Loading...
HomeMy WebLinkAboutZBA-05/20/1993 HEARING PUBLIC HEARING BOARD OF ZONING APPEALS TOWN OF $OUTHOLD May 20, 1993 (7:30 p.m. Hearings Commenced) P r e s e n t : HON. GERARD P. GOEHRINGER, Chairman SERGE DOYEN, Member JAMES DINIZIO, JR., Member ROBERT A. VILLA, Member RICHARD C. WILTON, Member LINDA KOWALSKI, Clerk-Assistant to Board '~ RECEIVED AND FILED BY THE SOUl'fOLD TOWN CLERK -. ~ ~ow~ Clerk, Town of Soured APPEALS BOARD MEMBERS SCOTT L. HABR~S Supervisor Gerard P. Goehr/nger, Chairman ~- Serge Doyen, Jr. Town Hall, 53095 Main Road James D~-~io, Jr. P.O. Box 1179 Robert A. Villa Southold, New York 11971 Richard C. Wilton Fax (516) 765-1823 Telephone (516) 765-1809 Telephone (516) 765-1800 BOARD OF APPEALS TOWN OF $OUTHOLD I N D E X APPLN. NO. NAME Pages 4166 ROBERT W. ALCUS. 2- 5 4167 ETTORE PENNACCHIA and TOUCH OF VENICE RESTAURANT 6 - 9 4165 SANFORD H. and ELIZABETH M. FRIEMANN 10-13 4039 CLIFFSIDE ASSOCIATES, INC. 14- ~3 APPLICATION NO. 4166 - ROBERT W. ALCUS Request for Variance to the Zoning Ordinance, Article IIIA, Section 100-30A.3 (Bulk Schedule) for approval of an existing deck around existing accessory swimming pool (which pool structure has received a Certificate of Occupancy under NO. 14664 and Building Permit No. 13046 dated 6/17/84). Variance is required since all structures have a total lot coverage over 20% of the lot area. Subject premises is nonconforming as to total lot area and width in this R-40 LOw-Density Zone District and is shown on the Map of Indian Neck Park as Lot No. 8; also shown on the Suffolk County Tax Maps as District 1000, Section 98, Block 4, Lot 4. Street Address: 335 Smith Road, Peconic, NY. 7:30 p.m. (The Chairman opened the Hearing and read the Legal Notice and application for the record.) THE CHAIRMAN: We have a copy of a survey dated June 8, 1989, indicating the depth of the rear yard, which is approximately 26 feet from the'rear of the screened-in porch and indicating the pool and decking area around the pool. And we have a copy of the Suffolk County Tax Map indicating this and surrounding properties in the area. Is there someone who would like to be heard concerning the first hearing? Appearanoe: Rudolph H. Bruer, Esq. Southold, N.Yo..for applicant MR. BRUER: I don't need the microphone. On behalf of the Alcuses, I strongly request that the Board grant the ZBA Hearings 3 May 20, 1993 variance. The pool was put in there and Certificate of Occupancy was granted. Thereafter the decking was put in there --right around the same time. I am sure the Board has examined it. At the time the fence and pool, whatever, were put in there, apparently it encroached partially on the adjoining property to the rear° We only learned about it at such time as we made this application. We have corrected that oversights if you want to call it that, the fence is back right on the line; the decking, a substantial part of the decking, has been removed. Pool equipment, everything is on-site on the property where it is supposed to be and where it was intended to be. My clients have assured me that it was done --back in 1983 they hired reputable local people to put in the pool and the deck, and they thought everything was done properly. They had gotten permits, and you notice they have the pool permit; the fence was put around it. Otherwise, you wouldn't have gotten the C.O~ for ito If you recall, 1983, 1984 was a time where if you put decking flush with the ground, the interpretation of the Building Inspector was that it was not in violation of the 20% lot requirement; and a Building Permit wasn't required. I believethat is probably what the subcontractors had in mind when they put in the decking. I believe when I went there, I thought the decking was flush with the ground when the Inspector pointed out to me after a second review that it was not. I guess'in some areas it is higher. The situation I think is ZBA Hearings 4 May 20, 1993 quite unique, in that it was done in an area that is--I think the pool and decking is suited for that property, and I think it is called for. I think to remove the decking would be a hardship. As a matter of fact, it would be a financial hardship. The parties have conveyed the property to a Mr. Feldman; and if the variance is not granted, a substantial reduction or return of escrow is going to be forfeited to the purchaser in the sum of $4,000. THE CHAIRMAN: Is this when you found this, when the survey was done, and you found the deck over the property line? MR. BRUER: Yes. Well, when we went to get the CO's and make sure we had everything so we could complete the sale. And it wasn't with the bank because it'was a private sale --we found that out and went to comply. We have the application there and hopefully it will be granted, and we can get the CO for the deck and complete the transfer. THE CHAIRMAN: Let's see if anybody has any comments. Does anybody in the audience have any comments pro or con concerning this hearing? (There was no response.) THE CHAIRMAN: Seeing none, any questions from Board members? MEMBER DINIZIO: .I got this figured out to be about 23 per cent. ZBA Hearings 5 May 20, 1993 THE CHAIRMAN: Yes. I figured 24 and a half or something. Any questions from anybody? (There was no response.) THE CHAIRMAN: I make a motion granting it as applied for. (Seconded and carried; see Clerk's minutes.) ZBA Hearings 6 May 20, 1993 APPLICATION NO. 4167 - ETTORE PENNACCHIA and TOUCH OF VENICE RESTAURANT Request for a Variance to the Zoning Ordinance, Article XIV, Section 100-101C(3) for permission to locate an off-premises-directional sign on property owned by Ester DiGioia, premises located in the Light Industrial (LI) Zone District, at the southeast corner of the intersection of Middle Road (County Road 48) and Lipco Road, Mattituok; County Tax Map No. 1000-141-3-18. 7:37 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 sign as it is penciled in. I have approximate location of the sign, being 10 feet from Lipco Road, and approximately 15 feet from County Road 48, that is, and I have a copy of the Tax Map of the County of Suffolk indicating this and other surrounding properties in the area. Is there someone who would like to be heard? How are you tonight, sir? Appearance: Ettore Pennacchia, Applicant pro se THE CHAIRMAN: Please state your name. MR. PENNACCHIA: I am Ettore Pennacchia, owner of Touch of Venice. In this particular case I need the sign because my restaurant is off of Wickham Avenue. It is not a ZBA Hearings 7 May 20, 1993 heavily traveled road at all; and in today's economy I need some help from the visitors that come into the area. That is why the sign is necessary, for directions and how to get to the restaurant. THE CHAIRMAN: I understand. The sign will not be lighted, is that correct? MR. PENNACCHIA: No. THE CHAIRMAN: There was a question and a comment made by the Planning Board regarding the sign, and that is that there is no doubt in my mind, living in Mattituck, and being at the place where you are, that there is, you definitely have a hardship, and you could use a directional sign. There is no question about ito The question is, the degree of wording on the sign. We would rather have the sign mentioning the restaurant, and not too much other verbiage, other than the fact that you are in a specific location and how to get there and so on and so forth. BOARD ASSISTANT-CLERK: I didn't have a chance to give him a copy. We just got it today. THE CHAIRMAN: You are very welcome to comment on that if you like, and that has been the normal course of events we have been dealing with, so we will cut and patch what we like on it, and talk about it, all right? MR. PENNACCHIA: Yes, no problem .... ZBA Hearings 8 May 20, 1993 THE CHAIRMAN: And we won't make a decision right now because we haven't really discussed it amongst ourselves; but we will have a decision hopefully for you tonight. MR. PENNACCHIA: Thank you very much. Whatever you decide, I can go along with, so long as we have directions. That's all I am looking for. THE CHAIRMAN: Thank you. Do you have any other one, sir, anyplace else? MR. PENNACCHIA: I had one, a tent-sign, on 48, but I took that down-- THE CHAIRMAN: Because of the new law? MR. PENNACCHIA: Yes, I removed that and now I have no sign. THE CHAIRMAN: All right. Thank you. MR. PENNACCHIA: I think I am the only one who took my sign down. I still see them all over the place. THE CHAIRMAN: Is there anybody else who would like to speak or comment on this particular hearing? (There was no response.) THE CHAIRMAN: Seeing no hands, any questions from any Board members? (There was no response.) THE CHAIRMAN: Hearing or seeing no further questions, I will make a motion closing the hearing and reserving decision until later. ZBA Hearings 9 May 20, 1993 (Seconded and carried; see Clerk's minutes.) ZBA Hearings 10 May 20, 1993 APPLICATION NO. 4165 - SANFORD H. and ELIZABETH M. FRIEMANN. Request for a Variance to the Zoning Ordinance, Article XXIII, Section 100-239.4 for permission to construct addition and deck addition with spa within 75 feet of the existing bulkhead at 1165 Old Harbor Road, New Suffolk, NY; County Tax Map Parcel No. · 1000-117-3-8.4. Subject premises is located in the R-80 Zone District. 7:42 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 dated March 9, 1993, indicating the request of this variance inclusive of the addition, of a deck of approximately 18 by 50 along the rear yard, which is basically the portion that faces the water; and inclusive in that is a 10 by 14 addition to the house; and a copy of Suffolk County tax map indicating this and surrounding properties in the area. Sandy, would you like to be heard? Appearance: Sanford H. Friemann, Applicant pro se Yes, I'd just like to point out that we would like to have, obviously, this variance granted to us. The property is well above the height of the bulkhead, and not to be able to add on to the house would pose a hardship to us as well. THE CHAIRMAN: The spa that you are referring to I assume-- ZBA Hearings 11 May 20, 1993 MR. FRIEMANN (interposing): It's a hot tub. THE CHAIRMAN: Yes, it's a hot tub, penetrating the ground? What is the elevation above the ground? MR. FRIEMANN: I really haven't got that set yet~ but it will be as close to the ground as I can keep it. THE CHAIRMAN: I see. And approximately how wide would that be? MR. FRIEMANN: The size of it? THE CHAIRMAN: Yes. MR. FRIEMANN: It is around 5 feet in diameter. THE CHAIRMAN: Okay. And the deck would remain unroofed? MR. FRIEMANN: Yes. THE CHAIRMAN: Except for the addition, which would be an elongation of the bedroom area? MR. FRIEMANN: Exactly. THE CHAIRMAN: Okay° And the elevation of that deck would be what, about 3 feet above the ground? MR. FRIEMANN: Oh, I believe 18 inches to 2-foot. THE CHAIRMAN: Okay. I thank you very much. While you are there, we will see if there are any questions. Does anybody have any questions of Mr. Friemann? MEMBER DINIZIO: Yes. The spa is indicated as being as like a little outcrop of the deck --is that closer to the bulkhead? ZBA Hearings 12 May 20, 1993 MR. FRIEMANN: Yes. MEMBER DINIZIO: What will the distance between that and the bulkhead be? Do you have an idea? MR. FRIEM3%NN: It will be plus or minus about 50 feet. BOARD ASSISTANT-CLERK: You have 48 feet on here. MR. FRIEMANN: 48 feet. What I point out to you, Mr. Dinizio, is our property is well above the bulkhead and there is no erosion problem or anything like that because the bank is totally vegetated. MEMBER DINIZIO: You just indicated you didn't know the size of the spa, so I just wanted to be sure, you know, what we are looking at. It looks like we are looking at a spa that's 11 feet-- MR. FRIEMANN (interposing): Like a swimming pool? No, the reason to move the spa out further is that if you walk out of the sliding glass doors on the addition, we just want some room between the door and the spa so you don't walk out and fall into it. THE CHAIRMAN: Makes sense. MEMBER DINIZIO: Sure does. THE CHAIRMAN: Any other questions? (There was no response.) THE CHAIRMAN: We thank you again. MR. FRIEMANN: Thank you. ZBA Hearings 13 May 20, 1993 THE CHAIRMAN: Is there anybody else who would like to speak? (There was no response.) THE CHAIRMAN: Seeing no hands, I make a motion closing the hearing and reserving decision until later. (Seconded and carried; see Clerk's Minutes.) THE CHAIRMAN: We hope to have a decision for you tonight. You are welcome to hang around a little while or give us a call tomorrow morning, either one. ZBA H:ear~i6g~ 14.~ May 20, 1993 APPLICATION NO. 4039 - CLIFFSIDE ASSOCIATES, INC. (Owner). Appeal of the April 25, 1991 Notice of Disapproval from the Building Inspector, citing "...Article Iii, Section 100-13 - Definition Section of the Zoning Code pertaining to "hotel or motel transient, which says in part that there will be no cooking facilities." The subject premises previously had received a Special Exception Under Appl. No. 3542 for motel units without maps or plans before the Board for individual kitchenettes or dwelling uses. (The Special Exception use did not include approval for kitchenettes or dwelling uses). Location of Property: 61475 C.R. 48, Greenport, N~; County Tax Map Parcel No. 1000-045-01-001 and 002 (now 2.1), containing approximately 7.5 acres. 7:45 p.m. (The Chairman opened the hearing and read the Legal Notice and application for the record.) THE CHAIRMAN: What I have before me is basically the entire file of the original hearing. I have before me a copy of the Building Permit dated November 21, 1989, in behalf of Kenneth Tedaldi, who is the owner of the premises; and the remaining data that is required there. Mr. Haefeli, how are you tonight? So nice to see you again. Appearance: Richard Haefeli, Esq., for the Applicant MR. HAEFELI: And it is so nice to be out here again on a Thursday night. The first thing I am going to do is ZBA Hearings 15 May 20, 1993 apologize to the Board because I had prepared a memorandum for each member of the Board. I left the office at six-thirty and I forgot to bring one other than the one copy that I have. THE CHAIRMAN: That's fine. MR. HAEFELI: What I will do is, I will give this to the Board after I complete my presentation tonight, and I will make sure the balance of the copies get out here tomorrow or the next day. The purpose of the memorandum was to put into detail what the position of the applicant is in this particular case~ and which I will highlight to the Board at this particular time. The first thing I want to do is, I think we have a problem as far is the notice is concerned, Mr. Chairman, because the notice that was advertised was for a hotel "transient." The notice of denial I have in my file is dated April 25, 1991, and was disapproval Of a hotel or mo~el "resort." .I think that is probably one of the issues involved in this entire case, and I want to make sure it is clear and on the record that what the applicant is proposing is not a transient motel because it is absolutely clear in the definition of a transient motel that cooking facilities are not permitted. What we have here is a resort motel which does not contain such an exclusion, and that is what the application is before this Board, to render an interpretation as to whether or not cooking facilities are permitted in a resort hotel. ZBA Hearings t6 MaY 20, 1993 I would like to just briefly give a little background on this case. My clients acquired this piece of property by purchasing two separate pieces of property in 1984 for $1,135,000. Right after they acquired the property, they made an application to the Town to build residential condominiums on there on the basis of one unit per 6,000 square feet of area, which is what the density requirement was at that particular time. Several months after that application was made, the Town Board amended the density requirement for residential condominiums and changed it from one unit per 6,000 to one unit per 10,000 square feet. After that, the applicant then made an application both to this Board and to the Planning Board in 1986 for approval for seventy-six unit motel complex as that term was defined under the Code in effect in 1986. The Planning Board decided that it was an action that required an Environmental Impact Statement; and between 1986 and March of 1989, the Impact Statement process was in place; and in March of 1989 the Planning Board adopted a resolution adopting the Environmental Impact Statement. Shortly thereafter, and by the way during this entire period of time the plans that were shown, submitted and worked upon --both this Board had (word inaudible) so I am not talking about this Board-- by the Planning Board showed units that would have a size of about 850 square feet. After the March 1989 determination under the Impact Statement, the.Planning Board made a recommendation to ZBA Hearings 17 May 20, 1993 the Town Board based upon this application by this applicant to reduce the size of motel unit from 800-what we had down to 600 square feet. That adoption change was made to the Zoning Code, I believe it was in July of 1986, '89, I am sorry. And November of 1989 this Board rendered its determination granting a special exception. The copy of that is in the file. In addition to that, in December of 1989 the Planning Board granted site plan approval with respect to this application. Now in February of 1989 the Zoning Code was changed, and new definitions for motel were included in the Code. The old definition of motel, I want to emphasize, did not make any reference to cooking facilities The old definition for a hotel made reference to the fact that if you had a hotel, you couldn't have, the individual units could not have cooking facilities. In February of 1989 the two new definitions were put in place. One was for a resort hotel; the other was for a transient hotel. The definition for a resort hotel provided for guests on either a transient basis, day-in and day-out, or for vacationers. In adopting the --in addition to that~ there is, the Town rezoned this property from, I believe it was M-l, which permitted Motels, to RR. Motels are still permitted in this particular zone. In adopting that change to the Code, the Town Board in Section 160 said the purpose of a resort residential district is to provide opportunity for resort development in waterfront areas because of the availability of basically, I think they mean public water ZBA Hearings 18 ~ay 20, 1993 and sewer. We have 406 feet of frontage on Long Island Sound. We have 406 feet of beach frontage on Long Island Sound. In 19, I believe it was 1986, we entered into a co~tract with the Village of Greenport for public water and public sewer. We paid $104,000 to the Village for both of those, for the installation of both the public water and public sewer. Those contracts are still in effect. I am making reference to this because I want to emphasize there were several memorandums in this file from the Planning Board --that what is being proposed here, has always been proposed and it will continue to be proposed, is a resort motel and not a transient motel. We purchased seven and a half acres of property on Long Island Sound. We have the public water and the public sewer which will permit us to have the density we have for this type of a project. We have -- The project as originally proposed showed two-bedroom units, as approved showed two-bedroom units of 600 square feet. Anybody who goes to a transient motel like a Hampton Inn, the size of those units is 250 to 350 square feet. We have, as I said 406 feet of beach front. We are proposing twO tennis courts; and basically nobody is going to go out and pay a million, over a million dollars for a 7 1/2 acre piece of property to put in a transient motel on the east end of Long Island near Greenport, where the only use permitted is daily travelers coming in and out. If my client wanted to have strictly a transient motel, my ZBA Hearings 19 May 20, 1993 client could have purchased another piece of property in the area similarly zoned not on Long Island Sound for substantially less money back in those days in the area of $30,000 or $40,000 an acre or a total price of $250,000. In addition to that, in this immediate area are two other resort motels. Sunset Motel is abutting the property on the east. Our easterly propert~ line and the Sunset Motel abut. Within two-tenths of a mile to the west of this project is the Soundview Inn, which is also a resort motel. The memos by the Planning Board concern themselves with making a comparison between the density for a motel in this district and the density for residential uses in other districts. It is irrelevant to the application before this Board. The 0nly consideration before this Board at this point in time is whether or not the definition of resort hotel, motel, I am sorry, permits cooking facilities. It is the position of the applicant that you must strictly construe the ordinance. If there is any ambiguity in the ordinance as to what its meaning is, you must construe that in favor of the applicant. As I previously mentioned to you, the definition of motel made prior to 1989 did not contain any reference to cooking facilities. Yet numerous motels in this community have been built under that Code containing some sort of cooking facilities. ZBA Hearings 20 May 20, 1993 Had the Town Board, when they adopted the change in the Code in 1989, wanted to exclude cooking facilities from a resort motel, they could have inserted those words into the Code, such as they did for transient motel. In addition to that, the opposition by the Planning Board over the last several years --they could have-- this particular application, I emphasize-- has been pending since 1991. The Planning Boards from 1991 to the present time could have made a recommendation to the Town Board to change the definition of a resort hotel to specifically exclude cooking facilities. Either, if recommendation was made, all I know, is as of today the Town Board has not not made or adopted any change in the definition of a resort hotel to exclude cooking facilities. I think that goes a long way in considering, in determining the fact that the Town Board never intended to exclude cooking facilities from a resort motel. As I mentioned to you, the two other motels have cooking facilities in them. Basically what my client is saying: We want to be on the same level playing field to attract the resort person to this community as they are and have the same facilities that the other resort motels in this area have. And that is really the basis of my application. As I said, I will hand up this copy, and I will get the rest delivered to you tomorrow, which goes into much more detail of ZBA Hearings 21 May 20~ 1993 what I have said tonight. I have just tried to summarize it in my oral presentation here. THE CHAIRMAN: I would hate to have you leave here, and I know that this is a-- but unbeknownst to you I have used th~s as a case in a class that I teach, okay, and it was my understanding, regardless of the presentation, and you bring up a very interesting avenue that you are presenting here tonight in reference to the, the, you know, under the interpretation; but the wholo issue of no kitchenettes in this facility to my knowledge was a SEQRA determination, and it was worked out in between the period of time that the application became a positive neclaration and then there was a mitigation; and that is how we got from 76 to 69 units; but I could be wrong on this, Dick-- MR. HAEFELI (Interposing): You are wrong on that, Mr. Chairman. Let me explain to you because I happen to have that right here. I intended, okay --. December 18, 1989, the Planning Board adopted their resolution approving the site plan for this particular applicant. I was present at that meeting. There was a discussion at that meeting with reference to prohibiting or not allowing kitchenettes in any of the units. THE CHAIRMAN: That is correct. MR. HAEFELI: I got up; I objected to any reference to kitchenettes in that determination on the basis that the Planning Board in rendering an approval or disapproval on the ZBA Hearings 22 May 20, 1993 site plan could not put a provision of that nature in. The Planning Board agreed with me; they rendered a determination that did not contain any reference to kitchens or kitchenettes. The following day or two days later, the original decision from the Planning Board came out, Paragraph 3, 2 rather: None of the individual hotel units, and they are referring to is as a hotel-- it has always been a motel-- no unit shall have, quote, cooking facilities. I wrote a very vehement letter to the Planning Board. I am a municipal attorney and represent the Village of Westhampton Beach. I was very upset that a decision like this would come out after there had been an extensive discussion before the Board that evening. As a result, a revised determination was given by the Planning Board on December 27th, 1989; the letter sent to you on December 20th had an incorrect version of the resolution. Please substitute this letter for that one. Paragraph 2 makes reference to stairs; the reference to cooking facilities was deleted° The Planning Board, neither in its SEQRA determination nor in its granting of a special site plan approval for this particular application made any reference to either approving or disapproving kitchen facilities or kitchenettes or cooking facilities. They could not; they do not have the power to render such a determination. Either the facilities would be permitted or, as we are here today, we are here before this Board for an interpretation. It is the power ZBA Hearings 23 May 20, 1993 of this Board to render Interpretations. It is not the power of the Planning Board. The Planning Board has no authority to render an interpretation. The Planning Board can only impose the conditions set forth in the Code. If you would like copies of these two --I think you have them~ but I would be more than happy to give them to you. BOARD ASSSISTANT-CLERK: There is a letter in the folder from the Health Department that says that they did not approve kitchenettes under the site plan. THE CHAIRMAN: Well, that is my concern because that's what precipitated -- MR. HAEFELI (interposing): There is a letter from the Health Department in 1991, okay. I have the answer to that, I hope, if you will bear with me for a second. Now, it is my understanding, there is a letter in the Health Department that saida recent article in the local newspaper indicates Tidemark (phonetic, no spelling supplied record) is proposing kitchenettes for the project. Please submit for review a revised plan indicating locations, construct in detail, for this aspect of the project. That was signed by a Robert H. Gerdts, Sr., PH Sanitarian, Housing and General Sanitation. I saw that the other day when I reviewed the file. I spoke with the architect that that letter was directed to Mr. Herlin (phonetic). Mr. Herlin advised me that Mr. Gerdts is employed by the Health Department and he does inspections for the Health ZBA Hearings 24 May 20, 1993 Department with respect to Fire Code violations and construction aspects, but not as to other aspects. BOARD ASSISTANT-CLERK: Do you have an approval from the Health Department on kitchenettes? MR. HAEFELI (interposing): For what? I don't need kitchenettes. I have an approval from the Suffolk County Department of Health Services for the water and sewage coming into the project, yes, I do. BOARD ASSISTANT-CLERK: Do you have any approvals for anything-- MR. HAEFELI (interposing): From the Health Department? BOARD ASSISTANT-CLERK: Yeah, on the cooking or any other agency? MR. HAEFELI: You don't need it. BOARD ASSISTANT-CLERK: You don't need it? THE CHAIRMAN: Because of the sewer. MR. HAEFELI: We have public water-- MEMBER DINIZIO: Was the Village aware when you were going to contract with them that you were going to have kitchenettes in these units? MEMBER DINIZIO Was the Town aware or the Village of Greenport aware when you were going to contract with them that you were going to have kitchenettes? ZBA Hearings 25 May 20~ 1993 MR. HAEFELI: I have no idea. That didn't come Upo I don't think that's an issue in this case. THE CHAIRMAN: Let's just-- THE CHAIRMAN: Let's just put this back in perspective her~, okay. Before we go any farther here, you know, because-- MEMBER DINIZIO: We are not considering Sunset. We are not considering any other motel but Cliffside, Tidemark-- MR. HAEFELI (interposing): But you are asking me what is in the mind of a municipal official in 1986 when we signed the contract-- MEMBER DINIZIO: Nod I asked you whether they were aware-- MR. HAEFELI (interposing): I have no idea whether they were aware. MEMBER DINIZIO (continuing): You said no, that is an answer. THE CHAIRMAN: Let's go back back one second, gentlemen, okay? Somewhere between --I thank you for these memos by the way. I know they are in the file--. This is three files right here plus we have three more files back in the office, ok. We have voluminous files. Somewhere in between this letter, these letters, okay, of which there was a change between December 20th and December 27th, okay, which -- BOARD ASSISTANT-CLERK: What year is that? ZBA Hearings 26 May 20, 1993 THE CHAIRMAN: 1989. When the issue of cooking facilities came about and you asked them to strike that from their original decision-- MR. HAEFELI (interposing): It never got into the decision. It was a discussion prior to the decision. That's all I am trying to say to you. THE CHAIRMAN (continuing): This says action taken-- MR. HAEFELI (interposing): That's correct. I was at the meeting. They discussed the resolution. They had not adopted the resolution. They said what their proposal was. I got up and objected. Once a resolution is made, it is very difficult to object. I did it before. THE CHAIRMAN (continuing): Okay. Now, sometime subsequent to that, or prior to that, okay, in either the SEQRA determination or a discussion not with you, okay, but with either Mr. Raynor or Mr. Wetmore at the time, okay, there was the elimination of kitchen facilities, regardless of what zone it was in or whatever the case might be, because Henry Raynor faxed to me, all right, and we then had to make a decision if we were permitted to put in these particular units, okay, a sink, externally from the kitchen, a coffeepot and a refrigerator as one unit, okay; and he faxed that to me. All right, and I would assume in the best of my recollection that was the summer of 1990, which was subsequent of course to December 20, Decem- ZBA Hearings 27 May 20~ 1993 ber 27, 1989. Ail right. It was then, in that summer, when they had anticipated the construction of these, well after the SEQRA determination was mitigated, and well after everything was done~ and our decision blah-blah-blah. I know we were in a new zoning code at that time, that Mr. Wetmore called and said that the reason, the main reason, okay, for this was that they were having trouble securing bank financing ~n this project because it did not include kitchens. All right. That is what he had told me. BOARD ASSISTANT-CLERK: Yes, he had told me the same thing, in other conversations. THE CHAIRMAN: Now I have had subsequent discussions to 1990 with Mr. Wetmore. I have not had any necessary that I can recollect with Mr. Raynor and I realize that Mr. Wetmore is not necessarily an agent in this particular situation-- MR. HAEFELI: Not to my knowledge, not since these decisions. THE CHAIRMAN: What we are going to have to do here, Dick, in all fairness to you: We are going to have to recess this. We are going to have to sit down with the Planning Board and find out exactly when this kitchen situation was removed -- because I am almost positive that it was removed during the SEQRA negotiations; and, you know, there had to be a mitigation from 76 to 69 units-- ZBA Hearings £8 May 20, 1993 MR. HAEFELI: I am saying --What was the mitigation? The size of the project was too big. The buildings were too big. It obstructed the view. I didn't bring all that with me tonight. But if you want me to, in ten minutes I can find you mitigation. I'm not sure you have that. Those were the basic reasons for it. And, remember, at that point in time, when the SEQRA determination came down, the size of the units were~850 square feet, all right. They were concerned about the size. As a result of this, and I am saying as a result of this application, the Town Board adopted a change, reduced the size of the units down to 600 square feet. THE CHAIRMAN: Which they ended up being. MR. HAEFELi: They reduced, they told us, because of the size for'the impact you have to reduce the number --we were entitled to 76. The Planning Board could not normally reduce the number down; but under SEQRA Planning Boards can do a lot of things, and they told us we had to reduce the number down to 68 units, which is what we did; and I emphasize to you, there was no determination made by any board with reference to kitchen/kitchenettes, and the reason I say that is very simply before February of 1989 in this Town you could put a motel in and you could put kitchenettes in, without any question. In 1989-- BOARD ASSISTANT-CLERK: I am not sure. We would have to get the old Code to doublecheck. ZBA Hearings 29 May 20, 1993 THE CHAIRMAN: Yeah, see, that is what my concern is-- MR. HAEFELI (interposing): Well, the old Code makes no reference to it. BOARD ASSISTANT-CLERK: I think it does. It had an amendment to-- MR. HAEFELI (interposing): I have it right here-- THE CHAIRMAN: See, Dick, what the problem is-- MR. HAEFELI (continuing): A motel - a building containing guest rooms, each of which-- BOARD ASSISTANT-CLERK: What is the date it was amended though? "88 or '89? Because they have an amendment. MR. HAEFELI: This would be '85. BOARD ASSISTANT-CLERK: No, there is an amendment --in 1988 that defines it. MR. HAEFELI: What? BOARD ASSISTANT-CLERK: Transient and resort. MR. HAEFELI: That is the new code. BOARD ASSISTANT-CLERK: No~ that is '89. I am talking about before that there was an amendment, before that. So I am not sure what you are saying is correct. MR. HAEFELI: Well, until '85. BOARD ASSISTANT-CLERK: I'm talking about after 85 (and before 89). MR. HAEFELI:Up until '85, '86 when our application was started,-- ZBA Hearings 30 May 20, 1993 BOARD AS$ISTANT-CLERIf: '87. bLq. HAEFELI (continuing~: '87, this is the definition in effect. BOARD ASSISTANT-CLERK: But we made a decision in 1989 when the new law was in effect. MR. HAEFELI: You made a decision under the new Code. My point is we proceeded for three and a half years under a code that was in effect. The code was changed in February. After the Code was changed, these other factors came into play; and what I am saying to you is - we have a resort motel. What application is before this Board tonight is simply an application: Does a resort motel allow kitchen cooking facilities or does it not? And I am saying to you, based upon everything I have submitted, a resort motel allows cooking facilities as opposed to a transient motel. BOARD ASSISTANT-CLERK: I had one thing-- THE CHAIRMAN: Could you wait one second and I'll be right with you. THE CHAIRMAN: The problem I have is that we work on a building block system, okay? And we do have an outstanding decision on this application, okay? And I would rather put that all back in perspective, because I had no idea --I thought you were just addressing the specific issue tonight, of what the interpretation was. ZBA Hearings 31 May 20, 1993 BOARD ASSISTANT-CLERK: Well, that is what I believe he is doing. MR. HAEFELI: No, I am not doing that. I am asking-- BOARD ASSISTANT-CLERK: He is asking us to interpret what the Planning Board said. MR. HAEFELI: To be honest with you, I thought the rider to my application pretty well -- I am addressing an issue, does, we have a resort motel. You have a definition in your Code of a resort motel. BOARD ASSISTANT-CLERK: Wait. Before you get to that, I advertised it for transient for one reason° Can I explain it please? MR. HAEFELI: Go ahead. BOARD ASSISTANT-CLERK: The reason I did is because their file, this special exception file, shows that there was a manager's unit, and only the transient motel provides for a manager's unit. It is not pr6vided under resort motel, so that is why it was advertised that way-- MR. HAEFELI (interposing): I understand what you did, but I am saying that we had a denial in April of '89 --'90?-- from the Building Inspector which started the ball rolling here, and that denial was on a resort motel. BOARD ASSISTANT-CLERK: Because you were asking for resort. But at the time you had transient. ZBA Hearings 32 May 20, 1993 MR. HAEFELI (interposing): It never has been. There has been an inference by certain people in the Planning Board that because you have a man-- and I cover that in my memorandum, that because you have a manager's office or manager's apartment in a resort motel in this complex, and it specifically says you can have one in a transient motel, it automatically means this has to be a transient and it is not a resort motel. BOARD ASSISTANT-CLERK: There is one more reason-- MR. HAEFELI (continuing): The small and simple answer to that is you don't need to specify having a manager's apartmeRt in a resort motel because cooking facilities would be permitted. A transient motel excludes cooking facilities. A transient motel has to have a provision in there for a manager who is going to be there all the time. As I say in my memorandum, the logical conclusion of that thinking is that a transient motel can have an on-site manager 24 hours a day, but a resort motel cannot. And any motel that is open to the public has to have somebody there all of the time. T~E CHAIRMAN: Okay. Listen, if what you are saying is correct to the best of everybody's ability, okay-- MR. HAEFELI: Going back to '84. That is a long time. THE CHAIRMAN: If that is the case, all right, then there is certainly a little more credence to the fact that regardless of how the decisions came about, there is an inertia, okay, in my particular opinion, okay, toward the feeling that ZBA Hearings 33 May 20, 1993 you are perpetuating. Ail right. However, I cannot, I am totally negating that at this point until I have the building blocks of where we are to the point of 1991 or at least the hearing that has been held up ever since. BOARD ASSISTANT-CLERK: With the Planning Board especially because we don't have everything-- THE CHAIRMA/~ (resuming): So it necessitates me, all right, because this is the way we work, all right, to really get together with them and discuss With them how we got to this particular point, because there are at least three members on that Board who were there at the time, all right; and that is Richie Latham, Dick Ward, and Benny Orlowski. So let me do that, and then we will get back to you. And we will reschedule this and complete the whole thing. MR. HAEFELI: That's fine. BOARD ASSISTANT-CLERK: Anything you have in the meantime, you can--. THE CHAIRMAN: Then give me the stuff you have. MR. HAEFELI: I have a memorandum which I will send to you. THE CHAIRMAN: Okay~ and we will read that, and then we will get back to you, okay? MEMBER VILLA: I have a question that might come up in here too. THE CHAIRMAN: Surely. ZBA Hearings 34 May 20, 1993 MEMBER VILLA: I don't know if it is pertinent to the interpretation, but when the plans were filed, did they show any signs of kitchens in these units? MR. HAEFELI: When they were originally filed, no. We have a building permit for what is there. We have now applied, filed for an amended plan. MEMBER VILLA: That is why I asked this for the simple reason that you say you have contracts that are in effect with Greenport. MR. HAEFELI: Yes. MEMBER VILLA: They're in effect for a certain amount of' flow. The Health Department would be concerned on this if the plans change, in other words, if you come back with plans that show kitchenettes, that generally changes the flow criteria per unit. MR. HAEFELI: You are right, but we had a flow criteria for units in excess ~f what we have. MEMBER VILLA: I'd be interested to know if the contract with Greenport would cover the flow you are talking about with kitchenettes, because if it doesn't, you might have to renegotiate; and I don't know if they are in a position, what with their plan and capacity and everything else, to be able to take the extra flow. BOARD ASSISTANT-CLERK: Just let me turn the tape please. ZBA Hearings May 20, 1993 35 THE CHAIRMAN: Bob, I am not taking anything away from your question, all right? Because we are still trying to wrestle with the idea of how we got -- MEMBER VILLA: I realize that, but, you knows the presentation was made that he has got these contracts that are in effect, and I just question as to whether they would still be valid or not if the flow changes. That's all. MR. HAEFELI: Do you have a copy of the contracts in the file? They are there. MEMBER DINIZIO: Right here, but there is no indication of kitchenettes. MR. HAEFELI: It says 76 units, two times two and a half people a unit times a hundred equals 19 gpd. MR. HAEFELI: Again, I really want to be sure this Board understands what I am here for tonight. We have an approval. We have a plano We have a Building Permit. I think people are entitled to amend Building Permits. Otherwise, we wo61d be -- We amended the permit to ask for kitchenettes. We were denied by the Building Inspector° I am coming in to this · Board because we have a resort motel and I want this Board to say "yes, they are permitted in the resort motel district,'~ or "they are not permitted." That is the issue before the Board tonight. MEMBER DINIZIO: That is the only answer you want? MR. HAEFELI: That is the answer. ZBA Hearings 36 May 20, 1993 THE CHAIRMAN: Yeah, but it's not really a generic answer, okay, because it really concerns this particular motel unit. It is not necessarily-- MR° HAEFELI (interposing): Mr. Chairman, in all due respect to you, unless there is a condition --and there is no condition-- in the Planning Board with reference to that; I have explained to you exactly what took place and I have given you the two copies of it. THE CHAIRMAN: I have to read the SEQRA determination, Dick before that. I apologize, but I got to-. MR. HAEFELI: There is nothing to my knowledge, and I haven't read that in six years, but there is nothing in the SEQHA determination that has anything whatsoever to do with the issue before you. Your code either permits it or doesn't permit it. And if it doesn't permit it, fine. And I am saying to you that it does, based upon everything that I have submitted; and you can't make a determination otherwise. BOARD ASSISTANT-CLERK: What about the manager's unit though? Suppose the Board says the kitchen or cooking facilities and kitchenettes are allowed in the motel units. MR. HAEFELI: Yes. BOARD ASSISTANT-CLERK: A manager's unit would be another use on the property. MR. HAEFELI: That has been approved. ZBA Hearings 37 May 20, 1993 BOARD ASSISTANT-CLERK: Well, that has been approved based on the map you submitted, not the 1991 map. That was apprOved on the transient category by the Board-- MR. HAEFELI (interposing): No, no. There has never been a transient motel approval under the definition in your Code as it stands today by any Board. BOARD ASSISTANT-CLERK: In your opinion. MR. HAEFELI: No. Okay, fine, in my opinion, and I am the attorney, yes. In my opinion there has not been. BOARD ASSISTANT-CLERK: Okay. MR. HAEFELI: We never made an application for -- Nobody in his right mind would ask for a transient motel out there and spend all that money for a transient motel. Why would a person put a motel up there? To attract people in the summer, vacationers. That's the purpose of it. That whole strip of land is all resort, between the hotels, the condos and the other buildings there. And, Mr. Vi~la, the answer to your question in all honesty is, that could become a problem as, when and if --and I don't think it is-- but if it is a problem, it becomes a problem at the point in time when we get to there. We haven't gotten to that point. MEMBER VILLA: Okay. You brought it up so I just questioned it. MR. HAEFELI: I wanted to make sure you knew we had c'ontra~ts0 ZBA Hearings 38 May 20, 1993 MEMBER DINIZIO: I see something in there that I don't particularly think that you are saying to us, you are saying to me, that you have approvals, okay, for what you are asking us for. MR. HAEFELI: That's correct. MEMBER DINIZIO: And you have gone through the Village of Gr~enport and got approvals. But now you are not so sure. MR. HAEFELI: What do you mean? I am sure. I am saying to you, I have an approval, I have a contract-- Excuse me? MEMBER DINIZIO: I would like to speak if you don't mind, and then you can answer my question. MR. HAEFELI: Okay. MEMBER DINIZIO: You are saying to us, this is what I hear, that you would like to have kitchenettes in a resort motel Tidemark, that you have gone through, you have approvals from the Village of Greenport, okay, for such. Yet when I ask you a question: Did you have kitchehettes in the plans when you applied for them? You said "No." MR. HAEFELI: No, we didn't have plans because we had --in 1986 we had plans that were somewhat different from the plans that were finally approved. We had plans for 76 units of between 900 and a thousand square feet versus 68 units at 600 square feet-- MEMBER DINIZIO: With kitchen. MR. HAEFELI: I'm sorry. ZBA Hearings 39 May 20,' 1993 MEMBER DINIZIO: With kitchens? MR. HAEFELI: No. I am not sure, to be very honest with you, and I don't have the answer to this-- I'm not s~re a plan --which you are talking about as far as a plan-- when I was up here a minute ago. I am not sure that was ever given to the Village of Greenport. When we negotiated with the Village of Greenport, we said: "This is what we want." And they saidf "This is what you have to do." So I am not going to either represent one way or the other; but this is going back a n~mber of years-- I don't know whether or not we gave what you are talking about as far as a plan goes, which is a diagram, because I don't think we had them back then. BOARD ASSISTANT-CLERK: We don't have the same plan in our file. MEMBER DINIZIO: I am just saying you represented to me basically that you went to the Village of Greenport, said that what you are asking us for, they agreed with. Now basically you are saying, really, maybe that isn't so. MR. HAEFELI: No, that is not what I am saying. Look, I am saying all I am asking you to do is look at your Code and see whether it is Tidemark or the one down the street, or anyone else that is in the RR District, and is making an application for resort motel, are they entitled to kitchenettes? Does the Code permit kitchenettes? That is the only question I am asking you to"resolve. ZBA Hearings 40 May 20, 1993 MEMBER DINIZIO: Are they entitled to apply to all agencies for resort motel? You certainly are. I have absolutely no problem for you to apply to all agencies for resort motel with kitchenettes. No problem. MR. HAEFELI: What does that have --You don't have a problem with that? MEMBDR DINIZIO: Absolutely no problem whatever. BOARD ASSISTANT-CLERK: Making his application. MEMBER DINIZIO: I have no problem whatsoever with you making those applications. MR. HAEFELI: That's all I am asking is, what does it mean, what does the meaning in resort motel mean? Does it mean because you can't have them in the transient, can you have them in the other? That is the only question before you. MEMBER DINIZIO: I agree. BOARD ASSISTANT-CLERK: You were talking about other agencies that you went to, and you are tying that into this interpretation, right? MR. HAEFELI: What do you mean? No. I am not tying that in. I gave a history. What I tried to do is give a history and a background-- THE CHAIRMAN: But you see we-- MR. HAEFELI (continu%ng): I am coming here and asking for an interpretation. I am asking for an interpretation on a ZBA Hearings 41 May 20, 1993 denial by the Building Inspector. We said we wanted kitchenettes and they said you've got to come here. BOARD ASSISTANT-CLERK: But you started out explaining the whole process, right, so we have to now go back and meet with the Planning Board? MR, HAEFELI: No, I don't think you have to meet with the Planning Board. In all due respect, I don't think you have to meet with anybody. You have to sit down and determine whether or not kitchenetteS are permitted in a resort motel. That is the question this Board has to decide. MEMBER DINIZIO: We certainly have to make our decision in light of the facts. THE CHAIRMAN: Yeah, but it does concern this particular piece of property, dramatically. BOARD ASSISTANT-CLERK: It also pertains to what you approved under the old special exception. That is very important. THE CHAIRMAN: That's right. That is what I am saying. MR. HAEFELI: It applies to every resort motel. It applies to the definition. THE CHAIRMAN: You are absolutely correct. MR. HAEFELI: The. Board put a definition in, in '89. Before '89 there was no definition. A~i I am saying is, that is what I"am asking you to decide. ZBA Hearings 42 May 20, 1993 THE CHAIRMAN: We will make a decision; I am going to recess it at this point; we can close it at a special meeting if we have to, okay; but we have to discuss this briefly with the Town Attorney et cetera; and so we will let you know exactly where we are going from here. Are you going to submit the brief? MR. HAEFELI: I will submit the brief. There is one other thing, Mr. Villa, that they did --The Health Department, the biggest thing the Health Department asked for was construction drawings, if I remember correctly, of the laterals coming in, out and everything else. MEMBER VILLA: There has been such concern with both the water supply facilities and the sewage facilities in the Village of Greenport and their adequacy, that they would be very interested to see if there is any change in your flow criteria, because the department has had a lot of problems with the Greenport system, and that was my concern, that if the flow increases, whether Greenport ~ould have the capacity to accept it. MR. HAEFELI: I don't know whether Greenport has the capacity to accept as it is, you know, today-- MEMBER VILLA: That's right. MR. HAEFELI: But we have a contract that we entered into, and they have set us aside as one of the ones that will have it, as opposed to several of the other people that came in ZBA Hearings 43 May 20, 1993 subsequent to us, because we signed those contracts a long time ago. MEMBER VILLA: It has been an ongoing problem with the Village. THE CHAIRMAN: Thanks so much for coming in. We will get back to you as soon as we get this thing wrestled out here. MR. HAEFELI: Thank you very much. THE CHAIRMAN: You're welcome. Anybody else like to say anything? (There was no response.) THE CHAIRMAN: Seeing no hands, I make a motion recessing the hearing without a date. (Seconded and carried; see Clerk's record.) Verbatim transcript prepared from recorded tape. jdr End of hearings.