have no use for it, but it is there, yes. We sell flowers and things like that. THE CHAIRMAN: So no retail sale will retail sales out of? The existing building we next-door, and the 1 3 4 5 6 7 8 ( 14 16 24 actually MR. BLUM: No. THE CHAIRMAN: paring any retail MR. BLUM: come over to this area. You are not antici- sales? No, because I have a building next-door which is heated, air- conditioned, and has been operating for the past seven years. THE CHAIRMAN: We thank you very much for explaining it to us. Is there anybody else that would like to speak concerning this application, either Seeing no hands, I ask the there are any questions? None. Hearing no further for or against? Board members if MR. DINIZIO: THE CHAIRMAN: questions, I make a motion to close the hearing and make the decision at a later time. BOARD MEMBERS: THE CHAIRMAN: BOARD MEMBERS: THE CHAIRMAN: coming in. Second. All in favor? Aye. Thank you very much for 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Our next appeal Appeal Number 3882. of a prior hearing. - 36 is Bidwell Wineries, This is a continuation So it is not necessary to read the legal notice. I will ask if anybody from the Bidwell Winery is here. How do you do, Mr. Bidwell? When we had originally dealt with your application, we had seen the building as it presently exists. We had restricted the building to the production ... the special exception was restricted to the production of wine. At that particular time, there was to be a proposed addition closing that entire area up of the "L" that MR. BIDWELL: T~E CHAIRMAN: you see from the road. That is correct. The reason why we asked you to come in is because now, and I am only anticipating it, and I really should let you speak but I am trying to justify it in my own mind, and correct me if I am incorrect, you are selling wine out of front of the buildinG. You are having retail sale out of and you are either the a the front of the building asking us to waive that 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -%%- 37 condition or to allow you to sell retail wine out of the present building as it exists without any major addition that is supposed to go on. MR. BIDWELL: THE CHAIRMAN: Is that correct? The second is correct. So therefore, just as the building exists now is the way it is going to stay or you are anticipating it will stay for a little while. MR. BIDWELL: For a little while. That is correct. THE CHAIRMAN: of that building is actually utilized in How much of the front retail sale? MR. BIDWELL: foot space. THE CHAIRMAN: feet. That's what MR. BIDWELL: THE CHAIRMAN: It is about a 20 by 20 That is 400 square you're asking to do. Yes. I just want you to know it would be unkind of me to have you leave here and say if we granted this that would be it, because there are some require- ments by the Planning Board based upon the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 38 site plan of this particular project. So any decisions we make in waiving the waiver of that particular situation that we discussed would be subject to the Planning Board's approval. MR. BIDWELL: THE CHAIRMAN: for coming in and us. MR. BIDWELL: THE CHAIRMAN: that would like to be I understand that. I thank you very much clearing that issue up for Thank you. Is there anybody else heard on behalf of this application? Anybody like to speak against the application? Any question from Board members? Hearing no further questions, I make a motion to close the hearing, reserving decision until later. MR. DINIZIO: THE CHAIRMAN: BOARD MEMBERS: THE CHAIRMAN: indulgence, four minute Second. All in favor? Aye. with the public's I would like to take a brief recess. I need a motion. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 MR. THE CHAIRMAN: BOARD MRMBERS: (Whereupon, and the proceeding SAWICKI: So find. All in favor? Aye. a brief recess was later resumed.) taken copy of a survey dated indicating a one story sits in the same location ... only difference I notice based on a field visit is that there is a fence in the rear of the property, in the rear of the station itself, some sort of stockade fence. I have a copy of the Suffolk County Tax Map Lot 4. ! have a November 19, 1980, frame gas station, THE CMAIRMAN: Our second to last hearing is in behalf of Robert and Ethelle Schroeder, Appeal Number 3895. The legal notice reads as follows: Upon application of the applicants, variance for reversal of Building Inspector for change of use of land and existing building without obtaining a Certificate of Occupancy. Property loca- tion: 4380 Main Road, East Marion, County Tax Map Number 1000, Section 35, Block 5, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 40 indicating this and surrounding properties in the area. I have a letter in the file, concerned citizen. Is there anyone that would like to be heard in behalf of the application? MR. BRESSLER: Wickham, Wickham and Bressler, P.C., Main Road, Mattituck, New York, by Eric Bressler. Gentlemen, this is an appeal from a determination or decision of the Building Inspector, in this case involving an order to remedy a violation issued October 3, 1988. The order to remedy involved three separate types of alleged behavior; one, a change of use of an existing building without obtaining a Certificate of Occu- pancy; two, a change of use of land without obtaining a Certificate of Occupancy; three, changing use of the nonconforming gasoline filling station without obtaining a Certifi- cate of Occupancy. Those are the three items that are listed on this order to remedy. It is important to note, in looking at the order a £ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 41 to remedy, that there is no detail whatso- ever regarding what the nature of the change of use is or what it is that must be remedied immediately. It merely says there is a change and you are with the law and remedy the immediately. On that basis the Board has the authority particular determination. tell us anything. Secondly, was intended by ordered to comply conditions alone I believe to reserve that It just doesn't moving to what we believe this order to remedy, but of course we can't be absolutely certain, but what we think they are talking about is the parking of vehicles on the premises. This is upon information and belief, and my statement %o that effect in no way concedes that is what this is about or admits anything that is in the order to remedy, but upon information and belief that may be what this is about. Certainly there is no evidence before this Board as to what this order to remedy is about. Simply speaking, with respect to that 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 - 42 issue, we have submitted to the Board an abstract of title which shows ownership of this property prior to the zoning and we submit a series of affidavits up until a certain point which document the use of that particular piece of property as being uninterested. The Board will note that as part of this particular chain there are two holes in the chain, and I have an affidavit from Robert Schroeder, Jr., regarding these particular holes in the chain. I hoped one of the applicants could be here tonight, to speak of his house use from the time of his ownership going forward. However, despite long, lengthy notice prior to the time of this hearing, he is unavailable to testify. His testimony in substance, I would repre- sent to the Board, would track what is set forth in the other affidavit. THE CHAIRMAN: here to discuss this? MR. BRESSLER: You don't have anybody applicants No, since my ... I would introduce 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 43 Robert Schroeder, Jr.'s affidavit to plug the hole, and I would ask forbearance of the Board in reserving and leaving the hearing open until Mr. Sohroeder returns. When this was published, we immediately tried to get in touch with Mr. Schroeder and he was out of town. We would hope he would be back by the next Board meeting. I am certain the Board has questions of Mr. Schroeder, as do I. So that is my application, at this particular time. THE CHAIRMAN: Thank you. Is there anybody that would like to speak, either in favor or against this par- ticular project? MR. BRESSLER: I am handing up the affidavit of Robert Schroeder, Jr. (Whereupon, a copy of said affidavit was handed to the Board.) MS. GILLISPIE: Gillispie. I live at Greenport, across the $chroeder's property. behalf of my family, My name is Rhoda 221 North Road, street from Mr. I am here to speak on my husband, and also 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 44 Betty Denningston (phonetic spelling), who is here and lives directly across from Mr. ~chroeder's property. The obvious reason why we strongly oppose what has been done in the past, and the court ordered to stop the storing of the machinery and things related to Mr. $chroeder's Sound Shore Excavating Company (phonetic spelling),_is, number one, the eyesore of what I am looking at across the street from me right now. Without any equipment there, except for the occasional trucks that are still stored there, it is an eyesore just because of what transpired last, whenever, it was last summer with the graffiti all over the building, but if you add the equipment, and it was before the court ordered to stop keeping it there, literally every square inch of the property was filled with cranes, septic tanks, gravel, and various heavy-duty equipment. The hazard to traffic on Route 25 is, in the past they backed equipment in and out of the property, stopping traffic. There is 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 45 a lot of screeching of brakes. This is a large piece of equipment going into a small piece of property and it has in the past caused problems. It is also very noisy, waking up at six o'clock in the morning to diesel engines being revved up. This is a residential area with a nonconforming use. Now this is where my question lies, that I do not understand the legalities of the application that has been presented, but a nonconforming use, is it specifically for the purpose of being used as a public gasoline filling station? It is ail resi- dential around there. There was on the master plan ... apparently it is all listed residential. I realize it is not just this piece of property that is nonconforming, but it doesn't specify in the master plan. What does nonconforming use mean? THE CHAIRMAN: Well, I am not the greatest authority on nonconforming use, but I will tell you that if this particular building continued after zoning and it was a gasoline station, then assuming that it has 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2o 21 22 23 24 25 been continued in that use without a will steal a phrase from Mr. Bressler 46 in saying "no holes in the chain" ... more than two years, then it continues as a gasoline station. MS. GILLISPIE: Okay. That was my understanding, and in the five years that we have lived across the street from this property, no gasoline has been served to the public as far as I know of. Now I under- stand, and I did not live there when Mr. Schroeder bought the property, started out selling gasoline. and became Sound Shore Excavating, that it So it changed Incor- porated. I don't know at what point, because I was not there, but that is not a change of use business, what the violation states it is. Are we talking just about the equipment being used on there or the actual use of Sound Shore Excavating Corporation, which is in a gasoline filling station? THE CHAIRMAN: I cannot answer that question without having Mr. Schroeder here, and that is where my problem is. 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. GILLISPIE: THE CHAIRMAN: perfectly aware of how 47 I understand that. forth from the ferry or back and forth on inspection ... that no gas has been dispensed ever from that building. I will be the first to admit that, and I concur with what you are saying. That could very well be a loss of one of his uses ... consistently. I don't know at this point. MS. GILLISPIE: That is my question. THE CHAIRMAN: I don't know at this point. Let's wait until he shows and we can ask him as series of questions. MS. GILLISPIE: My other question is, are there zonings specifically for companies requiring heavy-duty machinery? I was told there are. I don't know this for a fact. THE CHAIRMAN: I think they should be stored in certain zones. There is no question about it. Again, the Building Inspector will probably be better served to answer that question. MS. GILLISPIE: It is obvious. certainly am ... riding back and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 48 It was a gasoline station. We bought the property knowing that it was supposed to be a gasoline filling station originally and that this was being used as something different. We question whether that something was changed because it sounds to us, and from other people who have spoken to us, that it was not the use it was intended for and that is would eventually change. I am not ready to move from my property, but I am upset over the thought that this can become a storage of heavy-duty ... cranes. All this stuff across from a residential house certain- ly lowers my property value, but that is not the main point. My main point is that this is not in use as a gasoline station as it was meant to be, and it is my understanding it should be reverted back to its original use which is residential. THE CHAIRMAN: Thank you. Is there anybody else who would like to be heard? MR. APODIACOS: Terry Apodiacos. equipment the street 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 __~-~- 49 I would just like to state that I have been living there for fourteen years now, ever since we bought the house, and never really noticed it to be a gas station except for the first three or four years ... it was owned by a previous man named Don's Garage, and ever since the Schroeders moved in I haven't seen gasoline served to the public. Also, I have sent to you guys, a few months ago, a letter stating all our reasons why we don't want the zoning to take place; because of the diesel fuel, the noise early in the morning, and the depreciating value of our property, too. THE CHAIRMAN: Thank you. MR. APODIACOS: You're welcome. THE CHAIRMAN: Anybody else who would like to speak? Go ahead, Mr. Bressler. MR. BRESSLER: Mr. Chairman, I think the comments we heard tonight point to the direction with this particular application. The problem that the Board is faced with again, simply to review the order of remedy, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 50 leads me to the conclusion that that ought to be stricken and thrown out, and if truly a problem exists down there that the issue ought to be brought by the Building Depart- ment quickly before the Board. I think the simple statement there be a change of use has left the objectants, whatever they are objecting to, has left them as bewildered as we are as to how to act or deal with this particular situation, and I think if the Board wants to reassess and bring Mr. Schroeder in, that is fine and I would ask the Board to do that if they want to hear from him. But I don't believe that is going to cure the underlying dissent here which is that the issues are not clearly in front of the Board and the simple statement that there he a change of use just has to fall on what will happen after that to bring the issues into focus. THE CHAIRMAN: having the Building next hearing. MR. BRESSLER: I'm thinking about Inspector here at the That would certainly 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 51 be helpful. I am not sure ... I am not sure that would cure the problem that the Board has with respect to the written determina- tion. I am pretty certain that the law on that issue is you take your notices as you find them, and while the Building Inspector may augment and complain to the Board what he meant, I don't think that is going to save the infirmity. I do think it may aid in future resolutions. I certainly would not be objecting if the Board chose to do that. However, legally speaking, I would object to the significance of what he had to say on the actual application. It may, however, as a practical matter, be beneficial. THE CHAIRMAN: Thank you. MR. GILLISPIE: Dave Gillispie. came back from Boston for this hearing and I think that all parties should have made the effort to be here. But there is also one point in here, it says "hardship", that Mr. Schroeder has a hardship if they couldn't use this property for whatever he wants to --3- 7-- 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 52 use it for, I guess, no one here is really sure what he wants to use it for but it is not the filling station. As I understand, he has acquired other property in the Town of Southold that he can use for his business. So the use of this property or lack of use of this property is not going to harm his income or the people he employs. I would hope the Board also keep that in mind. Thank you. THE CHAIRMAN: Thank you. Yes, Mr. Bressler. MR. BRESSLER: Mr. Chairman, if I could just address that. I believe, of course, as the Board is aware, a hardship is not a legal issue here and the fact that it appears on the Board's form or something is filled in, I think is of no legal signifi- cance. We are not at this point asking for a variance. If we were having a variance hardship or a practical difficulty it would be before the Board properly, and to the extent that it caused any confusion or legal misunderstanding to the objectants, 1 2 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I apologize for that. THE CHAIRMAN: from anybody? Will Mr. 15th? Any other comments Schroeder be back on the 53 MR. GILLISPIE: THE CHAIRMAN: two weeks from tonight. What date, excuse me? The 15th of February, MR. GILLISPIE: Florida. THE CHAIRMAN: Will Mr. back here, Mr. Bressler? MR. BRESSLER: I Chairman, and when the No, I will be in Schroeder be am not certain, Mr. assigned date was will be back, I will THE CHAIRMAN: thing first sent out we made a diligent attempt to contact Mr. Schroeder. I have been advised by Mr. Schroeder's family that Mr. Schroeder has the luxury, unlike some of us, of taking vacations without being bothered by the telephone or other methods of contact. So as soon I find out where he is and when he let you know. I guess the best to do is recess without a date. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 t7 18 19 2O 21 22 23 24 25 54 MR. BRESSLER: As soon as he returns, I will advise the Board by a letter so the hearing can be set, if that is satisfactory. THE CHAIRMAN: Anybody have any objection to that? Anybody have an objec- tion to our recessing without a date and reconvening the hearing when the applicant is here? Then we will on my motion. MR. DINIZIO: statement. I would recess without a date I would like to make a just like to inform everybody involved in this that I don't feel I have a problem making a decision one way or the other. My brother-in-law does own land adjacent to this property and across the street. You should consider that certainly for our next hearing. I certainly would not be offended if you don't want me to be here. However, I don't feel that is anything that would effect ... I just want you to know. I know Bob knows. MR. BRESSLER: I will remind Mr. Schroeder if he is aware of it. I can only assume he doesn't have any objection if you 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 55 don't view it as a conflict. I will just remind him. I am sure there will be no difficulty, but if there is we will meet and let you know. THE CHAIRMAN: Hearing no further comments, I make a motion to recess the hearing without a date. BOARD MEMBERS: THE CHAIRMAN: BOARD MEMBERS: THE CHAIRMAN: Second. All in favor? Aye. I thank you very much .Port last for coming in everybody. We are reconvening the hearing on the of Egypt, which was reconvened from the regularly scheduled meeting. At that time, I believe we asked you for a map which we presently have in our file. And we asked you for the single and separate search. I guess you. MR. and Moore. I've each of the I should let your attorney speak for MOORE: William Moore, of Moore got certified copies of deeds of parcels in question. I trust 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 56 that will satisfy the information. If it doesn't provide the information you need, let me know and need. I will get the format you THE CHAIRMAN: I ask a question tonight, and again my only question is that my understanding is that the Port of Egypt ... i'm sorry, that the Lieblein (phonetic spelling) family owned the property up and until such time as mid to the latter seventies, at which time the property then became Port of Egypt Enterprise, Inc., which is certainly still the Lieblein family. This is exclusive of the motel property. MR. MOORE: That is correct. There was a physical change to the property before 1946 ... 1947 ... MEMBER OF THE AUDIENCE: The property was purchased starting 1946 and we purchased a parcel, the parcel where storage building now sits. purchased in '65. Up until a boat rental operation. MR. MOORE: the existing I think it was that time it was I have just given copies 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 57 of the deeds including plots across the street, as well. We are planning on possibly parking across the street. We've got a piece there owned b~ Port of Egypt Enterprises, a piece owned by Mr. and Mrs. husband and wife. I have got deeds for each. If this is not the information or the format you would tike, it was not relayed to me. I went out and got deeds from the Clerk this morning, I've spoken to Mr. Willen (phonetic spelling) at another Town meeting and he said affidavits were all we needed. Certified copies of the Tax Map Numbers are changed and it does create some confusion. I think you have ~he most recent tax map there. If there is any question regarding ownership, I can get whatever additional information you need. THE CHAIRMAN: We very simply want this information for the past Town Attorney. He had requested this information. We reconvened the hearing that was actually closed and we appreciate everything that you 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 58 are giving to us. Our only particular problem right now, and I will put it right on the record, we don't have a present Town Attorney. We have an Assistant Town Attorney in dealing with this and it is upsetting me to some degree to tell you that I really don't know at this point if we should close the hearing or not. I really don't know what to do. MR. MOORE: to do is have to comfortable that information you feel The last thing I want you close a hearing. I am not you have not gotten the you need. I don't want to cut you short there. THE CHAIRMAN: or on the information I think the best thing to do is to recess it without a date, and give us a chance to go through the informa- tion for at least the next two weeks and then we will ... and I am saying this specifically because I am not ... I don't want to enter into another large discussion about this one particular nucleus in this ... I am going to limit any further 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 discussion to everybody's part cf closing it, if 59 at least five minutes on ... just for the formality there is anything else that the Town Attorney may require. MR. minutes. THE CHAIRMAN: in the audience that against this application? MOORE: I can still do it in five I am asking for that information which will prove useful to you. I can save it until that point I can organize it by making myself speak quickly and concisely. I think it may actually facilitate the review of the application. THE CHAIRMAN: Thank you very much. MR. MOORE: Thank you. Is there anybody else would like to speak Is there anybody Yes, ma'am. MS. BROWN: Betty Brown (phonetic P.O. Box 57, Orient, New York. else? spelling), The North Fork Environmental Council wishes to express some concern about Appli- cation Number 3770, for variance request by Port of Egypt. We feel that the application 1 2 3 4 5 6 7 8 9 lO 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 60 has not established sufficient evidence of economic hardship or unique circumstances to warrant the variance requested. In addi- tion, the application proposed to reduce the code requirements for parking spaces provided to one-half space for each boat in the water and one-quarter space for boats in dry dock storage. This could permit from two to four times as many boats to this marina and incentive for other marinas which would follow the precedent. The code requirements of one space per boat reflect the standards set by neighboring towns which call for one to one- half spaces per boat. Marinas have said that a quarter of their slips are presently occupied by local residents. The rest are rented by people from out of town. There is nothing wrong with that except that residents of $outhold should not be asked to accept increased pollution from an increased number of boats of non-residents in its creeks and in the bay which has been barely surviving three years of brown tide 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 contamination. Present building at Port Egypt now covers more than 30 percent of ~_~- 61 available upland ... the limitation that set by the Town code ... with the proposed is Thank you. FLETCHER: My name is Linda I am president of the New Suffolk representing approximately to the Application Number 3770, as the North Fork Environmental Council has outlined. The New Suffolk Civic Association has submitted a THE CHAIRMAN: MS. Fletcher. Civic Association 190 members. Our association objects addition the coverage will be far greater than the percentage. I think this stretching of the code requirement will also ultimately result in other marinas seeking to stretch their valuable waterfront property. We observed that application has not allowed for 20 percent landscaping called for by the code. The North Fork Environmental Council ,believes this application deserves a second hard look. Thank you. 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 letter to this effect, which is the file of this application. _~'7_ 62 included in As residents of New Suffolk, we are especially sensitive to overdevelopment of coastal waters. There presently exists before the Southold Town Planning Board an application to grossly exploit a parcel of waterfront land in New Suffolk, formerly known as the North Fork Shipyard. We feel that approval of Application 3770 before this Board sets a dangerous precedent for the New Suffolk situation in particular. Thank you. THE CHAIRMAN: Thank you. Anybody else that would like to speak? Yes, sir. MR. RENGANESCHI: Fred Renganeschi. I am president of Browers Wood Association. We have written a letter, and my question is really, are you in possession of the letter? I know we got it in here today. THE CHAIF~4AN: (indicating). It is would take a half hour Sir, this is my file this large. So it to go through it. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 read MR. RENGANESCHI: THE CHAIRMAN: No, 63 Would you prefer I just give me a copy and we'll make sure we have MR. SAWICKI: THE CHAIRMAN: MR, RENGANESHI: Thank you. THE CHAIRMAN: Thank you, Mr. Thank you for being so patient. it. We have it. We have a copy. That's basically it. Flynn. MR. FLYNN: I am a resident of the Town of Southold. If I understand Mr. Moore correctly, it is now evident that they would "like to change the type of ownership of at least some of the parcels. I call your attentio~ to your legal notice, that the motel property is included in the legal notice, plan submitted with this original tion. and also that it is included in the applica- Were you or were the applicants at late date changing his ownership? He this would have to reinstitute the entire appli- cation process. The State agencies and the 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 --~¢- 64 Town agencies have been informed that he owns seven continuous acres of uplands. If you are to reduce that area, these agencies have to be informed and they would have to consider the implications of this proposed monstrous project on a still smaller portion of land. Now, I have prepared a statement that I would like to make and in the interest of coherence I would like to read it. However, it would probably take more than twenty-five minutes. On the other hand, I think at this late hour, my having stayed here, I am owed that courtesy. THE CHAIRMAN: Sir, I think you misunderstood me. I said there was no restriction on the time tonight. I said at the next scheduled meeting. MR. FLYNN: I am sorry. I thought speech is 1. you said five minutes. start off with somewhat "The classic definition of one that: Has a strong beginning. I apologize. I will of a statement: a good 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2. Has a strong ending. 3. Not too much in between. I am sure I can meet requirements. With respect the first two to the third, I shall at the same who may not tions of this application, of mensions and effects. I will try to be as succinct as possible and time inform those here present, be aware of the full ramifica- its full df- try to be as concise as possible given a complex subject. As you no doubt surmise, my purpose is to create a record, should one be needed in the future. By way of introduction, I was for many years a consultant analyzing projects for clients, among them The Corps of Engi- neers, the NYS Department of Transportation and the NYS Attorney General. In addition, I have had particular experience with waterfront properties over a period of some I will glady elucidate if you forty years. request. In my years of experience I cannot remember a project I consider so rapacious 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 66 in intent. It compounds variance upon variance and makes a mockery of zoning law, the Town Code and the recent Master Plan. In my opinion, what motivates this plan is sheer greed. As Samuel Johnson said, the applicant seeks profit 'beyond the dreams of averice.' Unfortunately for the applicant, an increase in profit does not constitute grounds for a variance. For those not fully informed, the application involves principally: 1. Construction of retaining improvements whose coverage would be two and a. half times that permitted by the Bulk Schedule of the Town Code. 2. The creation of an additional monstrous degree of nonconformity on an already nonconforming property. 3. Numerous setback variances including one which permit the construction of a building storing 160 or more fuel- laden boats within 5 feet of an abutting property and within 20 feet of State land. 4. Severing the property by planning 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 requires per car. feet cars. 67 for only the easterly 82,480 square feet of the property in a vacuum, as if it were vacant land. 5. Reducing the code requirement of one parking space per boat to as little as one-quarter space per boat. The ramifications of the first four variances should be evident to all. The fifth, in my opinion, is an exercise in obfuscation intended to conceal the true intent of the variance sought and its effects on the community. with respect to parking alone, the applicant's planning results in a deficiency of 241 spaces requiring 1.9 additional acres of land.~ To explain this ploy, the Town code 350 square feet of parking space If the marina has 35,000 square of parking area it can accommodate 100 The sole control the Town has over the number of boats a marina can launch is the parkinq ratio: One boat per car. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 marina ly park 400 cars 400 boats. In short, 68 With the type of variance sought, the used as an example could theoretical- and, in practice, launch the variance sought would set a precedent for launching several thousand more boats in Southold's already overcrowded and polluted waters. Granting such a variance adversely affects our environment and the entire way of life in the Town of Southold. Traffic would be quadrupled with particular impact on residential areas. Our vital waterfront and waterborne resources, which the Town's government purports to protect, would be destroyed. The marina operators are on record as stating that only 25 percent of the boats presently accommodated are owned by Southold residents. This means that 75 percent of the current number of boats are owned by non-residents. If this variance were granted, approximately 15 spaces to every one used by a Southold resident. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 69 Pious claims are made about providing dock space for future needs. If Southold were to double in population at some time in the remote 21st century, present unexpanded capacity would still make 50 percent of capacity available to non-residents. How far are we expected to go in sacrificing our environment for the benefit of marina operators and non-residents? The Peconic Bay is barely recovering. It is a shared resource for all Towns fronting thereon. Has the Town of Southold the right to unilaterally exploit this common resource by launching into its waters as many as six times the number of boats permitted by other Towns? Specious economic arguments are advanced to justify this quantum increase the number of boats as a boon to the local economy. As a matter of fact, the abomina- tion proposed in the subject application would, by the applicant's admission, create two new jobs. It is a well-known fact that boaters in 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 slips, each. future residents can expect variance be granted. This hearing would not 70 coming to Southold enjoy as much time as possible on their boats and spend precious little money locally. The underlying question is who would profit from such an expansion, other than marina operators, and what would be the adverse economic effects on the rest o~ the Town's residents? Those of you who read yesterday's Newsday, an article concerning a marina in Northport. It is owned by a conglomerate. Profits are skimmed by the local area. It is proposed to make condominiums of the selling from $50,000 to $250,000 To whom? This is a view of the should this have taken place but for the unconscionable act of the Planning Board. Unbelievably, it issued a negative declaration for a project with such dire implications for the environment and for the health, safety and welfare of Town residents. In my opinion, at best, they never analyzed it. In any event, they 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 71 certainly did not give it the 'hard look,' nor provide the 'reasoned explanation' required by law. I've analyzed this application thoroughly. If these variances are qranted, it is the equivalent of the Board's makinq a gift to the applicant of the value of 3 1/2 acres waterfront commercial land. There is no basis in law for granting the variances sought. There is no proof of hardship or practical difficulty, nor could there be. Under the circumstances, I find it inconceivably strange that tonight repre- sents the fourth hearing before the Board on an outrageous application that should have been rejected summarily. In this application to the State and other agencies, the applicant stated owner- ship of seven (7) acres of upland. He now claims, for obvious reasons, ownership of 4.96 acres, or 30 percent less. In addi- tion, he submits calculations of building coverage far less than his own survey 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 72 reveals. Reducing the area of land makes no appreciable difference. There is still a shortage of 3 acres in required area. He now appears to want, in direct conflict with the Town code, to include underwater land in his 'buildable land' calculations. I confess to being somewhat confused as to the land area involved in the subject application. Does he own 7 acres, 4.96 acres, 6.4 acres, or 8.4 acres? Does he have a beneficial interest in the motel or not? He has included the motel lot in his statement of ownership. Which buildings does he include in his calculations, and which does he exclude? I can only work from the data he submitted to the Board along with his application. It really doesn't matter. He cannot, at this late date, change the application previously submitted to the State and Town agencies. To do so he must cation procedure all over. would otherwise have no start the appli- These agencies knowledge of either 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 73 communication. However, residents are unaware of law, cumstances. B. Financial many concerned them. A. The granting of variances is, by to be sparingly exercised in rare cir- hardship or practical difficulties/unique circumstances must be proved by the applicant. He has not attempted to prove, nor could be prove, either. To prove hardship he would have to prove the property is valueless without the variances sought. Some chance! Any claim of unique circumstances/practical difficul- ties is results property. C. Any attempt late date, the easily countered as being the o~ his own actions in developing the to revise, at this land area encompassed by the a changed plan or its impacts. In conclusion I would like to summarize my objections to this application for the benefit o~ those here assembled. Some have previously been stated to the Board either verbally, or by written 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 74 application, or any other attempt at revision including a related subdivision of purported proof, would require a complete reapplication to all the agencies involved and a subsequent public hearing to afford the public an opportunity to challenge the revised data. D. The variances sought are of such a magnitude as to exceed the purview of the Board. While the Board is empowered to modify the 'strict letter' of the law, this application makes a mockerly of almost every facet of the zoning code. In addition, the code enjoins the Board to observe the 'spirit' of the zoning code. Nothing could violate the spirit of the code more than the subject application. In fact, the application seeks a complete rewriting of It seeks a rezoning via the back the code. door. E. The negative impact declaration which preceeded these hearings was issued without the 'hard look' and 'reasoned explanation' required by law. 1 2 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 75 the safety, welfare and enviro- that the magnitude of this It No consideration whatsoever was given to manifest health, mental problems application would certainly precipitate. is the Board of Appeals' duty to consider these impacts. F. The subject property is noncon- forming in its present state and would become all the more unconscionably so were these 'variances' granted. The Town code states that it is its purpose to 'reduce or minimize impacts of uses and buildings which do not conform to the use or bulk require- ments set forth in this chapter.' The chapter referred to is zoning. It goes on to enjoin actions which 'create any new non- conformance or increase the degree of non- conformance.' What is actually sought here is the complete abandonment of the newly adopted zoning Code and Master Plan. G. Granting these variances is tantamount to making the applicant a gift of the utility of, and consequently the value of, some 3.5 acres of waterfront coK¢nercial 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 76 land. His enrichment would be at the ex- pense of the ordinary residents of this Town and of their welfare and environment. H. Any attempt by the applicant to incorporate wetlands or underwater land as 'buildable land' is a clear violation of the Town code. In view of the statements above, and elsewhere, it is incomprehensible to me, and to other residents of the Town, that the Board has temporized about this matter to the extent of holding four public hearings and permitting the applicant to introduce statements and data clearly at odds with his original application on file with the various agencies, State and Town, involved. I submit that should the Board grant these variances, and adjudication become necessary, the Board's action would 'shock the conscience' Finally, purely personal of any court. if I may be permitted a comment, the cynicism implicit in this action, and certain cir- cumstances surrounding it, would turn the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 77 stomach of a vulture. Along with these comments, I have here a letter to the Board. It involves many calcuations and citations. Rather than burden those here assembled with its technical comments, I would prefer to turn it over to the Board with the proviso that it be spread on the record." Thank you. THE CHAIRMAN: Thank you, Mr. Flynn. MR. MOORE: Mr. Chairman, one quick We have had the four public up to now to allow not only the applicant but interested property owners and residences to have their piece, and that is why we had four public hearings even when the comments get repetitive. To save the Board time on this late evening, I will put my comments in writing to you and get them to your Board in advance of whenever our next hearing will be so that Mr. Flynn has the benefit of those comments in advance of that meeting. Thank you. THE CHAIRMAN: Thank you. comment. hearings 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 78 Is there any word on the MR. MOORE: likelihood or in the imminent future of a new Town Attorney? THE CHAIRMAN: I believe the Board is going to address that on Tuesday. ! am'with great hoping that the reconvening of this hearing will only be a formality just to That is what I am in great hope close it. for. MR. MOORE: As I said a moment ago, I do not want to respond when I am restricted it to you in give William Lieblein. I to five minutes. I will writing. MR. LIEBLEIN: am a client of Mr. Moore. I have just one request. At the next hearing could we be at the beginning of the hearing instead of the end? If it is going to be five minutes per person, maybe you could let wait for a change. THE CHAIRMAN: I can more. someone else 't agree with you MR. FLYNN: I would like to make a statement in response to a remark that final 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 79 was made here. I resent the imputation of my ability to analyze and evaluate. I have been doing this for forty years for many government agencies and in the State and Federal courts. I therefore welcome the opportunity for anyone to attempt to prove my calculations wrong. Thank you. THE CHAIRMAN: Thank you. Hearing no further comments, I make the motion to recess without a date, and we will reconvene as soon as we have a chance to discuss this particular project with the new Town Attorney. MR. DINIZIO: THE CHAIRMAN: BOARD MEMBERS: (Time noted: Second. All in favor? Aye. 10:50 p.m.) 23 24 25 CERTIFICATION 6 8 9 10 11 12 13 14 I, GAIL ROSCHEN, do hereby certify that I am an Official Court Reporter and that the foregoing constitutes a true and correct transcript according to my official stenographic notes. GAIL ROSCHEN Official Court Reporter 23 24 1 2 3 4 5 6 7 8 9 10 11 SOUTHOLD TOWN ZONING BOARD OF APPEALS COUNTY OF SUFFOLK : STATE OF NEW YORK SOUTHOLD ?OWN ZONING BOARD OF APPEALS PUBLIC HEARING, in the matter of ROBERT OCHSENREITER and EDWARD LENCESKI, Applicants. Main Road, Route 25 Southold, New York February 1, 1990 8:15 P.M. App1. No. 3908 11971 12 13 14 15 16 17 18 19 20 21 22 BEFORE : GERARD P. GOEHRINGER, Chairman. APPEARANCES : ANTHONY TOHILL, ESQ. Attorney for Proparty Owners 12 First Street Riverhead, New York BOARD MEMBERS: SERGE DOYEN, JR. CHARLES GRIGONIS, JOSEPH H. SAWICKI JAMES DINIZIO, JR. JR. 23 11901 24 25 1 2 3 4 5 6 7 8 9 lO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 THE CHAIRMAN: The next appeal, and I will read the legal notice before we take any testimony: Robert Ochsenrelter and Edward Lenceski, Appeal Number 3908, and the notice recieved upon App1. 3908. for reversal of building permit legal Variance to construct a one family dwelling. 565 Bayer Road, Mattituck, County Number 1000, Section 139, Block 3, Property location: Tax Map Lot 14. The applicants have provided me with a survey, which is from Robert Van Tuyl, P.C. I don't see a date on it. Yes, I do. March 30, 1972. The nature of this appli- cation is for the existing building permits on the house as partially constructed on Bayer Road in Mattituck. It is on a 50 by 150 foot lot. County Tax Map ing properties I have a copy of the Suffolk indicating this and surround- in the area. heard? Is there anyone that would like to be MR. TOHILL: I am an attorney repre- senting the property owner. I intend this 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -/~/.. _ 3 evening to make a series of applications to the Board challenging the ability of the Board to hear the application for jurisdic- tional reasons, and i am wondering, in terms of housekeeping, how you would like to proceed? Would you want me to do that first? Would you Want to hear from the objecting petitioners first? I would like, for reasons that hopefully never become apparent in this room, merits o~ this matter THE CHAIRMAN: not to reach the tonight. That is the reason why I called on you first, Mr. Tohill. Let me ask who is representing the two applicants, and see how that counsel feels if counsel is representing Mr. Ochsenreiter. Are you represented by counsel? MR. OCHSENREITER: We are not. THE CHAIRMAN: Would you like to hear your case first since you have brought this application before us? MR. OCHSENREITER: Yes. MR. TOHILL: Am I correct in saying you are reserving my right to challenge the 5 6 7 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 jurisdictional questions without reaching the merits? THE CHAIRMAN: I would say yes. MR. TOHILL: Thank you. MR. OCHSENREITER: My name is Robert Ochsenreiter. I live at 600 Bay Road, in Mattituck, and I am one of the signatories of the petition that is before the Board. I think the merits, as far as we are concerned, are contained in this. I would like to say we feel it is we who suffer a financial loss to the reduction of property values by having a rather large house on a lot constructed directly across rather small from us. THE CHAIRMAN: couple of questions, MR. OCHSENREITER: the the application before us. with you. I observed Can I ask you just a Mr. Ochsenreiter? Yes. THE CHAIRMAN: There appears to be a time period between the actual inception of start of this particular premises and time that you have brought this I will be honest that there was a 1 2 3 4 5 6 7 8 9 10 tl 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 period of time that just the existing foundation was placed in the ground and stayed there for a period of time before the actual construction commenced. Is there you waited until wood framing of any particular reason why they actually started the the house? MR. OCHSENREITER: I contacted Mr. Ross of Wickhkam, Wickham and Bressler in ... I believe it was October. I cannot be sure of the date. He did contact Mr, Schondebare concerning it. I left it in his hands until the above-ground construction started on January 15, which was a holiday. THE CHAIRMAN: You want to say for the record Mr. Schondebare was not ... don't know if he was the attorney at the actual start of that construction, what was the date of your letter? MR. OCHSENREITER: December 11, 1989. THE CHAIRMAN: He was the attorney at that particular time. Could I have a copy of that letter? MR. OCHSENREITER: Sure. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE CHAIRMAN: in the file. MR. ©CHSENREITER: copy I have. THE CHAIRMAN: yOU. So at -¢~9- 6 I think I may have one ~.nl~ is the only We will return it to the time that the wood framing construction actually started, it was approximately the time that you started with this particular application or commenced this application. MR. OCHSENREITER: We had commenced prior to that. I believe in October, but I cannot be sure of the date. I believe the original letter to Mr. Schondebare was dated in October from Mr. Ross. THE CHAIRMAN: Was there at any time that work From my direct knowledge, you felt there might have been a stop order on this particular property? MR. OCHSENREITER: I don't know. I don't know. THE CHAIRMAN: I thank you very much. We will see what develops. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. TOHILL: Could you ask Mr. Ochsenreiter whether or not he ever went to see the Building Inspector, or Mr. Lenceski? THE CHAIRMAN: I think I will ask him at the end of the hearing. MR. TOHILL: Can I ask him? THE CHAIRMAN: You can ask me to ask him. MR. TOHILL: you to now. Please. I would like little bit The is without petitioners Section 267, lengthy and one is quite brief. first subpart is that the Board jurisdiction because the have failed to comply with Sub 2 of the Town Law. In THE CHAIRMAN: Mr. Ochsenreiter and Mr. Lenceski, at any time did you go to the Building Inspector and request a stop work order on this permit? MR. OCHSENREITER: No, I did not. MR. TOHILL: Thank you. Mr. Chairman and members of the Board, I would like to make an application which has three subparts; two of them are a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 substance, Section 267, Sub 2 of the Town Law says that when this Board acts on this kind of application it does not have what is called original jurisdicticn, but instead only appellate jurisdiction. What that means, following up on the concession of facts that was just made by the petitioners, is that Lhe ~ailure to go to the Building Inspector and ask for a determination, the same determination they are asking from you tonight, means that the first time that the Town of Southold is being asked for that determination ... the original time is tonight. You have no authority to do that. The reason is Section 267, Sub 2 of the Town Law says your juris- diction is appellate only on an application of this type. The Town zoning ordinance takes the language exactly. It is the first subsection of the four subparts that gives you jurisdiction to hear appeals, variance interpretations, and matters of that t~pe. The result of that is that there is no 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 application before you from any prior order, requirements, decisions, or determinations made by an administrative official charged with the enforcement of the zoning ordinance. Inquiry of the Town Attorney is not inquiry of that official who ... had an administrative official in this Town been 138, the Black enforcing the zoning ordinance ... absent that under the decided cases there is no jurisdiction. It is not in dispute and indeed if you look in your file there is a memo from the Building Inspector to you, dated January 26, 1990, in which he says he has no knowledge of either Mr. ochsenreiter or Mr. Lenceski. There is not any allegation in any of the papers that were filed by Daniel Ross of Wickham, Wickham and Bressler, on the 19th of January, saying that they ever went to the Building Inspector or to anybody in the Building Department, even to Kurt Horton (phonetic appointed under Section McKinney's Town Law, with the sole duty of 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 10 spelling), who issued the building permit. There is a case decided in New York entitled Hilbert against Hass. It is from 1987. It is the Reporter's Report, at 283 N.Y. Supp. 2d 440, and in that case the Supreme Court o~ Suffolk County ruled specifically on exactly the same issue. there is no prior determination from the Building Inspector, you don't have juris- diction. The same issue was raised by the Second Department Appellate Division in the case reported in the New York Law Journal, on June 13, 1989, six months. The same resolution occurred. The law has never been changed on it. There is a reason. Right now, you are about to hear, whenever you reach the merits, and I hope you don't, but i~ you Were you will hear the petitioner's side o~ the case. You will hear the property owner's side o~ the case, but we will ... actually we are here almost by our pleasure but you have nothing in the record ~raming the record from the Building Department. 1 2 3 4 5 6 7 8 9 lO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 Just to point out to you how the order is written, in Section 267 of the Town Law one of the things that could have happened if the right procedure was followed, if they had bothered to go to the Building Inspector, is that he could have issued a stop work order. The Building Inspector could have revoked our building permit. If that were to have happened, Mr. Ochsenreiter and his neighbor would be home with Newsday tonight, and I would be here with my clients. That is the way that the statute was written and that is the way it makes sense, but to have the Building Inspector excluded at every step from the administrative procedure makes you the Building Department. Building Department. all the gaps. You get and, again, if we ever It makes you the Now you get to fill in to second guess him reach the merits on this particular controversy ... I don't think you will find any of the questions and none of the answers for certain written in the zoning ordinance, putting everybody at a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 disadvantage. It puts the Town of Southold at a disadvantage. It puts my client, the property owner, at a disadvantage, and it puts you at a brutal disadvantage. I can right the record in this proceeding. The Building Inspector can remain silent in this proceeding. Worse than that, the petiticners could try to right the record. Maybe they know and maybe they know less. The point is, the only way in which this is supposed to work, under every decided case that I have been able to find since 1967 in the State of New York, is that you first go to the Building Inspector. He then makes an order or determination. That is the exact language under 267, sub 2 of the Town Law, and then whoever is injured or hurt or claiming to be a challenging party gets to come here to the Zoning Board of Appeals. Historically, according to the Special Town Attorney who was asked to look into this today, this Town has from time to time read that ordinance differently. 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 13 Unfortunately, I did not know that ever before, but by the time this evening that I was able to research the point that Special Town Attorney had left his office and the volume, the text, the case that says you are reading it ... in other words, it is what is called surplusage, and that is not in my library but in the Supreme Court library. will dig it out and have it sent on to the Town Attorney and Special Town Attorney. THE CHAIRMAN: Special Counsel. MR. TOHILL: The point is that if you have done it in a manner in the past that the surplusage says, and under all the decided cases it would be done differently, this is not the wrong time to start to do it the way the decided cases dictate we should do it. There is no record. That is the problem. For the Board tonight, the second part of this application is that the application is untimely as a matter of law. On my investigation, and I think everybody is in agreement, also Section 267, Sub 3 of L 1 2 3 4 5 6 7 8 9 lO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the Town Law requires rules of procedure. You do not. not alone in that category. Many boards out here do not follow they do not have to. - 14 that you have local You are zoning that rule and One of the rules of procedures, if you did have them, would be how long after the disagreement of that order or the determination from the Building Inspector are you allowed to challenge him. Can you wait forever or ~re you required to do it within 15 days. or 30 days, or 45 days, or whatever? If written, that you had that in your procedure would stand, but absent that the rule is one of reasonableness and there are three key dates in the rules of reason- ableness and there are loads of cases which I have given to the Town Attorney on the point. The first key date is the date of the building permit. The second key date is the date that the property owners ... who are petitioning, objecting, in challenging ought to have known when work was started, that a 1 2 3 4 5 6 7 8 9 lO 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 15 building permit had been issued. A building permit could be issued here and nobody would know. So in fairness to the objectants, they have to be given a chance to know. The third key date is when they file the appli- cation with this Board. Let me go through some of the dates. I don't think there is any disagreement anywhere of any of these dates. The building permit is dated August 8, 1989. The construction started with the excavation of the foundation on August 30, 1989. The foundation was installed cn August Z1, 1989. The subs and material men were ordered to do the work and entered into contract with the gentlemen, with my clients, during the month of December of 1989. We ordered the lumber to be bailed and held, meaning segregated and prepared for delivery to us for the construction of the entire house off the entire lumber list on January 5, 1990. The work resumed not on January 15, a holiday, but instead we had heavy equipment brought to the site on January 8, 1990. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 16 The date of mailing in your record on this application by the petitioners, stamped by the Mattituck Post Office, is January 9, received by us January 10. No petition was filed as the rules required ten days later. Nothing was in the Zoning Board office for us to examine ten days later. The date of filing of the petition that is before the Board tonight was January 19, a Friday ... January 19, 1990. On January 19, 1990, the condition of that house is that it was completely framed out and Saturday, January 20, 1990, before we even knew any petition was ever filed ... we were never sent a copy of it by anybody ... I bought and paid for ours to Judy Terry for 25 cents a sheet. Before we ever knew the petition was filed, the roof went on. The house for everybody who has been by to see it is virtually complete. Two people have already offered to purchase, two people from this community. One hundred and sixty-four days have lapsed between the date of the building F 1 2 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 -I{~'- permit and the date the petition was filed. In 1973, the Supreme Court of the State of New York, in the case entitled Marone versus Friere, 343 N.Y. Supp. ruled as a matter of law a delay by 2d 183, procedure. That simply is not fair. The same rule was upheld by the Supreme Court, Suffolk County, July 29, 1988. I am holding a copy of the decision in my hands. I have some familiarity with it. It involves the Town of Shelter Island. I represent the people in the exact same objectants, such as the objectants here tonight, of 120 days is unreasonable. Going back to the first point I made, if it is unreasonable as a matter of law they may not proceed. In the name of fairness, the courts have said if you watch the guy, and you watch him, and you watch him, and then after he invests by entering into contract or delivery of lumber or whatever he is doing, and then make your first move, the courts are not going to open up the Zoning Board for that type of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 position; different clients, same legal argument, same everything. And Justice 18 Seeing Daniel Ross, since 1986, doesn't because Daniel Ross appointed under Section Town Law to enforce the building codes. the Town Attorney or seeing who has been their attorney help for curing anything is not the officer 138 of the New York the zoning ordinance of In this municipality, that person is seated in the second row, but he is not being consulted by anybody on the objectants' and petitioners' side and that is what the record says tonight. That is what the code record says and that is what the live records say. So that my client has then got to spend a lot of money ... a lot of money while they waited. THE CHAIRMAN: Is that the third point you just brought up? MR. TOHILL: No. The third point is that under Section 267.3, in order to perfect jurisdiction before this Board, Luciano (phonetic spelling) said as a matter of law you waited ... 120 days is too much. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 - 19 among other things, for the same reason I mentioned I have ad nauseum this evening, they have to file the application with the Building Inspector, meaning the petition that you received on January 19. It sa~s in the Town Law, you read it, "Such appeal shall be taken within such time as shall be prescribed by the Board of Appeals by general filing --", here it comes, "~- with the officer with whom the appeal is taken." That gentleman, pointing to Victor Lessard, by filing with the o~ficer from whom the appeal is taken. By the way, there was no appeal taken, was there? They forgot to talk to him. Then they forgot to file with him. It says with the Board of Appeals, a notice of appeal. So for the third reason, this was not done, and ~or the second reason, the untimeliness, you don't necessarily need to reach the third reason because the untimeli- ness as a matter of law and this proceeding. Now I would like to be able to reserve any other position that I wish to 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 take during this proceeding, until such time -- and I assume it is not tonight -- you would have an opportunity to consult with counsel to review the law issues and render a decision on these procedural issues. I think that way of proceeding for a One, a number of would be a sensible number of reasons. people will be required to be present here tonight or then, whatever night we reach the merits. That list is getting longer with every day of investigation on my part of the people who I will call. It will be not only inconvenient for a number of people to reach the merits without an opportunity to rule on these prior issues, but I have been practicing zoning law for eighteen years here in the five eastern towns and elsewhere on Long Island. I have been involved in some very contentious proceedings. I have been involved in proceedings where property owners have been hurt. I have been involved in proceedings where people have lost money. I have been 1 2 3 4 5 6 7 8 9 lO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21 involved in proceedings where people have lost government and municipal positions. I have been involved in matters where people's blood pressures reached the point that an internist's medication was not necessarily the answer. I believe I am going to reach all of these points in this proceeding before we are completed and I would like to avoid every single one of them. If the matter is resolved on the technical issues and if somebody wishes to challenge, the Supreme Court is twenty miles to the west. The same Supreme Court that decided the case I am holding in my right hand, on July 29, 1988, involving the same issues in the adjacent township. ! would ask that be in which the Board is entitled to proceed and we see where we end up at that point. Thank you. THE CHAIRMAN: Mr. Ochsenreiter and Mr. Lenceski, of course it is at this particular time I will ask you if you have anything else you would like to say and then we will then go into a short conference with 5',. 1 2 3 4 5 6 7 8 9 lO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 here. Mr. counsel at have him any more, are not sure of. 22 the present Town Attorney, Mr. Matthew Kiernan, sitting right across from me, and we will have two options at that particular time; either to continue with the hearing or to recess the hearing at this particular point and then take the transcript, which this lady is nicely putting together for us, and giving it to both counsel and to special counsel and to deal with these particular issues that have arisen tonight based upon what Mr. Tohill has said. So I will just ask you if you have anything you would like to say for the record? Yes, Mr. Lenceski. MR. LENCESKI: Edward Lenceski, 500 Bayer Road, Mattituck. I need a few of those medications right now. I am very nervous. I am not a public speaker. We talk about procedures. Mr. Tohill talks about procedures, about procedures we have Ochsenreiter and myself did have one point in time. We do not for a reason we really 1 5 6 7 8 9 10 11 12 13 14 15 16 17 19 20 21 22 23 24 25 23 We are lay people that basically are asking the Town of Southold ... and here we are talking about jurisdiction. Okay. We have the Town Planning Board. We have the Town Zoning Board. We have a Town Building Department. As far as I am concerned, that is all the Town of Southold. One may not have jurisdiction. This is something, who is jurisdictioning here? We are talking about procedure, about our timeliness. We were told by Mr. Ross' office that he spoke with Mr. Schondebare and Mr. Schondebare, for some reason, seemed to push this answer off to somewhere. He put it at a distance, not responding right away. We were given the impression, back in November, that the building was not going to be put up until the question of whether or not that building permit was properly issued and the vacant land CO's were properly ... were answered. There is a question here of the property owners, Eva and Leonard Spano (pho- netic spelling), owning Lot 35 ... 35 and 36, in the petition. There is a copy of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 94 their deed that lists 35 and 36 as one parcel. Hy deed across the street lists my lot, whatever, they have 58 and 59, as one parcel. We questioned how can we go about subdividing our land. I called the Town Planning Board. I was told if you would like to subdivide your land you have to ~ite a petition to the Building Department asking them is this legal. The Building Department will deny this because o~ the ~act they have a one acre zoning in your M40, or R40 region. At that point the next procedure I understand is we would have to file an appeal to the ZBA requesting a variance to build or to subdivide our undersized plots. My question to the Town of Southold, and I don't know who has jurisdiction, is how was the lot across the street sub- divided? Was it done with proper procedure? Was a site plan ~iled and an application for the subdivision, a legal subdivision, filed with the Town? 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 their deed that lists 35 and 36 as parcel. My deed across the street lot, whatever, they have 58 and 59, parcel. 24 one lists my as ore We questioned how can we go about subdividing our Planning Board. like to subdivide land. I called the Town I was told if you would your land you have to file a petition to the Building Department asking them is this legal. The Building Department will deny this because of the fact they have a one acre zoning in your M40, or R40 region. At that point the next procedure I understand is we would have to file an appeal to the ZBA requesting a variance to build or to subdivide our undersized plots. My question to the Town of Southold, and I don't know who has jurisdiction, is how was the lot across the street sub- divided? Was it done with proper procedure? Was a site plan filed and an application for the subdivision, a legal subdivision, filed with the Town? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE CHAIRMAN: would not MR. question. THE CHAIRMAN: would be? whole _~g-- 25 I have no idea. It come before me, anyway. LENCESKI: Okay. This is our What the procedure MR. LENCESKI: We are looking at the thing here in that those were two separate lots, two separatly divided lots. We understand that there are exceptions that were mentioned, exceptions under 1966 codes or prior to that there were certain sub- division maps. We also had in the code, in the '89 code ... deleted Mattituck Heights as an exception. We wonder what the precedent is. On our street there is approximately four or five additional situations, very similar to the situation across the street, where there is a house on a double or triple building lot. In other words, the original 1938 subdivision, everybody subdivided. There were little 50-foot frontage lots where the area was developed by people 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 --/Q f-, 26 developed and put two or three lots, put their house on one or two and had the lot on the side. There is a question of whether or not these things merge. I don't think that's the point. The point here is was that Spano deed ... that CO says Lot 35 and 36 were deeded for one family use. How did that get subdivided? If we breached protocol and appealed to the wrong Board, this was at the direction of Dan Ross. Unfortunately, now I don't know what the Town Board or what the Zoning Board is going to have to say about this hearing. We ask you for advice. should we file to the Building Department? At this point, the house is mostly completed. You hate to see people build a house like that, but I know if I were the builder and I had a building permit I would not go ahead and build to the procedure before that was ... that building permit was properly issued. There is also a question, if it was properly issued, does that house size exceed the Town zoning law under '66 regulations? 1 2 3 4 5 6 7 8 9 lO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 It seems the '6~ Zoning Board code allows the house on a nonconforming lot to not exceed 25 percent of the lot area. It seems the house across the street, according to the building permit files, is a 2,028 square foot house on a 7,500 square foot lot which exceeds the 1966 code. The 1989 building code downgrades that house size When we like a very big to 20 percent. So again, exceeds it. look at the house it looks lot it is on. As far as how it affects the neighborhood, we are at real estate comparative values. parcel across the street sold, price for the Spano house was looking When the the asking $150,000. When they sold, parcels for one thousand. When done people are of the neighborhood sell for. going to say the house across they sold us two separate hundred five and forty-five real estate comparative is going to say what the houses They are the street sold for $105,000. It is not going to help our comparative real estate value and this is what we are concerned about. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 28 We are all concerned about precedent. Does this set any kind of precedent, to allow other owners in the neighborhood who had to do the same exact thing and this is to subdivide their property and put a house up? I would like to do it. Mr. Ochsen- reiter would like to do it. We could make a nice profit. Maybe we should call the Building Inspector and ask for this building permit right away. Maybe that is the procedure. That is about all I have to say. Thank you. THE CHAIRMAN: MR. TOHILL: house. in terms $165,000. Thank you. Just to explain for the record on that point, we are dangling two offers right now; each of $165,000 for that I said that so everybody understands of damages, what's at stake here, Could you, in talking about this with special counsel and Town counsel, give some consideration to rendering a decision before everybody ... assuming you judge against 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 me ... I always think the worst case ... assuming you vote against me on this appli- cation, could you do it in a way where you do it nicely but also that you do it on one night where the hearing doesn't occur two minutes later, because at that point we don't know on our end of this what is happening? But if you do it one night and the hearing occurs two weeks or four weeks later, that would be a better way for us to do it because this hearing is going to take, I have a hunch, maybe all night and ... THE CHAIRMAN: We have been going 12 to 16 hours on a hearing. We have four consecutive nights of four hours. MR. DINIZIO: You know, on what you just mentioned to us, I have a couple of questions. Perhaps you can clear them up. I would just like to know, are you saying that because the applicant waited such a long period of time and because the people spent so much money that there is no longer a challenge? MR. TOHILL: This is a combination of 1 2 3 4 5 6 7 8 9 lO 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 30 the two. The courts have held that without the spending of money by Inland Homes, if you wait too long you lose your position to object ... without the spending of money. The exact wording in the Marone case, which I don't have in front o~ me, is that the delay o~ more than 120 days, in this case it was 127 I think, the delay of 120 days is unreasonable. In that case, and I hope you will get a chance, each o~ you, to read it, you will be stunned by the ~actual overlap from that case to this case. The objectant, the person in the position of these gentlemen, was an attorney I am sad to report. He watched a neighbor with a building permit. He knew the neighbor had a building permit and he waited until the neighbor started the excavation. Then the next day, he went into the Euilding Department, filed the Zoning Board application, and when the case came up the Zoning Board said you came in too late. We are dismissing your application. He then sued the ~oning Board, went 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 to Supreme Court, and the Supreme Court said you waited too long. One hundred twenty days is too longo You waited. It was 127 or 137. I mentioned before the number o~ days that we have here, and it pales in compari- son because you have here 164 days. Now, the court in Ne~4 York, as I mentioned to you, in a similar dispute involving Shelter Island and the i~ouse under construction there, in the last 18 months the Supreme Court in Riverhead picked up the same points and used it again ... so that it is a combi- nation. It is ~iust .!~nd standing alone, the 120 days is too much ... here, 164; and second, ought to know that the man money or, as in this case, they watched the man or if they is now spending engaging the con- tractor, having already dug the foundation back in August ... by the way, August ... mean, that is a sure sign that somebody has got a building permit to do something ... having done that and waited until he engages in contractors, the sub, and then waits 1 2 3 4 5 6 7 8 9 lO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 32 until he engages in material men and then puts his so-called bail and hold order, which he did with the entire lumber list, am saying without any question there isn't single case in the history of New York that allows these people to proceed at this point. Having said that, is your lawyer?" That is concern. That is not our have a remedy. They have a but it is not this Township Board resolving the problem on it, not our problem. ~o we should be to proceed. The long silence and failure to take a the front door of legal right when they this building significance. they said, "Where not this Board's concern. They remedy for that, or this Zoning certainly permitted long came in has great That for nothing. Law, and says what read what things is Building Inspector is not here Under Section 138 of the Town I invite you all to read it, it he is he is issue supposed to do. And if you supposed to do, one of the orders and determinations on 1 2 3 4 5 6 7 8 9 lO 11 12 13 15 16 17 18 19 20 21 22 23 24 25 33 the complaints of people like Mr. Ochsen- reiter and Mr. Lenceski. That is exactly what his role is, but failing to consult him and leaving him in the dark and talking instead to your own attorney, is hardly the key way to get to this Board. I am sorry. MR. DINIZIO: In that same vein, would you have any idea how long it would take for the Building Inspector, or how long by law does he have to issue a determination on the stop work order? MR. TOHILL: I Jcn't know of any case where they say that the ~uilding Inspector took too long. There are some where having been asked the question the Building Inspector remained silent and didn't give any answer. For example, when you have a chance %o read it, earlier from 1967, a greenhouse ... the one I mentioned the Building Inspector which is in the Town of East Hampton, by the way ... was asked the question so that they did at least that part ... done there. He was asked the question. Surprise. He gave no answer. 1 2 3 4 5 6 7 8 9 lO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 _ /55 - 34 Next surprise: The applicant went to the Zoning Board. Next surprise: They lost. Next surprise: The Court said asking him the question and getting silence back is not enough to give you a Zoning Board of Appeals jurisdiction. In other words, if you have half of it, the question asked to the Buildin~ ;nspector with no answer, that is not enough to give you an order and determination. Under ~67, Sub 2, that I mentioned here, you do not even get the half. They ignored the ~Suilding Inspector. Everybody conceded they ignored the Building Inspec- tor. That was a fatal defect. It was not done by Mr. Ochsenreiter or Mr. Lenceski, as if they knew how to operate in the Town government, but it was done presumably by an attorney who was licensed to practice, to live in this community and practice in this con~nunity with the firm that has been here ... I know they have client too, since 1986. I what they are doing represented my guess they know in this area of the law 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2o 21 22 23 24 25 35 and if they made ~. problem that's now going to become a problem for these objecting neighbors. As I say, that is is not for you. That is not for us. That for them, Mr. Ross, Wickham, Wickham and Bressler, and these two neighbors. MR. DINIZIO: So I guess we could pretty much assume the building permit was posted for a year and a half out in front of the house. MR. TOHILL: No. You don't seem to assume that ... ~h~n the foundation went in ... August ~C, ~hat is the kind oi in- dicia that the court will recognize as the moment when the neighbor ought to know that something happened and, as a matter oi fact, they did know that something happened and they started a chain of events that brings us here this evening. Unfortunately, the key ingredients are all missing ... consulting the Building Inspector and waiting, and waiting, and waiting ... even sending the mailing notice 1 2 3 4 5 6 7 8 9 lO 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 -- /~ - 36 saying you can examine the petition in the Zoning Board o~fice ~ive days from this date and doing that on January 9, having received on January 10 and then not filing it until January 19, and then not giving a copy, not even a courtesy copy, ~rom the petitioner's counsel to their own clients, Inland Homes, creating a situation where I came in and Doreen kindly gave me a ccpy with the bill to pay down at Judy Terry's office. That is the way this works. So that was when ~e first got to see exactly what they were £~ying. At that point, the house was ccntpleted on January 19. As I said to you before, the roofer was coming on the site on Saturday, January 20. The house was roofed, that is to say, the shingles were put on the sheathing that was already on the house that had walls, was completely framed out exactly as you see it standing there today. THE CHAIRMAN: Can I ask a question? What is the present condition of the house? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 MR. TOHILL: completion of the interior wallboard installation, electricity, everything is done windows, everything. (Whereupon, pictures were handed to the Chairman by Mr. Lenceski.) MR. record an they were me see them. no. THE CHAIRMAN: office, Mr. Tohill. morning, 7:30. 37 It is subject to the interior wallboards ... plumbing, ... doors, TOHILL: Could we have for the indication as to the date that taken, which is ten days ago? Are these the ones taken ... Let I have pictures in my It was taken Sunday MR. TOHILL: Okay. I don't think there is any question that the house is completed; is there? THE CHAIRMAN: that the exterior wall is correct, yes. Do MR. by there. There is no question was completed. That you have any other questions, Jim? DINIZIO: No. Just that I went I went by there yesterday, 1 2 3 4 5 6 7' 8 9 lO 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 the day before, and quite honestly, see the building permit. What I am saying, all I am asking is that it was posted. MR. TOHILL: It was given to me as part you? of this proceeding. THE CHAIRMAN: Do MR. DINIZIO: I asked for that. you have it with i need to basically 38 I didn't aware that a house .,. not a garage ... not a building ... that could go alongside a house ... okay ... and be part of those two lots ... that would not De residence. I need to know when they were aware of that. A building permit being out front? Sorry, anything could be going up. So, all I really want to know is if that building permit was posted outside and when it was posted outside, is not there now. ~4R. OCHSENREITER: one thing as a citizen? government of and obviously it Could I just say I petitioned the Southold for redress, and I understand to make my decision how, or have some idea when these two gentlemen were 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 got a letter abouts, dated October 39 17, or there- THE CHAIRMAN: I have the letter. MR. OCHSENREITER: The one I gave you from Mr. Schondebare's office. had ... at that time he was an the Southold Town government. to mean he had been informed. procedure was fror~ there, obviously, no idea. Nor required to have. the house go up. Schondebare's letter, consideration. THE CHAIRMAN: Could I just ask you question, Mr. Ochsenreiter? In other words, what you are sa~ing is that because of the lack of wood con- struction you assumed that something was happening concerning Mr. $chondebare'S action concerning this particular project. Is that what you are saying? MR. OCHSENREITER: Precisely. ?he foundation was put in ... forgive me for I assume he official of I took that What the I have no ... do I think I am My delay was not to see I assumed, based on Mr. that it was under 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 some of the dates ... and it sat for while. It was prior to October 17. ~oundation was put in. Above-grade con- 40 quite The struction started on Martin Luther King Day, January 15, with the foundation. It sat from October until such prior, to Martin Luther King Day when it was back~illed, and above-grade construction started on the 19th. THE CHAIEMAN: Thank you, Mr. Och- senreitero I~ there is nothing right now, I would like to just take a five minute recess with the attorneys in t~e Town Board room ... assuming it is unlikely we will dismiss the case ... at which time I will come back and only deal with the particular issues that you mentioned and my particular opinion concerning the way I feel this particular case should go. It is very simply one person of the Zoning Board mentioning this, and I will tell you the way that I feel concerning this. I reviewed the ~oundation since its inception. I have discussed this issue on 1 2 3 4 5 6 7 8 9 lO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 December 13, ~ith the owner 41 of the property, Mr. Robert Hill (phonetic spelling), ;~ho I have known for 23 years and in fact built my first house. My discussion on December 15, or thereabouts, concerning this gave me tonight copy of it, and I copy of this back with James Schondebare letter that Mr. Ochsenreiter ... and I will afford you a give Mr. Ochsenreiter a again ... right after I discussed it with ... MR. TOHILL: When you said you knew about the foundation from the inception, what is the inception date; August 30? THE CHAIRMAN: about mid-October. MR. TOHILL: it? THE CHAIRMAN: MR. TOHILL: Inception date was How did you learn about I rode by and saw it. Did somebody ask you to? THE CHAIRMAN: No. I need a motion for a minutes. So anyone in favor BOARD MEMBERS: Aye. recess of five - /~/- 42 (Whereupon, a brief recess was taken at 9:23 p.m. and the proceeding resumed at 9:33 p.m.) THE CHAIRMAN: I need a motion to reconvene. BOARD MEMBERS: THE CHAIRMAN: So move. All in favor? 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BOARD MEMBERS: Aye. THE CHAIRMAN: Mr. Tohill, for the record, and applicants, we have discussed this matter with the Town Attorney. It is encumbent upon us to really question what has been brought to us tonight in reference to the lack of having the jurisdiction in this particular hearing of this case. We have to question that in definitely two modes. We have to again take it to our attorney and to our special counsel, and we transcript is and concise form. to have to recess with that on this tell you for the can only do that once this transcribed into clear So we are going this hearing, and to deal particular basis. I will record, Mr. Tohill, that when I rode down 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 --/5~- 43 Bayer Road after reading something about this in the ne~spaper, I honestly and truth- fully thought that this foundation was for the garage or something other than what it was for because it was a rather small foundation. That was sometime mid-October, mid- to late October in this particular case, and that is my feeling on the whole situation. What happened or what transpired after that, I cannot tell you. I also can tell you, that before us is a case ... discuss the merits of it but before Article 78 however, though, and I will not ... not before us, has been filed with, I believe, Judge Luciano (phonetic spelling) ... it may take more for the 25,000 square foot building, the period of time that elapsed between the building permits and the actual commencement of the construction is much more time than existed in this particular project. case. that MR. TOHILL: I am familiar with the I have spoken with Richard Larke, told me he didn't know anything about 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -/qS~ 44 the area of the law on the night he was here and that the first he learned about it was to read the document I was holding in my hands a few minutes ago. THE CHAIRMAH: So at this particular time, unless anybody has anything else they would like to discuss, anything that you would like to iiscuss concerning ... MR. TOHILL: No. Just to say, again for the record, I am reserving every right that my clients have to raise every objection as necessary to protect my clients' interest ~nd if it becomes necessary tc do that, we will do it. I would like you to keep in mind, if you can, that housekeeping side of it just so it is easier for everybody if that is the direction we are going in. THE CHAIRMAN: Mr. Ochsenreiter. MR. copies of OCHSENREITER: May I submit two newspaper articles, both dated October 26, 1989; one from the Suffolk Times and one from the Traveler-Watchman, concerning this building? 1 2 3 4 5 6 7 8 9 lO 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 45 MR. TOHILL: Could I just see them? ! have not Jean these articles before, but I believe we are now reaching the merits and I think the Board has already ruled we are going to hold off on doing that. I have no objection if, when we reach the merits, I don't believe we can keep anything out including the ~itchen sink. Right now, if these come in, i want to get into the merits and I am telling you a number of people are going to get called and some are going to be a little surprised ~hen they are called. THE CHAIRMAN: Why %lould you have an objection to thic gentleman entering them? MR. TOHILL: Because I would have to do something to meet the contents of the newspaper articles, and I understand what he is trying to do. We are starting the hurt part now. I mentioned before, I said people will get hurt. I am trying to avoid people getting hurt here tonight and if you tell me you want to put this in I am going to take it as permission to start the hurting and I am going to do it and people are going to k. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 46 get hurt and they are sitting in this room tonight. I don't want to do it. I have taken a lot of steps in the past ten days to avoid this happening and if anybody can tell me the reason that this has something to do with three legal points that I made tonight involving Section 267, Sub 2 and 267, Sub 3, and Hilbert versus Hass, if somebody can tell me what these articles have to do with that, I am here to listen to it. If they can't intelligently connect these to that and that is what the Board has already decided ... only deciding right now ... then I am saying to you that we have moved beyond the housekeeping procedural preliminary issues we have been discussing all night. THE CHAIRMAN: going to take care of This is the way we are this. We are going to ask you to move outside with counsel and Mr. Ochsenreiter, and discuss this particular problem to see if he can enter this in at this particular time. MR. TOHILL: I very much appreciate 1 2 3 4 5 6 7 8 9 lO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 47 wkat you are doing but there are parts to this where I will not, as an attorney licensed to practice who values the license, engage in this conversation off the record, outside of this room, with this gentleman standing to my immediate left or the other gentleman who was here this evening or anyone else ~Thc is individually involved. There are reasons that will come out ultimately, not maybe in this quorum but they are certainly going to come out in another form, and more of what I am trying to avoid is ~oing to occur. If you send me out of the room I am going to be obligated to explain to this gentleman what I am being so mysterious about with you. I don't really want to do that because somebody who is not here tonight and somebody who is here tonight are going to be the first two people hurt. I don't want to do that. I don't want to do it. If he doesn't know what I am talking about, rather I know he doesn't know what I am talking about, the best move for 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 ~9 20 21 22 23 24 25 ~/~ ~- 48 everybody is that we pass on this tonight and hold it for another day and if it comes to the other day then everybody is going to have to be invited and you are going to host an evening that is going to be very interesting here. But until then ... until then, let's hold off on it in the name of civility, in the name o~ some nice people who shouldn't be hurt, in the name of people who are not even here tonight. THE CHAIRMAN: Let me ask Mr. Ochsen- reiter a question. I have not read those articles since they appeared in the October 26th issue. What was the specific reason why you wanted to enter them? MR. OCHSENREITER: Simply because the question of timing came up and why we waited so long. MR. TOHILL: Newspaper reporters are not going to resolve the problem. The newspaper or the reporter is not going to testify on the cold document that I did not even get to cross-examine. 1 2 3 4 5 6 7 8 9 lO 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 49 of to withdrawing this? MR. oCHSENREITER: THE CHAIRMAN: ciate it. Fine. Thank you. I appre- That is not going to resolve any the issues that I have raised and placed inquiry in your lap. When you have the opportunity to speak to counsel and when you have the opportunity to review the case law, you will see that you have the information you need right now to decide the motion on any of the three bases, but to have ~rom the Traveler- Watchman or Bill Fallon (phonetic spelling) ~rom the Suf~otk Times personally appear here in pieces o~ paper that don't talk. I was not born yesterday. None o~ you were, and we cught not ruin the record as it now stands by putting material in there that is not anything except inflam- matory and intended quite honestly do to nothing but sell newspapers. THE CHAIRMAN: Okay. At this particular point do you have any objection 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 time. MR. DI?~IZIO: THE CHAIRMAN: Not withdrawn. At this particular MR. DINIZIO: Just the information. THE CHAIRMAN: At this particular time, only at this particular time. Not the application. Hearing no further comments, I make a motion recessing this hearing some time to the latter part of February. As soon as we get the transcr!pt, we will afford counsel and special counsel with those to discuss it and we will then readdress this issue by advising to the public and we will be back here and hopefully we will do it as expedi- tiously as possible. We thank you all for coming in. MR. TOHILL: Could you simply state you will have Doreen or somebody notify Mr. Ochsenreiter, Mr. Lenceski, and me wherf~that is so I am not pinned down to reading the Traveler or the Times? THE CHAIRMAN: We have never done that, Mr. Tohill. I would suggest calling 1 3 4 5 6 7 8 our o~fice on the 16th of February, a~ter our next scheduled meeting. very much. I offer that as ~ resolution, gentlemen. BOARD MEMBERS: Aye. ~ - 51 the day Thank you 9 10 11 12 14 15 16 20 21 22 23 I, :';LIL ROSCHEN, do hereby certify that I am an Official Court Reporter and that the foregoing constitutes a true and correct transcript according to my o~ficial stenographic notes. GAIL ROSCHEN Official Court Reporter 24 %- 25