HomeMy WebLinkAboutZBA-05/30/1990 HEARING1
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TOWN OF SOUTHOLD
COUNTY OF SUFFOLK : STATE OF NEW YORK
SOUTHOLD TOWN ZONING BOARD OF APPEALS :
HEARING, :
Town Hall
53095 Main Road
P.O. Box 1179
Southold, New York
May 30, 1990
7:36 P.M.
B e f o r e:
GERARD P. GOEHRINGER, Chairman
APPEALS BOARD MEMBERS:
CHARLES GRIGONIS, JR.,
SERGE DOYEN, JR.
JOSEPH Ho SAWICKI
J~ES DINIZIO, JR.
Absent
Present;
Doreen Ferwerda
Board Secretary
GAIL ROSCHEN
Official Court Reporter
11971
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THE CHAIrmAN: This is a special
meeting called by the Zoning Board of Appeals.
We were making decisions and we are reconvening
now into a regular special session including
several applications that we have been holding
in abeyance and have been recessed.
The first appeal is Number 3920. I
see the contractor is in the audience. Is
there anything you would like to add to the
hearing? The purpose of this recess was to
deal with the lot coverage issue concerning
this particular piece of property. We are
aware of the memo
and we don't have
concerning it. I
Do you have any?
MR. DINIZIO:
THE CHAI~¥~N:
make a decision based upon the
given to us.
MR. BOHN: Robert Bohn.
have
guaranteeing it.
from the building inspector
any particular questions
don't.
No. It speaks for itself.
We will now be able to
information
We won't
the decision tonight.
THE CHAI~4AN: You could. I am not
It depends upon how lengthy
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we get. We've only gotten three decisions,
and we have about 12 or 15 to do.
MR. BOHN: I would be notified by mail.
THE CHAIRMAN: Yes.
MR. BOHN: Okay. Then you don't need
me here.
THE CHAIRMAN: I don't need you. I
thank you for coming down and I hope I didn't
inconvenience you in coming down.
MR. BOHN: Okay. NO.
THE CHAIRMAN: Anybody else that would
like to speak concerning the application, either
pro or against? Seeing no hands, I make the
motion closing this hearing and reserving
decision until later.
MR. DOYEN: Second.
THE CHAIrmAN: All in favor?
MR. DOYEN: Aye.
MR. SAWICKi: Aye.
MR. DINIZIO: Aye.
THE CHAI~N: The next appeal -- these
appeals have been open before. That's why
we are not reading the legal notice. It is
Appeal Number 3933, in behalf of Pamela
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Valentine. Is she in the audience?
Could I ask you to use the mike, please?
At the least hearing we did open, I realize
there was a problem with advertising and
sending --
MS. VALENTINE: Pamela Valentine. It
was not advertised and we were not properly
notified.
THE CHAIrmAN: Would you give us any
statements that~you'would like for the file,
please?
MS. VALENTINE: Yes. I would like to
make one statement about the description of
our application for permission to build an
eight-foot fence. The application was actually
for a six-foot fence, except for the limited
area on that front of Main Road and that was
the only frontage where we applied for an
eight-foot fence. In fact, it may be a seven-
foot fence in that limited area, but the fence
fence if it is
I wanted to have the
speak to the Board, because we do
is going to be a six-foot
approved.
THE CHAIRF~N:
Town Attorney
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not normally grant these. You are going to
have to tell us why you want it. This
definitely is in the front yard area. It is
on the main road, and you have got to explain
to us why you want it.
MS. VALENTINE: Well, we want it:
1) Because of the increasing traffic from the
ferry which I think is pretty noticeable. There
was an article in the Suffolk Times just last
week. It is not only us, but a lot of people
are realizing that the traffic is just becoming
a problem. There is a lot. This lot in par-
ticular suffers because it is closer to the
ferry than -- it is not in Orient Town itself.
It is way outside of the town. We don't have
any neighbors who would be able to see the
fence from their yard or their home. The
ferry traffic at that point isn't broken up,
at all. We just have strings of traffic.
Quite frequently it
traffic.
THE CHAI~¥~N:
a split rail fence and there are bushes
this split rail fence.
is strings of commercial
You presently have there
around
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MS. ~ALENTINE: Yes.
THE CHAIRMAN: What are you doing? Are
you taking out the split rail fence and putting
in a stockade fence in place of that?
MS. VALENTINE: The fence we propose
to put in would be in the exact location of
the split rail fence, which I believe is about
10 feet from the road, and the fence would be --
I really don't know if stockade is the right --
it would be a tongue and groove cedar fence.
THE CHAIRMAN: You mean like a woven
fence.
MS. VALENTINE: Can I approach?
THE CHAIRMAN: Sure. That's why we
asked you to come.
MS. VALENTINE: It would be kind of
like this.
(Ms. Valentine providing the Chairman
with a picture)
(Discussion held off the record)
THE CHAI~4AN: Thank you. Would you
be planting? First of all, I was over there
and we are familiar with the property. We
had litigation on this before.
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in front of
in any way?
MS. VALENTINE: I don't believe we
would be planting anything in front of it.
There are flowers and low, very low plantings
in front of the fence where it is. To the
extent that those could be saved, we would
save those and to the extent that we can save
any plantings that are presently there, it
would remain.
THE CHAIRF~N: What is the purpose of
the eight-foot fence in front of the easterly
lot?
MS. VALENTINE: I am aware of that.
THE CHAI~3~N: I was unable to pick .up
any monuments to locate, to see where the
actual property line started. So that is the
reason for my question, in reference to place-
ment of where the split rail fence is,
because with the copy you can see it from there.
It really just takes the property line and
draws a red line through it, and I do not
know the exact placement of where the fence
is going to be. Would you be planting anything
this fence so as to shield it,
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MS. VALENTINE: The seven or eight-foot
fence in front of the easterly lot is because
when we initially purchased the property we
were hoping to put a tennis court in that lot.
As it stands now, I don't think either of us
could go out and play tennis because of the
traffic out there. If, in fact, we do decide
to put a tennis court, we would like a slightly
higher fence in that area: 1) For the
protection and because it wouldn't be seen
from the house as much as you would see the
seven-foot area fence. If you are going to
deny our application because you object to
the eight-foot fence, what we would be willing
to do is listen to your proposal on limiting
it to a six or seven-foot fence in that area.
THE CHAIrmAN: The fence is for the
sole purpose of keeping balls off the road,
evidently, or is it for the purpose of
shading the property from the viewer?
MS. VALENTINE: I think it serves both
purposes, actually.
THE CHAIRMAN: I thank you very much.
I don't have any further questions. We will
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see if anything develops. I don't know if
there is anybody else here in the audience
that is going to discuss your application,
but we thank you for coming in.
MS. VALENTINE: May I ask the same
question the gentleman before me did? Do you
have any idea when the decision will be made?
THE CHAIRMAN: We would dearly like to
make all these decisions tonight. It depends
on how late we get with the remaining hearings
we have and, if not, we will definitely
make it within~ the next week or so.
MS. VALENTINE: Thank you.
THE CHAIrmAN: You're welcome.
Is there anybody else that would like
to speak in favor of this application? Anybody
that would like to speak against the appli-
cation? Any further comments from anyone,
Board members?
MR. SAWICKI:
THE CHAIRMAN:
No.
Hearing no further
comments, I make a motion closing this hearing
and reserving decision until later.
MR. SAWICKI: Second.
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about 10 years ago we had replaced it. I
measured what the difference was, the recessic
and it's following the way it has been. I
THE CHAIRMAN: Ail in favor?
MR. DOYEN: Aye.
MR. SAWICKI: Aye.
MR. DINIZIO: Aye.
THE CHAIRMAN: Thank you very much for
coming in.
The next appeal is in behalf of 914.
We will ask Mr. Lark if he would like to say
anything concerning the letter we received
from the Suffolk County Soil and Water Con-
servation.
MR. LAW<: Richard Lark, Main Road,
Cutchogue.
I have read over the minutes of the
last hearing, i have one correction. I
stated the erosion that has taken place is
about a foot a year on top of the bluff. That
is incorrect. It is about a foot every two
years. I have remeasured that. I have been
up there since 1968, and we just replaced the
deck on the association property. It was
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checked with Young's office (phonetic) and
that's what their records seem to indicate
on the Sound's bluff. That's the correction
there.
The soil and water letter that I got
from Mr. Tenyenhuis' technician is essentially
the way I explained it to you the last time.
There is only one thing that you should be
aware of. The large rock that you saw is
actually on the Donoleski (phonetic)
now the Abbott property.
which,
I guess, is It is
not on this one. It is 10 ~eet over. That
pretty much frames.the lot for you if you are
looking at it from the Sound, which I believe
you did, Mr. Goehringer. Other than that,
it is pretty well self-explanatory which is
why I think it is in everybody's best interest,
especially any future landowner there, that
the house be constructed as far to the south
as possible, to allow for that.
I looked at the house two properties
away owned by Bryant, which this Board granted
a variance in 1978, and he built his house
about 27 -- he had a 25-foot variance from
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the 35-foot requirement at that time and in '~
'78 he built it about 27 feet and he wishes --
he heavily vegetates his every year -- and he
wishes he was a little closer to the road
because he gets nervous so they don't have
a repeat of what they had in Rocky Point several
years ago. Given the fact you've seen the
stub end of the road, Glen Court there, and
the fact that it was not intended to be open
and the landscaping easement can be worked out,
I think it is probably an ideal solution. I
know the association is pushing that heavily,
because it will clean up that area and get
the house back as far -- Another thing I didn't
point out, the mansion, the big white house
you saw there -- the further south that you
put this house, and I talked to Mr.
(phonetic) who talked to the owner,
it interferes, not
view of that house.
towards the Sound,
with the view. So
even though as you indicated in your
correspondence it is somewhat unusual,
Demskie
the less
that you care, with the
The further you put it
the more it can interfere
all things considered,
I think
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it is the practical way to handle the problem.~
Another thing I want to sta~e for the
record, I insisted that the application come
before you because the Building Department
did not interpret the zoning code the way I
think it should be interpreted. I think the
hundred-foot requirement supersedes even the
pre-existing requirement because of the words
notwithstanding in the other provisions in
the chapter. They don't agree with that. They
think the house could be put up. Whatever
decision you render, which I hope ~ill be (
favorable to the petitioner, I would hope you
take the lead and do a little definition there.
This is an uncontroversial application. So
in another application you might have, you
can clearly spell out by precedent-wise one
section does supersede everything else in the
ordinance, the requirement you've got to be
back 100 feet from the bluff regardless of
the pre-existing lots, and the people would
have to come in here for a variance of that
section. ~
In recap, I am asking for a variance of
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that 100-foot variance, I think it's set back
65 feet, and I am asking for a front yard
variance which would be in effect 35 feet here
going back, and I am asking that it be set
as close to the road as the Board deems prac-
tical. I am asking for zero. The builder
would like 35 feet, but I just don't think it
is realistic because one variance hinges on
the other. It is Catch-22, as you pointed out
the last time.
THE CHAIRMAN: Could you just furnish
us, if you don't have it tonight, the depth
of this house in reference to the north-south
depth, i know %~e could scale it but --
MR. LARK: He doesn't have that.
THE CHAIrmAN: It is not listed. The
actual postage stamp or footprint is not
listed. It just shows a proposed house. We
may have it in. I don't think I have seen it.
I looked at this before. One morning I went
down there, and I did not see it. It is not
something that has to be done tonight, Mr.
Lark.
MR. LARK: Okay. The surveyor did
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leave it off.
application.
the prints?
THE CHAIRMAN:
what we have there.
MR. LARK: The proposed house?
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I think I described it in the
You would like that shown on
Just so we know exactly
Yes.
I do mention
i believe it
of the
it in the petition, the size.
is, but it is not on the prints
survey. I see that.
THE CHAI~N: Just have one of your
secretaries give us a call tomorrow.
MR. LARK: I can have the surveyor
locate that there, on there for you. That
way you would have it officially with exactly
what it is.
THE CHAI~V~N: Thank you very much.
Is there anybody else that would like
to speak in favor of this application? Is
there anybody that would like to speak against
the application? Are there any questions
from Baord members?
MR. SAWICKI:
THE CHAI~V~N:
questions, I
None.
Hearing no further
make a motion closing the hearing
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and reserving
MR. SAWICKI:
THE CHAIrmAN: Ail
MR. DOYEN: Aye.
MR. SAWICKI: Aye.
MR. DINIZIO: Aye.
THE CHAIRlV~N: The
decision until later.
Second.
in favor?
next appeal is
~.~\~; ~ ,
Number 3895, in behalf of the firm of Wickham,
Wickham & Bressler and we ask Mr. Bressler if
there is something he would like to furnish
us with?
MR. BRESSLER: Yes. For the Applicant~
Wickham, Wickham & Bressler, P.C., Main Road,
Mattituck, New York 11952, by Eric J. Bressler.
At this time, gentlemen of the Board,
I have been instructed by my client to withdraw
this application without prejudice. I apologize
to the Board members for the late notice and
any members of the public who are in the
audience tonight who thought there would be
something happening, but only this afternoon
I communicated with Mr. Schroeder who expressed
his intentions to me in this regard.
THE CHAI~4AN: Would you furnish us with
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a letter?
MR. BRESSLE~:
THE CHAIrmAN:
MR.
obviously,
THE CHAIRMAN:
Anybody else?
Certainly.
We appreciate that.
BRESSLER: Because of the lateness,
I did not have time to get one.
Thank you so much.
In this particular case,
it is kind of pro forma that we are going to
accept the request. I do not kno%; what other
avenues are involved here, so if there is
anybody in the audience that is concerned about
this, I would suggest they contact the Town
Attorney after we are in receipt of the letter
which basically is something we have, at
this point, even though it is not reduced to
writing. I make a motion -- what I better
do is recess it pending the receipt of the
letter, and what I will do is actually close
it pending the ~eceipt of the letter.
MR. SAWICKI: Second.
THE CHAIRMAN: All in favor?
MR. DOYEN: Aye.
MR. SAWICKI: Aye.
MR. DINIZIO: Aye.
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THE CHAIrmAN: The next appeal is
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in
behalf of Nicholas Aliano, Appeal Number 3907.
I would ask Mr. Raynor if he has anything
he would like to add?
MR. RAYNOR: Henry Raynor. The
Applicant has requested we leave this hearing
open to provide the Board with the engineering
information and a long form environmental
assessment form based on correspondence from
the Planning Board and their questions. I
believe the Board is now in possession of the
planning information. From Stephen Hyman
(phonetic) Associates. The environmental
assessment form has been submitted. This is
the same one that was submitted to the Planning
Board on its initial presentation when this
project began, back in 1987.
That pretty much concludes what we
had to respond to. If there are any questions
I will be happy to try and answer them.
THE CHAIRS~N: The only I asked you at
the last hearing, and I should probably have
communicated it to you by letter, is the
exact size of the existing garage. I know he
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mentioned it was about 2,500 square feet.
I was wondering if you could send us a scale
of the actual size.
MR. RAYNOR:
it in writing.
THE CHAI~LAN:
am looking for, at this
mind. I driue by it 14
I will be happy to submit
That's basically what I
point, if you wouldn't
times a week, and
every time I drive by it I do not have my
tape with me. It is probably better if it is
done in the form of a letter.
MR. P~YNOR: Fine.
THE CHAIRMAN: We appreciate that. Is
there anybody else that would like to speak
in favor of this application? Is there anybody
that would like to
cation?
Yes, Mr.
speak against the appli-
Bressler.
MR. BRESSLER: Eric Bressler, Old
Pasture Road, Cutchogue, New York.
I am here, Mr. Chariman, Members of the
Board, in an individual capacity as a resident
of the area and homeowner. I reside on
Old Pasture Road, Cutchogue, New York. As the
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Board is aware of, Old Pasture Road is the
short road which runs into Pequash Avenue and
Main Road, the location of the proposed project.
Thus I believe that the construction of the
proposed project at the intersection of Main
Road and Pequash Avenue is going to have a
direct impact on me as that is the principal
method, in fact, the only method of ingress and
egress on a direct basis from where I live.
I believe I am close enough and that I would
be adversely affected by this application.
That having been said, I would like to
address the merits of this particular appli-
cation. I am most distressed that this matter
is in front of the Board for the use variance.
I don't believe a use variance is the proper
vehicle for the Applicant to obtain the type
of relief he is seeking. I believe that the
Applicant,
based upon my review of the records
in this proceeding and what has been presented
to the Board, has not established his case
before this Board such that it should grant
him relief. As the Board is well aware, the
use variance is an extremely drastic remedy and
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granted only under narrow circumstances. I
believe the record is actually devoid of any
information to warrant this Board granting
this type of relief. I think what the Board
is faced with here is much more of a zoning
change, more akin to the zoning change primarily
brought before another Board where different
considerations were brought into play.
I am not insensitive to the timing
difficulties that the Applicant has ~mpowered
in connection with this particular project.
I truly believe that relief lies elsewhere,
and that this Board on the basis of what has
been put before it is not empowered to grant
the relief sought. I believe that on the
purely individual basis, the legalities aside,
I just don't think it is a very good idea to
have a shopping center like that at the inter-
section of Pequash Avenue and Main Road. I
can tell the Board, from my own experience,
at certain times of the day traffic at that
location is approaching the level at which
some sort of traffic control device other
than a stop sign may be warranted. I don't
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think that is a good idea, given then the
proximity to the traffic light in downtown
Cutchogue. I think if the proposal is
approved by this Board and ultimately installed
and the stores occupied would lead to a huge
traffic problem at the corner of Pequash Avenue
and Main Road. I, for one, would be much more
satisfied with the current situation than I
would with the situation as proposed.
So on the strictly neighborhood basis,
I don't think it is a very good idea aside
from the fact I do not think the Applicant is
entitled to relief.
THE CHAI~AN:
MR. ANDERSON:
Thank you, Mr. Bressler.
I am Richard Anderson,
Cutchogue. I am also Treasurer of the Fleets
Neck Property Owners Association. We have
members here this evening. We have our
attorney, ~nthony Nowachek, who I would like to
ask permission to have him state our position
regarding the variance.
THE CHAI~IAN:
MR. NOWACHEK:
Anthony Nowchek,
Certainly.
Thank you, Mr. Chairman.
326 Williams Avenue, Mineola,
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New York.
Members of the Board, Mr. Chairman, I
want to echo, like Mr. Bressler here, I am
a resident of the Fleets Neck also. If you
want to, Mr. Chairman, you could poll the
residences of Fleets Neck area that are here
representing themselves individually and maybe
they want to address the Board and maybe they
do not, but Fleets Neck Property Owners
Association, as you are probably aware of,
is a bona fide incorporated property owners
association with legal standing status within
the State of New York. It comprises of a
membership of approximately 125 property owners
and families, which sole means of ingress and
egress off Main Road to Fleets Neck is Pequash
Avenue.
Now I am not familiar basically with
the type of building that they want to erect.
I understand it is an office and store complex.
I am aware, I think, and I am correct that
the existing use is probably a non-conforming
use as far as the present zoning exists.
think the Town and taxpayers footed a big bill
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to sort of have a master plan for zoning,
investigated, prepared, discussed, debated,
exacerbated and everything else, and now that
area becomes R-40. It's residential. With
R-40 we have greater density of residential
people than you have With other areas. What
is proposed in this particular situation is
to put in something equivalent to a mini
shopping center. One of my recollections, when
the master plan was discussed, was that the
spirit, the intent, and the good purpose and
everything of the master plan was to really
have a community with a character. I think
your Board is the Board that really must carry
that spirit and intent to the end degree where
the zoning specifically prohibits, and I
echo Mr. Bressler, it is not a use question.
It is a change of zone they want. They want
to put business into a residential area.
There is no dilemma about the definition,
whatsoever. It is not a question of use.
If you look at the corner now, and you
at it about five years ago, five years
it
looked
ago
as a mixed bag of whatever was on that
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corner. If you look at it again today, I
don't know what non-conforming use properly
or legally it has as far as the status is
concerned, but I know there is a real estate
office and next to it it looks like a used
car lot, it's coming into being after there
was a sign put above the garage that says
it is a repair shop.
Now if you look at Main Road, on the
south side of Main Road, you have Christmas
trees, Santas, a Christmas tree place. Now
that's an indication of itself. That's
agricultural. One of the things the master
plan really didn't want to see was strip
zoning. My way of looking at strip zoning
is like a broken dotted line. You drop the
zoning area here. You leave a blank. You
drop the zoning area and eventually you have
enough of strips that what will happen is
you are going to have a straight line,
because everybody caught between those strips
leaves and you have another Jericho Turnpike
from the westerly end of the Town of Brookhaven
to the easterly end which almost joins Southold.
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If you permit this change of zone,
basically you will be permitting a
strip to
be created. What is there to stop someone at
Eugene's Creek (phonetic), a block or half
a mile down, to ask for the same type of change
of "use"? It really is a change of zone for
business use.
I think legally there are several other
points to be considered, besides the change of
zone. There is also that problem of inter-
fering with the flow of traffic, particularly
the flow of traffic, pedestrian and motor
vehicle, to and from Fleets Neck into Main
Road so they could proceed either east or west.
That's been a bottleneck. That's not
describable for some time.
I basically think if you poll the
members here, I am speaking for the Association
pursuant to resolution of the Board of the
Fleets Neck Property Owners Association, and
I believe they submitted a letter in opposition.
I am speaking also for mysel~ individually,
as a resident of Fleets Neck, and I also will
poll for you, if you will, -- individuals who
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want to
individually.
THE CHAIRMAN:
Yes, ma'am.
MS. DOTY:
of Fleets Neck.
speak and object for themselves,
Thank you.
Debra Doty.
I also happen to be an
I am a resident
return that he has received from the property.
He re-rented the property within a month of
the prior tenant being in that property.
Second of all, he may, in fact, be in
violation of the variance that was issued in
1974 for that property. I believe there are
restrictions on that variance that say repair
shops may not be in there. There is a repair
shop there now. There is also absolute
evidence -- in fact, the Applicant admitted
that he will substantially change the neighbor-
hood by changing the use. There is going to be.
proof to justify the issue of the use variance.
There is no evidence regarding the rate of
attorney. Mr. Bressler is absolutely correct.
This is really a change of zone, but even if
you look at it as a change of use, the Appli-
cant has not provided you with sufficient
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he admitted, 50 cars an hour in and out of
those premises. That's about one car a minute,
or 400 cars a business day. He is increasing
the number of businesses in that location,
where the repair shop is from one to eight.
Where the repair shop is, he is increasing
parking spaces by 264 percent, from 11 to
40. It is a substantial change. Anybody
that lives down in Fleets Neck, as Mr. Bressler
stated, and as the attorney for the Association
stated, knows what ~he traffic is like. It
takes forever to get out of there on a
summer weekend, during the summer, during the
week and at Christmastime. It is a dangerous
intersection as it
strip zoning there.
as being a Pac Man
master plan this was
a little Pac Man is
is, and we don't need a
I have an image of this
situation, where under the
zoned residential but
going to come along and
eat it and turn into business because of a
change of variance there, a variance coming
through. And then up the street somebody else
is going to be eaten up, and it is all going
to go all the way out to Orient. I don't
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think we should let it happen.
Thank you.
THE CHAIk~AN: Thank you.
Is there anything you would like
say in rebuttal, Mr. Raynor?
MR. RAYNOR: Yes, Mr. Chairman.
you.
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to
Thank
I think part of the point missed here
tonight is when this application was initiated
this was a conforming use to the property,
back in 1987, prior to January 10th. The
change was 1989. As to the intensity of the
traffic, two items have been brought out.
Number One, I don't think that inter-
section is different in any way from that of
Eugene's Road. In fact, that traffic is
probably a lot more intense, taking all of
Nassau Point's traffic off that intersection.
With regards to the 50 cars, the appli-
cation form asked for the maximum conceived
per hour and that is where that number was
generated from, via the engineer.
THE CHAIRMAN: Thank you.
MR. ALIANO: Nicholas Aliano. I am the
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owner of the property. The same people that
are here complaining are the same people that
bothered me once a month for the last 17 years,
"See if you can get rid of the junk cars. They
are doing auto body work. They have got to
have junk cars around." I cleaned up this
place. I got rid of the gas pumps, in view of
the fact I was going to put up eight stores.
We are talking about 4,000 square feet. I
cleaned up this place. I got rid of my gas
tanks. I spent two months just getting rid
of junk cars and grease and so forth -- did tha
corner real estate office, which was the gas
station. I spent at least 15 or 20,000 to
make it look decent, and these same peopl here
were into my daughter, who's here now, almost
daily -- "Gee, a change. Gee, the place looks
beautiful. Great."
Now I'm being penalized because the
place looks nice. I don't know what my next
tenant is going to be, if he is going to be
like this one. I
Also~ they
of zone. This is
just poiht that out.
keep talking about a change
not vacant land. There is a
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building on here, two buildings. So we are
not changing -- the change of zone, my eyebrow.
I think it would be much nicer the way I wanted
to do it, but that's okay. You Board make up
your minds, but I am being penalized for cleaning
up the place. If I had junk cars -- they
wene the first ones to agree to put an office
building, but now that the junk cars are gone
I've got a letter -- two letters.
THE CHAIrmAN: You want to respond, Mr.
Bressler? Remember, we don't want to get into
a counterproductive situation here.
MR. BRESSLER: Let me state one thing
in regards to Mr. Raynor's comments. I am not
insensitive to the timing problem that Mr.
Raynor alluded to, which is that this thing is
going on for quite a while and at the time it
was initially conceived it may very well have
been conforming. Let me respectfully suggest
the Applicant's remedy is not before this
Board for a change in the master plan or the
zoning ordinance map.
define it, his remedy
It is not my job tonight to tell the Applicant
However you care to
is not before this Board.
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where his remedy may lie for such a change
in midstream, but it is my opinion, having
dealt with cases, that his remedy does not
lie before the Board on the use variance. It
lies somewhere else, and I think he would be
well advised if that, as Mr. Raynor says, is
his problem to pursue whatever may be available
it is, it is not here.
Mr. Nowachek, you have
say?
I want to say -- I want
to him but whatever
THE CHAIRMAN:
something you want to
MR. NOWACHEK:
to commend, in behalf of the Association, Mr.
Aliano for undergoing and accomplishing what
he did. I think it is commendable and
appreciated by the community and residents of
the Fleets Neck Property Owners Association,
but I also want to say it is an obligation of
keep his property in good shape
a landowner to
and no rewards.
MR. ALIANO:
When you have junk cars
you can't have them all in the
Don't tell me what the landlord has
You don't tell the tenants to put the
street.
around, sir,
garage.
to do.
cars out on the
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THE CHAIRMAN: Hearing no further
comments, I make a motion closing the hearing
and reserving decision until later.
MR. DOYEN: Second.
THE CHAI~tAN: All in favor?
MR. DOYEN: Aye.
MR. SAWICKI:
MR. DINIZIO:
THE CHAIRMAN:
(Whereupon,
were concluded)
Aye.
Aye.
Thank you all for coming.
the within proceedings
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CERTIFICATION
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I, Gail Roschen, an Official Court Reporter,
do hereby certify that the foregoing is a true and
accurate transcript of my stenographic notes taken on
May 30, 1990.
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SOUTHOLD TOWN ZONING BOARD OF APPEALS ~r
COUNTY OF SUFFOLK : STATE OF NEW YORK
SOUTHOLD TOWN ZONING BOARD OF APPEALS
HEARING, In the Matter of, JORDAN'S
PARTNERS,
Applicant.
53095 Ma±n Road
P.O. Box 1179
Southold, New York
May 30, 1990~.
7:55 P.M.
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Also
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Be fore:
GERARD P. GOEHRINGER, Chairman
APPEALS BOARD MEMBERS:
CHARLES GRIGONIS,
SERGE DOYEN, JR.
JOSEPH H. SAWICKI
J~ES DINIZIO, JR.
JR. - Absent
Present:
Doreen Ferwerda
Board Secretary
GAIL ROSCHEN
Official Court Reporter
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THE CHAIRMAN: The last hearing is
in behalf of Jordan's Partners, and this is
Appeal Number 3915, and we ask Mr. Tsunis if
there is anything else he would like to add
to his case?
MR. TSUNIS: Thank you, Mr. Chairman.
John Tsunis.
Mr. Chairman, basically we concluded
our presentation at the last hearing. However,
there were certain questions that were brought
forth at that hearing, and the Chair indicated
that the hearing would continue to be open.
So to further support our proposal and to,
perhaps, explain some of the questions that
were brought up I have some further documenta-
tions for the dollar and cents proof, some
legal documents as well as an appraisal showing
the current value of the property by Mr.
Tuccio, who is a local real estate broker on
the East End here, which indicates the
property if it was allowed to be developed as
residential lots under the current zoning
would be valued at $180,000 for the four lots.
That's exclusive, Mr. Chairman, of removing
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the existing foundation, the servicing and
legal costs of objections with the subdivision's
approval.
I think if the Board will review the
dollar and cents proof we have broken down
with bills and cancelled checks, we have
expended in excess of $825,000 to date on
the particular parcel. So I think it is
quite apparent that in reviewing these docu-
ments, that no reasonable right of return could
be derived from the parcel.
I would just like to submit these
documents with a memorandum of law which,
again, supports our opposition.
THE CHAIRMAN: Thank you very much.
All this is one file. This is all one.
MR. TSUNIS: That is the dollar and
cents proof. That is the summary sheet on
top with the supporting documentation under-
neath. I think there are two appraisals
attached to the bottom there.
THE CHAIRMAN: Wonderful. Thank you.
MR. TSUNIS: I do not expect you are
going to review it today, but in your
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deliberations.
THE CHAIRMAN: Okay.
do in a situation like this,
What I usually
because there
are assuming people in the audience that want
to talk about this, I usually let them review
them down here but this is rather extensive.
Is there anybody in the audience, that
is not in favor of this application, that
would like to review it at their leisure in
our office sometime and some back and comment
on it briefly? There is someone. Okay. So
bearing in mind we ask anybody that might
not be available at the next hearing, if they
have anything they would like to say concerning
this application tonight, and we will recess
it until the next regularly scheduled hearing,
just for the purpose of closing the hearing,
taking short brief comments from anyone after
they have reviewed it and we will limit the
hearing to five minutes. But is there anybody
here tonight that may not make it at the next
meeting? It will be sometime in June. Yes.
MR. KAPELL: David Kapell, 143 sixth
Street, Greenport. I'm a businessman in the
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Greenport Business District. I'm also
Chairman of the Greenport Planning Board.
that capacity I have a letter, which I would
like to read and enter into the record, addressed
to the Zoning Board of Appeals, with regards
to the Greenport Commons variance.
"Gentlemen:
"Enclosed please find copy of a memo
submitted by the Planning Board of the Village
of Greenport to the Mayor and the Board of
Trustees expressing acute concern about the
subject variance application and further
requesting a joint meeting between the Village
Planning Board and Board of Trustees and the
Southold Town Board, Planning Board and
Zoning Board of Appeals.
"We hope that you will allow such a
meeting to take place prior to taking any
action on the Greenport Commons Project which
the Planning Board feels represents a major
threat to the health of the Greenport Business
District."
That letter is signed by myself, as
Chairman of the Greenport Planning Board.
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Then the memo.
Greenport Planning Board,
the Board of Trustees.
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The memo is from the
to Mayor Hubbard and
"At the May 7,
Greenport Planning Board
Mike Rowsom, seconded by
1990 meeting of the
a motion was made by
Penny Coyle and
carried requesting that Mayor George Hubbard
schedule a joint meeting of the Village Board
of Trustees, this Board and the Southol~
Town Board, Zoning Board and the Planning
Board to discuss pending development of the
Greenport Commons Shopping Mall to be located
at the corner of Main Street and the Main
Road, Greenport.
"The Planning Board feels that this
development, along with the possibility of
similar and larger development of the Brecknock
Hall site, pose a major and potentially
catastrophic threat to the future of the
Greenport Business District and the village
itself. The Board requests that this meeting
be scheduled as quickly as possible so as to
occur prior to Town Zoning Board action on the
Greenport Commons variance request which is
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currently pending."
I would like
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to elaborate a little bit.
I believe in 1985
the Town Board, and I was
Village Board at the time,
the Village Board contacted
a member of the
and asked the Town
Board to consider acting in moratorium which
the Town Board eventually did precluding
development of sites, specifically this site
and also the Brecknock Hall site, and the
Town Board enacted it, all other similar
sites in the Town pending review of zoning of
these sites.
Subsequently, the Town enacted a master
plan which specifically addressed our concerns
which, at the time, were that if this site and
the Brecknock Hall site were allowed to be
developed in an intentional retail or office
way, then that would result in devastation of
the Greenport Business District which, as you
know, already is deteriorating. You need
only look to Riverhead. I can find scores of
other examples of small business districts that
have been eliminated by strip shop centers.
Riverhead is a perfect example. What is there
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left of downtown Riverhead, at this point?
We are trying to bring one tenant here and
one tenant there into that morass of vacant
commercial spaces. It is also a result of
the development that has taken place on Route
58. This is going to happen to Greenport if
this project is allowed to proceed in its
current form. This is only the beginning.
Brecknock Hall, there are 12 acres of
business zoned property, the same zone this
site houses. How can you deny Brecknock Hall
the same use if it is approved in this case?
You have two big problems. If you have any
regard for the Village of Greenport and the
efforts we have been making to revive our
little village, you have to turn down this
application. There are other uses that could
help this gentleman recover his investments
and that can be intentional uses. I don't
want to see him hurt and I don't think that
four-lot residential subdivisions is the
answer, but there are alternatives. I would
ask you, please, to deny this application and
allow for the debate to take place, a discussion
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to take place, with the Town Board and the
Town Planning Board as to what other uses
could take place at this site.
THE CHAIrmAN: I just want to mention
to you, sillce we have this application before
us, it would be not within our best interest
to have a meeting concerning this particular
application. I understand your comments, but
I would suggest that you correspond with the
Planning Board and the Town Board as quickly
as possible and, then, at the last hearing on
this application come back and tell us exactly
what came out of that so that %~e can deal
with it based upon the way you want us to deal
with it, if that is
MR. KAPELL:
that.
THE CHAI~4AN:
not too much to ask.
I would be happy to do
Okay. There is going
to be a two, or at least a three-week period
in between the hearing and the next hearing .
so between tonight and the next hearing it
should afford you enough time, because we are
going into the sul~mer season push -- whether
you get together with them, and let us know.
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We will readvertise for this.
Thank you very much.
this for the record.
MR. PRESTWOOD:
I will submit
Hugh Po Prestwood,
519 First Street, Greenport. I just want to
point out something I thought the Board might
consider. I am opposed to this shopping
center also, but I want to point out that this
intersection is a really unusual intersection
as it stands right now, because Main Street
does not line up with the street that crosses
48 and the other thing that makes it very
unusual is that the Orient Ferry in the summer
drops off huge amounts of cars that come down
this intersection. It's getting to where it's
going to have to have a light because I feel
like -- because of what I just said, a light
is going to be a disaster. I feel the only
thing that's going to save this thing for
all times is a circle in there. I feel if this
development is going up, the chance of ever
having a circle in there is gone. Right now
there is enough land around the intersection
to put in a circle.
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THE CHAIRMAN: Thank you.
Yes, ma'am.
MS. HORTON: Gail Horton. I am from
727 First Street, Greenport.
I am a resident and also the Deputy
Mayor of the Village. I would like to say
that I support what the Chairman of the Planning
Board suggested in turning down the proposal.
I would also like to say that to support what
Hugh Prestwood said, that is an exceedingly
dangerous area comparable to Sunrise Highway
over in Southampton, by the 7-Eleven where
there are many near misses day in and day out,
and if a shopping center were put there it
would only heighten that activity. I would
like to ask you to turn down the application,
and say that I am willing to personally work
on it %~ith the owner to develop some other
less intentional use of the area. Thank you.
THE CHAIRMAN: Thank you very much.
MS. WADE: I represent 772 people.
This is a petition I wanted to submit to you.
Rand! Wade, 440 Sixth Street, Greenport~
We, the undersigne~ are opposed to the
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proposal construction of the shopping center
on State Road 25, a main street in Greenport,
for the following reasons:
1) Economic hardship in the Village
of Greenport.
2) Increased traffic flow in an
already hazardous intersection.
3) Surrounded on three sides by
residential area.
4) The site
port that joins the historic
propDsal should be carefully
Retail use
And
is a gateway to Green-
district. Any
considered.
should be rejected outright.
I said 772 people signed this.
Actually, there is at least 70 more. Even
though this is clearly a request for a change
of zone and not a variance, you expressed
concern at the last hearing that economic
hardship would be one part of your consideraticn.
I have a sketch that shows how you could get
15 residential lots on this property with
a park on the corner and a 50-foot buffer
with a six-foot berm and evergreen plantings.
At 35,000 to 40,000 a lot, this could be an
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affordable housing project and bring in
525,000 to 600,000. This would have to be
coordinated with the Village of Greenport, but
the Village believes in affordable single-
family homes and the chances for success are
overwhelming but also could happen much more
quickly than having to wade through the legality
and possible lawsuits of pursuing a retail
development.
THE CHAIRMAN: Thank you.
MS. GWYN: My name is Milou Gwyn. I
live on South Street in Greenport. I am not
on a board and I don't have a petition, but
just from a practical standpoint I grew up
a little bit further west from here in Stony
Brook, and when I drive back and forth now
on Route 25A to here it is strip mall after
strip mall and they are ugly and they are not
very successful as far as retail stores go.
It seems terribly impractical to build
more when in the Village of Greenport you
already have the Victorian Village which is
vacant, the Bohack building which is vacant,
the Mills building is vacant. I don't under-
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stand the purpose of building more stores,
when there are so many empty ones existing
already and it will just change the character
of Greenport.
I think it was a good point that it
is the gateway into Greenport. The first
thing you see is another strip mall. I wouldn't
want to go any further and see what's inside,
because there are so many to begin with. I
think it would make a lovely park to be on
the corner there, from the practical stand-
point. I wanted to say that.
THE CHAIRMAN: Thank you very much.
MR. TSUNIS: I grew up in Port Jefferson,
which is a sister community to Stony Brook.
I have a 170-year-old house. I am sensitive
to these items that are being discussed today,
but I would also hope, and I am not here to
have anybody cry out in sympathy for me, but
in 1986 this parcel was zoned commercial.
There comes a time where a person who makes an
investment in a piece of property should be
able to rely on what's going on in the local
town ordinances. This was before this matter
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began, before any changes of zoning,' before
this moratorium. If the Village of Greenport
or the Water Authority would have allowed me
to hook up into the water system, this project
would have been built a long time ago.
It is a not a mall. It is not a strip
center. It is a mixed use. It is office
use, besides retail. It was approximately 50
percent pre-leased before we even put a shovel
in the ground. So there was obviously a need
for something like this. We took great pains
to develop a structure with a New England
architecture that %could blend into the community.
It is a gateway to Greenport. It as suggested
it looked or it is something similar to Sunrise
Highway. I don't know anybody in the room that
would want to live on Sunrise Highway, and
o
this would be the more appropriate type of
It appears that the Town of Southold
Building Department was mistaken for over three
years, which sterilized this piece of property
which I had to carry debts on, and I had to
pay real estate taxes on, that I could, in fact,
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drill a well on this because I took the test
well and the water was clean and the Town of
Southold Building Department refused to issue
me a building permit as far back as 1986.
I was already to commence construction on this
property and there could not have been a
question throughout the Town, that it would
have been able and it would have been a per-
mitted thing 'to do. But three years of
sterilization has certainly been a financial
burden upon myself and my family and carrying
this property.
The Board of Health directed the Town
of Southold Building Department to issue a
building permit based on the fact that I could
drill a well if, in fact, municipal water
was not available. Unbeknownst to be,
subsequent to the issuance of the building
permit, a stop work order was issued five or
six months after the building permit was
issued, that, in fact,
rezoned.
I would like to
have come here with clean hands.
the property was
say that I believe I
I did not
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try to put anything over anybody. I have
spent four years of time on this particular
project. I tried to make it look nice, some-
thing that my kids could be proud of. If
anybody saw the rendering, I think it is one
of the nicest retail an office complexes one
could have next to them. It is on, if you want
to call it, a busy intersection. For Southold
it probably is a busy intersection, but in
my opinion as a developer for 15 years, as
a real estate attorney, this would be much
more appropriate than a residential developmen
I certainly would not want to live on that
corner. I appreciate the fact that some people
down in Greenport may be adversely affected
as far as the commercial aspect is concerned.
There will be a brand new shopping
center, brand new office in there -- have in
excess of 200 parking spots which Greenport
drastically needs but, my God, for three years
I have been up against the wall and not been
able to develop my property as the codes and
as the law would, hav~ p~rmitted me to do and,
again, this is the avenue that was open to me
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to come in and seek relief.
If affordable housing is what the
community wants, I will be happy to deed
it
over to anybody that wants to take it for
the dollars and cents I have got into it. I
don't want a profit. I don't want to make
enemies. I am not the developer in Suffolk
County that is coming in to Boards like this
and asking for relief to enhance what he has.
All I am trying to do at this juncture is to
do what I was permitted to do, but some
bureaucratic mess stonewalled me. I mean, I
have really been stopped cold. I don't know
if the pressure came from the Village, the Town
or from the people, i don't know where it
came from, but I was stopped dead in my tracks
for no reason. I am here $826,000 later, and
this plea to the Board is to ask for relief
that I think I justly deserve. I am not here
to hurt anybody, but $826,000 is devastating.
THE CHAIRMAN: Let me ask you this
question. In the past, having been on the
Board for 10 years, we did, Mr. Tsunis, in
the past recess these hearings and we asked
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people to go out in the hall and speak to
each other and come back and agree on certain
things, and to see if we can live up to the
things that they want to agree to, and so on
and so forth. Do you think it would behoove
you, at this point, in meeting with the
of the Village of Greenport?
officials
MR. TSUNIS: Mr. Chairman, I don't
mean to interrupt. I don't want to delay
the decision on the application but let me
say this, if I may. I am not here to blow
my horn either, but when I was in law school
I worked for a man by the name of Robert
Anderson (phonetic). He is a present authority
on zoning in the United States. I was his
assistant. I have been doing zoning work,
zoning litigation, for 15 years. My God,
if there was ever a case that screamed out
for relief -- $826,000 of cash spent out, and
you are telling me now it is only worth
$180,000 -- this is it. You have approved
maybe five uses for variance in 15 years. This
is Number 6. It has got to be. Legally a
15-page memorandum of law supports me every
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inch of the way,
hurt anybody.
be hurt either.
years of a
frankly, I
but again I am not here to
But, my God, I don't want to
It is just not fair. Four
struggle out here, and quite
feel like I am an outsider. I
live in Suffolk County but I am from the
wrong town. I say this with all sincerity,
but every time I came to the Board meetings
or the Board hearings I was booed or shoved
over. "You're on the list," this and that,
and it is four years of expenses, legal
expenses, brokers'or traffic experts,
engineers or architect~ leasings. I
leases, for Christ sake, based upon the
zoning. I mean I don't know. There comes a
time that you have to rely on building permits,
on site plans, on Board of Health approving.
My God, I can't believe I couldn't get water.
I mean municipal water. I couldn't drill a
well on my own property to get water. It is
really getting on the verge of Gestapo tactics
to an outsider. I mean it is my own personal
feelings and it may be to my detriment, but
that is how I firmly feel. I really went into
surveyors,
signed
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a coverage of lions out there.
I met with this gentleman
from the
Planning Board. I met with the Mayor. I'll
meet with anybody else out here, if there
would be an economic resolution where I could
leave here with my dignity and my investment
that I dumped into Southold. I'll leave with
my head held high, and hoping that I could be
part of a community effort that if it is low
income housing you want, low income housing
you need~ I think that's a townwide situation
and a townwide matter that should be supporter
by the entire municipality as far as the Town
of Southold and the Village of Greenport. It
should not be dumped in my lap. It should not,
and I will be happy to expedite any kind of
agreement I can work out with ~ny jurisdiction
authority in the Town or the Villages. But,
my God, don't hold up the decision because I
earnestly feel as an attorney and an applicant
that I am right.
THE CHAIrmAN: Okay. I understand that.
I have to recess until the end of June, anyway
MR. TSUNIS: I appreciate that. I
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understand.
THE CHAIRMAN: Maybe sometime
in that
period you
MR. TSUNIS:
with anybody.
THE CHAI~%~AN:
can meet with these people.
I will be willing to meet
This is not something
we have done in the past two years, only
because it just has not been the philosophy
or the time has not been right to do it, but
maybe this is the case.
Thank you so much, Mr. Tsunis, for
your opinion.
MS. HAAN: Susan Haan. I'm a business
owner on Front Street, a partner of Front
Street Garden. I've ~orked in the commercial
district for the last 10 years in Greenport.
I just took a quick walk through Greenport
today. This morning I counted close to 40
vacancies of commercial and professional
spaces in the downtown commercial district.
I also drove past Southold Square, which is
a shopping center less than five minutes away
from the proposed center, which appears to
have a vacancy rate of 50 percent. I don't
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feel that another shopping center,
professional center, is warranted.
would be economically disastrous and
aesthetically detrimental to Greenport.
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retail and
I feel it
MR. KAPELL: Dave Kapell. I certainly,
for one, would be more than happy to meet with
Mr. Tsunis and discuss any alternatives that
would grant him a reasonable return on his
investment and, also, address the concerns of
the Greenport Business District.
THE CHAIRMAN:
telephone number, Mr.
MR. TSUNIS:
MR. KAPELL:
Would you give him your
Tsunis?
Yes.
We are powerless of the
jurisdiction.
over the site.
about the Town issues.
MR. TSUNIS: Mr.
happy to meet with the
We have no zoning jurisdiction
I'm here to voice our concern
Chairman,
gentleman.
I would be
What he
is saying now is quite correct, and it is
going to be a lot of verbiage over nothing.
Unless we get a municipal officer that not
necessarily has the power to make a decision,
but it would have to be a legislative action
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and I think the Supervisor and perhaps the
Mayor of Greenport or the people.
THE CHAIRMAN: You have the Deputy
Mayor here.
MR. KAPELL: If'I can state that I
think if we can choose to hold the me~ting you
suggested with the Village Board and the Town
Board, other than this Board, I
Tsunis can attend and see if we
think Mr.
can work some-
thing out. I am wide open. I am in business.
I don't want to see anybody lose money. It is
not good for the area.
anybody, but this use
port.
MR. TSUNIS:
It is not good for
is a disaster for Green-
In all due respect, again,
I feel for you as a businessman but that is
not germane to the issue at hand. What this
lady said tonight has no significance to this
application. Forty stores in Greenport has
no relevance to this application, because this
is an economic environment, survival of the
fittest, to be blunt about it. I had a 40
percent pre-lease. I had a letter of intent
for 13,000 square feet from a national company.
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So whether I put 29,000
60 percent occupancy,
or 20,000 and had 100
25
feet and have maybe
or I build just 15
percent occupancy would
be up to the landowner. It would be my
risk, but there is something very unique about
this parcel. It is a highway type of
location and it would have something no place
on the North Fork has. It has a parking
lot. It has a parking lot, and that is very~
important to a successful retailing or a
successful professional office, so this
is a unique location, and I should not be
penalized because another area of the North
Fork doesn't have parking. I should not be
penalized because there is a 150-year-old
building in the congested downtown municipality
that may have fire codes or Whatever, or
stairs, not first floor access that's vacant,
and I am coi~mitted.
different situation.
apples.
MR. KAPELL:
I mean it is a very
It is not apples with
I just want to make one
observation, which is that the discussions
around the facts is that the Town Board in
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review of the master plan discussed and
accepted a different zoning from the one you
have. I don't know how you got a building
permit for it.
MR. TSUNIS: It was a mistake.
MR. KAPELL: Ail I know is
that the
and debates
I am F.M. Flynn of Southold.
Town Board had notorious hearings
around this property, as I stated earlier,
dating back to 1985, prior to your ownership.
The fact you were not aware of it is, I don't
think, a burden the Village should be forced
to bear.
MR. TSUNIS: In '86 I was denied water.
I was denied, allowing me to put a well there
which I could have built it. That is my only
problem. Forget that I never got a notice
in Hauppauge.
THE CHAIrmAN: Let's hold up, and go
on to Mr. Flynn.
MR. FLYNN:
I would merely like to clarify something in
my own mind. Is all discussion on this matter
to be delayed until subsequent meetings in
June, or is the discussion only to be delayed
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with relation to this dollar and cents proof
submitted tonight?
THE CHAIRMAN: Mr. Flynn, it is the
purpose of this Board, as the courtesy has
been afforded you in the past on another matter.
the case that is something that could not be
disseminated as quickly as this, and appraisals
and so on and so forth, we like to afford
everybody in the audience the right to look
this over at their leisure in our office.
So to limit it to the dollar and cents situation
tonight, it would be unkind for me to say that
or concur with what you are saying. What we
are basically doing is a~king anybody in the
community that would like to review the file
to come in and do so, and then we can wrap it
up at the end. It is not for any one particular
issue, but that there are many people in the
community that have not actually reviewed the
file, and we are constantly gathering more
data.
MR. FLYNN: What I am asking, in effect,
is other commentary on this matter appropriate.
tonight or will it be deferred to at the June
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meeting?
your
MR.
to make.
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THE CHAIRMAN: Is is entirely up to
if you would like to say something tonight.
FLYNN: I have remarks I would like
What is actually sought by the applicant,
in the guise of a variance, is a rezoning from
Residential-Office use to Business use.
Zoning and rezoning is a legislative
function and, as such, is the prerogative, solely,
of the Town Board.
Zoning texts including Robert M.
Anderson's New York Zoning Law and Practice
refer to Boards of Appeals as "escape valves"
which were created to relieve the Town Boards
of the burden of dealing with minor changes
in zoning requirements.
The powers of the Board of Appeals are
limited and circumscribed.
As I have informed this Board on several
occasions, the New York State Enabling Act
for Town Zoning states that the granting of
variances is to be "sparingly exercised in
rare. circumstances."
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The Southold Town Code permits the
Board of Appeals to vary the strict letter of
its regulations if the spirit of the regu-
lations is observed, public welfare and safety
secured and substantial justice done.
Changing a zone hardly constitutes
varying the strict letter of the Code. It
would constitute a complete repudiation of
the Zoning Code, both in letter and in spirit.
The spirit of the law is not subject to
interpretation when the law, itself~ is
explicit.
The variance sought constitutes far more
than varying the spirit of the ordinance. The
Appellate Div±sion has ruled that:
"A use variance, as the term implies,
is one which permits a use of land which is
proscribed by the zoning regulations."
(Emphasis supplied)
The Southold Town Board, after pre-
sumably due deliberation, adopted a compre-
hensive, or master plan, placing the subject
property in an RO District. The stated purpose
was to provide a transitional area between
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business ares and low-density residential
development along major roads which will
provide opportunity for limited non-residential
uses in essentially residential areas.
This constitutes a legislative enact-
ment. If it is to be challenged, it must be
by means of an application for change of
zoning before the Town Board. The Applicant
also has the option of seeking a legal deter-
mination of the legality of the comprehensive
plan.
The very fact that this hearing is
being held represents, in my opinion~ an
improper attempt to exploit the "escape valve"
function of the Board of Appeals. The Town
Board, as elected officials, would be shirking
its responsibility to defend its action in
adopting the recent comprehensive plan. It
would constitute the delegation to unelected
officials of the power to effectively change
zoning, a function reserved to the Town Board
as a legislative body.
I believe there is no legal basis for
the Board of Appeals to grant this variance.
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Despite this position, I would like to
call to the Board's attention certain aspects
of this application which, I believe has
bearing on this entire matter.
As I understand it, the chronology of
events pertaining to the property is as
follows:
1)
deed dated
Applicant purchased property to
2/18/88 and recorded in Liber 10549
Cp. 324. Purported consideration was approxi-
mately $393,500. Subsequent deed to Jordan's
Partners, et al, was
consideration.
2) Property was
intra-corp with no
appraised.
3) Site plan approval had been
obtained for a shopping center.
4) A Building Permit was issued to
construct an office and retail shopping
center on June 8, 1989.
5) Property was cleared and con-
struction of a foundation started.
6) A Stop Work Order was issued by
the Building Department on 11/30/89 based upon
the permit having been issued in error.
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3915.
7)
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Owner filed subject Appeal Number
As to the Stop Work Order, I believe
there is ample legal justification for such
orders when a permit is issued in error.
It is also my opinion that the adoption
of the comprehensive plan placing the property
in a different zoning district abrogated any
previously approved site plan.
I would like now to bring to the
Board's attention certain matters pertaining
to this application which necessitates further
investigation and deliberation.
1) The deed into the owners, deeded
2/18/88 does not, in my opinion, constitute
an arm's length market conveyance. At least
one of the grantors is also a grantee. It
is purported consideration is not evidence
of market value. Subsequent conveyance was
intra-corporate.
2) On 4/12/87 a Certificate of
Incorporation was issued to Jordan's Park
Place, Ltd., authorizing the issuance of
200 shares of stock. I believe the Board
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/%-
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should determine if this corporation is still
extant and if any of the principals of Jordan's
Pa~k, Ltd. or Jordan's Partners are both
grantors and grantees.
3) My research indicated that the
only arm's length conveyance of the subject
property was by the Grand Union Company by
deed dated 4/2/82 and recorded in Liber 9185,
Indicated consideration was
Cp. 438.
$103,000.
4)
There was an interim conveyance
of the one-third interest in the property by ~
a deed dated 7/14/86 and recorded in Liber
10080, Cp. 537. Consideration was $80,000.
5) It has been stated that an
appraisal was made of the property. Was this
appraisal made prior to purchase, or pursuant
to a mortgage application? What value was
ascribed to the land?
6) On 2/18/88, coincident with the
date of the deed, owner obtained a con-
struction loan mortgage from the Suffolk County
National Bank in the amount of $440,000.
Mortgage is recorded in Liber 13587, Mp. 131.
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Mortgage is based on a percentage of
the total value ascribed, land value included.
Land value represents only a fraction of
total value. In my opinion, the Board would
be well advised to investigate the circum-
stances of this mortgage.
Particularly important is a clause in
the mortgage, and I quote:
"This mortgage covers property presently
improved or to be improved by one or more
structures containing in the aggregate not
more than six residential dwelling units, each
having their own separate cooking facilities."
This hardly coincides with the sub-
sequent application to build an office and
retail shopping center. It appears from this
clause that both the owners and the mortgagee
agreed in 1988 that the highest and best use
of the property was for residential purposes.
The mortgagee granted the loan for this
purpose.
This would also appear to cast doubt
on the contention that the OWners were
ignorant of the proposed zoning changes
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published in January of 1984 and 1987
respectively. It is difficult to believe that
astute owners and investors, some of whom had
owned the property since 1982, and others
who had purchased an interest in 1986, would
be unaware of the proposed zoning change, or
of the actual zoning change when the Building
Permit was applied for in 1989. The owners
should have had actual or constructive
knowledge, had they exercised reasonable
diligence.
Mention has been made by others of
concerns with traffic volume and the public
health safety and welfare. I would like to
add that in my experience as a consultant
to the Department of Transportation, it %~as
the Department's policy to restrict access to
a property's frontage in both directions from
the point of convergence of two State highways.
another area which should be investi-
In conclusion, it is
This is
gated.
incumbent on an
and persuasive.
interpreted as
Applicant to submit supportable
proof of hardship. Hardship is
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financial hardship and "dollars and cents"
proof must be submitted.
Now, since writing this, I have become
aware of the submission to the Board and I
would like to have the opportunity to review
this purported proof.
I would state that, the casual statement
of the real estate broker as to the value of
the property as presently zoned, unsupported
by a market data analysis, hardly constitutes
persuasive proof.
Further, no attempt %~as made to establis?,
the market value of the property as previously
zoned.
The Court of Appeals has held:
"Once it has been demonstrated that
some legitimate public interest will be served
by the restriction, then, before the property
owner can succeed in an attack on the ordinance
as applied, he must demonstrate that hardship
caused is such as to deprive him of any use
of the property to which it is
adapted, and that,'as a result,
amounts to the taking of the
reasonably
the ordinance
property.
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Applicant did not cite practical
difficulties as a basis for the variance sought.
That concludes this, and I can give
you a copy.
THE CHAI~V~N: Thank you.
MR. TSUNIS: Briefly, the only item
I would like to address, because I think the
package addresses everything else, I am not
aware of the provision in the mortgage that
Mr. Flynn alluded to.
MR. FLYNN:
like to see it.
MR. TSUNIS:
It is here if you would
I did check my copy. It
was never contemplated by myself or the
financial institution that this parcel -- it
was never contemplated to develop the parcel
as a residential development. If it is, indeed,
in the mortgage document, if it is in the
boilerplate, I don't know if the boilerplate
or the rider -- if it is in the mortgage
document -- it was a mistake on both parties'
part and I would get an affidavit from the
lending institution attesting to that. I
will submit that at the next hearing.
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MR. FLYNN: It is not a boilerplate.
It is a handwritten rider to the mortgage,
initially.
THE CHAIRMAN: Thank you.
Hearing no further comments, we will
recess this hearing to the next scheduled
meeting, which will be during the latter part
of June. We thank you gentlemen for your
courtesy.
If there is anybody that would like
to review the application, you are welcome to
between the hours of 9:00 and 5:00 on a daily
basis, five days a week, and please come in
ahd if you have some time sit down and discuss
it.
We thank you, Mr. Tsunis.
(Time noted: 9:10 p.m.)
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CERTIFICATION
I, Gail Roschen, an Official Court Reporter,
do hereby certify that the foregoing is a true and
accurate transcript of my stenographic notes taken on
May 30, 1990.
~AIL ROSCHEN
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