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HomeMy WebLinkAboutZBA-04/26/1995 HEARINGAPPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Serge Doyen, Jr. James Dinizio, Jr. Robert A. Villa Lydia A. Tortora PRESENT: BOARD OF APPEALS TOWN OF SOUTHOLD PUBLIC MEETING BOARD OF ZONING APPEALS TOWN OF SOUTHOLD April 26, 1995 (4:40 P.M. Special Meeting) HON. GERARD P. GOEHRINGER Chairman SERGE J. DOYEN, JR. Member JAMES DINIZlO, JR. Member ROBERT A. VILLA, Member LYDIA A. TORTORA, Member LAURY DOWD, Town Attorney LINDA KOWALSKI, Clerk-Assistant to Board Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1809 Page ~ - Special Meeting Wednesday, April 26, 1995 Southold Town Board of Appeals 4:40 Special Meeting of Board of Appeals, April 26, at 4:15. There are no Public Hearings but verbatim is taken just to show the record of the Board Members and anyone speaking. MR. CHAIRMAN: The original hearing was heard on August 11, 1994. I like to we]come everybody here. Sometimes it's rare that we have a Special Meeting, Special Open Meeting of this nature and I ask everybody to kind of hold their statements in abeyance for approximately 15-20 minutes with a respect that we'll be going into Executive Session speaking to our Town Attorney for approximately 10-15 maybe 20 minutes. You're welcome to sit down, kick back and we'll be back here. It is at this particular time that I'll make a motion requesting Executive Session. Ms. LINDA FLETCHER: Can we know the nature of this special meeting briefly? MR. CHAIRMAN: Well, the letter we received Linda from Esseks, Hefter & Angel dated, actually you have to excuse me, I left my glasses in the car --- MS. LINDA~ Who was that letter addressed to? MR. CHAIRMAN: Actually it was addressed to Judith T. Terry, but it's all --- BOARD SECRETARY KOWALSKI: No, there's a letter addressed to the Zoning Board, Jerry. MR. CHAIRMAN: Yeah, I know there's a letter addressed to the Zoning Board that we just received but a, at the same time I'm referring to a specific element of page 3, which a (we can afford you copies of if you don't have) concerning possible litigation for the Town. Page ~. - Special Meeting Wednesday, April 26, 1995 Southold Town Board of Appeals Ms. LINDA FLETCHER: Is this the same letter that's dated April 18, 19957 MR. CHAIRMAN: Yes, that's correct. MS. LINDA FLETCHER: Well that was addressed to the Town Board, not the ZBA. MR. CHAIRMAN: I didn't say it was addressed. I said it was addressed to, it says, attention Judith T. Terry, who is the Clerk of the Town Board. BOARD SECRETARY KOWALSKI: We were furnished with copies of it and we also got another copy today from Esseks' office, same letter. MS. LINDA FLETCHER: So, are you then saying that you will not be discussing this particular item on the Agenda, in front of the public, at all? That's what you're saying? MR. CHAIRMAN: Well the Suffolk Times has called me twice and I had spoken to Jeff Miller twice and I had informed him that there would be no discussion concerning this at this time and that's basically where we are at this point. I would say that it's not an issue that's goner be put to bed today. It may be somett~ing that's discussed next week. BOARD SECRETARY KOWALSKI: Why, don't you tell Linda what is before the Board tonight on the Agenda. The correspondence from the Supervisor. MR. CHAIRMAN: We have received a memo from the Supervisor. You're aware of the memo? You have a copy of the memo? BOARD SECRETARY KOWALSKI: We're interested in the bulk of the realty. Is that what you're inquiring about, right? Page ~/. - Special Meeting Wednesday, April 26, ]995 Southold Town Board of Appeals MS. : Yes, you're going to talk about that. MR. CHAIRMAN: Right. BOARD SECRETARY KOWALSKI: No, we're consulting the Town Attorney. MR. CHAIRMAN: We're going to be consulting the Town Attorney. BOARD SECRETARY KOWALSKI: We're under advisement right now and that's why it's Executive Session. MS. LINDA~. That means you're saying then, that ihis item on the Agenda, for this meeting, this afternoon, that we're sitting here for right now, is a memo of inquiry from Supervisor Wickham regarding duration of SEs and past applications and future consideration, that that item is not going to be discussed openly? BOARD SECRETARY KOWALSKI: Yes it is. MS. : It is, openly here? BOARD SECRETARY KOWALSKI: with the Town Attorney, we Agenda and then after we attorney-client privileges then Yes, we're going to meet first have an appointment. It's on the have our appointment which is we'll go into a special meeting which will be approximately 4:15. It will not be discussed prior After that, yes, we're having an open meeting and ..... to that. MS. : And this item will also .... BOARD SECRETARY KOWALSKI: It's on the Agenda for that reason, yes. MS. : Alright, OK. MR. CHAIRMAN: Now, my question is before we go into Executive Session, is basically with the Town Attorney. How are you today? MEMBER DINIZIO: MR. CHAIRMAN: BOARD MEMBERS: MR. CHAIRMAN: MEMBER DINIZIO: MR. CHAIRMAN: BOARD MEMBERS: MR. CHAIRMAN: regular meeting, Basin Accessory Page ~., - Special Meeting Wednesday, April 26, 1995 Southold Town Board of Appeals Would you like to discuss this with us in Executive Session here or would you like us to go back to your office? TOWN ATTORNEY DOWD: I believe it's fine in here. MR. CHAIRMAN: OK. TOWN ATTORNEY DOWD: The courtroom is available if you want to use it. MR. CHAii~MAN: OK. Well why don't we do that so we don't have to displace these people and they can sit here, BOARD SECRETARY KOWALSKI: OK. Who would like to second the motion? We have a motion. Second. All in favor? Aye. Ladies and gentlemen to reconvene. So moved. Second. All in favor? Aye. Going back to miscellaneous 1, correspondence of letter from Arthur M. Tasker, Brewers Yacht Restaurant. Just briefly on this, Mr. Tasker raises a particularly interesting issue on what occurred subsequent to a hearing before this Board and what was going to be done and served at this particular restaurant. He goes into some great length and he did see the Supervisor. Maybe we should refer this to the Town Attorney and ask her opinion on, you know, how far we should go with the letter back to him. To my knowledge this Board has not necessarily voted to reopen hearings or special permi[s but maybe in Page ¢. - Special Meeting Wednesday, April 26, 1995 Southo]d Town Board of Appeals a situation like this after her reviewing that may be something we may have to do. questions on that? Ms. ( ): Will they be filing an appeal? BOARD SECRETARY KOWALSKI: Well, they accessory restaurant. The restaurant would Mariner and Mr. Tasker says they're now possible recommendation Does anybody have any had applied for an be accessory to the advertising to have OK. The record letter from Supervisor Wickham will hold in abeyance just one second. The letter of inquiry from Advent Lutheran Church inquiry of Town Board Policy pertaining to fees that is an issue that is a Town Board issue and we basically will refer that to the Town Clerk so that she can make it either an on agenda item or off agenda item, whatever she chooses to do and discussing with the Town Board. We do not control fees. Does anybody have any objection to that? BOARD MEMBERS: No. is noted there's BOARD SECRETARY KOWALSKI: no objections. MR, CHAIRMAN: Alright, the public luncheons and dinner which seems to be a principal use. That this is something that has to really be researched by the Board with the Town Attorney and see how it should be handled. This is in Greenport, we know where we're talking about? OK. MR. CHAIRMAN: Off of Manhasset. So, is that alright? MEMBER VILLA: Yes, I think we should pursue it. MR. CHAIRMAN: I couldn't agree with you more. Alright, so that's what we'll do. We'll send the correspondence over to the Town Attorney. We'll talk to her about it. Page ~. - Special Meeting Wednesday, April 26, 1995 Southo]d Town Board of Appeals MR. CHAIRMAN: On B, we had two additions along with the other hearings for May 3. Appeal #4306 and Appeal #4239 they are advertised as of tomorrow. I ask you to look at them. BOARD SECRETARY KOWALSKI: Actually it's the last two after that. Wilson and Cunneen were added on, 3 and 4. MR. CHAIRMAN: Oh, we have all of them on. BOARD SECRETARY KOWALSKI: Yes, all 4 are on for May 3, and they were advertised. I'd just like to --- MR. CHAIRMAN: Yes, but these were advertised before. BOARD SECRETARY KOWALSKI: No. MR. CHAIRMAN: Wilson and Cunneen? BOARD SECRETARY KOWALSKI: No, they were al! advertised at the same time. We just got a copy of tile draft legal notice before it was advertised. MR. CHAIRMAN: OK. Oh, wait, I apologize I'm telling you an inconsistency. That's what my concern was. We looked at Best and Van Meter beforel The two additions are actually Wi]son and Cunneen is exactly what was said. That's what I meant to say. BOARD SECRETARY KOWALSKI: We need to inspect those last two. MR. CHAIRMAN: OK, we have to inspect those two and I offer that as a resolution to put those on. BOARD SECRETARY KOWALSKI: MEMBER DINIZIO: Second. MR. CHAIRMAN: All in favor? BOARD MEMBERS: Aye. MR. CHAIRMAN: Alright, I Best-Syverson, that's been hanging Anybody what to second that? don't know I didn't see around for a long time and Page ~. - - Special Meeting Wednesday, April 26, 1995 Southold Town Board of Appeals sometimes the names don't make any difference to me until I see what the actual survey looks like. Alright, going back to the nature of our discussion with the Town Attorney, again we'd like to welcome everybody there. How are you Mrs. Brown? We will be issuing a letter in memo form to the Town Attorney on or approximately around 11:00 A.M. on Friday morning. The nature of the letter or memo will reflect the Boards past procedures in dealing with special permits, the overall nature and periods of time that a person earnestly pursues an application before this town, so on and so forth. I do not have anything to give you at this time because it has not been reduced to writing. However, I can read to you a portion of the memo that we'll be issuing. Your welcome to come to our office and we'll go from there. Mrs. Tortora just told me that we should really approve it first and that's what we will do. I do have to tell you that when I left here I think the only lady that wasn't in the room was Mrs. Grant at the time, that the Suffolk Times had indicated to me that if there was anything occurring that they would want to be aware and that's basically what I was doing. I was the last person in here. I was calling the Suffolk Times to tell them that we will be sending a memo over to the Supervisor's office and that's basically it. So, that's the procedure, ladies an gentlemen. I'll offer the memo form back to the Supervisor on or before --- BOARD SECRETARY KOWALSKI: Are you making a motion? MR. CHAIRMAN: I'm making a motion, yes. BOARD SECRETARY KOWALSKI: OK. Page ~... - Special Meeting Wednesday, April 26, 1995 Southold Town Board of Appeals MR. CHAIRMAN: And then I will read the excerpts from the memo without my reading glasses after we vote on it. Again, I'm offering the resolution. BOARD SECRETARY KOWALSKI: second it at this time? MEMBER DOYEN: MR. CHAIRMAN: Does anyone what to Second. All in favor? BOARD MEMBERS: Aye. BOARD SECRETARY KOWALSKI: And that's everybody to refer as a response to the Supervisor through the Town Attorney? MEMBER TORTORA: I abstain, BOARD SECRETARY KOWALSKI: You abstain? MEMBER TORTORA: Yes. BOARD SECRETARY KOWALSKI: OK. Could I have a reason why Lydia was abstaining because we had --- MEMBER TORTORA: Yes. Very clear, the Supervisor's request calls for an explanation an interpretation of past special exception. I wasn't on the Board at the time and it would be inappropriate for me to make a decision on something that I do not have first hand knowledge of. BOARD SECRETARY KOWALSKI: OK. Thank you. Resolution adopted. MR. CHAIRMAN: Alright. Letter to the Supervisor and Members of the Town Board, the Board of Appeals hereby requests the following response forward to the Supervisor and of course this was originally lettered to the Town Attorney and what we're doing is very simply, not cutting out the Town Attorney, we're just taking the vehicle and Page /~. ~ - Special Meeting Wednesday, April 26, 1995 Southold Town Board of Appeals moving it right over to the Supervisor's office. Memo dated April 21, 1995, through you as Town Attorney of the Board of Appeals. As mentioned during our court review session of Feb~.uary 19, 1995, with the Town Attorney and Members of other Departments, the ZBA has since the inception of this special exception jurisdiction in 1957 place additional conditions which would need be met before the special exception comes clearly or validly approved. It was not until 1989 when the Code was amended to show a 6 month renewal period. Past procedures and policies recognized at tile site plans as those projects which are diligently pursued applications. One of the reasons is that the site plan applications are held in abeyance to allow time for issuance a special permit, a special exception permit. We are not aware of any project which ever received site plan approval prior to special exception. Those which are not pursued are those which are not filed or which remain dormant for a considerable of time. For example, use car lot approved by special exception discontinued in 1988, then in 1989 received a change of zone which prohibited the use and remained discontinued until after 1991. In cases of special permits our office has also forwarded letters where the use did not receive a building permit prior to the effective date of the Code change. Attached is a list of several projects renewed since 1989. Reviewed rather sine 1989 which were conditioned in the actual ZBA determination. Upon obtaining other approvals or as in the case of LKC Corp. it specifically set time periods for reconsideration at a public hearing and we indicate on the third page LKC Corp. which is a business in Mattituck propane corporation who is Yacht Basin which is uniquely a complaint by a Page ~/.. - Special Meeting Wednesday, April 26, 1995 Southo]d Town Board of Appeals neighbor today and the Planning Board coordination code provisions, 100-254B attach copies and that's about it ladies and gentlemen as we see it at this point and you're welcome to ask you know. I'm sure that no-one has any objection to you having a copy of this and we just have not, each Board Member will review the file copy before it goes out and that's basically where we are. So it will be approximately Friday morning before it will be circulated and I don't know what else to tell you. Yes ma'am. MS.: What does it mean? MR. CHAIRMAN: It means our past procedures stand as we have dealt with them. MS.: ( ) against the Town Code the way we interpret it, the way it was written? MR. CHAIRMAN: Well, what we will be doing in the near future is getting together and changing that particular section which appears to be some ambiguity and we're never any other ambiguity again. BOARD SECRETARY KOWALSKI: going to do that so that there is In the code revision. MR. CHAIRMAN: In the code revision itself. BOARD SECRETARY KOWALSKI: The way the law is presently written. MR. CHAIRMAN: Yes, what is it 262? BOARD SECRETARY KOWALSKI: I don't have the book in front of me. MS. MR. Past precedence stands, : But there is ambiguity now so I don't understand why --- CHAIRMAN: Well, we have always dealt on past precedence. past precedence has stood in the courts, it Page/~.. - Special Meeting Wednesday, April 26, 1995 Southold Town Board of Appeals has stood all the way along the line. It's a matter of the way the thing stands, alright. Nothing that we can change will change that at this point. This has nothing to do with this individual application. What we are saying to the Supervisor and the Members of the Town Board is that this particular procedure has been a procedure that has existed since 1957 and that's the way we deal with it and if somebody is earnestly pursuing a site plan and that's basically the situation and that's what we're doing. Ms. : This ( ) law, how can it be OK, just because you've been doing it since 19577 MR. CHAIRMAN: You want me to answer that? You have no problems with me. MS. : No, Jerry, you're ( ). MR. CHAIRMAN: What has existed we had gone through three code revisions prior to 1957. If we started 1957 and subsequent to maybe, prior to 1962-65, most of the code was written in a newspaper tabloid form and that's what we were working out of. Actual tablet, it looked like the Suffolk Times. No, it looked like the Suffolk Times actually. That's alright, you can be witty today Linda, if you want to be. MS. LINDA FLETCHER: (Laughter) Suffolk Times and Tabloid and they're not even l~ere to defend themselves. MR. CHAIRMAN: I said like the Suffolk Times in tabloid form, alright. Newspaper form, format, alright. Subsequent to that it was then reduced to writing in a book form which you see today. Probably one-third of the size of the book that exists today. Then there was a code revision changed sometime in the seventies, then Page /J~i - Special Meeting Wednesday, April 26, 1995 Southold Town Board of Appeals again in the latter seventies and of course the one that you see is a 1989 change when we adopted a new and distinct zones within this town. not changed from that particular zoning code with 17 different I'm telling you Debbie we have point on, alright and that's basically what the situation is. Now, if somebody has earnestly pursued a site plan, if they have not earnestly pursued a site plan, alright, that's a different situation and this concerns other Boards within this town and that's it. MS. : Could I draw your attention to a copy of a document that I took from the files in your office which is a, it is more than a code, it is the law that precedes this code book which I have since been informed has typos in it so we can't rely on tile code book all the time, we have to go back one step further, for il clearly says, a special exception approval shah be va]id for a period of six months but may be extended for one additional six month period by the issuing board without the requirement of a new public notice of hearing. That's what it says. This was 1989, what was attached to the response sent to Mr. Cuddy about the special exception extension. MR. CHAIRMAN: I understand that. DEBBIE SIDLAUSKAS: And this is what the law says. MR. CHAIRMAN: Wait a minute Debbie, just let me answer the question. Our decision which was rendered sometime in December of 1991 had no specific time limit. It said in that, that this Board will not recognize anything until they see a final map. The final map was not in our hot little hands until sometime in March of 1994. Now, there is no doubt in my mind, that when we looked at this final Page f~.i - Special Meeting Wednesday, April 26, 1995 Southold Town Board of Appeals map we uniquely construed that to be the final map of the site plan of this particular organization. Yes, Deb. DEBBIE SIDLAUSKAS: OK, can I say one more thing in conjunction to that? In response to that I have in my hand, you are saying that the Special Exception was not granted, does not begin to run until sometime in 1993 where .... MR. CHAIRMAN: I did not say that. BOARD SECRETARY KOWALSKI: No. MR. CHAIRMAN: I did not say that. I said the Special Exception started as soon as it was filed with the Town Clerk's office. If it was done --- BOARD SECRETARY KOWALSKI: It was issued 1991. MR. CHAIRMAN: It was issued 1991, and if it was issued currently, I mean, I'm sorry, if it was filed currently with my signature, and the approval of the Board, then it began to run --- BOARD SECRETARY KOWALSKI: The conditions have to be met first. MR. CHAIRMAN: Right, the conditions would have to be met, but the Special Exception still exists. BOARD SECRETARY KOWALSKI: That's right. MS. DEBBIE: Well then when is it up? I can't say it was filed in 1991 and it's good for six months according to the law, then that's what it's good for, otherwise what is this time bit. It's like it starts to clock whenever you want to or whenever they want to, I mean it makes, it makes a mockery of this, a total mockery. BOARD SECRETARY KOWALSKI: We can't comment on a project, Jerry, I'm telling you don't. Page /~.~ - Special Meeting Wednesday, April 26, 1995 Southold Town Board of Appeals MEMBER DINIZIO: Why can't we? BOARD SECRETARY KOWALSKI: Well, I guess you can. MEMBER DINIZIO: Can I make a comment? MR. CHAIRMAN: Sure. MEMBER DINIZlO: As I understand it, on reading our decision, the final, we had it says several conditions. One of the conditions, condition 5, was that we want to see the final map that the Planning Board approved. That, and to check to make sure that that final map coincided with what we were looking at, at the time we granted the Special Exception. MS. : Alright. MEMBER DINIZIO: Now, we did, a March of 94, receive that map. MS. : That was not the map from the McDonald's Corporation, was it? ...... MEMBER DINIZlO: We, McDonald's Corporation did not file anything with us. MS. : So, it was another map ..... BOARD SECRETARY KOWALSKI: It was Cofam Realty. MEMBER DINIZIO: It was Cofam and it has alwe~ys been Cofam as far as I can tell. MS. : Then it was a different map than you had, than you had before you in 1991. MEMBER DINIZlO: No, the footprint was the same and that's all we were concerned about was setbacks and that it didn't have a drive through, which is the nature of the application was the drive through and certainly a Special Exception for the restaurant. Page /~.. - Special Meeting Wednesday, April 26, 1995 Southold Town Board of Appeals MR. CHAIRMAN: And it contained vehical ..... MEMBER DINIZIO: that happened and an emergency access to the Right, and we wanted to make sure that all of now, you certainly can question whether they opinion. diligently pursued this thing but that is not par in my That is not what we are suppose to make a decision on. MS. : Can you give me tile date of that? MEMBER DINIZIO: We are suppose to make a decision on when we think that this thing started. In my opinion, it started in March of 1994. MS. : So, it's a year later, isn't it gentlemen? MEMBER DINIZlO: There still doing ...... BOARD SECRETARY KOWALSKI: It's not for the ZBA to decide. MEMBER DINIZlO: It's not up to us to say whether they have diligently pursued that thing. MS. : My feeling it's a year later. No matter when you want to start this clock ticking then. You want to start in 1991 which is what the date is on that Special Exception permit it was up in 1992. If you like to say, oh, no, it didn't start until March of 1994, I believe that it is April of 1995, now, meaning that more than a year has past. So, no matter how you cut it, that permit is gone. MEMBER DINIZIO: I would say then, you're still in the wrong place. I say go to the Building Department. BOARD SECRETARY KOWALSKI: You're entitled to your opinion. MS. : I have gone to the Building Department. BOARD SECRETARY KOWALSKI: You're entitled to your opinion and you have your attorney. Page/~.' - Special Meeting Wednesday, April 26, 1995 Southold Town Board of Appeals MEMBER DINIZIO: But again, I don't think that we're going to make the decision one way or the other. We're just interpreting what we made the decision on a long time ago. Certainly, if you have questions to that, the Zoning Board can't just change our decision. You have to now question our decision but we can't change it. MR. CHAIRMAN: Linda, you're saying that subsequent to the issuance of the permit on or before April 3rd, 4th or whatever it was of 1994, OK, you're saying that we're now, hence, more than one year later and you're saying that the permit is not .... BOARD SECRETARY KOWALSKI: The Building Permit. MR. CHAIRMAN: The Building Permit is not in effect, is that what you were saying? MS. : Wait a minute. You have to decide which permit we're talking about. MR. CHAIRMAN: Well, which one were you talking ab(Jut? MS. : I was talking Special Exception Permit, when he said, didn't begin until, I believe he said, March of 1994. I don't want to talk about the Building Permit per se here because you didn't issue that. You issued the Special Exception. wonderful clock began to tick? BOARD SECRETARY KOWALSKI: What I'd like to know is when this The question did not come properly before the Board and if you have permit you should really ask for the Town not, the Building Permit is not something a legal question on a Attorney's office. It's that tile Zoning Board should be answering right now, it's actually .... . Page /~ - Special Meeting Wednesday, April 26, ]995 Southold Town Board of Appeals MR. CHAIRMAN: I understand your concern and I was not aware that you were talking subsequent to April 4, 1994. I assumed you were back dating it back to .... BOARD SECRETARY KOWALSKI: She wasn't, she was talking about 91. MS. : I was saying, hey, have it your way. Wasn't that the Burger King slogan? BOARD SECRETARY KOWALSKI: She's saying, take your pick any date you want. MS. : I don't care anyway you cut it, a year has gone by and this is what the law says in your book. (She's reading the law.) (Discussions going on amongst themselves) I did read the whole section. Now, let's go to the Building Permit. Thai itself which I have a copy of refers to the date of the Special Exception Permit as ]2/16/91. It's written right on that Building Permit and I have a copy somewhere in this mess right here. So, somebody has accepted 91 as the starting date. KOWALSKI: That's probably for reference who knows, but. BOARD SECRETARY purposes, you know, MS. : No, I mean. BOARD SECRETARY KOWALSKI: But, nobody is saying it's not there. It's all there in the record. Your right, nobody saying it's not. MEMBER DINIZlO: In my opinion that's as far as I ti~ink we can go. MS. : When was it started? What do you think? MEMBER DINIZIO: 94. when it started and that's Page/~. - Special Meeting Wednesday, April 26, 1995 Southold Town Board of Appeals MS. : 94? BOARD SECRETARY KOWALSKI: March 94. MS. : That's not what the Building Permit says. MEMBER DINIZlO: Everything else that you you're sitting in front of the wrong Board. MS. : Well, where do you think we should be? want in my opinion, MS. : We're always sitting in front of the wrong Board. SECRETARY KOWALSKI: Your attorney can advise you. You have the letter. Your attorney is the best person to advise you. The town does not advise. MEMBER DINIZIO: We made a decision --- MS. : We went to the Town Board, we've had meetings with the Town Attorney, we've written two letters that have gone unresponded to the Building Inspector. BOARD SECRETARY KOWALSKI: We have many people in town that would like the town to be the legal advisors, but we're not! MS. : ( ) Planning Board, is that what you're saying? BOARD SECRETARY KOWALSKI: We're not legal advisors Linda is what we're saying. (Everyone talking at one time) Gentlemen: Did you issue the Special Exception in December of 917 MR. CHAIRMAN: Did we Sir, is that your question? MEMBER DINIZIO: Yes, we said that ..... GENTLEMEN: Well then, is there a request for extension in June of 92? MR. CHAIRMAN: Never requested. Page .~) - Special Meeting Wednesday, April 26, 1995 Southold Town Board of Appeals GENTLEMEN: Is it not then void, doesn't the whole ball game become a malfunction? MEMBER DINIZIO: MR. CHAIRMAN: MEMBER DINIZIO: Yes, you read the decision? McDonald's Cofam? Can I say? Go ahead, you want to answer it? I really like to, I really like to. Have Have you read our decision concerning GENTLEMEN: I don't know what decision your ..... MEMBER DINIZIO: The conditions that we said in our decision. MS.: No, no. MEMBER DINIZIO: Then how can you comment on that? They had to meet all of our conditions. We made a decision, OK, we had public hearings, we made a decision, it was public. They had to comply with all of our conditions. They did not comply, they could not comply with the last one. They couldn't comply with it, with the last condition until the Planning Board approved that map and that was done in March of 94. That's when they met the last condition. MS. That's two years late. MEMBER DINIZIO: Yes, but Listen, that is not the Zoning Board, we made a decision .... MR. CHAIRMAN: That doesn't affect our Board. That's not us. Whatever happened in those two years --- MS. They had a year to get all those permits. That ..... MR. CHAIRMAN: Linda, you know as well as I do, that it's difficult to get a permit, or several permits from several Boards in this town within one year. You can't even get s permit from the DEC within one year. Page ~Ty - Special Meeting Wednesday, April 26, 1995 Southold Town Board of Appeals MS. That's why you come in to get an extension. That's what that provision is for. Gentlemen: It would appear that by diddling around drawing their map they contrived to make six months work two years, just by screwing around and not getting their maps filed and approved. MR. CHAIRMAN: Sir, I don't think they contrived anything. I think that it took that period of time to help to have people in this town say, OK, other people from other Boards, yes, we're happy with the procedure and the process that we dealt with on this particular .... MS. I'd like to ask another question. We heard from you, Mr. Gehringer and Mr. Dinizio on when the magic clock begins to run. I would like to ask if Mr. Villa and Mr. Doyen agree with your decision that the clock did not begin to run .... MR. CHAIRMAN: I'd just want to say this to you, Linda, OK. That in all candid we have been very open about this whole thing, alright, because we were not going to release this memo until Friday. We kind of read most of it to you because that's the way it is. If I had it in form I would pass it out to you, alright. This is not necessarily an open forum. We're only doing this in a gratuitous sense because you are all taxpayers in this town and because this concerns you very, very much, alright. I cannot force anybody to speak to you, a]right, but I'm just saying to you I have no idea if they want to speak to you, alright and I'm not putting anybody on the spot at this point, alright, just so you're aware of that situation. As you know when you've come to our office we try to give everybody a, everything we possibly can do. As in the case of my discussion with Page ~ - Special Meeting Wednesday, April 26, 1995 Southold Town Board of Appeals you with the Suffolk Times of my calling them and telling them that yes, we're going to be issuing a permit, a memo. MS. We]], what's the proper way to ask them then ? For me to ask them or for you to ask them? MEMBER DOYEN: MR. CHAIRMAN: MEMBER DOYEN: stand by them. I mean, can they be asked .... Just ask. Just ask. Just ask, very simply. If the public or individual doesn't like them, We make our decisions, we they go to court. In a court the Supreme Court or however it goes says we're right or wrong and that's the way it goes. MS. Then you are in agreement that the clock is starting March of 94? MEMBER DOYEN: Yes, apparently because that's the way we did business generally in the past and I'm not even saying that's right or wrong but we did it and it's up to a court. That's what courts are for. To say if we're wrong, we're wrong. I'm not saying we're right. I'm saying go ahead to a court and find out if we were right or wrong. We made the decision so we stand by it until the court says that it's a wrong decision. MS. And Mr. Villa? MEMBER VILLA: I have problems with some of the interpretations but again it's going to be in the hands of a court to decide because a I'm one person on the Board. I wasn't you knew, I've only been on here 4-5 years now, and some of the past practices I don't know what they did. I have trouble with the language and I think we're going to address that issue because the language is not clear. I think it should be and we're going to address it. As far as whether Page ~3 ' Special Meeting Wednesday, April 26, ]995 Southold Town Board of Appeals the Board acted properly or not, I think that's up ~o the courts at tl~is point unfortunately. MR. CHAIRMAN: It would be unkind for me to tell you if I could back track back to 1991. To think that this site plan on this particular project was going to be done within a year. There is no way that this was going to be one within a year. In my opinion, OK, because I knew the gravity of this particular site plan. This is a very involved site plan. There were traffic studies done, there were all kinds of things done. As you're aware the 15 feet of that hill has come out since then. I mean they trucked sand out of there for two months. GENTLEMEN: They certainly did, they ...... MEMBER VILLA: Yes, they probably sold it. MS. They sold it. MR. CHAIRMAN: And whose request required them to do so? That was part of the site plan approval. To take the sand out of the property and reduce the level of the thing. MS. To knock the berm down? The berm was suppose to be there according to all the pictures .... MR. CHAIRMAN: It has nothing to do with us. If it were up to me I would of left the berm there. MS. Yeah, it should of been there. MR. CHAIRMAN: Brown? MRS. BROWN: I things from a common interpret it ourselves. Of course, I could not agree with you more. Mrs. think that part of our dilemma is that we look at sense approach and read the law and try to My own personal opinion I have sat before Page ~ - Special Meetiug Wednesday, April 26, 1995 Southold Town Board of Appeals many, many Boards, my own Board of Appeals, I'm lhe Chairman of the Conservation Advisory Council in Riverhead and am well familiar with extensions and permits expiration dates. I have never thought that extension or permit extension was open-ended. I've heard may Chairmen say that the reason they're put on there so that these projects don't drag on forever and most often mere than not I've seen the applicant come back and say we're stuck at the Planning Board, we're stuck at the DEC, we've had legal problems, a neighbor sued, we need an extension and everyone openly says absolutely, we agree with you and we give you that extension. It seems that though you're disregarding this entire extension just because they're diligently working to make the project a success in four years. MR. CHAIRMAN: No, you may say that is the way it appears on the surface. That is not the case. MRS. BROWN: I know they're probably working for it but you're waiting for the map to be handed in, it might be another four years and I don't think that that was the intention of a permit expiration date. I think that there is an inherent reason to put on a date. If you can see this view at all, perhaps not the Board can see it, perhaps you can urge or find a way that we can get an answer from the Building Department to this question. We've written a letter, we can't stand on our heads. We don't know where to go next. MR. CHAIRMAN: I understand. In some respects, in some special permits we do put time limits on because of the concern about the particular situation so on and so forth. an issue before us. that may exist in reference to traffic control, In this particular case traffic control was not It was an issue before the Planning Board and Page ~5'Z - Special Meeting Wednesday, April 26, 1995 Southold Town Board of Appeals of course there's 3 acres and they were land banking parking spaces on the site itself so that was not the issue that was before us and was one that we were necessarily dealing with we more or less allowed another Board to deal with that particular aspect of it and that's the reason why we put the final element of that decision. Maybe you want to read that for the group there Jim, if you wouldn't mind or give it to me. The final condition. MEMBER D1NIZIO: This one here number 5? " Special Exception approval is limited to be applied to that applied for and shown for consideration as per the plans and drawings submitted to this Board and any change in the footprint of the building requires reapplication for reconsideration. After proper notice and public hearing an original final site plan print shall be furnished to the Board of Appeals for review prior to Planning Board Chairman's signing of the final maps per~nanent record keeping hearings, etc." MR. CHAIRMAN: MS.: It doesn't could go on forever. for updating purposes, acquiesces and purposes without the need for further say anything that, that it means I just want to say that this is not something -- that condition MR. CHAIRMAN: I'm just trying to say this to you Linda and to everybody actually. This is not something that's germane just to this particular application here. We've done this with all of the wineries. We've done it you know, because conceivably it wouldn't make sense to deal with a special permit if you weren't happy with the site plan, alright, if it didn't conform to your original purview of one you looked at it and that's the purpose of that condition, Page ~ - Special Meeting Wednesday, April 26, ]995 Southold Town Board of Appeals alright, just so you're aware of that situation. In some respects if, again we are very happy that you have come and discussed this with us. I really don't know what we can do as a Board at this particular time and that's the concern that we have at this time. MS. I'd like to submit to you that from what Mr. Dinizio just read it appears to me that can slide into the six month. That these people had a year to get that site plan done and I have to check on this, but I think when they came back under the Burger King sign that they in fact did get that done within a year so the argument that they couldn't possibly have gotten all of that done within a year I'm not sure that that really holds. MR. CHAIRMAN: Just remember Linda, that this was not issued in any one trade mark name. MS. : I understand that. MR. CHAIRMAN: This was called Cofam in general. MS. : ( ) incarnation as we well know. MR. CHAIRMAN: That was a thing that we had investigated back in 91 through the series of the 9 hours of hearings of which you all were here and I can remember all vividly where you were sitting at the time. Not necessarily individually at each one of the hearings, but your concerns were certainly well mentioned. I can truthfully say this to you, alright, I had nothing to do with placing the General Business Zone on that piece of property. I had nothing to do with the construction of the Zoning Code of 1989, which allowed these restaurants in that zone. The reason for my alTirmation or my decision was based upon the nature of all the hearings and concerns that were taken into consideration and everything that was diligently Page ~7 - Special Meeting Wednesday, April 26, 1995 Southold Town Board of Appeals placed in this decision which was pretty lengthy and that's basically the issue. We have done the best we possibly could at this point. think so but honestly we think we have and we'll go You may not from there. frustrations. HOWARD business. President experience I mean we Yes Sir? MIKKE: I had and have to go forward and I understand your I have some experience in the building do have (inaudible) in Connecticut. I was the of the Connectieut State Builders Association. My in the State of Connecticut is that all of the various damage of permits that have time periods on them they are jealously watched by the various towns and you're in deep trouble if you don't get renewais and you can't plead pressure of other activity. They give you all kinds of great ( ) so I think this is the sloppiest procedure I've ever heard that there is something w~itten that says it's a time period and people dance around it and don't follow-up on it. That has been to my experience extremely important. MEMBER DINIZIO: May I comment? I just want to say something. I rather state something. You know, when I read this in the paper this decision, that they were going to send us a letter and we were going to have to have a meeting concerning this, my concern was that this be done as quickly as possible. I mean I wanted it done so you can pursue what you have to pursue which in my opinion we can't make a decision on the questions you're asking us. Now, I can't not agree with you more that you have run into a stonewall. Believe me, I have sat up here for 7-8 years and I have said this over and over again. If someone is unwilling to make a decision, whether you like the decision or not, alright, you should have, I Page .~ - Special Meeting Wednesday, April 26, 1995 Southold Town Board of Appeals believe you have a right to a decision so you can take your next step. That is why we're here today, Wednesday, at 4:00 o'clock instead of our next regular scheduled meeting. MR. CHAIRMAN: Which is next Wednesday. MEMBER DINIZIO: I want you to take your next step and point out if you've run into a stonewall then take the steps. Please, take the steps that are necessary to get over that. MS. One of the steps we've have been encourage(] to take is to appeal the decision to you, you understand that? MEMBER DINIZIO: Yes, I couldn't agree more, yes. MEMBER TORTORA: No, I don't understand, go ahead. MS.: Well, it was explained to me, that there was a certain procedure that we should undertake and that is what we have done and while we are banging our heads against tile wall and the first step was we were to ask the Building Inspector for his opinion of certain things. We've started that process on March 1st, we've never received an answer from the Building Inspector. Finally, we engaged an attorney to write a letter to the Building Inspector. That was almost a month ago now and we have received no letter to that. I was told that if we had a response from the Building Inspector and we didn't like the response then the next step was to come to your Board and appeal that decision. I mean do you realize that that is, was part of .... MEMBER TORTORA: Who told you that Linda? MS.: Joe Townsend. MEMBER DINIZIO: That is. MS.: That's a process that was explained to me and --- Page ,~ - Special Meeting Wednesday, April 26, 1995 Southold Town Board of Appeals BOARD SECRETARY KOWALSKI: asked about and I gave you forms. MS. : Right. BOARD SECRETARY KOWALSKI: think that was mentioned. That's a process that you had But that's not the same process I you a decision. Let you to go on to do the next thing. I'm well aware of what the steps are. One of the steps in my opinion was not a public meeting on Cofam today. MS. : We didn't think we were going to be allowed to talk, I mean, I didn't ..... MEMBER DINIZIO: No, I know ...... MR. CHAIRMAN: This Board has never stopped anybody from talking. thought processes were during Special Exceptions, alright. We've made our decision on that. We could have dragged it on for months. My feeling is, let's not drag it on for months. Let's give MS. : Well I understand that when Mr. Dinizio is saying, you know, go somewhere, do something, I just wanted him to know that as I understood it, one of the next places we would stop would be here. MEMBER DINIZIO: Yes, well I ...... MS. : If you were to review your own work .... MEMBER DINIZIO: What I'm trying to do in my opinion, is to make it formal, alright. You needed the decision from us that from a letter that we got from Supervisor Wickham, saying that they thought that they would like to have a clarification on you know, what are Page J~ - Special Meeting Wednesday, April 26, 1995 Southold Town Board of Appeals MS. : No, I didn't mean that negatively, I just had been told about there being a hearing and that ....... MEMBER DINIZIO: No, it's not a hearing. BOARD SECRETARY KOWALSKI: No, it's always a public meeting. It's always a public meeting. MR. CHAIRMAN: This is similar to what the Town Board has after their regular meeting. MEMBER DINIZIO: I don't mind discussing with you but I want you to pursue it you know, if you have gotten a wrong answer somewhere along the line, certainly you know, I'd be willing to give you where to go. It seems to me like you know what the steps are that you must take. My feeling is that you should take those steps and pursue them and I couldn't agree with you more the frustration of the dead end that you've run into when the indecision that seems to have come about here on this. me know, but a --- MS. : Well, what is those Anything I can do to help, you let steps to get a response from the Building Department? Town Attorney? BOARD SECRETARY against .... MS. : It's against? Is it proper form for a determine to ask the KOWALSKI: No, we can't do that. It's MEMBER DINIZIO: That's what I'm saying, exactly what I'm saying. MS. : (More than one person talking at tile same time) Town Attorney if we can get a response from the Building Department? Is there any way that they might be able to answer us if we had gone to ..... Page ~f . - Special Meeting Wednesday, April 26, 1995 Southold Town Board of Appeals TOWN ATTORNEY DOWD: What are you asking them to do? MS. : We were asking them to place a "Stop Work Order" on Cofam because of the vesting interest issue and because of the expired permit issue and for whichever one they choose or both we would like at least an answer. TOWN ATTORNEY DOWD: I'll talk to them about it. MS. : We need something in writing. TOWN ATTORNEY DOWD: But I think this will create a problem. I'm not sure if this is the appropriate avenue to pursue. It's very similar to the situation we had ( ) Partners in my mind where what they were trying to do, the Building Department had put a stop work order on it several years ago and they asked the Building Department to take off the stop work order and then they tried to appeal it to the Zoning Board of Appeals and the court ultimately held that that was inappropriate and that you can't go back to some old decision and try to resurrect it by asking for a new decision ( ). MS. : This is opposite though. This is that we believe the time has expired. TOWN ATTORNEY DOWD: I understand, it's different in that it's the opposite situation that's the same kind of thinking. I mean I'll look at it with them but I doubt that, I'm concern about this. I'll share it will them but I'm not sure it's the valid thing to do. MEMBER DINIZIO: No, it's not. MS. : Well I think, you know, we'd be delighted if he said we agreed with you and the stop work order is going on Monday. If he chooses to say we do not, the office does not agree with that decision, there will be no stop work order issued at this time, thank Page ~ - Special Meeting Wednesday, April 26, 1995 Southold Town Board of Appeals you for your correspondence we'd be happy with that; also. We want some kind of an answer. We're going from meeting to meeting after that answer. ( ), it's very frustrating. MR. CHAIRMAN: Well, we thank you all. Yes, ma'am. MS. : It's very frustrating when you're fighting four years with the same thing that you get roadblocks put in your way all the time. You think you won and then again you have to come back, again and again. This is ridiculous, (too much noise). MR. CHAIRMAN: Yes, go ahead, Mrs. Tortora wants to. MEMBER TORTORA: There were two parts to your question in the letter to the NFDC. One dealt with physically with the special exception permit and tt~s Board has answered it. The other issue was directed to the Town Board. I don't know whether you've exhausted all your remedies in that avenue. MS. : The people in the town wonder why you have to come back again, again and again for the same thing. You just don't understand the frustration of the people I guess. You don't hear about it. BOARD SECRETARY KOWALSKI: MS. : You heard about it? about it. BOARD SECRETARY KOWALSKI: the frustrations. Yes, we do. We understand. It doesn't seem like you do anything Well, we hear about it. We know MR. CHAIRMAN: I was extremely elated that McDonalds or Cofam, at the inception of the decision of December 19, 1991, did not sue us personally, alright, in an Article 78 for the drive through window which they could have probably won. I mean I was elated on that Page ~]. - Special Meeting Wednesday, April 26, 1995 Southold Town Board of Appeals respect and I know that doesn't like much to all of you but that was an issue that I was ecstatic about to be honest with you. MEMBER TORTORA: I move to adjourn. MR. CHAIRMAN: Yes, second. MEMBERS: Aye.