HomeMy WebLinkAboutZBA-03/29/1990 HEARING(,
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SOUTHOLD TOWN ZONING BOARD OF APPEALS
COUNTY OF SUFFOLK : STATE OF NEW YORK
SOUTHOLD TOWN ZONING BOARD OF APPEALS :
HEARING, In the Matter of
:
PORT OF EGYPT,
App 1 icant.
:
53095 Main Road
Southold, New York
March 29, 1990
7:38 P.M.
BEFORE :
GERARD P.
BOARD MEMBERS:
GOEHRINGER,
Chairman.
CHARLES GRIGONIS, JR.
SERGE DOYEN, JR. (Absent)
JOSEPH H. SAWICKI
JAMES DINIZIO, JR.
Doreen Ferwerda,
Secretary to Board
APPEARANCES :
MOORE & MOORE, ESQS.
Attorneys for the Applicant
Main Road
Mattituck, New York
BY: WILLIAM MOORE, ESQ.
ALSO PRESENT:
MERLIN WIGGIN
WILLIAM LIEBLEIN
11971
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THE CHAIRMAN: I welcome you all here
tonight. This is a special meeting in an
attempt to clear up two specific hearings,
one of which we have had for quite some
time. I just congratulated that particular
applicant for being number one on the list
tonight. He is smiling, and so is his
attorney. So that is a step in the right
direction.
It is not necessary to read the legal
notice. It has been read several times. So
we will have simply
hearing of the Port
I would ask Mr.
like to be heard?
MR. MOORE:
the reopening of this
of Egypt.
Moore if he would
Mr. Chairman, I have had
several conversations with Mr. Lieblein and
with his counsel, Merlin Wiggin of Peconic
Associates, and I am presenting to you today
... earlier today I dropped off to your
office a ... I am trying to simplify this
application. As it was before, we needed at
least four variances to accomplish this dry
rack storage building ... a little arm
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twisting and recalculations and we figured
out a way in which we can reduce the needed
variances from four to two.
! have proposed, and Mr. Lieblein is
ready to agree with me on this suggestion,
that he reduced the length of the building
such that he could comply with the front
yard of the M2 zone. By doing that he
reduces the square footage of his buildings
covering the property and if my math is
correct, I think you can double check it, we
don't go below the 30 percent lot coverage.
So there are two variances right there we
knocked down by realizing we can still make
the building function. We lose slightly
more than one full boat storage rack on both
sides of the building in length, but we can
accomplish the elimination of two variances.
We are left with the side yard
variances. The variance as related to the
distance to the bulkhead is a 75-foot re-
quirement from the code.
THE CHAIRMAN: What are we doing on
the Kapper (phonetic) side in reference to
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distance
MR. MOORE:
with the 15 feet
from that property?
Actually, we will stay
sideline suggested. The
reason for that, as I mentioned, it has been
repeated several
necessary is,
the width of
feet ...
have got
times. Why that 15 feet is
number one, we can't reduce
our building anything below 125
that relates to its finality. We
storage racks on both sides of the
Ideal-
building and an aisle in the center.
ly, the building would be 130 feet in width,
and Mr. Lieblein can squeak and push below
125 feet in length ... it doesn't work.
Theoretically, you can move the
building and have an additional 10 feet to
the west and accomplish your side yards ...
25-foot side yard requirement. However,
this plan has been before this Board for
quite some time, as it has been before the
Planning Board, and in looking at the park-
lng lot layout and access and traffic flow,
it was suggested to the applicant that he
keep the building to the one side. You get
access in and out on the west side ...
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parking ... you've got more parking to the
west side. It is more functionable for the
traffic flow, as it was suggested by the
Planning Board to encroach on that side
yard.
THE CHAIRMAN: Do you have updated
site plans maybe you are going to give us
with the reductions of the front?
MR. MOORE: No. We can draw you a
line across. You can mark it in red.
THE CHAIRMAN: What is the distance
now from the old Main Road?
MR. MOORE:
feet. I think it
correctly. It is
to build back some 13
THE CHAIRMAN:
Well, we have it at 35
is presently measured
22 right now. We have got
or 14 feet.
All right. The length
of the storage building is what?
MR. MOORE: I presently presented
217. We reduced that to 14 feet to make it
213 feet. I am sorry, 203.
THE CHAIRMAN: All right. Let's do
this.
footages
Let me go over some of the square
I have gotten, and tell me where
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am wrong or where I am right. There may not
be a concurrence here and it doesn't have to
be tonight. You can come back to us.
MR. MOORE: This is with respect to
the existing structure.
THE CHAIRMAN: The existing struc-
ture. Now, the old office in the shop which
is adjacent to the building, I have 3,078
square feet.
MR. MOORE:
THE CHAIRMAN:
remaining portion of
That is correct.
And the other, the
that building is going
to be destroyed,
towards the proposed new building;
correct?
MR. WIGGIN: That is correct.
THE CHAIRMAN: Now,
proposed storage building,
which is the portion
is that
existing sales shop,
sguare feet.
MR. WIGGIN:
THE CHAIRMAN:
on that?
MR. LIEBLEIN:
in front of the
which is the
he shows that as 720
That is correct.
Is the ramp elevated
It starts at the door
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height and slopes down.
THE CHAIRMAN:
so we have it all
120.
I am just including it
in that. I have that as
MR. LIEBLEIN: That was not included.
THE CHAIRMAN: These are.
MR. WIGGIN: Are you suggesting we
should put the ramp,
square footage?
THE CHAIRMAN:
as far as the building
I am only taking
anything above six inches above the ground.
I did not include the cement slabbing or the
washing platform or the existing concrete
area in back of the sale showroom that you
have over there, an so on and so forth.
have square
them because they
MR. WIGGIN:
footage on them, but I excluded
are on ground level.
That ramp and driveway,
that probably would be less than six inches
above the ground.
THE CHAIRMAN: We are taking this,
and then going back and reinspecting it
before the decision and we will "X" out
anything that is not within that mode.
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The existing ramp that sits over on the west
side of the proposed storage building is
either a macadam or cement ramp, like that
of a launching ramp of a boat, that is on
ground level. So that is excluded.
Let's go over to the restaurant for
the moment. ! have the restaurant at 4,225
which is
right on
square feet. I have
across to the water,
the ground?
MR. WIGGIN:
the boardwalk,
and is that
Yes, sir.
THE CHAIRMAN: So that is excluded.
The deck however, that is off the building
that we granted, is elevated above the
ground; is that correct?
MR. WIGGIN: That is correct.
THE CHAIRMAN: I have that at 2,241
square feet, and I wish you would change
that ... write that in.
MR. WIGGIN:
quite that big.
THE CHAIRMAN:
hundred forty one
. figure all the ...
I don't think it is
Two thousand two
... of course, I didn't
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deck
know,
That's going all
that a boardwalk?
MR. LIEBLEIN: This is just landscap-
ing.
(Whereupon, a discussion was held off
the record, after which the following oc-
curred:)
THE CHAIRMAN: Two thousand two
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MR. WIGGIN: That's grass.
THE CHAIRMAN: Okay. We granted some
in there.
MR. LIEBLEIN: No, sir. As far as I
right now it is all grass.
THE CHAIRMAN: That is excluded.
the way around to here. Is
hundred forty one is now back out again.
That's out. All right.
On the concrete and the porch on the
west side of the restaurant, I have 840 plus
42.
So the total of that would be 882.
(Whereupon, a discussion was held off
the record, after which the following oc-
curred:)
THE CHAIRMAN: Jimmy has a question.
We are going out right now.
(
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lng,
ramp.
in front of
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the bull d-
Merl, the ramp
I've got 960.
MR. WIGGIN: That is the handicapped
THE CHAIRMAN: They checked that out.
Okay. Let's run off to the existing metal
building that is used for sale and your
office. I have two figures on this. The
square foot figure on it is 23,175, which is
very simply the 103 by 225, and then eastern
extension I have 5,544. The only other
thing, Merl, is the existing shed over there
on the west boundary line. Approximately
that is 30 feet deep and ... I've got 2,048.
MR. WIGGIN: That's when the property
line is going through.
MR. LIEBLEIN: No. That's 30 and the
length is 60 feet.
THE CHAIRMAN: That is about 61 feet
long.
(Whereupon, a discussion was held off
the record, after which the following oc-
curred:)
THE CHAIRMAN: The only other
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question I have is the tax map said 5.6
acres. I see in here you are referring to
the property based upon the square footage
of 4.96. We ask for the calculations of
underwater land and you came up with 1.3.
So that is excluded from ... so you are
From the computations you
they have not been in-
telling us .,.
MR. MOORE:
have there. Yes,
cluded. Yes. Right. In fact, did I give
you a map of ... here we go. I gave you a
map of the survey of the property in which
we have shown the two bases, incomplete and
completed, the acreage of each, and that
acreage is not included in computing the
upland lot coverage.
THE CHAIRMAN:
4.96 plus 1.33 of actual
that's gross land?
MR. LIEBLEIN:
comes out to.
THE CHAIRMAN:
You are saying it is
taxable land,
If that is what it
My problem is I have
5.6 minus 1.33, or 4.33, and that's where
the problem came up. Because I am coming up
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around 36 percent. All right.
bet, I have added in 2,000 feet
south side of the restaurant.
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But r emem-
and on the
MR. MOORE: I don't know if you were
satisfied with the copies of the deeds I
gave. I was not aware. I went back and
read a transcript earlier this week, and I
think you are looking for a singe and
separate search. I was not aware of that.
I gave you copies of deeds. If you want a
single and separate search we can have that
done.
THE CHAIRMAN:
members of the Board
We have at least two
that have been here 34
any confusion.
about the motel
there to be any confusion as
years that will attest to the fact that Mr.
Lieblein owns the property or his family
owned the property prior to zoning, and with
those deeds, that I think is basically what
we need. We have Mr. Sawicki, who was a
police officer in this Town and ex-Chief.
MR. MOORE: I don't want there to be
I know the issue was raised
facility. I don't want
to where the
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motel is. It is not included.
THE CHAIRMAN: Where do you stand
on
site plans now with the parking issue across
the street? That is the
MR. MOORE: I think
parking computations there
the code as it presently
some computations on the
you, we did some wishful
computations as we believe the
to be.
slips,
only other thing.
I have done some
for you, under
stands. There are
site plan before
thinking, showed
parking ought
Referring specifically to the marina
should have one-half parking spaces
per boat slip; dry dock storage, one-quarter
space per dry dock storage. To clarify
things in the memo I gave today, I went with
the code as it stands today. You have a
total required parking spaces of 421, using
the numbers of both slips, the exact dry
dock storage, the number of employees, the
restaurant computation,
boat storage, which Mr.
he scales it down as proposed,
maybe 152.
and his proposed
Lieb]ein tells me if
it would hold
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I have done exactly as the code calls
for and I've gotten a total of 421. The
site plan before you on the south side of
Route 25 has 188 parking spaces. On the
north side of the property on which the site
plan was a separate item done there showing
you can hold 110 parking spaces.
That site plan has been before the
Planning Board, at this particular point,
where we were between the site plan finally
getting approval from the Planning Board and
a need for the variances from here. Maybe
Merl can tell me where we are with the
Planning Board's approval of that property
for use as parking.
MR. WIGGIN: They are waiting for the
Planning Board to give a final determination
of the revised drainage plan,
counsel.
THE CHAII~4AN: Right.
the planning
SO just say
you are aware that this decision is condi-
tioned upon the fact that this gentleman
will continue retaining that property across
the street for the purpose of parking.
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MR. MOORE: Right.
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I understand if
MR. LIEBLEIN: That was my intention
when I made it available.
MR. MOORE: I think you have gotten
provisions in your code requiring certain
restrictions as to the use of adjoining
property or property across the street. So
that will be taken care of.
And finally we pick up the arm to
replace the boats with cars of the owners,
and the boat storage dry rack can be one for
one. So if in fact the code requires one
parking space per dry dock storage slip,
that facility is designed in such a way that
the cars are placed on pallets. And that's
how that system can work.
I have given for ... at least in one
copy I have presented this afternoon
copy of the local
sidering. I know
con-
tax law the Town is
you can't think about that
of
now. You don't have the parking in front
you. We have available, including across
the street, 450 spaces. We need 421.
£
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We have 29 extra parking spaces. The Town
is still considering changing the marina
parking requirement in which we had more
than enough. In fact, I did recompute this,
but assuming the Town were to adopt the
proposed local law in its present form, we
have adequate on-site parking at 188 spaces
presently there to satisfy the recomputed
parking requirements.
THE CHAIRMAN:
MR. MOORE:
street. We won't
Right.
We won't need across
need the boat storage
the
building or the parking across the street.
My final comments are related to ...
THE CHAIRMAN: I just want to say,
before you do that, I apologize for jumping
in. Any decision from this Board would be
subject to the Planning Board's approval for
the site plan or parking, anyway. As you
know, we work very concurrent most of the
time, and that would be the situation
anyway. So we appreciate the parking
situation.
MR. MOORE: I just wanted to clarify
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with the site plan, showing some wishful
thinking on our part, comments were raised
here at the public hearing at which they
were stating that we were grossly underes-
timating the parking needs and we were not
providing adequate parking. That's why I
went back and recomputed and show you with
the parking across the street we do have
adequate parking. We are not here for the
parking variances.
MR. LIEBLEIN: On that same line, on
the existing storage building with its 80
spaces, if we palletize cars we would have
way over.
MR.
MOORE: I
That's true.
THE CHAIRMAN:
didn't include that.
Thank you.
MR.
regarding
with that
ment. As
quirement
less of
located.
MOORE: The other comments I have
other variances we need has to do
setback
I point
set for
the zoning district
from the bulkhead require-
out, it is a marina re-
the Zoning Board regard-
in which you are
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Mi ... M2 residences, no difference
whatsoever and yet the M2 zone itself has a
variance setback for structures as 25 feet.
Kind of interesting when you think of the
rear yards of marinas as being either the
creek or bay or whatever water body they are
on, and the need to get access.
The purpose of the boat storage
building is to operate in a sense as boat
slips, out of water boat slips. The 75-
foot requirement doesn't make sense to have
a forklift traveling back and forth that
distance. That property would have to
remain clear to the extent the machinery
functions. The forklift operates in close
proximity to the water. That is the stated
purpose and the intention of the use of that
building, to get access to that boat basin.
So we seek the variance ... 40-foot distance
from that bulkhead.
We also raised discussions with the
Planning Board that any drainage and runoff
has to be retained on the site. So the
building is not going to be running water in
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the basin. In fact, I believe the concrete
pad can be sloped in such a way that it
would have a drain in it to ensure that.
A couple of final observations. If
you think from an environmental concern,
when you have boats that are docked or
moored in water and you have all throughout
the boating season, or in such a position
where they can go in there year-round, those
boats must have automatic bilge pumps which
when boats are out in the weather, they fill
up with rainwater and you get automatic
bilge and pumping that bilge water in the
bay, to the extent you put boats in dry rack
you minimize the problem as the boats are
out of the elements or under cover. So it
has a nice side benefit to it.
Painters have had recent concern
about bottom paints. Some are more con-
cerned about it
storage reduces
after an amount
in the water.
No one will need to come in if
than others. Dry rack
the need for bottom paint,
of time the boats have spent
they
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are going to use dry rack storage and re-
quest additional water boat slips. Boat
slips require degradation of water area.
We
deem to preserve wetlands when using dry
dock storage, when possible.
The last point, when the boats are
outside for the winter storage, most boat
owners want to have the boat shrink wrapped.
Sometimes that plastic is torn off. To the
extent we reduce the amount of plastic, we
reduce the waste stream.
That's about all
have any questions,
tomorrow with Merl,
soon as we can.
THE CHAIRMAN:
planning to put in
time, total?
MR. MOORE:
building ...
MR. LIEBLEIN:
going to be 160.
double spaces on
boats times four
I've got. If you
I'll get back to you
on the computations, as
How many boats are you
this building, at this
The capacity of the
Original capacity was
It was designed to be 10
each side, which is 20
high is 80 ... two sides
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years, and I know how toxic they are. Just
to add that many more boats to an already
critically impacted bay, I think, is
ridiculous. I don't think putting a 40
feet or 75 feet makes a difference. It is
... is 160, by taking 14 feet off. We have
taken more than one-half of the end bay
away, which is at least eight boats. Now I
have to make the decision, do I make the
remaining bays all a little bit bigger for
larger boats or do I make a few of them a
little bit smaller for 18, in which case I
lose only one bay, otherwise I lose two
bays. The maximum I have is 152.
THE CHAIRMAN: Thank you very much.
MR. MOORE: Thank you.
THE CHAIRMAN: Anybody else that
would like to speak in favor of this ap-
plication?
Anybody that would like to speak
against the application?
MS. SAWASTYNOWICZ: Nancy
Sawastynowicz. I just want to add the point
that I have worked in boatyards for 12
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still going to run in the bay, and I would
really like to see it be kept the way it is
now because that still is huge.
So that is my point. I just think it
is a real environmental impact.
THE CHAIRMAN: Thank you.
MR. LIEBLEIN: I didn't speak at all
at the last two hearings, as I recall,
because I felt there was not any point and I
thought I would like to state my own words
... my feelings.
"Dear Members of the Board:
Our attorney, Mr. william Moore, has
responded in writing to the questions raised
during the past four hearings ..." and he
also added to that this evening, and as I
said, I would like to state my position
here.
The successful operation of a full
service marina depends on being located on
the water, number one. Number two, it
depends on having qualified people; and
third, it depends on having a modern
facility in which to work and the dilemma of
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all marinas in our area is how to keep our
personnel gainfully employed during the
winter season. The Port of Egypt's present
economic hardship stems from the fact
during December, January and February,
operate at a loss. During this period,
income generated by storage, sales and
that
we
the
service has always been exceeded by expen-
ses, primarily salaries, health and general
insurance. We have been raising our rates
to keep up with these rising costs but there
is a limit as to how much you can go before
you price yourself out of business.
Lately, the rise in cost of general
and health insurance has rise at a rate far
in excess of the inflation rate. For ex-
ample, health insurance that cost $6,000 a
month just two years ago is now $12,000 a
month. General insurance that cost $50,000
per year just five years ago is now $100,000
a year. As these and other costs go up, it
becomes increasingly difficult to cover the
losses in the winter months with the income
from the other nine months of the year.
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I might point out, one of the reasons
we lose money in January and February is !
send out people to school, and you are not
generating any income. We presently employ
26 people. Nineteen of these are supporting
families in town. Laying off these people
and asking them to subsist on unemployment
is not an acceptable solution. We count on
these people all year and we must be able to
provide sufficient work to keep them
employed.
As Mr. Moore has told you, we have
reduced the size of our building so as to
eliminate the need for a variance for lot
coverage or front yard setback. This change
has been made in a spirit of compromise and
to reduce the complexity of the factors this
Board must consider before making its
decision.
As one of many small businessmen
struggling to survive in this Town, I ask
that you consider the facts before you,
and make your decision as expeditiously as
you can.
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THE CHAIRMAN: Thank you.
The other question ! have is, Merl,
if you wouldn't mind, would you just tell us
how you arrived at that 4.96 in reference to
actual upland area?
You don't have to do it tonight. You
can explain to us with a map of it, if you
so desire.
MR. WIGGIN: This was done by the
survey doing a recalculation of the upland.
We went down there and physically measured
the boundaries of the water lines and recal-
culated the upland because there ... before
you there has been minor changes and they
took that into consideration.
THE CHAIRMAN: Do you have a map on
this area?
MR. WIGHIN: You have revised survey
that shows you did that.
THE CHAIRMAN: That's 4.96.
MR. WIGGIN: Right.
THE CHAIRMAN:
information from you.
should wait until
We are requesting
! don't know if we
we receive it to close the
¢
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hearing, or if we should close the hearing
subject to receiving it. I think what we
will do is what we did in December.
I make a motion to close the hearing
pending the receipt of this information.
For everybody present, we are requesting
information within two weeks. This Board
will not entertain any deliberations of this
particular matter until at least the 19th of
April, and sometime thereafter, and probably
subsequent to the
time we will have
presented in this
things we have in
19th of April,
any additional
file and some
our
at which
information
of the other
office which are the
archives of this particular project and on
this particular property. You are welcome
to come in and look at it. So we just ask
you to get it to us within two weeks. This
way we have it.
Hearing no further questions, I make
a motion closing the hearing, reserving
decision on this and pending the receipt of
the additional information in concurrence
with the lot coverage we requested.
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MR. DINIZIO: Second.
THE CHAIRMAN: All
MR. GRIGONI$: Aye.
MR. DINIZIO: Aye.
MR. SAWICKI: Aye.
?HE CHAIRMAN:
an Official
constitutes
official
in favor?
I thank you very much,
gentlemen, for coming in.
(Whereupon, a brief recess was taken
at 8:12 p.m. and the hearing resumed at 8:18
I, GAIL ROSCHEN, do hereby certify that I am
Court Reporter and that the foregoing
a true and correct transcript according to my
stenographic notes.
GAIL ROSCHEN
Official Court Reporter
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SOUTHOLD TOWN ZONING BOARD OF APPEALS III III - --,,,
....................................... I_
SOUTHOLD TOWN ZONING BOARD OF APPEALS
HEARING, In the Matter of
:
ROBERT OCHSENRETER
AND EDWARD LENCESKI, :
Applicants. :
53095 Main Road
Southold, New York
March 29, 1990
8:18 P.M.
11971
BEFORE :
GERARD P. GOEHRINGER,
Chairman.
BOARD MEMBERS:
CHARLES GRIGONIS,
SERGE DOYEN, JR.
JOSEPH H. SAWICKI
JAMES DINIZIO, JR.
JR.
(Absent)
APPEARANCES :
MOORE & MOORE, ESQS.
Attorneys for the Applicants
Main Road
Mattituck, New York
BY: WILLIAM MOORE, ESQ.
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THE CHAIRMAN: I guess we are ready
to reconvene the last hearing of the
evening, and that is a hearing that we had
heard prior to this hearing. So there is no
need to read the legal notice. There was
significant testimony taken at that prelimi-
nary hearing, and this is a hearing in
behalf of Mr. Ochsenreter and Edward
Lenceski. It is Appeal Number 3908.
I have certain questions which I want
to mention, but I will start off by saying
that we have discussed this hearing with
Special Counsel and we have discussed this
hearing with the new Town Attorney. It is
our opinion, at this particular time, that
there is standing for these two gentlemen to
come before us and at the culmination of
this hearing and encouched within any
decision we will have a minimum and maximum
time in reference to what we refer to as
standing for specific app[ications and in
this particular area which concerns reversal
of building permits, and it will be some-
thing that we will be dealing with in a
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precedent basis
seeming years of
At this particular time, I will ask
Mr. Ochsenreter and Mr. Lenceski if they
would like to say anything for the record.
MR. OCHSENRETER: Mr. Goehringer, is
this reconvening?
THE CHAIRMAN: It
but we have to reconvene
MR. OCHSENRETER:
-
3
throughout the remaining
our tenure on this Board.
is a continuation,
it.
Robert Ochsenreter,
600 Bay Road, Mattituck, New York.
Do you want me to
of the last session?
THE CHAIRMAN: No.
permanent record.
MR. OCHSENRETER:
lng further.
THE CHAIRMAN:
would like to repeat,
MR. MOORE:
Commons, Suite 3,
the firm of Moore and Moore.
substituted for Mr. Tohill,
the last hearing.
repeat my testimony
It is part of the
would have noth-
Is there something you
Mr. Moore?
William Moore, Clause
Main Road, Mattituck, from
We are being
who was here at
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At this particular point, let me
begin by renewing the motion Mr. Tohill
raised at the last hearing. He cited
specific sections, Section 267, Subdivision
2, of the Town Law. The petitioner's
failure to obtain a determination from the
Building Department before commencing this
appeal.
There is a memo in the file of the
ZBA, from the Southold Town Clerk, which
states material being transmitted from the
Town Clerk to the ZBA does not include a
notice of disapproval from the Building
Department. He speaks at length about the
failure of the petitioners to come to the
Building Department and challenge or request
any determination from that department with
respect to the permit that was issued. Mr.
Tohill previously set forth the basis of the
Appellate jurisdiction of this Board and
also the Board that had to
decisions and asked action
charged with the enforcement of
zoning codes.
review prior
of these who are
the Town
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5
As he stated and I repeat again, this
jurisdiction has not been established from
this appeal. The prerequisite steps have
not been taken for this appeal to reach it.
The second motion relates to Section
267, Subdivision 3, in that this appeal is
untimely as a matter of law. I appreciate
the desire of this Board to at some time ...
I don't know that within the context of this
decision it would be appropriate to hear
affidavits what your rule will be regarding
appeals. I think that will be a procedure
you can use to create a set of rules and
procedure to the extent you want to have
them regarding the appeals of determinations
of the Building Department.
THE CHAIRMAN: I am reminiscent of
saying that we will take these to the legis-
lative committee and make them embody within
the area of 267 or any applicable areas of
which they will pertain.
MR. MOORE: The key period of time
when you go to make an appeal is when the
period begins to run. It begins to run when
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the person who is going to complain about a
decision becomes chargeable with Notice of
Issuance of the permit of which it
complains. Now you have a copy of the
building permit in your
8, 1989. Work began on
clearing and excavation for
This work took place August
Now I have
not presented the
file, dated August
this site with
the foundation.
30, 1989.
some information that was
last time and they are
some bills to support
which we are speaking.
for Robert Chilton and
work performed on 8/30,
Inland Homes. This is
this time frame of
The first is a bill
it is in reference to
Bayer Road, for
the clearing of the
property. Also included in the papers I
gave you are receipts from the Southold Town
Dump, receipts made out to Robert Chilton
for land cleared. The delivery date of
receipt is 8/30/89.
I have for you a receipt from Eastern
Concrete, Incorporated,
their accepting $2,400
done for
9/15/89, indicating
for work that was
Inland Homes on Bayer Avenue.
¢
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mean, I gave you those.
The time in which to appeal begins
when a person complaining should have
notice. If you get a building permit and
sit on it for six months, one could not
expect anybody to know about it. But when
you take action on a permit and the person
lives, as the petitioner stated in their
petition, on Bayer Road, across the street
from this property, you have notice of what
is going on.
Now, the petition is a sworn state-
ment by both petitioners. In that sworn
statement they state that their attorneys
wrote to the Zoning Board of Appeals in a
letter dated September 13, 1989, with
respect to the property which is the
subject of this appeal,
mean the attorneys ...
formed that no variances
and that they ... I
I presume were in-
have been granted
with respect to this property. So even as
of September 13, 1989, inquiries were being
made by these petitioners according to their
sworn statements to the Zoning Board by
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8
their attorneys.
Now, the petitioners never spoke with
Inland Homes. Inland Homes never suggested
to them that they were not going to take any
action on this permit. They were going to
sit on it. These petitioners were
represented at one point by the office of
Wickham, Wickham and Bressler.
Mr. Tohill raised briefly a third
reason for dismissing, related to Section
267, Subdivision 3. Mr. Tohill wrote to Mr.
Kiernan, the Assistant Town Attorney, on
February 1, 1990, stating forth the basis
upon which we have been speaking for dismis-
sal, either lack of Appellate jurisdiction
... because there is no determination from
the Building Department on which this appeal
was founded. Petitioners contacted the
Building Department, and had not requested a
decision from the Building Department before
they filed their appeal,
Mr. Tohill later also addressed the
failure to file the appeal in a timely
fashion, in which you give permits and the
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basis, rather to show when work was being
performed.
Lastly, he advised in this letter to
the Assistant Town Attorney, dated February
1, 1990, which has the day of the public
hearing, that the petitioner had failed to
file their appeal with the Building Depart-
ment. That is a requirement of Section 267,
Subdivision 3.
Now the Zoning Board of Appeals has a
letter in their file indicating that the law
firm of Wickham, Wickham and Bressler with-
drew as counsel, a letter dated February 1,
1990. A copy of that letter was sent to Mr.
Garcia, and signed for by Corinne Lessard-
Garcia. I have a copy of that letter and
the envelope indicating the postdate of
January 31. I would like to give you that
as well ... postmarked letter, January 31,
dated February 1, withdrawing his counsel.
Now on the very date of the hearing,
February 1, 1990, after petitioner's counsel
was withdrawn, a copy of the appeal
miraculously gets filed with the Building
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Department at 2:55 that
affidavit of service is
notary public who I
is the secretary of
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afternoon. The
sworn to before a
have reason to believe
the law firm of Wickham,
Wickham and Bressler. I believe they have
withdrawn counsel at that point.
I would like to believe the
petitioners were aware of that requirement,
and in all good honesty, I would like to
believe they knew they had to file that
appeal on the day of the hearing. If I
believe they have withdrawn counsel at that
point, I would like to believe the
petitioners were aware of that requirement,
and in all good honesty I would like to
believe they knew they had to file that
appeal on the day of the hearing even though
the original was filed January 19, 1990.
This was some last minute housekeep-
ing paper work that would have seriously
challenged the jurisdiction of this Board,
because Section 267, Subdivision 3 had not
been complied with. I don't know how that
appeal got filed with the Building Depart-
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11
ment in the afternoon of the night of the
hearing, after the attorneys had withdrawn
as counsel. '~I reserved my motions. They
were raised before.
I would like to get down to the
merits of this a little bit, and to that
extent I would like to call upon Victor
Lessard to describe to the Board the basis
and justification upon which a building
permit like this might be issued.
MR. DINIZIO: Can I ask a question?
I would just like to ask a couple of ques-
tions.
Number one is, to your knowledge, is
a building permit required to clear land?
In other words, if you want
your land, take a tree off,
to get a building permit?
MR. MOORE:
I don't believe so.
MR. DINIZIO:
to smooth out
are you required
Number two, does it
require the assistance of an attorney to
file with the Building Department, the
permit?
In residential property,
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MR. MOORE: I am not saying it does.
I only question that the appeal was filed
January 19th, The hearing was scheduled for
February 1. I'm sorry ... February 1 ...
the appeal got filed with the Building
Department. I am troubled by the continued
appearance of one of
law firm.
MR. DINIZIO:
the attorneys from the
But I mean, you don't
have to be represented by an attorney.
MR. MOORE: I am not saying you have
to be represented by an attorney to appear
before the Zoning Board to file papers for
the Zoning Board.
MR. DINIZIO: Or with the Building
Department?
MR. MOORE: Or with the Building
Department.
THE CHAIRMAN: May I clear that one
issue up because I had a discussion with Dan
Ross, who is a member of the firm of Wick-
ham, Wickham and Bressler, in around my
lunch period of that particular day of
February 1. He told me he was withdrawing
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his
the
well.
counsel as of 4:30 that afternoon.
MR. MOORE: I had received a copy of
letter. I am CC on that letter, as
THE COURT: That's what he told me.
He said, "What time does your office close?"
I said, "Five o'clock."
He said, "Somebody will be there by
4:30 and they will formally withdraw as
counsel."
I said, "I am just telling you we are
having a jurisdictional problem in reference
to having this hearing or not having any
hearing, and at this particular point we
have not determined it."
MR. MOORE:
fication.
THE CHAIRMAN:
Thank you for the clari-
That is my only
conversation on the letter presented to you
with the photocopy of the envelope post-
marked January 31, of a letter dated
February 1, and the letter makes no
reference to the time in which or by which
they are withdrawing as counsel. If the
t
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petitioners figured it out and they brought
the papers in, that's great.
I just wanted to mention that, as you
know, I have had discussions about this with
the new Town Attorney. We have had in the
past sworn witnesses in and attorneys in,
and so on and so forth. Everybody here, we
know they have been before us before, in-
cluding a number of attorneys, and so on and
so forth. We don't think that is particu-
larly necessary. I just wanted you to be
aware of that, as well as myself.
MR. MOORE: No problem. I won't let
it go at that. If we can have perhaps
Victor explain the policy of the Building
Department and explain how the Building
Department permits get issued. ! think we
may be a long way to determining how the
code is interpreted in this Town.
MR. LESSARD: My name is Victor
Lessard. I am the principal Building In-
spector for the Town of Southold,
Now would you please ask me what you
want to ask me?
¢
£
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MR. MOORE: Sure. The building
permit in this instant case was signed by
Kurt Horton. I think that's fair to say.
copy is in the file.
A
Do you agree with the decision of Mr.
Horton to have issued that building permit?
MR. LE$SARD: Absolutely.
MR. MOORE: Would you explain for the
people here the basis upon which that build-
ing permit is issued?
MR. LESSARD: Before a building
permit can be issued, the first thing that
has to be researched is the fact that the
property that the building permit is being
applied for is a single and separate plot
that he is building on. This was done by
first researching that property back in
November of ... I believe, 1988. I have the
records here to back it
this subdivision was on
1966, along with 16 others
subdivisions.
When I first got
questioned that
up, and found that
a separate list in
... excepted
here in 1988,
then Town Attorney about
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them off
they are
others.
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these exception lists of subdivisions that
come and go, and his interpretation was once
they are almost all developed they just take
the list because everybody knows
excepted and it makes room for
When the vacant land was applied for
this, I said no because I had done like I
always do. I went to the codes back, and it
was not there under the present list ... on
the present list.
that was applying
Town Clerk's Office,
this exception list,
The real estate agent
for this went down to the
where it was found on
went over to the Town
Attorney,
verified that it was good,
back to me and stated that.
hold of the Town Attorney.
had a conversation with him, who
who then came
I then got a
MR. MOORE: Would you identify which
Town Attorney that was?
MR. LESSARD: Jay Schondebare.
I then verified it with the Town
Attorney and I wrote the vacant land.
I also would like to say at this
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point in time, since 1983 I have written at
least 98 percent of all the vacant land CO's
in Southold Town. In order to do that you
have to go through a lot of research. You
have to go to the Planning Board. You have
to find out if it is an approved subdivision
and file. If you can't find it there, you
go through the exception list. If you can't
find it there, you go over to the Tax Asses-
sor's Office and see what they have on
their's because every subdivision in the
world is filed over there. Then if you
can't find it there, you go back to what is
known as the grandfather list, which I am
sure this Board understands because I under-
stand they were involved in that in the
'70s.
Once it
places, then I
is found in one of those
check with the Town Attorney
and tell him what I have found and I get the
green light from him. That is what Town
Attorneys are for,
They are the legal
was done.
as far as I am concerned.
arm. This is how this
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While I am at it, there was reference
to an article in a November rag known as the
newspaper out here, who indicated that ! had
done something crooked because my daughter
was involved in this. I want the record to
show that my daughter knew nothing about
this property until three months after that
vacant land was issued. Now I can under-
stand why this factory publishes this crap.
It sells newspapers and they have no regard
for somebody's character or whatever. But
again, I will state, I wrote 99 percent o~
all o~ the vacant
since 1983. Okay?
you?
MR. MOORE:
land CO's in this Town
What else can I tell
Was this property from
the excepted subdivision list?
MR. LESSARD: Yes, it was under May.
On the May 24, 1966 zoning code, on the last
page. I believe I gave the Zoning Board of
Appeals a copy o~ that.
THE CHAIRMAN: I never received one.
MR. LESSARD: I am sorry. I gave it
to Jim. I have it anyway.
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MR. DINIZIO: I saw it, but I have
not ...
MR. LESSARD: I gave a copy. I gave
it to you. I would also state that the
research goes back to 1980, about the time
the grandfather list died. On a quick
reference, there has been at least 50 of
these vacant lands written, okay? I want
the Board to understand that.
MR. MOORE: Does this refer
land CO's on subdivisions that were on the
to vacant
list that we are referring to in 1966 had 16
listed, and of those 16 there are three left
today. These three did not move like the
rest of them. So they kept them, and new
ones were put on. Somewhere in 1970,
probably in November when the Town flipped
over to one acre zoning, this list was
changed. I am only guessing. There is no
resolution or anything to put on, take off,
or move around.
exception list but don't appear on the list
now?
MR. LESSARD: That is correct. The
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I would also state, and that is
1970, the names that were added had lots
smaller than this one. Even though we went
to one acre zoning.
MR. MOORE: So if I understand,
were subdivisions added in 1970. I can
think of one in particular, the Tuthill
(phonetic spelling) subdivision. Is that
the one you are referring to?
MR. LESSARD: That is one of them.
Yes, sir. That is five houses,
quarter lots off of Bray Avenue.
THE CHAIRMAN: In Laurel.
on
believe,
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in
there
MR. MOORE: That subdivision had been
the previous exception list.
MR. LE$SARD: No, it had not.
MR, MOORE: There are subdivisions on
the exception list today that have been on
the exception list since 1958.
MR. LESSARD: In all probability, I
didn't bother
answer that.
MR. MOORE:
questions for you.
to research that.
I couldn't
haven't got any further
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THE CHAIRMAN: I have a couple of
questions. My problem is that I want the
code book, and it is locked in my office.
So if you wouldn't mind ...
MR. MOORE: I have it.
THE CHAIRMAN:
MR. DINIZIO:
THE CHAIRMAN:
MR. DINIZIO:
THE CHAIRMAN:
DINIZIO:
MR.
question.
Have you issued any vacant
CO's for this subdivision in the past
you can recall?
MR. LESSARD: I believe I
of them to a Rudy Johnson (phonetic
Thank you.
Can I ask a question?
Of Victor?
Yes.
Sure.
I just want to ask one
land
that
issued two
spell-
DINIZIO: A situation adjacent to
them because he knew he was dying and he
wanted to get this cleared away for his
nephew and niece.
ing).
MR.
the ,..
MR.
connected,
LESSARD: Yes, they are all
I believe. Rudy Johnson wanted
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that?
permit
1984.
and a brand new house went up in
I had no problem with it.
MR. DINIZIO: Could you get
MR. LESSARD: What's that, sir?
MR. DINIZIO: Of the building permits
and the plans of the vacant land CO's?
try,
else,
MR. LESSARD:
certainly.
MR. DINIZIO:
THE CHAIRMAN:
Mr. Moore?
MR. MOORE:
I will try. I will
Thank you.
Do you have anything
Nothing for Mr. Lessard.
THE CHAIRMAN: I still have a ques-
tion I would like to ask him. I am still
searching for it, and I will be with you in
a moment. This is highly irregular, but ...
copies of
MR. DINIZIO: You know about the
date, what time it was?
MR. LESSARD: Two years ago ... three
years ago. There was also a house. There
is also a vacant lot across the street from
... in fact ... right next-door to one of
these gentlemen here. There was issued a
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MR. MOORE: Maybe we can help you
find the section.
THE CHAIRMAN: No. It is not the
section. It is something else I want to
look for, but I will do it from the top.
23
Okay. It is highly irregular that I do
this, but I have a particular problem with
these vacant land CO's and this is the
second time in my history of the ten years
on the Zoning Board of Appeals that I have
come down. One was for the code condos and
you must excuse my writing.
(Whereupon, the chairman began to
draw on a blackboard.)
THE CHAIRMAN: What we have here is
basically two lots. We really have four
lots, and truthfully, what Victor has said
is exactly correct in reference to some of
the procedures that have gone on in the past
within this Town in reference to grand-
fathers of subdivisions, and so on and so
forth. I can remember there was a last
grandfathering of subdivisions, some 340
lots at one time that the Planning Board
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very simply ran through as an agenda item
and I believe I presently have them.
M~ ultimate concern is the fact that
many times I have felt, and it is not neces-
sarily this particular time, this is a
generalization which I am dealing with,
that Building Departments deal with a single
and separate issue based upon the way they
perceive those particular lots to be as this
comes out of the Suffolk County Real Proper-
ty Tax Services in Riverhead and they are
the mappers for Suffolk County and those
maps are the ones that all the ten Towns
have and are presently contained in the
office of our Building Inspectors.
If we could, for a moment, deal with
these particular two parcels which again
could be four. This particular one over
here, which we will refer to as Parcel A,
Sub 1, Sub 2 and Parcel B ... Sub 1 ... Sub
2 ... is basically one issue that
seen in the past as being somewhat
pitfall of
and others
I have
of the
maybe this Building Department
in question.
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Parcel A very simply denotes two
lots. For the purpose of an explanation,
they are 50 by 150 foot lots. The straight
line down the middle of these lots very
simply means that these particular lots,
based upon the Suffolk County Property
Services, and I am not speaking for them,
but I happen to know several mappers and I
use their office quite a lot in my
particular position with the County, very
simply means that these two lots were pur-
chased separately. They were purchased
separately.
There is no indication of when they
were purchased. If it was prior to zoning,
subsequent to zoning, prior to one acre
subdivisions, subsequent to two acre
subdivisions. This particular one, if we
can perceive it also showing the fine dotted
line, is 100 by 150 and there is a fine
dotted line down the center of this par-
ticular one.
What this very simply means is that
this parcel was bought at the same time in
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one particular block on one
piece.
Now what
regarding this,
with the vacant
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particular
concerns me an awful lot
some of the problems we have
land CO's, is that when the
subdivision is shown with a full line down
the center, and now remember these do not
show any improvements on them, they are
solid black lines, that they are perceived
to be in single and separate ownership
because that is the way they are shown in
the individual maps. When you have the
dotted line we assume that it is one piece.
Now in the encroachment there would be a
house here or there would be a house over
the whole center of the line ... same situa-
tion over here. .The house could be in the
center and we wouldn't know that unless we
had a survey.
what, in effect, I have been saying
is that this is not a proper procedure in
dealing with the application by an outside
applicant or person in this Town or out of
this Town in requesting a vacant land CO.
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I thank you for bearing with me and
my illustrations. The only question I have
of Mr. Lessard is that it is my understand-
ing in the code respective of the issue of a
1966 exception list or 1989 exception list,
it is clearly stated, in my understanding,
that the Building Inspector is to request a
single and separate search for the
particular parcel that is requesting that
vacant land CO. That is my understanding.
Now if I am incorrect in
incorrect in that?
MR. LESSARD:
that, why am I
It is my understanding,
through three attorneys now that work for
the Town, that if it is an improved sub-
division, if it is an excepted subdivision,
it doesn't need a title search, number one.
We put that in. We put that in two years
ago or whatever it was, Gerry, and if you go
see the so-called title searches
looked at, I believe I found one
15 that were zoned bogus.
As far as this diagram is
yes,
that I have
in the last
if you have two lots indicated with a
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solid line, the control factor on that would
be subdivision or no, where that house is.
If that house is going through that middle
line, that person will not get a permit
until he gets an attorney who files a paper
with the surveyor's office merging those two
lots.
The dotted lines are good examples of
that. The Nassau Point properties show up
to six dotted lines on what the County
considers one piece. We have Nassau Point
properties, one, two, three and four ex-
cepted. It tears me up to have to say yes.
They are separate lots. Okay. Some of them
are 40 feet wide, but the law is the law.
Now as far as the County is con-
cerned, this is the greatest problem in the
world for the Building Department because
back in the '70s, in the grandfather list
and all of that, people had the bad habit of
hiring an attorney, laying out the property,
circumventing the Town, filing with the
County, and we have to pick that up and say,
"Fine, but now you have to come here to the
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Planning Board and property subdivide
cording to the Town rules."
Case in point, Blue Horizons
up here
in Peconic, even when we had accepted the
Master Plan and you can see it on the map.
I will take you right out there. There are
48 lots in Blue Horizons, but there isn't.
There are eight lots up on the Sound. The
rest is laid out to preserve, but that was a
bad habit here in %he '70s. To hell with
the Town. We will circumvent them, get an
attorney for help, and bound file them with
the County.
Another problem I had in the early
part of the '80s, the law says when you have
a minor subdivision, the applicants, not the
Planning Board, the applicants must file
with the County within 90 days or the sub-
division becomes mute. I can take you in
the Planning Board and show you 200 lots
that never hit the County, the so-called set
off nonsense they were doing out here. That
is another problem. It is not an easy
matter.
In fact, we talked to the attorney.
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I don't believe this Town will ever
issue any more vacant lands. It isn't worth
it.
THE CHAIRMAN:
Victor, but I thought
I understand that,
the reason for the
single and separate search was to clear that
matter up. I thought that was the reason
for ... in 1988, the reason for making that.
MR. LESSARD: That is true, Gerry,
but this Town Attorney said to me if it is
an improved subdivision or on the excepted
list there is no need for the search. It is
there. The record is there. The record is
in the assessor's office. The only
that you go for that is if there is
subdivision that has been approved.
want to know how. that lot got
chain of command obviously.
time
no clear
Now you
there and the
THE CHAIRMAN:
prescribed property
MR. LESSARD:
THE CHAIRMAN:
You are referring to
only.
Absolutely.
The problem I have is
that when I discussed this with Mr. Hills
(phonetic spelling) on or about the 10th of
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December 1989, I turned to the excepted list
and the present code and, of course, did not
find the amended map of Mattituck Properties
on that. On that basis I called and said to
him, at that particular time, that I didn't
see it there and it does not appear to be
excepted at this particular point, meaning
excepted, and for the life of me I don't
know how one can go back to a 1966 code.
Now I understand that is what Jay
Schondebare did, because I spoke to him
concurrently the next day after I spoke to
Mr. Hills and he told me he spoke to the
prior surveyor who was imported by the Town
at one time, and he indicated to me that
what you had given as testimony tonight was
the reason for
excepting them,
these will not
entire code up
these excepted lists, or
and therefore the loss
be carried through to the
to the present day.
The only problem I have with that is
that in 1966 it would be assumed that this
particular subdivision could be on the
excepted list, because we had 12,500 square
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foot zoning at that time. Our zoning was
100 by 125. Those lots are 50 by 150. So
they have very simply lacked by 5,000 square
feet, the normal square footage that would
have made them actually legal. That was the
reason why I assumed they were on the 1966
code. I mean, I could be wrong.
MR. MOORE: If I could interject.
I understand you, doesn't it make a lot of
sense to be on the excepted list if the
subdivision at the time comprise what the
zoning at that time?
THE CHAIRMAN: That is correct. That
is the reason they were on it.
MR. MOORE: You have identified the
problem here, which is the January 1989
adoption of the new Master Plan included in
this new version of 100-244. That section
of the code doesn't work with the exception
list. It just doesn't make sense. One of
it has to go, and you hear the Building
Department is doing its very best to inter-
pret and apply the code, and the back end of
the new code is this nonconforming lot
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provision requiring single and separate
search. Ii the Building Department inter-
pretation is that it was from the exception
list and those 1966 lists are still good, he
is not going to say I need a single and
separate search. That's where you get the
problem with the code, in that respect.
THE CHAIRMAN: We don't have a
problem with the code, because I said to Jay
Schondebare at that particular point ... I
said I will take it to the Board. But in
his office, at that particular point, as I
sat in his office I told him that the 1966
code no longer applies. It is phased out.
It is no longer with us. We are dealing
with it based upon the 1989 code. There-
fore, this lot to stand would require a set
off by this Board and very simply a process
of the Planning Board, which you are aware
of, because we do it concurrently.
MR. LESSARD: Two things, Gerry, so
we don't go too far afield here. The vacant
land was issued under the other code, not
the Master Plan code. Going back to our
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theory of this 1966 lot being X amount of
feet short of 12,500, using that theory, how
do you justify going into 1971, or November
20, 1970, into one acre zoning by putting on
the exception list something that goes down
to 5,000 feet, one-third smaller than the
ones that were on there? I don't understand
the theory.
THE CHAIRMAN: Well, the only thing I
can tell you, if this is a historical docu-
ment of what is happening in this Town, very
simply, before the adoption of that par-
ticular situation of going from 12,500 to
20,000 square foot lots, which was a re-
quirement by the Health Department,
then to
one acre zoning. That was in 1971, as of
January 1, 1971 ... was prior to that date
the Planning Board was asked to look at all
the subdivisions and to make a determination
in 45 percent. Those subdivisions were
built, were improved, and that is what
basically ended up on the accepted list for
the new code in 1971.
Now, if you ask me presently what
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that means, I don't know. I assume whatever
ended up on that accepted list in 1971, that
is what they had simply looked at. Now they
may have missed one or two, but John wickham
who was the Chairman at that time, or Henry
Raynor (phonetic spelling) could probably
answer the question better than I could.
All I can tell you is there was one, and
there was subdivisions on that list. They
are available.
It was not my suggestion that the
prior Town Attorney should be asking a
surveyor in this Town how that was arrived
at. That person was not an employee of that
Town at the time that either the '66 sub-
division exception list was produced, or the
'71, or '72, or '73 ... whatever the situa-
tion is when those areas were revised and
that is what concerns me. Because I think,
Victor, you got bad information. I mean, I
really do. I think he should have come ko
us first before he issued that letter and he
should have asked us.
MR. LESSARD: Who is that?
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THE CHAIRMAN: The prior Town Attor-
ney, and he should have said to us what do
you think, because I really don't think that
information was correct because he was
relying on a person who is not an employee
of the Town ... certainly had tremendous
things for historic value to what exists ...
but was not from the inside of the Town ...
was not a member of the Planning Board and
certainly ...
a question, I
I mean, if I was going to ask
would call John Wickham.
He is the biggest source of informa-
tion. The man is 76 years old and he is a
tremendous reference to historical back-
ground, just as Charlie is ... excuse me for
is in Europe
MR. LESSARD: I have a problem in
this respect. This was started, a practice
long before I got here, because it was a
standard practice. I don't know what the
Town is Going to do, because now we are
going one step further. You could have as
many as 100 ... 150 of these not acceptable
mentioning ... at 73. Serge
now. He is not with us.
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vacant land that had been built on. Do you
realize the chaos it is going to start and
what legal basis are you going to rely on?
THE CHAIRMAN: I think we have to
rely on the fact that the vacant land CO is
really not worth the paper it is written on.
MR. LESSARD:
THE CHAIRMAN:
one of these vacant
I knew that part.
Number two, that every
land CO's should require
a set off by this Board and
the Planning Board, and that is
only way you can deal with it.
concurrently by
really the
So what I am
asking is that from this particular point
on, that is basically the area that is
adhered to so we don't have any more of
these problems. And if the legislative
committee, which was organized and used to
be the committee, which is part of this town
which alters or modifies this particular
code, feels that there are other
subdivisions that should be placed on this
exception list, or accepted list, meaning
existing subdivisions we add to the list, we
run over it and add to the list.
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My concern is that at 80,000
feet this particular subdivision is not in
that exception list. Very simply, we have
7,500 square foot lots, and that I assume
the reason why it is not there.
MR. LESSARD: We have a lot of 5,000
square foot lots that are on that list. If
we are going to take that attitude ... we,
the Town, then I strongly suggest we
eliminate all exceptions, all accepted
lists.
square
There is no way in my mind that you
can take the 10 or 12 or whatever thousand
square foot lot and say we are in two acre
zoning because the next thing that follows
is the guy next-door wants to cut his in
half because it is inconsistent with the
area. With the domino theory and without
realizing, you can forget the two acre
zoning. You are down to all quarter acres.
I don't know what is going to come
out of this. All I can see, at this point,
is there is going to be one hell of a lot of
chaos around here. All I did, I ... the
Building Department did, was follow practice
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that was set long before I got here. I used
the Town Attorneys. Mr. Tacka (phonetic
spelling) mostly. Bless him. He is gone.
That is where I learned my business from.
He wrote the book, and subsequently I worked
through three other Town Attorneys.
I don't know what else I can tell
you. I live with this thing seven days a
week. That may be where the difference is.
I don't know.
MR. MOORE: Mr. Chairman, you have
made some comments this evening which have
given me some food for thought, some avenues
of research and some I would like to look
into if I may.
THE CHAIRMAN: Concerning this hear-
lng?
information here which could help me.
MR. MOORE: Yes. You raised some
I
would like to explore it. My request would
be to adjourn the hearing, not to close it,
tonight. So perhaps we can explore this
matter a little further.
THE CHAIRMAN: We will see who else
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wants to speak, and we will discuss it
that. The purpose of this hearing tonight
was to include this one and the other one.
MR. MOORE: I am sorry. I didn't
gather than from the information I had in
the transcript or otherwise.
MR. LESSARD: So there is no con-
fusion, I had a letter from the Town to be
here. I am not here to take either side.
want that very clearly understood here.
THE CHAIRMAN: Right. I appreciate
that, Victor. I don't think there is any
animosity.
MR. LESSARD: I don't want animosity.
That is not why I am here. We have a
problem and I want the answer to it.
THE CHAIRMAN: Okay. Is there any-
thing you would like to say, gentlemen?
MR. OCHSENRETER: Yes. I do not
object to the building permit that was
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after
issued in 1984, two houses down from me,
because I understood that, the single and
separate ownership. I didn't get into this
on personalities, relationships, real or
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imagined. I felt because I
of property contiguous
that lot was not built
was ... not buildable
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owned a piece
to mine, that
on the same as my lot
... because when we
first bought it in 1973 we got two tax bills
and those properties were merged sometime
after that. We get one tax bill.
There has been a lot of property sold
in that neighborhood where people in Good
faith believed they could not build on them,
and that was my understanding and that is
the basis that I presented this petition on.
THE CHAIRMAN: We thank you, sir.
Is there anything you want to say for
the record? You called me.
MS. ARMBRUST: Dorothy Armbrust, 595
Bayer Road, adjacent to the property in
question. I have lived there since 1930.
The house has been up there since 1972,
I sold the property.
by my mother in 1950,
Parizot, and in 1950
the lot, until I felt that
care of it myself.
and
The lot was left to me
and her name was Katey
... and I held onto it,
I could not take
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The Bettners (phonetic spelling)
inquired about it, and ! sold it to the
Bettners. I inquired at the Town Hall and
was told as long as I held the lot ! could
build on it, but after it was once sold to
the Bettners, it could not be built on any
longer because that was the law at the time.
I don't know who I spoke with.
My husband was alive at the time and
he is now deceased 11 years. So he probably
knows what date it was, and I think it was
about '68. The Bettners held it, I believe,
until 1972 when they sold it to the Spanos,
and that was the way the property stood
until the Spanos sold it in June of '89.
had been in the hospital and I did not know
too much about it, but they came and sur-
veyed and said that property couldn't be
built upon because I was told it could not
be built on once it left my hands.
I don't know if there is something
wrong in the Town Board, as far as ! can
see, if they changed their minds. I was not
notified that it was bought separately to be
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a lot to be built on. Had I been notified
... but then I had been in the hospital ...
but there was no mail to that effect. So I
did not know.
That's all I can say. I really don't
approve of the property, but ...
THE CHAIRMAN: Thank you very much.
MS. ARMBRUST: Because I think I
should have been contacted before it was to
be built on, but I did not receive any
information beforehand.
THE CHAIRMAN: Thank you. Thank you
for coming out tonight.
Is there anybody else that would like
to speak in the applicant's behalf?
MR. LENCESKI: Edward Lenceski.
Specifically looking at the situation which
our petition presented to the Zoning Board,
okay, is a situation where Lot Numbers 35
and 36 were deeded as one single lot of
dimensions 100 by 150 to the Spanos back in
1972.
for a
150
In 1972 a certificate of OCCupancy
one family dwelling on a lot 100 by
was issued by the Building Department.
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In November of 1989,
was issued by Mr. Lessard.
who applied for that permit.
ing when I contacted the Town
dividing my property which is
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a vacant land CO
We do not know
My understand-
concerning
across the
street, which is a very similar situation, I
was told that, number one, I would have to
apply for the variance through the Town.
For what? From what ! understand, a
variance means notifying all the neighbors
and having a hearing from the Zoning Board
to see if this would be approved.
Now this situation, a lot across the
street, Lot Numbers 35 and 36, none of the
neighbors were notified.
was done. This
don't know how
ever applied for, from what
We talk about an exception list.
This miraculously
lot was split into two. We
it was done. No variance was
I understand.
We
tion is how was any building permit issued
by the Building Department?
At the last hearing we had discussed
know in January of '89, that Mattituck
Heights subdivision was deleted. Our peri-
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house,
don't
long to
here.
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our timeliness and why did we wait so long
to do this. I remember when, when that
foundation went in, in August of '89, we had
no idea what was going up there. When the
building permit was posted, we could have
gone to the Town and questioned under that
building permit what was going on there.
We didn't know if it was a garage.
There was a rumor in the neighborhood it was
going to be a swimming pool. This was a
rumor. We did not understand. We did not
know what was going on. There was a period
of time, from August until February, when no
construction at all was done. We do not
understand why, if somebody was putting up a
why there was such a long delay. I
know ... about a foundation took that
cure ... but that is not the point
Getting back to the originally deeded
lot that was in the name of Spano, our
petition asked the Town Board how a permit
was issued and how is this subdivided in
this respect? That's all I can say at
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this time.
THE CHAIRMAN:
MR. LENCESKI:
THE CHAIRMAN:
Thank you.
Thank you.
Is there anybody else?
Is there anything you would like to say in
rebuttal?
MR. ZAHRA: Charles Zahra. I have
been going through this for three years. It
is a matter of record that I have viewed
many documents in Town Hall over this period
of time. I have been observing this case
and I think the merits of this case fall on
two documents. They are the building zone
ordinances of the Town of Southold, which is
one dated May 24, 1966,
subdivision exceptions,
property in question.
and it lists all the
including the
As was mentioned before, and the
amendment of 10/30/73, which is, I believe,
was incorrectly stated before ... I think
someone mentioned 1970 ... and you will find
you won't find any
from 1966 on this.
that in this
of the subdivision lists
Basically, that means
amendment it caused the
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subdivisions to be completely deleted just
as any other ordinance would have the same
effect. I have two copies to submit to you.
Mr. Lessard mentioned one of the
problems he foresees is a lot of these
houses have been built and now could be
deemed illegally built. I would think the
more serious problem is if this Board
upholds what Mr. Lessard has done, I think
it opens the floodgates to all of the sub-
divisions to now come in and apply to have
to build homes. Even to the extent of an
individual having a house up, now having it
torn down. He may try possibly.
I know of a situation where houses
have been built on four and five lots, one
house with maybe a swimming pool. It would
behoove him to level that property and now
built four or five houses, and I think we
are talking about many homes ... one
That is basically all I have to
hundred.
say.
THE CHAIRMAN: Thank you.
MS. GARCIA: Corrine Lessard-Oarcia.
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tax bills.
the closing,
have to say.
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I own the property adjacent to the Inland
Home house, clesring up a couple of mat-
ters, at my closing, first, my sister-in-
law Susan Lessard researched it. There were
two separate deeds at my closing. We paid
two separate tax bills, single and separate.
There was never a rumor going around in the
neighborhood of a swimming pool. Mr. Zahra
was overhead at the last hearing telling Mr.
Lenceski, "You should have told him it was a
swimming pool." That is what we are dealing
with here. It is not all facts.
The facts are there are two separate
I paid two separate tax bills at
Town and County. That is all
THE CHAIRMAN:
MS.
Mr.
Thank you.
GARCIA: Also, one more thing.
Ochsenreter is an employee of %he
Health Department. Now if they were so
worried about what I was doing across the
street,
... Mr.
believe in January, before
I went through the Health Department
Raynor (phonetic spelling),
even bought the
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property, and got their approval. Now it is
professional courtesy for him to go and find
out these are the systems you have to go
through. You have to go to the Health
Department to get permission to do these
things. If there was something going on,
the paper work was finished in January. He
could have very easily gone and looked it
up. Thank you.
THE CHAIRMAN: Thank you.
MR. OCHSENRETER: I would like to say
something. I do separate my private life
from my business life. I work for the
swimming pool and bathing beach section. I
have nothing to do with wastewater manage-
ment. I keep them separate.
MR. ZAHRA: This lady just mentioned
that she overhead me speaking to Mr. Lences-
ki, instructing him to tell the Board it was
in fact a swimming pool. This is totally
incorrect. If she wanted to join in the
conversation, I would have invited her in.
What basically had been said ... Mr.
Lenceski at an earlier moment mentioned to
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me that he was told, as well as Mr. Ochsen-
reter, that it was a swimming pool. That is
what she overheard me saying
Lenceski: Sure. Go tell the
told to you. That it was
Okay.
... was to Mr.
Board what was
a swimming pool.
THE CHAIRMAN: Thank you.
MR. ZAHRA: Now she mentioned a point
on having single and separate tax deeds on
the property. And this brings up ...
didn't want to bring this up. I didn't
think it was necessary because it is not a
subdivision, but I find a lot of
similarities in this case, that is of Mr.
Hines, better known to everyone here as The
Candy Man, out in East Marion. I would also
like to mention Mr. Tohill defended The
Candy Man in an article that was an Article
78 proceeding and he lost. I would just
like to mention, and enter into the record,
a couple of articles from that Article 78
proceeding stating why he lost .r. as well
... why the petitioner lost.
THE CHAIRMAN: Can you just give a
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little foundation on how you do show a
similarity?
MR. ZAHRA: I compare the Hines case
in Orient to this case with regards to the
property being single and separate. It did
have single and separate tax cards. I have
copies of them here. I will submit them.
Mr. Hines also had single and separate tax
cards when he went in to fight his rights
and was denied them. It is an Article 78
proceeding. I just jumped around here in
the interest of time.
In one paragraph it says that
petitioner's property was purchased as two
separate parcels. One was purchased in '82,
and the second parcel purchased in '84. The
Clerk includes that merge, did a hear by
operation of 100-31 of the Zoning Ordinance
of the Town of Southold, which excepts lots
held in single and separate ownership prior
to '71, from the new one acre requirement.
Since petitioner's parcels were purchased in
'62 and '64, merge occurred in '64.
I'll hand that up, if you will give
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with regards
said, and Mr.
Hines' case,
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me a second to get this stuff together.
I want to mention one other thing
to being timely, as Mr. Tohill
Moore tonight again. In Mr.
the building permit was issued
on March 22, 1985 to contract a one family
dwelling
Mr. Hines received the stop work order and
on this parcel. December 23, 1985,
to mention that for the record. These are
single and separate tax cards of Mr. Hines,
basically the same as the Garcias ... who
are now Mr. Hines. I will just hand this
stuff up and I will be finished here.
One other item I would like to hand
up is Exhibit B of Mr. Tohill's Article 78
to the Court. You have a record of this,
Gerry, in your office. This is where I
copied this material from, for the benefit
of Mr. Moore. One paragraph, it says: Each
parcel has received a single tax invoice
from the Town of Southold.
revocation of his permit
Department or with taxes
taxes being eight months
from the Building
being timely, with
later. I just want
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I am finished, Gerry.
get this together.
THE CHAIRMAN: Yes, Mr. Lessard?
MR. LESSARD: I did not want to stick
my nose into this latest thing, but I
couldn't let this thing go by and confuse
the issue here tonight.
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will just
Pirst of all, Mr. Hines did not have
an approved or excepted subdivision. Mr.
Hines had two lots that he put in the iden-
tical name, as this Board is very well aware
of, because it came to this Board. Mr.
Hines came in and said to me, because I
wrote the permit, that they were single and
separate and he flashed two tax things I saw
here. Mr. Mines got his permit and sat on
it until after the fruit crop that he had on
that second piece of property had matured,
which put him into late October.
So that knocked the hell out of that
time argument I just heard as to bearing on
what we are talking about tonight. We are
mixing apples and oranges here, and I damn
well don't believe it should crowd this
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tion?
What was the outcome of the Zoning
Board's hearing on Mr. Hines?
MR. LESSARD: What was the outcome?
H~ had bogus applications. He did not have
an approved subdivision. He already had two
or maybe three houses on the other one lot.
There was a lot of reasons why the Board ...
if you check the records in the Zoning Board
of Appeals you find out right away what it
is all about.
MR. DINIZIO: Article 78 we just
heard about was after that.
MR. LESSARD: Yes.
THE CHAIRMAN: It went to the Supreme
Court and they reaffirmed our decision.
Mr. Moore, is there something you
would like to tell us on what you are look-
ing into? I would really dearly like to
close this hearing.
issue at all. Otherwise, I wouldn't have
said anything.
THE CHAIRMAN: Thank you.
MR. DINIZIO: Can I ask you a ques-
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MR. MOORE:
like to explore that
have indicated some
information,
THE CHAIRMAN:
understand.
exception list,
fruitful avenues
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would
and you
of
Could you do that?
MR. MOORE: The other half was, Mr.
Lessard mentioned issuing several, I don't
know, vacant land CO's or building permits
on similarly situated exception area sub-
divisions. I would like to explore that
fully. That may take time.
THE CHAIRMAN: We will put you on for
the last hearing on the 19th, but I want to
keep the testimony brief so that we can wrap
it up.
MR. MOORE: That would be fine.
THE CHAIRMAN: I don't say that it's
going to be a pretty good hearing. There is
going to be a lot of people here. I don't
mean in reference to the numbers. I am
talking the
that is the
length of time of hearings and
only thing I can offer you at
this particular point.
Does anybody have any objections
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to
have
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that?
MR. DINIZIO: No. I would like to
the tax, accurate tax ...
THE CHAIRMAN: You want a hill?
MR. DINIZIO: The bills.
MR. MOORE: Tax bills we can get you.
MR. DINIZIO: I would just like to
have copies of them.
MR. MOORE: That
modated.
THE CHAIRMAN:
can be easily accom-
Mr. Zahra has one
other question or statement, if you wouldn't
mind.
MR. ZAHRA: I would just like to say
one other thing with regard to the material
I submitted to you, with reference to The
Candy Man or Mr. Hines' property. My focus
of attention was on the fact that he had
single and separate tax codes.
That is basically it, Gerry, okay?
And you have to understand I know so little
about zoning.
THE CHAIRMAN: Thank you.
Anything further from anyone that
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might not be here on the 19th or
abouts?
Hearing nothing further,
further hands, I make a motion
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there-
seeing no
recessing the
hearing until the 19th, which we will
readvertise if there is a minor change in
the date, along with all the other hearings.
MR. DINIZIO: Second.
THE CHAIRMAN: All in favor?
MR. GRIGONIS: Aye.
MR. SAWICKI: Aye.
MR. DINIZIO: Aye.
THE CHAIRMAN: I thank you very much
for your courtesy and for coming in.
Thank you, Victor, for your opinion
and concern in stating the case.
(Time noted: 9:34 p.m.)
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
Southold Town Board of Appeals
Regular Meeting: March 29, 1990
There being no other business propgrly coming before the
Board at this time, the Chairman declared the meeting adjourned.
Doreen Ferwerda
Board Secretary