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HomeMy WebLinkAboutZBA-04/22/1993 HEARING PUBLIC HEARING BOARD OF ZONING APPEALS TOWN OF SOUTHOLD April 22, 1993 (7:30 p.m. Hearing) P r e s e n t : HON. GERARD P. GOEHRINGER, Chairman JAMES DINIZIO, JR. SERGE DOYEN RICHARD C. WILTON ROBERT A. VILLA CLAIRE GLEW (substitute recording clerk) ~C~IVED AND FILED BY ~ SOU~OLD TOW~ C~RK I N D E X APPLN. NO. NAME Pages 4162 THE INGEBORG TALLAREK TRUST 2-3 4163 RUSSELL IRELAND, JR. 4-15 4059 JOHN SEPENOSKI, JOHN A. NOBILE and 16-22 SUSAN NOBILE (Michael N. Hills, Esq.) 4157 DEPOT ENTERPRISES, INC. 23-37 4156 GARDINERS BAY ESTATES CLUB, INC. 38-62 (record Owner as per Deed at Liber 7671 page 415) - filed by GARDINERS BAY ESTATES PROPERTY OWNERS ASSOCIATION APPLICATION No. 4162 - THE INGEBORG TALLAREK TRUST (Regi Weile, Architect) Request for Variance to the Zoning Ordinance, Article XXIII, Section 100-239.4A for permission to locate an addition within 100 feet of the L.I. Sound bluff at 905 Aquaview Avenue, East Marion, NY; County Tax Map Parcel No. 1000-21-2-11. This parcel is substandard in this R-40 Zone District and contains a total lot area of approximately 24,000 square feet. 7:30 p.m. (The Chairman opened the hearing and read the Legal Notice and application for the record.) THE CHAIRMAN: I have a copy of a survey indicating the addition of approximately 20 feet. The addition is on the front of the garage. It still allows 50 feet from Aquaview Avenue to the dwelling itself. This application is an addition in the respect that under 239.4 of the Zoning Ordinance, the entire house is within 100 feet of the edge or the bank of the bluff; and I have a copy of the Suf£olk County Tax Map indicating this and surrounding properties in the area. Is there somebody who would like to be heard? (There was no response.) THE CHAIRMAN: Again, ~4162. Is there anybody who would like to speak in favor of the application? (There was no response.) THE CHAIRMAN: Anybody who would like to speak against the application? ZBA Hearings 3 April 22, 1993 There was no response.) THE CHAIRMAN: Questions from Board members? BOARD MEMBERS: No. THE CHAIR/~AN: This is a pretty pro forma situation. THE CHAIRMAN: Do you gentlemen have any specific problem? I know that we weren't necessarily going to vote on these things tonight, but this one is pretty-- MEMBER VILLA: The setback requirements, that is in the front yard, right? THE CHAIRMAN: Right. MEMBER VILLA: Actually, under the new law does he even need approval? THE CHAIRMAN: Yes. If you look at the distance between the top of the bank and the house and include the entire thing, it includes the addition, so that is basically the reason why it is before us. MEMBER VILLA: Even if it is on the other side. THE CHAIRMAN: Even if it is on the other side. It doesn't violate the Zoning Ordinance because he still has 50 feet in the front yard, and there is probably an established setback up there anyway. Hearing no further comment, I make a motion closing the hearing and reserving decision until later. (Seconded and carried; see Clerk's Minutes.) ZBA Hearings 4 April 22, 1993 APPL. NO. 4163 - RUSSELL IRELAND, JR. Request for variances to the Zoning Ordinance: (a) Article IIIA, Section 100-30A.4 (100-33B-3) for permission to locate accessory garage with a side yard setback at less than the required 10 feet; (b) Article XXIII, Section 100-239.4B for approval of a proposed new deck addition and for grandfather approval of existing deck addition built prior to May 1985, all of which is located within 75 feet of the bulkhead along Great Peconic Bay and with reduced easterly side yard to less than the 20 feet, and total side yards to less than 35 feet, as required by Article IIIA, Section 100-30A.3. Location of Property: 5400 Great Peconic Bay Boulevard, Laurel, NY; County Tax Map Parcel No. 1000-128-2-12. This parcel contains a total lot area of 43,402 sq. feet and is located in the R-40 Low-Density Residential Zone District. 7:35 p.m. (The Chairman opened the hearing and read the Legal Notice and application for the record.) THE CHAIRMAN: I have copy of a survey dated 2/22/90 with additions on 2/9/93, revised 3/18/93, by John Metzger, Licensed Surveyor, Peconic Surveyors. The nature of the application is a deck which encloses the majority of the rear yard of the property leading to the bulkhead which leads to the Great Peconic Bay, and a garage at approximately 5 feet from the westerly property line --in this case the southwesterly property ZBA Hearings 5 April 22, 1993 line-- of 22 by 22. Is there somebody who would like to be heard concerning this application? Apuearance: Russell Ireland, Jr., Applicant pro Se. I am the applicant. THE CHAIRMAN: Do you have anything you would like to state for the record before we grill you (jokingly)? MR. IRELAND: Basically, in terms of the garage, the original garage that was on the site when we bought the home, actually encroached on the neighbor's property almost two feet and had been there. The garage was destroyed in the December llth storm along with other things and landscaping, so in re-doing it or in order to re-do it, obviously I had to come back. I did speak to the neighbors. One of the reasons we asked to go 5 feet rather than 10 feet was that it allows me --and I think it shows on the plan-- the driveway is there --and I don't have to remove any of the existing cedar trees in order for circulation. It doesn't cause them a problem, and the neighbors said as far as they were concerned it was okay. THE CHAIRMAN: Just let me ask you, it's a one-story garage? MR. IRELAND: Yes. THE CHAIRMAN: Correct me if I am wrong, in reference to this property, Mr. Ireland. Having lived in Mattituck for the last 27 years or so, I recollect this particular house --not ZBA Hearings 6 April 22, 1993 the one that you have now, but the one that existed prior to the 1983 storm "Nelson" which in my opinion and again --correct me if I am wrong-- destroyed your bulkhead; the house was very close to the bulkhead-- MR. IRELAND: Yes, it was eight feet. THE CHAIRMAN (continuing): I thought it was about 12 feet. The house then fell into the beach area conceivably --Half of the house fell in; and the rest of it was just so badly deteriorated, okay, that I guess it had to be bulldozed or whatever the case might be. MR. IRELAND: We rebuilt that structure. THE CHAIRMAN: Yeah. MR. IRELAND: I didn't destroy it. We rebuilt it. What happened was: The bulkhead was the original bulkhead that somehow dated back to, I guess, the forties, and the bulkheads on both sides of me had been rebuilt. Mine wasn't. When that storm came, some debris came and it broke some of the old planking out of it and the bulkhead went and the original pilings were either locust or cedar posts which it had been built on in, I think the neighbor said somewhere about 1928 or 1930. That eroded. The front of the house basically collapsed. The rear part of the house was still pretty much where it had been. THE CHAIRMAN: But completely open, I remember seeing it. ZBA Hearings 7 April 22~ 1993 MR. IRELAND: The front of it was wide open° As a matter of fact, I gave the, I think it was Linda Kowalski, a photograph of that which was 1983 or 1984. THE CHAIRMAN: I think it was in March of 1983. Now, subsequent to the storm~ you then moved the house, the existing, whatever was left, you moved it back? MR. IRELAND: Yes, 20 feet and raised it about four feet in order to meet the standards for the Federal flood insurance--. THE CHAIRMAN: Okay. MR. IRELAND: Because I had no insurance on it at that time. THE CHAIRMAN: Now the house lies approximately 38.4 feet from the high-water mark; or what would you say from the bulkhead? Did you say about 20 feet? MR. IRELAND: About 26 feet. THE CHAIRMAN: Okay. 26 feet. When did you actually build the deck that exists, as it exists now, apart from the new planking and some of the stuff that was down? MR. IRELAND: That summer. I believe it was the summer of '84. Previously, from what I understand, there was always a deck basically connecting the house to the bulkhead. It was there when we first bought the house. We did obviously use more deck there when we moved it back. ZBA Hearings 8 April 22, 1993 THE CHAIRMAN: But the actual conformity of the deck as it exists today is approximately what you built in 19847 MR. IRELAND: Identical. It's never been changed other than this storm December llth took the main section of the deck and, along with the garage, you know, it basically lifted it, and I don't know if any of your Board members has visited this site-- BOARD MEMBERS: We all -- yes. MR. IRELAND (CONTINUING): Approximately two-thirds is still original deck, and about a third of it has been replanked. THE CHAIRMAN: We notice there is erosion underneath the deck. That was probably caused by the storm? The lack of sand, particularly on the northeasterly corner? MR. IRELAND: Yes. That is correct. THE CHAIRMAN: Now, when you rebuilt the deck, you also rebuilt the bulkhead, is that correct? MR. IRELAND: In 1983, yes. THE CHAIRMAN: So thgt bulkhead, is a 1983 bulkhead that we see there. MR. IRELAND: Right. As a matter of fact, when that was done, the bulkheads --if you look almost all along that section of Peconic (Bay), -- almost all the bulkheads were rebuilt. They weren't all necessarily destroyed like mine were but most had damage to them° ZBA Hearings 9 April 22, 1993 THE CHAIRMAN: The reason why this is so vivid in my mind is because at that time and I am still a member, commissioner of the Mattituck Park District~ and we under the same emergency permit that you used to rebuild your deck, we asked to destroy about 400 to 600 feet of bulkhead just down the bay, you know at the end of Bay Avenue~ which we refer to as Vet's Park, which of course you have a ~right to go to also because you are a resident in the hamlet of Laurel. MR. IRELAND: Correct. THE CHAIRMAN: Okay. So basically what you have done is merely revitalize this deck based upon what existed in the December storm? MR. IRELAND: That is correct. THE CHAIRMAN: Now, I know that there is a grandfathering situation in here because you are telling me you built the deck prior to this law actually going in which we are now requiring a setback, right? MR. IRELAND: I never knew about that until we applied for the variance. THE CHAIRMAN: Okay. Can you just tell me why the deck is so important to you as it being a joining factor from the house to the inside edge of the bulkhead° MR. IRELAND: It is,' I guess, our yard. Well, two things. One of the reasons when it was originally built, and I know from the neighbor directly to the east of us, to some ZBA Hearings 10 April 22, 1993 extent we know there is going to be more high tides. The deck, actually, but of course this was an extraordinary situation, but we typically get water over the bulkhead in the front there, and the neighbors just have these longer grasses there, typically get a tremendous amount of erosion. The level that is behind the deck other than that one corner, where the neighbor's bulkhead gave 'way, is pretty much the same as it was in 1983 when we did it. It really hasn't changed. To some extent, I also think it helps protect erosion; but primarily it is a space that we use you know for lounges and entertainment. It is the backyard even though i% is on the bay side. THE CHAIRMAN: All right. I will just ask any of my Board members if they have any specific questions. I wanted to ask you about this chronological order in reference to dates because that is the way I kind of saw it coming down and -- yes, Jim. MEMBER DINIZIO: Is the deck actually attached to the house, is it bolted to the house? MR. IRELAND: Yes. MEMBER DINIZIO: And it is also bolted to the bulk- head, or is there pilings? MEMBER DINIZIO: Is this all one piece--if you lost the bulkhead and the deck we~t-- ZBA Hearings 11 April 22, 1993 · MR. IRELAND: There is two different levels to it; the upper level which is bolted to the house and then there is a step down -- the front level is on its own pilings --they are attached, there is no break in them. There is a step, but it is not a continuous level. It is two levels. MEMBER DINIZlO: So they are not really --if the bulkhead caved in, the front deck would go, and the back-- MR. IRELAND (continuing): Would stay. THE CHAIRMAN: The back would break away. Bob? MEMBER VILLA: There is still work going on with the deck on the east side. Is that still being constructed or what? MR. IRELAND: On the east side? There's no work going on at all. MEMBER VILLA: Well there was a ramp supposed to be going up,-- on the survey it shows 'proposed addition.' MR. IRELAND: Yes. I'm sorry. There's a- that ramp laying on the ground -- were you on the site? CHAIRMAN: Yes. MR. IRELAND: That is laying on the ground, that originally ran down that side of the house. When the water came over on that side, it actually broke that off. I didn't replace that because of our application to extend the bedrooms on that side. Everything else is exactly as it was. It is true that one section is laying on the ground, has not been put back, that ZBA Hearings 12 April 22, 1993 is an original section that is there. I think the railing is still even attached to it. THE CHAIRMAN: So you are basically looking at an eleven-foot sideyard on the easterly side. MR. IRELAND: Yes. ~ THE CHAIRMAN: With the proposed addition. And showing an addition of approximately seven feet by 34 plus or minus on that one side? MR. IRELAND: Yes. THE CHAIRMAN: Do you figur~ 11 feet is all right if you have to get in there with machinery, you think you can get in with machinery? If you have to work on the bulkhead again or whatever the case may be. I know you'll have to take black pines out and all the rest of it-- MR. IRELAND: Yes. We would even go in after the house is built to backfill that area. We are going to try to tie that in with the neighbor directly to the east, where they've really lost all their building on their bulkhead. Yes, we can still get in there. You can still get around on the right side -- THE CHAIRMAN: I am seeing that. MR. IRELAND (continuing): --with a small machine, if we have to get to the bulkhead in the front also. THE CHAIRMAN: Any other questions, gentlemen? ZBA Hearings 13 April 22, 1993 MEMBER VILLA: What is the percent coverage on the lot with all of this? MR. IRELAND: I have to figure-- MEMBER DINIZIO: It's minimal. THE CHAIRMAN: Yes~ it's minimal. It's a big lot. You didn't own the whole lot at one time, did you? Did you always own the whole lot? MR. IRELAND: Yes. THE CHAIRMAN: Okay. MR. IRELAND: Since 1980. THE CHAIRMAN: Yeah, it's 43,000 square feet, Bob. Any questions over here? MEMBER WILTON: You seem to have answered them all. CHAIRMAN: I am glad we went through that order because I had to get it in my mind there. MRo IRELAND: I looked for photographs to put in with the application of the original, but they went in the storm. THE CHAIRMAN: I can remember quite vividly walking down the entire beach area and stopping a little bit past your house; and I am talking about the 1983 storm. The devastation was unbelievable. Of course, because a lot of the bulkhead there was aged bulkhead, and when you had one blow out, it just continued right down the line. MR. IRELAND: It went on both sides --because mine went, both neighbors went. ZBA Hearings 14 April 22, 1993 THE CHAIRMAN (continuing): --went too. Anything more? MEMBER VILLA: The only other thing I can say is that I feel I have a little problem with the location of the garage because I was there and it would appear that the garage could be moved five feet off that line and not interfere with the existing driveway. The driveway ls nondescript; it is just basically dirt. THE CHAIRMAN: You're talking about moving it more into the property? MEMBER VILLA: Yes. MR. IRELAND: The line on the back we just put up with a neighbor that were monuments in there. In essence that wasn't the back of the line. MEMBER VILLA: You had the garage staked out, right? MR. IRELAND: The front, yes. Correct. But in order to pull in there, I laid it out with the architect -- in order to get in and get out, if we came out the other 5 feet, I would definitely have to take down cedars on that left side, which would be the easterly side. MEMBER VILLA: Ok. THE CHAIRMAN: The height of the garage to the ridge, about twelve feet? MR, IRELAND: Yes. THE CHAIRMAN: Eight and four, something like that? MR. IRELAND: Yes. ZBA Hearings 15 April 22, 1993 THE CHAIRMAN: Okay. And the same situation that we put on, I am just mentioning it to you, the only utility the garage would have would be electricity? MR. IRELAND: Electric lights, yes. THE CHAIRMAN: Electric lights, okay. Thank you very much, Mr. Ireland. You have been very informative° You've brought back some old facts and old memories. Is there anybody else who would like to speak in favor of this application? (There was no response.) THE CHAIRMAN: Anybody who would like to speak against the application? (There was no resPonse.) THE CHAIRMAN: Hearing no further com3~ent, I make a motion closing the hearing, reserving decision until later. (Seconded and carried; see Clerk's Minutes.) ZBA Hearings 16 April 22, 1993 APPL. NO. 4059 - JOHN SEPENOSKI, JOHN A. NOBILE and SUSAN NOBILE. (Michael N. Hills, Esq.) Request for Variances: (a) for approval of access for fire and emergency vehicles over a private right-of-way pursuant to New York Town Law, Section 280-A, and (b) to the Zoning Ordinance, Article XXIV, Section 100-244B (Article IIIA, Section 100-30A.3) for approval and recognition of substandard lot area and depth, as exists, in this R-40 Low-Density Residential Zone District. Location of Property: 5600 Horton Lane, Southold, NY; County Tax Map Parcel No. 1000-54-3-14.7. This parcel contains a total lot area of approximately 33,542 sq. ft. and depth of 140.97 feet. 7:49 p.m. (The Chairman opened the hearing and read the Legal Notice and application for the record.) THE CHAIRMAN: I have a copy of a survey produced by Robert Van Tuyl, P.C., indicating the placement of this lot as it exists presently behind the Sepenoski house; and I have a copy of the Suffolk County Tax Map indicating this and surrounding properties in the area. Mr. Hills, would you like to be' heard? Appearance: Michael N. Hills, Esq., for the Applicant MR. HILLS: My name is Michael Hills, the law firm of Cruser and Hills, 206 Roanoke Avenue, Riverhead, NY. With your permission, Mr. Chairman, I would like to give each of you ZBA Hearings 17 April 22, 1993 a set of some of the exhibits I have prepared for my presentations and cards (Materials handed up, to be marked Applicant's Exhibits 1 through 6.) I furnished you with various exhibits. I am now going to try further to explain to you what circumstances brought about the need for the right-of-way that is requested as part one of the application, and the reason that no application had been made for a minor subdivision for the lot that is the second portion of the application. Prior to November 12th of 1981, Ollie Overton owned all the property that is the subject of this application. The survey of that property, which is Number One on your exhibits, was prepared in 1950 for John Pettit Overton. That survey shows that at that time a road called Sylvan Road was going to be located on the westerly portion of the premises and go around the circumference of the premises. To the best of our knowledge the road was never installed. That property that is where the road is located is now owned by people by the name of Nobile who are also the applicants here° Jonathan Overton died in 1961 and devised the property to Ollie Overton. On November 12, 1981, the Executrix of the Estate of Ollie Overton conveyed the lot that is now requesting the nonconforming designation to John Sepenoski, its present owner. Mr. Sepenoski, together with his wife, had previously purchased a lot that is immediately adjoining the property; but one lot is held in John Sepenoski, the one that is the subject ZBA Hearings ~8 April 22, 1993 of this application, and the other lot is held by John A. Sepenoski and Susan M. Sepenoski. They obtained title to that on June 15, 1965. At the time that the deed was delivered to John Sepenoski, as you can see, it included a right-of-way over the never-constructed Sylvan Road. "At that time the estate owned other contiguous parcels that required a minor subdivision for its legality. No application for a minor subdivision was made at that time. On January 17, 1984, the executrix conveyed tho other parcel involved in this application to Albert W. Albertson, and that is Deed Number 3. Subsequently Albertson conveyed the parcel in Deed Number 4 to its current owner John A. and Susan Nobileo This conveyance was made after evidently a subdivision application had been approved on November 2nd, 1984. It is my belief that the reason that that subdivision application did not then include a parcel that is owned by John A. Seponoski is, Number One, Mr. Albertson didn't own it, and, Number Two, nobody believed they had to make the application because nobody saw that that was going to be a problem at the time. Included in that deed to the Nobiles was the land again on which Sylvan Road was going to be located. Neither of the deeds --the one to Mr. Albertson or the deed to the Nobiles-- mentioned the Sylvan Road right-of-way or made the conveyances subject to the possible right-of-way of John A. Sepenoski. What this did was to landlock John Sepenoski. Subsequently, the John A. Sepenoski piece has been held in ZBA Hearings 19 April 22, 1993 single and separate ownership since it was purchased in 1984, and you have in your file the single and separate search that evidences that fact° The Nobiles, meanwhiles constructed a residence on their parcel and located a dirt road in the center of the purported fifty-foot-wide pole portion of the flag lot. Subsequently, the Sepenoskis commenced an action in Supreme Court seeking a declaratory judgment that the Nobiles proPerty was subject to an easement in favor of said Sepenoski. In response to a Summary Judgment motion, the Court issued an order declaring an easement but scheduling a hearing to determine the extent of the easement. At the scheduled hearing the parties entered into a stipulation of settlement before Judge Underwood providing for 15-foot right-of-way. That right-of-way would extend from Horton Lane to a point 50-foot east of my client's westerly line. It was also agreed that the Nobiles would relocate their existing driveway and fifteen-foot right-of-way so that both lots when improved would use a common driveway. One of the contingencies for that settlement to be effective is that this 15-foot-right-of-way be in compliance with the Town's requirements so that John Sepenoski seeks to obtain a building permit for a residence on his parcel, the 15-foot-wide access would not prevent the issuance of a building permit. Just so that you understand what they did in Court in no way is taking jurisdiction away from you, they made the settlement completely ZBA Hearings 20 April 22, 1993 contingent upon your approval. This proposed right-of-way would only be used by the Nobiles, their successors and assigns, and John Sepenoski for the rear parcel that he owns. Nobody else would be permitted except of course anybody who takes from John Sepenoski that parcel. A review of the tax map that I have also enclosed in your file will show that the parcel doesn'~t change the essential character of the neighborhood. The parcels are still residential parcels that are used only for that purpose. The size of the parcel is in complete conformity with the rest of the parcels in the area. The only difference between the John A. Sepenoski piece and all the rest of the parcels is that John Sepenoski has no road frontage. While the applicants can be said to be in a self-created hardship situation, that was done prior to any of the time of these people owning the property. It was done by, Number One, the inadvertence or failing to include the right-of-way in any deed, and the lack of --the time of 1981 when the first conveyance was made, coming to this Board for a subdivision at that time. Under the new Town law self-created hardship alone does not negate the possibility of giving a variance. In this particular set of circumstances, inasmuch as it wasn't an intentional self-created hardship, it was probably done through lack of knowledge-- it should not be a factor in when you determine what factors you are going to act upon, ZBA Hearings 21 April 22, 1993 whether to grant or deny this application. It was created by the incorrect deeds that had been given out and for no other reason. If the variance required as requested under the second portion of the application is further going to be no adverse effect on the environmental conditions, nor will it be a detriment to the community. Again, the parcel is going to be used for residential purposes in complete conformity with all the other parcels. The survey shown is No. 6, the one that shows that a minor subdivision had been applied for by Albert W. Albertson, that is where the parcel had been, when Albertson had obtained the parcel, he subdivided it; and No. 2 shows the present location of the dirt right-of-way in the center portion, and it also shows the 15-foot right-of-way would be sufficient for any emergency vehicles that may be coming into the property; and if you have any further questions, I will be happy to answer whatever I can. THE CHAIRMAN: Thank you for the presentation on the legality or illegality; it is gratefully appreciated because now we understand how the thing came to be. At the most, of course, it is our understanding that two houses will share this driveway, this right-of-way conceivably, okay? MR. HILLS: That's right. THE CHAIRMAN: There will have to be some min~r enhancement, okay. We haven't determined that at this ZBA Hearings 22 April 22, 1993 particular time, but we will between now and the time that we CHAIRMAN: make a decision. We are not talking a macadam road here, we are talking there will be some minor enhancement though in the right-of-way itself; and the information that we place within the decision is usually that it be continuously maintained because we are all concerned about emergency vehicles ingressing and egressing from the site. That is basically all that I have to say. Is there anybody else who would like to-- BOARD MEMBERS: No. THE CHAIRMAN: Thank you very much, sir. THE CHAIRMAN: Is there anybody else who would like to speak in favor of this application? (There was no response.) THE CHAIRMAN: Is there anyone who would like to speak against this application? (There was no response.) THE CHAIRMAN: Seeing no hands, I will make a motion closing the hearing and reserving decision until later. (Seconded and carried; see Clerk's minutes.) ZBA Hearings 23 April 22, 1993 APPLICATION NO. 4157 - DEPOT ENTERPRISES, INC. (Reconvened and continued from March 18, 1993). Request for a Variance to the Zoning Ordinance, Article VII, Section 100-71C (which refers to 100-31C-4, 100-33 of the residential accessory use provisions), for permission to establish and locate accessory outdoor recreational area with outdoor lighting incidental to the main use of the premises. Location of Property: 320 Depot Lane, and 29325 Main Road, Cutchogue, NY; County Tax Map Parcel ID No. 1000-102-2-12.1. Subject premises is zoned Residential-Office (RO) and contains a total lot area of 1o6+- acres~ 8:06 p.m. (The Chairman opened the hearing and read the Legal Notice and application for the record.) THE CHAIRMAN: This is an application that we held in abeyance at the last open meeting or the last regular meeting, and we will ask Dr. Lizewski if there is anything he would like to add to his application prior to commencing any other comments from the audience. DR. LIZEWSKI (Applicant): Since I applied for this application, I have taken the liberty to take the lenses over the lights and have them sandblasted to get rid of any of the glare that would interfere with any of my neighbors, and I realize that these lights will not be used the months of November,~ December, January, February or March, and that in the months tha~ they would be used, we have between --eight o'clock ZBA Hearings 24 April 22, 1993 and nine o'clock is daylight anyway-- then they would be shut off by ten-thirty at night. They were going to be used basically seven months of the year, and I believe I presented some pictures to you of how the distance from some of my neighbors, these lights affect them-- and I don't have much else to say about it except that we'll do, have screening going in. That will go before the Planning Board. I don't know how much that screening will affect the --It will affect the road, but it won't affect the school which is basically the neighbor that sees most of this light. THE CHAIRMAN: That is the gentleman to the rear? DR. LIZEWSKI: Down on one side, down to the east of me. West of me is the school. THE CHAIRMAN: Okay. DR. LIZEWSKI: The school is closed. THE CHAIRMAN: What about Fogarty? DR. LIZEWSKI: Fogarty has no complaints at all. He knows about it. THE CHAIRMAN: It has been the nature of this Board also to occasionally --We are not trying to usurp the authority of the Planning Board, but we have in the past also in decisions of this nature, and, of course, this is unique because it is really the first of this nature to come to the Town --I am not saying in reference to the volleyball, I am talking about the complex itself-- some minor screening. ZBA Hearings 25 April 22, 1993 DR. LIZEWSKI: We have it in the plans~ You are welcome to add to it, or the Planning Board I am sure will talk about the screening as you come to the driveway. That was the original screening plan. And there will be some changes. The only thing I worry about the screening is that is fairly close to the corner, and I would not like to see enough screening that people would not be able to see to the left of the side of them when they pull out of that driveway-- THE CHAIRMAN: Sure. DR. LIZEWSKI: --because there is plenty of cars and I would like it back a little bit. I have the berms back farther enough anyway. THE CHAIRMAN: I was primarily talking about screening in the rear of the volleyball court° When I say "rear" as I stand in front to the lefthand side, you know. DR. LIZEWSKI: On Dunn side, yes. The easterly side, along my property line, okay. THE CHAIRMAN: Yes, okay. Thank you, sir. We will now leave this open to the audience. I believe Mr. Jacobs, you had asked us to recess this. How are you tonight, sir? WILLIAM JACOBS: Well, I wrote a little something down to add to this application. We, William and Alberta Jacobs, would like to make a statement to become part of the minutes in this hearing for the development of Depot Enterprises. As long-time residents at 550 Depot Lane in Cutchogue, we have seen ZBA Hearings 26 April 22, 1993 MR. JACOBS: many changes with the addition of a business to our residential area. We don't object to having a business in the midst of our formerly peaceful neighborhood. We also don't object to the plan to install lights at the outdoor volleyball court, but we do believe that limits should be put on the use of the court. The lights and the noise associated with this court are disturbing to neighborhood residents, particularly if the court is used late into the night and all week long. Therefore, we respectfully request that the Zoning Board take into consideration our request for a reasonable curfew, something like nine o'clock for the volleyball court at the Health and Fitness Club. Thank you for hearing this request. I would like to add that to the file. THE CHAIRMAN: Thank you, sir. Is there anybody else who would like to speak regarding this hearing? Mr. Flynn? F.Mo FLYNN: Yes. THE CHAIRMAN: We never restricted you on time, Mr. Flynn-- MR. FLYNN (interposing): This is not a lengthy one. THE CHAIRMAN: Thank you. MR. FLYNN: As you probably know, I am a rather direct man. Perhaps I should identify myself for the record. I am a resident of Southold. I think I am a rather direct man, and I would like to reduce this application and its implications ZBA Hearings 27 April 22, 1993 to as simple terms as possible. As I will attempt to clarify this MR. FLYNN: thing in my mind, I identify it --I think properly-- as Dr. Lizewski's health club in Cutchogue and questions in the short statement I make may be rhetorical and you will correct me I am sure if I am wrong. But as I understand it, this is an application for a variance to install volleyball courts on the property~ and there may be a question as raised by the Building Inspector as to whether a special exception is required to the lighting. Now I believe this variance is intended to be that for an accessory use and this application --my recollection and my review of the records is-- was denied by the Building Department on January 10, 1993. And the reasons cited were that the volleyball courts must be ".~.in the rear yard and exterior lighting requires special exception .... " Now, consideration of these factors, in my opinion and I think according to the ordinance, requires a scaled plot plan with the signature of the person responsible and/or a survey by a licensed surveyor or professional engineer° I haven't encountered that, and I don't know whether such a plan exists, but I hardly see how a variance can be granted without a thorough study of such a plan. Now, the other question in my mind is a variance for an accessory use, the question is the legality of granting a ZBA Hearings 28 April 22, 1993 varianc~ for an accessory use where the main improvement on the property does not have a C.O. Notation on the record indicates that the temporary CoO. expired in 1987. Now these courts and MR. FLYNN: lighting exist and have existed for some time. That brings up the question: If these improvements were built without a building permit, and without apparent clearance by the Planning Board, are they not illegal? And were they not erected and used in violation of the Town Code? Thank you. THE CHAIRMAN: Would you like me to answer that? MR. FLYNN: Yes, if-- THE CHAIRMAN (continuing): First of all, I should point out to you that Dr. Lizewski was kind enough to come in with a plan today. MR. FLYNN: I looked at the record yesterday, and it was not there at that time. THE CHAIRMAN: Secondly, this same question was posed to me by a taxpayer in the Town of $outhold on Sunday evening, and they called me at my home; and I am not answering for Dr. Lizewski, I am not answering for anybody but the nature of the situation is as such: When an application --I said the same thing, I say the same thing to everybody-- I say the same thing to the newspapers, I say the same thing to everybody. There is no difference in my conversation. When an application comes before the Zoning Board of Appeals, whatever exists in reference to an inadequacy in the Zoning Ordinance, all right, by the ZBA Hearin§s 29 April 22, 1993 Building Department, all right, that is held in abeyance until a decision is rendered by this Board, okay. So what actually is outstanding, I don't know. Okay. I don't know, I don't think CHAIRMAN: Dr. Lizewski was violated, okay. I very simply think that what is before us is Just what you mentioned based upon, I think you said January 10th-- I believe it was February 10th in the notice of disapproval. It says, and I am reading this-- Victor Lessard had signed this notice of disapproval: "...Article III Section 100-33 Accessory buildings (uses). Volleyball courts and children's play area are required to be in the rear yard. Addition of outdoor lighting requires an approved Special Exception. Action required by the Zoning Board of Appeals. These additions will also require amending the site plan as indicated in Article I, Section 100-250..o," which is the area that pertains to the Planning Board. Now, at this time I have no idea if Dr. Lizewski has a plan before the Planning Board in toto if he has completed the entire site plan~ Certainly it has been the nature of the application of most applicants that they come before us first to deal with the requirements that would be required under the Code so to speak; and then they would be referred back to the Planning Board, all right. I am sure that that is what the normal process is going to be in this particular case, and that is all I can tell you, Mro Flynn. ZBA Hearings 30 April 22, 1993 MR. FLYNN: I would like to respond momentarily. You talk about the normal process. I believe the normal process is to acquire a building permit prior to construction, and that if MR. FLYNN: construction is conducted without a building permit, it is a violation of the Town Code,'pure and simple. THE CHAIRMAN: I have no idea if there was a building permit or not. MR. FLYNN: You have a denial. Therefore, it can't be. THE CHAIRMAN: Not necessarily. MR. FLYNN: There was a building permit for the pool and two bathrooms. That I encountered. But I also encountered a notation to the effect that there was no C.O. on the main structure which is another issue I raise as to having possible pertinence here. And then an application for an accessory use for a building that has no C.O. THE CHAIRMAN: I can't answer that question. My particular problem i~ here, when I go down and look at this site, I am looking at sand, and I am looking at two stanchions for a volleyball net. I have no knowledge that this lighting was ever used. I have no knowledge that this court was ever used, all right, at this particular time.~ In this particular case, I don't know. MR. FLYNN: I think it is on the record from the neighbors that it has been used. ZBA Hearings 31 April 22, 1993 THE CHAIRMAN: It may have been; I don't know. MR. FLYNN: So the question I raise, very bluntly stated: Is the construction of this improvement without a building permit a violation of the Town Code of Southold? And if you will not rule on it, who will? THE CHAIRMAN: The code enforcement officer, Building Inspector. MR. FLYNN: Haven't we eliminated the code enforcement officer? THE CHAIRMAN: We have eliminated a code enforcement officer, but a Building Inspector is still a code enforcement officer. MR. FLYNN: And he says that there is no building permit on this property. THE CHAIRMAN: Okay° Unfortunately, approximately two-thirds of the applications that come before us are normally constructed. In this particular case, I'll be perfectly honest with you, I'd like to see it there because I know what we are dealing with at this particular time. I would not be able to make a decision or a definitive judgment on lighting without seeing the lighting there. I came down and looked at the lighting at approximately seven o'clock at night before the time change. Dr. Lizewski had the electricians there. They were kind enough to turn the lighting on, okay; and I did not find the lighting offensive. ZBA Hearings 32 April 22, 1993 MR. FLYNN: .Don't misunderstand me. I am not arguing against the nature of the use° That is up to the people who are affected by it, to argue that point~ What I am arguing is that in this Town all these irregular things go on, where the normal procedure is violated. To erect the structure you are supposed to have a building per~it; and if you don't have a building permit, you are not supposed to erect the structure; and if you do erect the structure, in my opinion, that is a violation of the Town Code. That is as simply as I can state. Thank you. THE CHAIRMAN: Dr. Lizewski? DR. LIZEWSKI: I talked to the Building Inspectors and took down my nets; and they said as long as there was no net up on this volleyball court, it is not considered a structure. The other thing is, with the C.O.s, as everybodY knows, I have been before the State Review Board for quite some time; and it is in the State Review Board's hands and not the Town's hands to finally decide on the construction and C.O. of my building. Unfortunately, the State has cut back the funds drastically, but it has been there now for quite a while and they have to come and make a decision, and then the Town will finalize the entire thing. But since I spent five years going through tremendous construction changes that were given to me by the review board, the same type of review board that anybody has to go through if the Town deems you have made a construction mistake or have not done something, just like your Appeals Board here. There is a ZBA Hearings 33 April 22, 1993 State Appeals Board in Hauppauge, which I went to, which they have to now finalize on and I have had an engineer sign off that DR. LIZEWSKI: everything was done that the State wanted me to do, and it has been sitting in their hands; the Building Department knows of it; and this Town we are fortunate they have a Building Department that works with the people and not against the people, as long as they are kept appraised of the situation. It is not run in a gestapo-like fashion where people are dragged in and kept in tow, so to speak, if you work with the Building Department and they know what is going on, and everybody knows what is going on; they know that the letters are in there, and they have affirmation of it. They wait. They are not going to take somebody in and put them out of business or close them down when they know that you are making an effort to comply with the law. That is the way the Town has always been run, and I thank God for that. THE CHAIRMAN: May I just ask you two questions? When I was to the site, is there more than what exists there right now --I am referring to the rear because you happen to have two front yards, okay. The rear of the actual complex-- DR. LIZEWSKI: Nothing more than is on there-- THE CHAIRMAN (continuing): I see sand, I see two stanchions that would support a volleyball court, and I see four ~-~--~ stanchions -- ZBA Hearings 34 April 22, 1993 DR. LIZEWSKI: Four stanchions for the volleyball court, not two. THE CHAIRMAN: Excuse me, I meant four. And four stanchions for the lights -- that's all I see-- and some fencing for a playground area. DR. LIZEWSKI: That's right. That's all there is. Hasn't changed. I will tell you that I will do my best to not have those lights on. It certainly will not be played on every night of the week. I have to tell you I would be happy if I got three nights out of it. It will just be an~extension of my winter season of volleyball inside the building, outside of the building~ which is now only three nights a week as it is. So I don't think out of seven nights, maybe three nights will have actual use. THE CHAIRMAN: Thank you. Mr. Flynn? MR. FLYNN: Dr. Lizewski maintains there is no structure on the property in this area, and you gentlemen know the Town Code better than I; in Section 113 it defines building structure as anything constructed of any materials unless entirely underground so that the area above it may be used as if no such structure were present; so I think it is splitting hairs here to say that there is no structure present on the property. The lights and whatever stanchions exist by the Town Code · certainly constitute structures; and you may have gathered by now that I am a strict constructionist, and I don't believe that ZBA Hearings 35 April 22, 1993 the various departments in the Town should have the leeway to interpret ordinances one way for an applicant and another way MR. FLYNN: for another, depending upon their judgment as to his motivation. Thank you. THE CHAIRMAN: Just briefly, Mr. Flynn, before you leave, by a determination of this Board, and I don't want to belabor this topic because we would like to get to the final hearing -- Somewhere in the mid-eighties down on Arrowhead Lane in Peconic, an application was brought before this Board which was subsequently denied after the hearing, by an applicant for the construction of a tennis court. Okay. By the nature of that application, it was determined and shall continue to be determined by this Board that since a tennis court has an enclosure and it is enclosed by fence, okay, it is then a structure. A swimming pool as it exists today is enclosed by a fence and in most cases a deck, be it raised above the swimming pool or being a surfaced area right on the ground as in brick put in sand or mortar or slate, et cetera. That is construed to be a structure° Regardless of what you said concerning the particular code as it exists, subsequent to 1989 with the new Master Plan, we are still continuing on the aspect of the fact that unless it is enclosed, as it stands, it is not an enclosure, and therefore it is not necessarily a structure, okay~ This will become a structure if this Board so desires it to be a structure. As I sit before you and you stand before me, ZBA Hearings 36 APril 22, 1993 it is my opinion that we are looking at four individual stanchions for both the possibility of an erection of two nets CHAIRMAN: for volleyball use and I will tell you that there are four stanchions there for lighting. That I do not consider that --my Board members may change-- I don't answer for them. I do not consider that a structure, and it will not remain as a structure so far as I sit here, unless I am asked to interpret it, and it will only be interpreted as a structure if it is enclosed by a four, six, ten, twelve, fourteen-foot fence, whatever would be required to play, you know. Racquetball as it is used interiorly --This is a volleyball court, okay. And that is just my opinion as I sit before you. Just so you understand where I am coming from. MR. FLYNN: I do understand what you are saying, and I hope you understand what I am saying. THE CHAIRMAN: I do understand what you are saying. MR. FLYNN: What I am saying is that if that is your interpretation, it is in conflict with the plain wording of the code. And if necessary, the Code should be changed. But as the Code is worded, these are structures. THE CHAIRMAN: I understand and I will discuss that with the Code Committee. Thank you. Anyone else who would like to speak concerning this application? (There was no response.) ZBA Hearings 37 April 22, 1993 THE CHAIRMAN: Seeing no hands, I make a motion closing the hearing and reserving decision until later. (Motion seconded and carried; see Clerk's minutes.) ZBA Hearings 38 April 22, 1993 APPLICATION NO. 4156 - GARDINERS BAY ESTATES CLUB, INC. (re~o~d owner as per Deed at Liber 7671 page 415) - filed by ~GARDI~ERS BAY ESTATES PROPERTY OWNERS ASSOCIATION. {Reco~uened and continued from February 23,1993). (Ongioni & Borel~$, Esqs.) This is an Appeal based upon the February 10, 1993~N~tice of Disapproval issued by the Building Inspector requesting an Interpretation of Article III, Section 100-31C(3) <af~t~h~ Zoning Code which provides for "...docking or mooring cif~aCii~ties for no more than two (2) boats other .than those owned and ~sed by the owner of the premises for his personal use." ~Appt~ant is proposing to construct new dock areas with multiple boat ~acilities at the community beach of Gardiners Bay Estates, Location of Property: Part of Private Road known as Dogwoo~ Lane situated along "Spring Pond~" an estuary of Orient Harbor~ also shown on the Map of Gardiners Bay Estates, Section 2, fiJ~e~ in the Suffolk County Clerk's Office as Map No. 275, East ~arion, NY; County Tax Map ID Nos. 1000-37-1-part of 23 (private road), and part of 17 (underwater land). 8:26 p.~m. (The Chairman opened the hearing and read the Legal Notic~and application for the record.) Ai~ THE CHAIRMAN: This is a recessed hearing from two heari~s ago, and that is in behalf of Gardiners Bay Estates. I just ~ant to ask this nice gentleman down here if he would like ~our attorney to speak or would you like to open it up or whatever you would like. ZBA Hearings 39 April 22, 1993 LAWRENCE MATZEN: Well, this is our second hearing. My name is Lawrence Matzen, Chairman of the Marine Committee. THE CHAIRMAN: Do you want to speak, Carmella? Appearance: Carmella Borrelli, Esq., Ongioni and Borrelli, Attorneys for Applicant. MS. BORRELLI: I am just going to go through it briefly, go from where we were when we adjourned on the 23rd to where we are now, and some things that have come up in the interim. We adjourned because the Board asked for the Association to consider a limit on the number of ~ocking spaces, and then, subsequent to that, the Board made some requests for some additional data which Mr. Matzen, who is the head of the Marine Committee, supplied to the Board. That was a map showing where all the docking presently is, how many are there. The Marine Committee made a recommendation to the Board of Directors to limit the number to seventy-seven, which the Board approved~ That 77 is the potential maximum anticipated of non-waterfront owners, property owners, in Gardiners Bay. Since the last hearing you have gotten some letters in opposition, one from Mr. DiBlasi, who spoke at the original hearing. THE CHAIRMAN~ Yes. MS. BORRELLI (continuing): One from Mr. Sambach, Sr., who is the father of the gentleman who spoke in opposition at the original hearing; and one you got which I am not sure ZHA Hearings 40 April 22, 1993 what it is --it looks like Hair or Hagen. I know it is from Virginia --Springfield, Virginia. THE CHAIRMAN: Yes. MS. BORRELLI: The objections raised in all of those letters seemed to be centered around the same matters that were brought up at the last hearin§ --the location, the potential danger to navigation. All of those objections were answered by Mr. Matzen in letters that he wrote to the Army Corps of Engineers because those same objections were raised in the Army Corps of Engineers, and I had sent copies of Mr. Matzen's letters with my letter to you of the 16th, which covers all of those; and, as you know, the Army Corps approved this, and so has the DEC approved it. The objections of Mr. Sambach, Sr., were responded to by the Association's president Mr. Birdie, merely calling to your attention despite the fact that Mr. Sambach, Sr., told you that he was Vice President of the Real Estate Committee, et cetera, et cetera, he was writing to you as an individual because the Association had voted on this, and the majority had approved this application, so that you should take these objections to be individuals and not the consensus of the Association because the Association has voted and approved it. All I would like to do is just to reiterate what we are asking the Board here: We would like you to realize that all of the objections that have been put in are objections that are not pointed to the question that is before this Board. The ZBA Hearings 41 April 22, 1993 question that is before this Board is an interpretation of the Code. It has nothing to do with the location where a dock is put, when a dock is put --It has to do merely with interpretation of the Code as to who can put boats at that dock. We ask you to view this question from Gardiners Bay as a unique situation, and not to view it as precedence-setting for other homeowners' associations, simply because Gardiners Bay is unique in that it owns the land under Spring Pond, which is not so with other homeowners' association. Therefore, other homeowners' associations would be much more within the control of the Board of Trustees and the Board of Trustees could have a lot more to say about what goes on. So, therefore, a decision here in interpretation I would like you to view not as precedent-setting for those. The Board has voted and set a limit to the number of boats, and I would like you to realize that in being a member of the homeowners' association when you are non-waterfront property owner, part of the value of your land when it is conveyed to you is the ability to have docking space within the association. Once you do not allow them to dock there because you do not consider them owners, that the boat has to be owned by the Association, you have decreased the value of their land when they have to, at some point in the future, or if they transfer it to another property owner, they have lost value. It has been diminished. ZBA Hearings 42 April 22, 1993 I would like to borrow from Dr. Lizewski in that we have tried to work with this Board, especially in the vote for the limit --We are willing to work for that Board in the future. We assume that the Board would be willing to work with us, and we are making every effort and will continue to do so. I don't have anything else to say unless you have some specific questions. After that though, Mr. Birdie, who is the president of the Association, would like to read a letter to you and then give you letters that have been signed by other Association members. THE CHAIRMAN: The max is 77. What do we have existing now, without the-- MS. BORRELLI (continuing): Sixty-four, but that is thirty, thirty-one-- MR. MATZEN: Thirty-eight off land (not fully audible from non-microphone area) and 31 waterfront premises. MS. BORRELLI: But the waterfront members are people who would be entitled to have those docks there. They are not on Association property. THE CHAIRMAN: In the interim we did of course have an application for a deck down by the island, I forget the island name you call it down there-- VOICE IN AUDIENCE: (Name inaudible without microphone). ZBA Hearings 43 April 22, 1993 THE CHAIRMAN (continuing): Yes. So I did take the liberty of walking down and viewing the application after it was completed, and did take a look at the island and the --not the mooring but the docking facilities at that particular point, which gave me a better idea of the whole --I can't use the word "operation" because it's-- the whole docking facilities. MS. BORRELLI: The Marine Committee here is very diligent about taking care of the docking, about maintaining the waterways, about doing everything so that everybody gets the best for what they want without interfering with navigation, without posing any dangers --I mean if you have read the letters I sent you that Mr. Matzen wrote, you can see that is the Chair of the Marine Committee; you can see that his credentials in this area are fairly extensive and the people are concerned about their community because if things got out of hand, their property values get diminished, so they certainly don't want that to happen. They are just looking to fulfill what is what people who bought expect, and that is to be able to dock a boat at property-association lando THE CHAIRMAN: All right, thank you. MS. BORRELLI: Mr. Birdie? THE CHAIRMAN: Hello, Mr. Birdie, how are you? MR. BIRDIE: I am Edward Birdie, 380 Parsons Boulevard, property owner, in the Estates. ZBA Hearings 44 April 22, 1993 THE CHAIRMAN: You also substantiate that everything you are about to say is the truth to the best of your ability? MR. BIRDIE: Yes. THE CHAIRMAN: Thank you. MR. BIRDIE: I am also president of the Association, and I have here the letters signed by more than sixty members of the Association supporting the application, and this letter was prepared by our resident, and he is also attorney and on our Board as a Board member, and is also our legal counsel. If the Board so desires, I will read the letter. THE CHAIRMAN: It is entirely up to yourself, sir. MR. BIRDIE: It is addressed to the Town of Southold Zoning Board of Appeals and reads: "I am a property owner in Gardiners Bay Estates in East Marion and a member of the Gardiners Bay Estates Homeowners Association (GBEHOA)o I am writing this letter in support of the application of the GBEHOA for a determination of the boat code for R40 zoning. I am writing this letter both as a member of the homeowners association and as a property owner with an interest in association property including the lands underlying Spring Pond. "By my ownership of property in Gardiners Bay Estates and my membership in the Gard£ner$ Bay Estates Homeowners Association I am entitled to place a boat on an available mooring or dock in Spring Pond. The land under Spring ZBA Hearings 45 April 22,.1993 Pond is owned by the GBEHOA and its use is managed by GBEHOA for the benefit of all members of the association. "I support the application for additional dock slips in Spring Pond because the community of Gardiners Bay Estates will benefit significantly by construction of the dock and because its construction will not cause any harm to the health, safety or welfare of the community or of any adjacent or nearby neighbors. Upland boat owner members Of GBEHOA are not now all accommodated by the available slips and moorings in Spring Pond and the construction of a new dock will provide access to more association members. Whether or not I have a boat in Spring Pond or am on a waiting list to place a boat in Spring Pond, the availability of slips and moorings is an incident of property ownership and GBEHOA membership in our community and it adds substantial value to my property. I believe that if the present application is not granted, the value of my property will be decreased because the availability of spaces for boats in Spring Pond will not be allowed to be set by the GBEHOA at a level which is presently necessary. "The GBEHOA acts for me and for all members of the association in regulating the use of Spring Pond for boating and I most respectfully request that its application be granted in all respects to permit it to continue to serve its intended purpose in this regard. "Very truly yours," This is signed by the members. ZBA Hearings 46 April 22, 1993 THE CHAIRMAN: Thank you, sir. Nice to meet you, sir. (Whereupon above referred to letters were received on behalf of applicant and made part of the record --exhibit numbers, if any to be designated by Clerk or applicant's counsel.) MEMBER VILLA: One part I didn't catch. How many letters did you say were signed? MR. BIRDIE: Sixty, sixty-one. MEMBER VILLA: Sixty-one, all right, thank you. THE CHAIRMAN: There is no doubt in our minds that ~ · this organization that you all represent have a keen interest in whatever way the people go. This is a democracy and the way we have to deal with it, right? Anything further? Yes, Mr. Birdie? MR. BIRDIE: One thing further --we have a number Of members of the Homeowners Association here. I think they are all on this side (indicating). They can all stand up (laughter). THE CHAIRMAN: No, it is not necessary. Is there anybody else who would like to speak? Yes, sir. Just state your name for the record. Do you substantiate that everything you are about to say is the truth, to the best of your ability? PROPOSED SPEAKER (MR. FANAZZI): Yes. THE CHAIRMAN: And your name? ZBA Hearings 47 April 22, 1993 ANDREW J. FANAZZI, JR.: I will read my letter. I left copies this afternoon for all Board members. THE CHAIRMAN: Okay. MR. FANAZZI:~ Dear Sir: "I am writing to you in direct response to Warren A. Sambach, Sr. 's letter dated April 6, 1993. "I also am a member of the Board of Directors of the Gardiners Bay Estates Home Owners Association, Inc. I have never made a presentation to any Board of any kind previously. It is my honest opinion Warren A. Sambach, Sr. ~ should have abstained from any involvement (professional or otherwise) in this issue due to a conflict of interest. "The Army Corps of Engineers and the Dept. of Environmental Conservation found no problem with the installation of docks in Spring Pond as proposed in Application #4156. "To my knowledge, no one has approached the Chairman of the Marine Committee for a list of those person(s) interested in requesting dock space. I earnestly feel every homeowner in Gardiners Bay Estates is entitled to a place to moor or dock a boat. I am referring to present and/or future homeowners. It is my understanding this would mean spaces for 65 upland homeowners. There are several rights of way in Gardiners Bay Estates. One leads to Fox Island which has dockage for four (4) ZBA Hearings 48 April 22, 1993 boats and a beaching area for several dinghies. Two other rights of way provide access to the beach area. "As to the issue of congestion, parking or any other alleged problems, if the use of a right of way by neighbors is thought of as an annoyance by Warren Sambach, Jr., and Richard DiBlasi, it would seem this is in direct conflict with the reason(s) for which these rights of way were originally established; namely, to provide access to Spring Pond and the beach area to all members of Gardiners Bay Estates. In addition, Warren Sambach, Jr. and Richard DiBlasi were fully aware of the existence of these rights of way prior to their purchase of their respective properties. "I firmly believe the value of my upland property would be diminished if I had to inform a potential purchaser that mooring and/or docking space in Spring Pond would not be available to them until some unknown future date. It is increasingly apparent Warren Sambach, Jr. and Richard DiBlasi are using and have used every conceivable means to object to this application as a ruse to obscure their own selfish interest. It seems a clear case of "I've got mine and the rest of the community be damned." "At this time, I respectfully request the Zoning Board of Appeals rule in favor of the Gardiners Bay Estates Home Owners Association, Inc.'s application. "Very truly yours, signed Andrew J. Fanazzi, Jr." ZBA Hearings 49 April 22, 1993 THE CHAIRMAN: Thank you. I have it right here, Mr. Fanazzi. Is there anybody else who would like to speak? Either for or against. Yes, Mr. Sambach? WARREN SAMBACH, JR.: My name is Warren Sambach, Jr.~ and I guess I am the bad guy. But I am only here tonight to reiterate what I. previously stated to this Board -- that you have been requested to interpret something. You have been request to interpret Section 100-31C-3A. You have not been requested to hear a Use Variance. You have been asked by Gardiners Bay Home Owners Associations to interpret something. You have been asked to interpret something other, something different from what the Building Inspector has said in his Notice of Disapproval to the Association's application dated February 10, 1993. Here he said that the property zoned and owned by a subdivision association, action required by the Zoning Board of Appeals to address the Code use not allowed in an Agricultural zoning, i.e., more than two boats not owned by the property owners. The ordinance reads: There shall be docking or mooring facilities for no more than two boats other than those owned and used by the property owner for his personal use. Previously we have heard who the owner is. Gardiners Bay Home Owners Association, Incorporated, is a single entity. Therefore, the next question to be asked is: How many boats does this single entity own? Having that number, ZBA Hearings 50 April 22, 1993 you can add two to that number and ascertain how many boats are allowed on this piece of property. That number is three. Presently there are four docked. There are two boats docked on my personal pier and float on Association property with their permission. That is my boat and my father's boat. There are two additional boats docked on Richard DiBlasi's personal pier and float on Association property --his boat and George Clerk's boat. That is four boats docked. All four of us are members of the Association. In addition to that, there are two moorings associated with this piece of property in front of and that are serviced by this piece of property. Those two moorings are Reverend Henry Ressmeyer's and the other mooring is where the Gardiners Bay Home Owners Association, Incorporated, keeps their boat. What the applicant is asking you tonight is to interpret a section of the Code. There are four boats docked, there are two moored, and they want to put four more. That is a total of ten. That would be a 66 per cent differential over and above what is allowed by the words of the Code. If you count the five upland boats in the pictures I submitted to you last night or last time We were here, that total then would be fifteen boats on this piece of property. That would be an 80 per cent differential over and above what is allowed by the ordinance. What was the legislative intent of the ordinance? Was the legislative intent of the ordinance to allow Homeowners ZBA Hearings 51 April 22, 1993 Association Incorporated to develop marinas or mini-marinas in residential areas? The Association has verbally given a self-imposed limit of 77 boats. That is 77 boats of the Association. Presently they have 32 boats. So that is an additional forty-five boats that they want on Association waters wherever they are, which is a lot of boats. Was the intent of the ordinance to allow Homeowners Association Incorporated to dock, moor or congregate as many boats as there are members in the Association? Even though perhaps not everyone in the Association wants a boat or has a boat. Was it the intent of the ordinance to allow Homeowners' Associations to be entitled to an unlimited number of boats? Was it the intent of the ordinance to allow more boats on a piece of property because it is bigger? Or was the intent of the ordinance to allow some sort of orderly development, some sort of prudent measure? Some sort of wise but not burdensome planning so as to protect the health, safety and welfare of the public? The applicant not being satisfied with what has been said by the Building Inspector, has asked this Board to interpret something different, something more than what the Code says. I believe the intent of the Code from this Board's point of view is to look at what the Code says. What do the words say and apply to? I don't think this Board in this case can interpret something more that would allow an ZBA Hearings 52 April 22, 1993 over-intensification of an accessory use. Once again the Conservation Advisory Council has recommended four boats for this piece of property. We have presently four docked. There are two moored --with four more proposed, is ten. The five upland boats would be a total of fifteen for this piece of property. That interpretation would be a gross over-intensification of an accessory use. Let's take a hypothetical situation. Let's suppose no boats existed on this piece of property --none docked, none moored, none accommodated. The application then by the Association would probably be for six boats, the four new ones plus the two that are there. Those six boats would still be a 50 per cent differential, twice as many boats as what the ordinance allows. The applicant is asking you to interpret a section of the Code. They are asking you to read more into the Code than is there, so that even this hypothetical situation, they are asking for twice as many boats. In conclusion, a common-sense approach to this particular right-of-way of the Association is to look at the Code wording. Apply what the Code says. That is what interpretation is. The intent of the Code is not to be turned inside-out and upside-down by letters from people who support the application or by legal fiction that distorts the plain meaning and language of a very clear statement in regard to who the owner is and how many boats that owner can have. Thank you. ZBA Hearings 53 April 22, 1993 THE CHAIRMAN: Thank you, sir. Is there anybody else who would like to speak --Mr. Flynn, do you want to go first? MR. MATZEN: Just a couple-- THE CHAIRMAN: Can you just reflect one second? MR. FLYNN: Sure. THE CHAIRMAN: Thank you. MR. MATZEN: What he said about fifteen boats, he went over this last meeting. The picture shows one of the boats he is talking about is an ornamental boat on the lawn, on DiBlasi's lawn. There is one dinghy I have down there on the beach. It is not in the water. His own rowboat was up there for a good many years, and sometimes in the water. He is talking about two docks with four boats on there. Twenty years ago we had four docks with eight boats on there. In disuSe, two disappeared. They kept theirs. No different than we had twenty years ago. It wasn't crowded then. It is not crowded now; and the same two moorings were out in front just where they are now. It has never changed. So we are not asking for more than was there 20 years ago. He comes up with a lot of hype and stuff with those pictures. You saw the pictures the last time, and I questioned that before; he comes up with the same thing again. I don't think he has a leg to stand on there really, the way he is talking. Another thing is (coughing renders three words totally inaudible) turned down by the Building Department from the start. Only when the Board of Trustees asked for the ZBA Hearings 54 April 22, 1993 interpretation were we able to have the Building Department turn it down so we could go for the interpretation. We didn't ask for the interpretation from the start. It was the Board of Trustees that started all this. He is saying we did. We did not. I fought for a whole year with the Town, and all the other heads of departments, trying not to go to the Board of Appeals. You know what. Linda is not here. I am sorry about her mother dying, but Linda knows that from the start because I was talking to her over a year ago on this, and that's all I have to say. THE CHAIRMAN: I just wanted to mention since the person who is doing the minutes is not the same person who is here --okay. This is a very dear lady from the Assessor's office that is assisting us tonight. MR. MATZEN: I am sorry. THE CHAIRMAN: We have to mention that the person who just made that statement is Mr. Matzen so we can tape it with the person who is doing it, because we didn't mention name. Okay. Mr. Flynn? Thank you, sir. MR. FLYNN: F. M. Flynn, a resident a Southold. I must say that my presentation will be somewhat even more disorderly than usual because I don't want to repeat what was said by the previous speaker. But ordinarily I wouldn't involve myself in internecine conflict, which is apparently what is taking place here. But on contrative (sic) statements made, the implications Townwide are much too important not to be ZBA Hearings 55 April 22, 1993 discussed in some detail. For one thing, the ownership of underwater land in Southold is not all that unusual. As a matter of fact, as the Board probably knows, I own some myself. Also, that underwater land, although privately owned, is subject to the Trustees interpretation and the issuance of Trustee permits, as I have found out. Now, this hearing is, as was said, for an interpretation of the term Code, but it was stated that it would not be precedent-setting. The application to expand dockage in Spring Pond is of potentially major dimensions, as was recited, from some low level of occupancy now up to a potential of 77 boats. Now the Building Inspector disapproved the application based upon, as was recited, Section 100-31C(3). Now I am not going to read that, but I would like to emphasize a portion where it says other than those owned and used by the owners of the premises --the owner, in the singular-- for his personal use. As was stated, it was also disapproved by the CAC~ who recommended a maximum capacity of four boats and on single dock, and opposed marina development by property owners association. Now, the applicant concedes that Section 100-31C(3) applies to a single owner. This whole thing revolves pretty much around whether this is a single owner or not, whether the Gardiners Bay Estates Incorporated is a single owner. Not to belabor the point, but "Incorporated" comes from the Latin word "corpus~" which means one body. It doesn't mean a number of bodies. It ZBA Hearings 56 April 22, 1993 means one body. Now, the applicant correctly said that the marina definition in 32-41 "Boats, Docks and Wharves" does not apply in this situation. That is absolutely true because that definition applies to any --I won't read the whole thing; but it does say any dock, pier or other facility operated for profit, so that is not a pertinent definition of a marina. The proposed use actually meets the definition in Section 113 of the Marina or Boat Basin, which says any premises containing one or more piers, wharves, docks, moorings, bulkheads, buildings, slips, basins or land under water, designed, used or intended to be used or intended to be used primarily for the docking or mooring of boats for or without compensation; so this apparently would meet that definition of a marina. Now this marina, in fact boat marina operations are only permitted in M1 and M2 zoning. Now there is question on anybody's part that the ownership of the underwater land involved in question is vested in the Gardiners Bay Homeowners Association Inc. Now the applicants advance several arguments that the corporation is not a single owner, including the definition of homeowners or homes association in Section 100-13. That states: A community association including a condominium association which is organized in a residential development in which individual owners have a shared interest and responsibility. Now I underline "shared interest" because that is definitive of a corporation. As I said, it should be ZBA Hearings 57 April 22, 1993 noted that Section 100-31-3C refers to the owner and the singular use for his personal use. As I mentioned, the definition of homeowners association refers to a shared use. Now while the applicant concedes that the property is owned by the corporation --when I say "the property,"I mean the underwater land. The counsel states that no definition of a corporation is incorporated in New York State law. Well, maybe that is not necessary to define a corporation; but inherent in the word, as I stated, is that it is a single living body. .I find it hard to believe that, and I accessed in the short time available to me, to a law library and in view of the thousands of cases involving corporate litigation, that no such definition exists. In any event, the SEC has certainly defined corporations, if only by delineating their objectives, powers, limitations and responsibilities. Now, one definition of a corporation that I found in a commonly used dictionary is (1) a body of persons granted a charter, legally recognizing them as a separate entity having its own rights, privileges and liability distinct from that of its members. So a corporation owning this property, this underwater land, is distinct from that ownership vested in the members of the corporation individually; and then under (3), it says "any group of people combined into or acting as, emphasized, one body." ZBA Hearings 58 April 22, 1993 Webster's Collegiate Dictionary defines corporate as combined into one body united, or formed into a body by legal -- or enact (pausing). THE CHAIRMAN: We are going to stop you in about two minutes here. Do you want to stop now? MR. FLYNN: Okay. THE CHAIRMAN: We just have (end of tape, sentence incomplete). (Resuming on the record with a new tape.) MR. FLYNN: I am trying to skip some of this. THE CHAIRMAN: Thank you. MR. FLYNN: To me, the claim that stockholders in a corporation can exercise individual rights or ownership of' ownership in corporate property can only be defined as bizarre. Carried to the extreme, a corporation such as General Motors could buy some underwater land in Southold and by the application of this principle, all of its stockholders could use it for moorings, within its physical capacity. The ownership of underwater land, as I said, is not unusual. Were I as an owner to follow the theory advocated by the applicants, I could incorporate my ownership and all the stockholders therein would have mooring rights. The implication of interpretation favoring the applicant would have disastrous effects on Southold's bays, estuaries and creeks. What is proposed here, in my opinion, smacks more of separating this underwater land and combining it ZBA Hearings 59 April 22, 1993 with the upland --would be something similar to a condominium type of operation. So in my opinion, is to achieve the desired results for this association, they would have to apply for a change of zoning; and, in effect, Town Hall constitutes the right church but appearing before the ZBA they are in the wrong pew. Thank you. THE CHAIRMAN: Thank you, Mr. Flynn. We would dearly like to take a short break, but I just want to know, Carmella, how long you think you are going to be. MS. BORRELLI: I have about three comments I would like to make. THE CHAIRMAN: Okay. Thank you. Go. MS. BORRELLI: One, we are not just talking about the Association owning the land under the water; they own the land to which the dock will be attached. That is Number One. Number Two: I don't think that the section of the code implied that the number of boats that an owner can put there is limited. It is only non-owner boats that are limited to two. An owner can have unlimited number of boats. I believe that is what the Code said; and in terms of the interpretation of the words in that section that --owned and used by the owner-- I picked up, they certainly didn't mean the singular when they said "the owner". They could have meant more than one owner owning it because later on.it says "for his personal use"; ZBA Hearings 60 April 22, 1993 and, I mean, does that mean that no women could have a boat there? THE CHAIRMAN: Certainly not, definitely not. I don't even want to discuss that part. (Interrupted by laughter in audience.) MS. BORRELLI (continuing): I would like to call your attention to a section of the Code which is in my letter and which was in the original brief in terms of the definition of an owner. An owner includes the duly authorized agent, attorney, purchaser, devisee, fiduciary or any other person having a vested or contingent interest in the property; and it is our premise that the Association owns it; the members of the Association, because they are members of the Association, have a contingent interest in that property and therefore qualify under the word "owner." THE CHAIRMAN: Just one question. How does a person not become a member of the Association? By not paying their dues? MS. BORRELLI: Right. THE CHAIRMAN: Okay. Thank you. Any other comment? MRS.B. DORIS MATZEN: They must also have property within Gardiners Bay Estates, They have to be a property owner~ THE CHAIRMAN: Oh, yes, certainly. But I mean they would be stripped of their actual use of the'common areas ZBA Hearings 61 April 22, 1993 --which include the roads, I guess, also, to a certain degree-- if you did not pay the Association dues? UNIDENTIFIED MAIL VOICE (Mro Matzen?): If you don't pay dues, you can still use the ramp. THE CHAIRMAN: Because you can't deny them access to their own property. It would just be the other amenities that exist within that subdivision. Okay. Mr. Flynn, the same situation. How long do you think you will be? MR. FLYNN: Less than two minutes, approximately two sentences. THE CHAIRMAN: All right. MR. FLYNN: A point was made about the ownership of the surrounding upland, Were it not for that ownership, this whole question would be entirely moot then. You cannot develop underwater land unless you have the ownership of abutting upland, and there are definitions involving prescribed parking for the boats to be boarded at dock, et cetera, and I am not sure of this, but I don't think there is any such facility provided for it. And, again, the definition of owner was cited here; and, again, it was in the singular. Now I don't believe that the writers of the Code intended a plural definition when they wrote it in the singular; and up until quite recently, before the emergence of women's lib, his was more or less a generic word and was probably so utilized at the time the Code was written. Thank you. ZBA Hearings 62 April 22, 1993 THE CHAIRMAN: I want to state quite honestly that we have had innumerable amounts of associations before us but never have we had such a professional group. I really commend you all for coming before us. You did exactly as we asked. You used your spokesperson who, in most cases, was your attorney, your Marine Chairman, and so on and so forth. We really appreciate that. It gives us a greater understanding of what we are looking at here at this application; and bearing that in mind, I will make a motion closing the hearing and reserving decision until later. (Seconded and carried; see Clerk's Minutes.) THE CHAIRMAN: Safe home everybody, please, and thank you again.