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TRANSCRIPT OF ZBA HEARINGS
HELD September ~, 1998
Appl. No. 4594-M. FERRARIS (Carryover from 8/13)
Appl. No. 4597-BUILDING INSPECTOR
Appl. No. 4592-K. ZACHARIADIS
Appl. No. 4599-PATRICK MORTIMER
Appl. No. 4600-ELLEN ZIMMERMAN
Appl. No. 4601-ROBERT SMITH & ANO.
Appl. No. 4602-CLIFFORD & RUTH CORNELL
Appl. No. 4603 & 4604-ARTHUR TORELL
Appl. No. 4606-THOMAS & MOIRA MASTRO
Appl. No. 4616-C. MAGGIO
Appl. No. 4607-JON SCHRIBER & JANE SCHRIBER
Appl. No. 4598-JEFF GOUBEAUD
Appl. No. 4605-PALMER VINES, L.L.C.
Appl. No. 4611-BUILDING INSPECTOR
Appl. No. 4582-ALI YUKBA$IOGLU
v 3~PPEA, LS BOARD MEMBERS
Gerard P. Goehringer, Chairman ~
James Dinizio, Jr.
Lydia A. Tortora .
Lora S. Collins
George Homing
: CEiYED AND FILED BOARD OF APPEALS
T}~ $OUTix~D iD ,~ * rOWN OF SOUTHOLD
To~x~ CSezk, Tow~°v't~°[~seeipt of Public Hearings
~- ' lSeptembee 24, 1998
~old Town Boayd of Appeals
(Prepared by Lucy FarPell from Tape Recordings)
Southold Town Hall
53095 Main Road
P.O. Box 1179
Southold, New York 11971
ZBA Fax (516) 765-9064
Telephone (516) 765-1809
6:30 P.M. - Appl. No. 4594 -M. FERRARIS (Carryover from 8/13).
A Variance is requested under Article XXIII, Section 100-231B for
proposed tennis court fencing at a height above 6-1/2 feet. 3585
Orchard Street, Orient, NY,'1000-27-2-2.10.
The hearing was reopened and attended by Mrs. Ferraris.
were no other appearances.
There
The Board concluded the hearing as to further testimony.
(See Minutes for Resolution and Vote taken.)
6:47 P.M. - Appl. No. 4597 - BUILDING DEPARTMENT, Applicant.
This is a request on a Town-Wide basis, for an INTERPRETATION
submitted by the Building Department by its Director of Code
Enforcement, asking for a Determination answering the question"
"Does Article XXV, Section 100-259 Land Clearing, apply to vacant
land in all Zoning Districts."
CHAIRMAN GOEHRINGER: We'll call on the Code Enforcement Officer
and the Executive Officer of the Building Department, Ed
Forrester. Good evening, Sir, how are you?
EDWARD FORRESTER, DIRECTOR, ENFORCEMENT: Good evening,
Mr. Chairman, Members of the Board. My request for an
interpretation before you tonight is in regard to the Planning Board
approval - prior Planning Board approval to any clear cuttingm
excavation, filling of vacant land. While the code is not
specifically - in that section of the code is specifically referred
-'to any zoning district, it may apply to all zoning districts. The
Planning Board I think likes to review things when they apply to a
commercially, commercially used piece of property. However, the
permitted uses and Special Exception this is in, are residential
zones do provide for certain commercial applications. So a vacant
parcel that's being cleared or filled without any specific permit is
P, age 2 - Hearing Tru..~scripts
September 24, 1998 - Board of Appeals
being submitted or applied for without knowing its intent we don't
whether to regulate it or not when there are certain environmental
impacts that may need to be addressed, regarding especially filling
of land, clear cutting, land drainage issues, things of that nature -
they might want to look at.
CHAIRMAN GOEHRINGER: Could we use the phrase, an A-C
Agricultural District, I don't know if you can hear me? It's
probably better now (adjusted mike).
MR. FORRESTER: I can hear you.
CHAIRMAN GOEHRINGER:
commercial, OK?
Could we use the phrase, other than
MR. FORRESTER: OK.
CHAIRMAN GOEHRINGER: Other than residential or agricultural.
In other words, there are specific things that you can do, OK, that
not necessarily are residential or agricultural in an agricultural
residential district, by special permit.
MR. FORRESTER: Correct.
CHAIRMAN GOEHRINGER: So they're not necessarily commercial but
they are something other than agricultural, OK.
MR. FORRESTER: OK.
CHAIRMAN GOEHRINGER: I have to tell you, that I discussed that
with counsel, OK, when he brought up that same particular point
and just so you understand, that these are not necessarily
commercial use.
MR. FORRESTER: Right. I read the Editor's note referring to this
section of the code, and it states the purpose, but again does not
refer to an zoning district particularly or in part of.
CHAIRMAN GOEHRINGER: OK, good. Mrs. Tortora?
MEMBER TORTORA: No. I don't have anything.
CHAIRMAN GOEHRINGER: OK, Ms. Collins?
MEMBER COLLINS: I don't have any questions for Mr. Forrester. I
think I feel comfortable that Article XXV of the Code says it applies
to every use in Town regardless of what district it's in, except for
single family home use regardless of what district it's in. And I
think that's where it comes out.
CHAIRMAN GOEHRINGER: I think what, and I'm not speaking for
you, but I think that's the key right there, alright and I think
that's where the - and I don't know if you're comfortable with that
key, but, I think that's the key.
Page 3 - Hearing Tr~scripts
September 24, 1998 - Board of Appeals
MR. FORRESTER: I'm comfortable with it. However, there's no way
of knowing on a vacant parcel what the intended use is some where
down the road, and I feel having the approval of some sort of
approval of this type of an activity on a vacant parcel -
CHAIRMAN GOEHRINGER: Or having a permit.
MR. FORRESTER: Right.
CHAIRMAN GOEHRINGER: Is the issue.
MR. FORRESTER: Correct.
CHAIRMAN GOEHRINGER: Right. Is that correct, Ms. Collins?
MEMBER TORTORA:
permit.
She's talking about use, he's talking about
MEMBER COLLINS: Yeah (interrupted).
MR. FORRESTER: When a permit doesn't apply for of course the
intent becomes clear.
CHAIRMAN GOEHRINGER: Right.
MR. FORRESTER: When this type of activity, by activity I mean by
clearing or filling on a vacant parcel with no application being made
for a single family home, the attempt is unclear.
CHAIRMAN GOEHRINGER: OK.
MEMBER COLLINS:
record.
Could I just add a point? Just to get it in the
CHAIRMAN GOEItRINGER: Sure.
MEMBER COLLINS: I think that our Section 100-253 which has
been in the code considerably longer than 100-59, pretty much says
the same thing and says it perhaps even more broadly. 100-253B
says "...no regrading, clearing.., da, da, da, may take place until
site plan has been approved by Planning Board." In fact, even
that language in the code is not clear to me why 100-259 was needed
but, I was not around for it so I don't have a view. And, I guess
what that says to me is that if somebody wants to do something that
constitutes clearing, there's a presumption he needs a site plan
unless he shows that the use is going to be single-family housing.
I think that's how I read the code. That may be harsh, but I think
that's how it reads.
MR. FORRESTER: To go towards the property owner's intent, and
the only way to be sure of that is with an application that permits a
single-family home, that it may not be forthcoming in certain cases
for many years after the clearing is done so this, this prior
approval would make it (hesitation).
Page 4 - Hearing Tra.,scripts
September 24, 1998 - Board of Appeals
CHAIRMAN GOEHRINGER: Mr. Dinizio?
MEMBER DINIZIO: Well I kind of recall it all quite vividly that it
did want something. I always thought that it was tied and more
going towards commercial. In residential zones you really can't do
anything but build a house unless you have a plan of some sort.
You know, most of the things that are especially made for residential
zones are not highly commercial. You know, like, more on
residential development (inaudible). But I think that how you, in
this code and how Lora just explained it is probably right. I
remember rushing. I could remember this law was rushed in because
of one person's lot in Town, the west end of Town, and I can recall
you know, that was a big deal. It still is a big deal. I think the
only way you really can look at this - you know if they're clearing
and it's excessive, someone is going to have to make a call on, you
know on it, and say, hey, you know, look it up and see if they
have a Building Permit number 1 for a house, you know. It was
always ambiguous because you know it could go in and rake up some
leaves here and there, go on a weekend and cut down a tree, and
you know before you know it, you've got a cleared lot with a permit
application for something else.
MR. FORRESTER: Yes. They did this real slowly.
MEMBER DINIZIO: Yeah, well, you know, you know we can avoid
it, so.
MR. FORRESTER: Well that section of code does accept that type of
activity, selective cutting, weeding, pruning, et cetera.
MEMBER DINIZIO: If you've got to select every weekend, then
you've got a problem.
MR. FORRESTER: In 52 weekends, you can get alot done.
MEMBER DINIZIO: I mean we're not getting too involved in, you
know, what brought this about. Can you kind of explain a little bit?
MR. FORRESTER: There's a couple of examples I can use. I'm
going to try and keep them as generic as possible, but we got a lot
in an other than commercial zone and the lot has remained in that
condition for hundreds of years and provides a certain amount of
drainage, run off, I imagine water recharge for the acquifer; and
the property owner maybe in anticipation of building a home, but
without application we can't be sure of the intent, fills it and
fills it to above the grade level of the street. The first
recognizable impact is the run-off and the cording of the street.
The environmental impact may not be recognizable at all to a non-
transire, and I'm not at all trained in environmental impact but if
you've got the plan that may have survived in that type of
environment that would at a higher dryer renovation, naturally we
analyzed them and where this type of run-off lead may not lead
there any longer and you get that chain reaction type of thing.
That's building. Clear-cutting of land, cutting the trees as similar
Page 5 - Hearing Tr~scripts
September 24, 1998 - Board of Appeals
parcels, same situation here, except for the grade, the tree growth
and the plant growth generally it cracks or disperses any runoff and
clear cut becomes concentrated, starts to cut drills in the soil, so
it's the direct water concentrate them on into areas leading to the
flood problem for a neighboring property or the roadways.
MEMBER DINIZIO: Well, let me ask you this. Say the person who
had that valley right where it all the water in the street was going,
you know, and he didn't want the water running on his property for
whatever reason. Is there a possibility that he couldn't just stop
that water from running on his property? Leveling it off maybe
going 2 inches higher so that, without building a berm? Is it his
right to do that?
MR. FORRESTER: If it's properly done by providing the actual
drainage on site will not create a flooding condition elsewhere.
MEMBER DINIZIO: I guess what I'm looking at, is that I think it's
more incumbent on the person who has that road that's funneling all
that water towards this man's property to disperse the water in a
way that doesn't inconvenience the property owner as opposed the
other way around. That the property owner should have to
denigrate his property for the convenience of the Town. I mean, I
mean how, I mean wouldn't the Town look at it that way? I'm just
trying to figure out what brings you to the point where you got a
guy with a gully, and he's trying to fill it in and he doesn't want
water on his property anymore - what gets you to the point where
you can tell him that he can't do that?
MR. FORRESTER: What gets me to that point?
MEMBER DINIZIO: Yes. Yes.
MR. FORRESTER: When whatever activity he undertakes to create
the hazards elsewhere or a flooding condition elsewhere or to
someone else.
MEMBER DINIZIO: Even though the water is not his of his own
making? What I'm thinking of is how to figure how you get -
MR. FORRESTER: Yes, because I guess it goes
swamp. But you wanted a mountain. I mean,
(unfinished).
to you bought a
you should have
MEMBER DINIZIO:
from his ground.
But the swamp isn't because it's bubbling up
MR. FORRESTER: In some cases.
MEMBER DINIZIO: The swamp is coming down the street. I mean
just the example that you gave me, I'm just wondering how do you
get to the point where you can tell him.
Page 6 - Hearing Tra~scripts
September 24, 1998 - Board of Appeals
MR. FORRESTER: Yes, and my point is not that it shouldn't be
done. It should be done properly. The prior approval doesn't mean
where saying no, it's just what are you doing and do it properly.
MEMBER DINIZIO: Even if he's building a house. I agree with
you. I think the interpretation has got to be that because you don't
want to flood out the road. I can understand. But again, on the
other side of that question you have to ask the property owner,
what are his rights?
MR. FORRESTER: Right.
considered to just this.
That's why it's so hard to keep it
MEMBER DINIZIO: Now, as opposed you're filling in two acres of
land as opposed to just dumping some fill on the side of the road.
MR. FORRESTER: Correct.
CHAIRMAN GOEHRINGER: You don't have any- problem though with
an individual property owner. I know like everybody in the summer
we're very busy. With a person clear cutting the area around his
house for a single family dwelling or you may not have issued the
Building Permit. Do you have a problem with that?
MR. FORRESTER: Generally, no.
CHAIRMAN GOEHRINGER: OK. I'm mean assuming there's no
wetlands. Assuming there's you know, he just wants to go in there
and cut where the house is going to be built. You don't have a
particular problem with that? I'm not trying to set you up, I'm just
trying to ask a question.
MR. FORRESTER: No, I don't have any problem with that.
CHAIRMAN GOEHRINGER: OK, right. OK. Bearing in mind that
a permit may not you know, or is forthcoming but, you know, he's
waiting for his Health Department Green Stamp and fee.
MR. FORRESTER: Yeah.
MR. FORRESTER:
approving strictly
subdivision.
Well the Planning Board does get involved in
residential development in the form of a
CHAIRMAN GOEHRINGER: Right.
MR. FORRESTER: And, and they take the clearing roadway and
drainage into account in granting that approval. That's done on a
much larger scale. It's somewhat, you know, like spot approvals,
you know, it's the individual lot that wants to create a housing
complex and, that would be fine. But what is he wanting? I think
knowing what the intent is what their desired affect is, and having
it done properly, is what the code is all about.
Page 7 - Hearing Tr~.~scripts
September 24, 1998 - Board of Appeals
CHAIRMAN GOEHRINGER: In a generic sense, what you're telling
us tonight is a bigger scale. It's bigger than an individual lot
situation. It could be several acres. It could 'be an entire forest,
sought of speak.
MR. FORRESTER: Yeah, this would be quite a - someone had made
an inquiry today regarding a single lot that's 23 acres". It's in a
residential zone. Can I clear cut it, dig a hole in it, fill it
with dirt? There should be some.
MEMBER DINIZIO: They've built one house on it.
CHAIRMAN GOEHRINGER: Yes.
MR. FORRESTER: If they build one house, right.
MEMBER DINIZIO: What I mean they could go subdivision, they
could go, they could go subdivision.
MR. FORRESTER: And they could build one house.
MEMBER DINIZIO: Right.
MEMBER COLLINS: Right.
CHAIRMAN GOEHRINGER: Yes, Ms. Collins?
MEMBER COLLINS: Just, just, I think I'm going to be asking a
question that I've already asked, but I want to have it clear in our
record. I think that the heart of the problem that you're facing is,
people who want to do something with their land in the nature of
grading, cutting, filling, and they're not prepared to say what the
use is that they have in mind. They have something in mind but
for now, it may just simply be that the land will be in better shape
if they do some work on it.
MR. FORRESTER: Or, more marketable.
MEMBER COLLINS: Or more marketable, well, yeah, and they're not
prepared to look for a site plan approval.
CHAIRMAN GOEHRINGER: Or more palatable to them.
MEMBER COLLINS: Right.
CHAIRMAN GOEHRINGER: To their particular liking.
MEMBER COLLINS: For their particular purposes and so they're not
in a position to say "what I have in mind is" whatever. They're not
in a position to say and therefore they're not in a position to go
look for site plan approval and yet the law says, that they can't do
this unless they have site plan approval. I mean that's your
problem, I think.
Page 8 - Hearing Tr~,scripts
September 24, 1998 - Board of Appeals
MR. FORRESTER: Well, that's part of the problem but I think we
need to know the ultimate end result of whether they can do it. It's
the direct result of what they are doing that needs to be -
CHAIRMAN GOEHRINGER: Addressed.
MR. FORRESTER: Addressed.
MEMBER COLLINS: OK.
MEMBER TORTORA: The way I read this 100-253, I think, 253 is
very, very clear to me. They need to apply for site plan approval,
period. Across the board. If it's anything but a residence. In
that application procedure whether it's one acre or 25 acres, then if
it is for a single family residence, that's up to them to say that to
the Planning Board. No,
MR. FORRESTER: And get that understanding.
MEMBER TORTORA: Exactly. But the purpose and the intent of
this, all of the section that I've read is to with some respect,
respect the natural vegetation, preserve it and not deep six it any
other, I, I, really think 100-253 is very clear and I don't really
have any problems with that.
MR. FORRESTER: You've raised an interesting point that has been
discussed in the theoretical nature in my departments, some one
comes in and says, "well, I'm doing this because I'm going to build a
house." You can't just go "OK" because the intent is not stated in
writing in the form of an application or permit. You could without
the Planning Boark looking at it and approving it, they could very
well say, "I did want to build a house but I got this great deal on a
winery that wants to come in." So, sometimes the clearing, the
building, et cetera (interrupted).
MEMBER TORTORA: If they changed their mind though, wouldn't
they, they would be in violation because they would of proceeded
without site plan approval. So, you would, you as the enforcement
agency of the town would take action against that. I mean you do
have -
MR. FORRESTER: Had. However, there's the cutting, grading.
MEMBER TORTORA: The damage is done.
MR. FORRESTER: The damage is done.
before alternatives.
The (
) there was a, a,
CHAIRMAN GOEHRINGER: Well, we thank you. We'll ask if
anybody else wants to address this issue in the crowd. I think
there does. Mr. Heinisch, I apologize, you're welcome to speak.
OK, there's another gentleman, I apologize, no, go ahead, go, go.
l~age 9 - Hearing Tru.,scripts
September 24, 1998 - Board of Appeals
MR. HEINISCH: My name is Bernard Heinisch. i live on 48. I
have a question on this. When there's no water runoff and it's a
single house, you know, ( ) land-
CHAIRMAN GOEHRINGER: That is correct.
MR. HEINISCH: So, Planning Board doesn't even get involved.
Now, if you are clearing a piece of property, why do you need a
Building Permit if there's no water involved on an adjoining
property? If there's no hazard condition, why do you need a
Building Permit?
CHAIRMAN GOEHRINGER:
tonight.
I think that's the issue that's before us
MR. HEINISCH: Well, do you need a Building Permit if there's no
hazardous condition that you're creating? You're land clearing,
brush, some trees.
CHAIRMAN GOEHRINGER: I think what the issue is, what is the
interpretation? Who determines that there's a hazard?
MR. HEINISCH: Well, if there's obviously no water runoff or your
land any other adjacent land or on to the road that's all absorbed on
your property. Do you need a Building Permit?
CHAIRMAN GOEHRINGER: Well that's an issue that's before us
tonight. That's the issue that's before us tonight and you forgot
one more pertinent issue and that is, if there are wetlands or some
other particular endangered species on that piece of property which
you as a, I'm not saying you in question, Mr. Heinisch, I'm saying,
as a property owner a person would want a determination of it and -
MR. HEINISCH: I understand that. Without that, I don't see the
need for a Building Permit or working more of a load on the Building
Department at the present time. I'll go a little bit further on
this. On agricultural residential property, what happens when a
farmer starts to go ahead and as an example, he could have 20 acres
and he could have an area that he's never planted in, he's now
going to go ahead and clear that land. He never needed a Building
Permit. Why must he get a Building Permit? I know that the
question is there, but, somewhere along the line determination
should be made when, under what conditions? Anyone can have a
piece of property in residential agricultural with a house on it and
cut down some various shrubs and trees or garden with no water
runoff without creating any hazardous condition, why should he get
a Building Permit?
MEMBER COLLINS.' Mr. Heinisch, I just want to break in and say
you are repeatedly using the term Building Permit. We are not
talking about Building Permits here tonight. We're talking about a
section in our code which says, you shan't clear land, grade it, fill
it and several other things without having site plan approval. Site
plan approval is something the Planning Board does. Look at what
Page 10 - Hearing ~f~anscripts
September 24, 1998 - Board of Appeals
you have in mind for the property. It's a process that it applied in
this town to every undertaking except building a single family
house. I mean they can waive the process but, the legal
requirement is there. That's what we're talking about. The
Building Department wants to know if that provision in our code in
fact applies to anything that somebody wants to do with his land in
a residential zone and it's a question of how the code reads. We are
not talking Building Permits although they are part of the picture.
MR. HEINISCH: But, you don't go for site plan approval.
MEMBER COLLINS: People don't. That seems to be the problem.
MR. HEINISCH: There's no need for it.
MEMBER COLLINS: Well the code says they need it.
MEMBER DINIZIO: Well I agree with you 100% and I think she's a
little further ahead than you are. In that you are right at the
beginning of ( ). I'm just raking my property and you're coming
to now, what makes the Building Inspector come down and tell me I
can't do this, OK. She's to the point we're trying to build
something and -
MEMBER COLLINS: No, we're just cutting down trees.
MEMBER DINIZIO: And or law is like very restrictive in that it was
made. I have my own personal opinion of how all the people are
involved in this. But, the law says, you can't do any clearance.
You can't do any filling. But, the town knows, and I was trying to
ask the Building Inspector, how does he get to that point? What
triggered the fact? And, I think you want to know that too. What
triggers the fact that he is involved in something that may not be
legal in the town? No-one knows and unless you apply for a
Building Permit no-one wants to know what would happen until after
you know. Even the water that comes off your land, if you're
stopping the water from the street coming out of your land, you
have every right to do that and the town is responsible for that,
whoever, or whoever. The opposite would be true. You filled your
land, you made a mountain.
MR. HEINISCH: I agree there, but, the only time you go for site
plan approval to my knowledge, is when a commercial building.
MEMBER DINIZIO: Exactly right.
MR. HEINISCH: And it lays it out in the code.
MEMBER COLLINS: That's not what the que.
by the Building Department -
We have been asked
MR. HEINISH: I understand -
Page 11 - Hearing T~nscripts
September 24, 1998 - Board of Appeals
MEMBER COLLINS: To help him understand a section of the code
that says something different from what you just said. It says in
effect, if you want to clear some land you need a site plan approval
even if you're not planning to lout a winery or a whatever. That's
the problem.
MR. HEINISH: OK, thank you.
CHAIRMAN GOEItRINGER: Sir, in the back. Thank you for your
courtesy before. Just state your name for the record please.
BRUCE MCDONALD: My name is Bruce McDonald. I guess I'm
having a real hard time understanding what's going on specifically
and I look and maybe it's part of ignorance of not understanding
how all the code works in areas. But, I look at Section 100-250
applicability. It states very clearly every land use that's
permitted in the Town of Southold except single family home use on
single and separate lot as set forth in Article 2 by the way, and
customary non agricultural use to a single residential home, a
residential home use as stated in the Town Code. I don't see how
there could be any misunderstanding about that. Right from the
very beginning it tells you very specifically that exempted is
residential, single family residential lot.
CHAIRMAN GOEHRINGER: Because there has been a practice and I
assume that's the reason why, OK. And, sometimes past practices
are sometimes difficult to change.
MR. McDONALD: What practice?
CHAIRMAN GOEHRINGER: I assume the right that a person thinks
that he or she has the right to clear vast areas of their land
without a permit.
MR. McDONALD: Absolutely they are ( ), according to this. I
mean there's, there can be, I mean it says, black and white, there's
anything can be. I mean, I don't see how there can be any
question on whether or not a single family home is exempt from this
or not. And, it clearly is. But what you're going to get, you
know, I mean, you're going to make your decision whatever you
want, but, I think you're getting into and need to understand this I
think from a single family residential lot owner. That what you're
doing is, every time somebody brings in a wheel barrel in effect,
you're saying, site plan would be for residential piece of property.
That absurd, -
MEMBER COLLINS: How did we get to that?
MEMBER TORTORA:
tangerines.
No, I think We're going from oranges to
MR. McDONALD: Well, yeah, we got off oranges when we started
talking about the applicability of residential lots under this would
clearly residential lots are exempt from it. I mean, there can be
Page 12 - Hearing ~f.~nscripts
September 24, 1998 - Board of Appeals
no, I mean can anyone take exception with that word under
applicability? The rest of the section is just pealed off from
there. But, right from the very beginning, it tells you,
what is applicable and what isn't.
CHAIRMAN GOEHRINGER: Right.
MR. McDONALD: So, my argument is -
MEMBER DINIZIO: Here, here's the thing. That and I don't
necessarily agree with this. A man could be clearing his land, his
residential lot which happens to be 26 acres, right, he could be
clearing that and the Building Inspector said to him, what are you
going to do? And, if he doesn't drive by and say, I'm building a
house, right, and then he's in violation of the law because
everything else is involved with site plan.
MR. McDONALD: OK, let's go to, you're dealing with a 26 acre.
MEMBER DINIZIO: Well I'm just saying something you can see.
MR. McDONALD: No, first let's go to the other end inspected.
What about the acre and a half parcel that's in an R-40 Zone? I
mean there's a single family home use. Why should they be
applicable for any part of a site plan under any regulation?
CHAIRMAN GOEHRINGER: They're not.
MEMBER COLLINS: Nobody here has anything about ( ).
MR. McDONALD: I hate to say this, but sitting back here it doesn't
sound like that. It sounds to me like what you're saying is, any
clearing, any filling, any grading, and I, I, you know what we're
talking about one of my lots. One of the things that Mr. Forrester
talked about is my lot. I've got an acre and a half lot up on
Soundview Avenue and corner of Park Road. It's been in the family
for ages. Dry as a bone when I was a kid. We played on that as
little kids, had a porch and ( ) stuff in there, bone dry in it's
infinite wisdom, the town decided to put a drain on the west side of
Park Road to the east side of Park Road, and guess where to? A
piece of my lot. Drained all of the water from that side of the
road. That might resolve the problem the people were having on that
side, but, guess whose problem it becomes? Now, all of a sudden
it's wet and the history behind it is first I got a citation from the
Trustees. They said, you can't build, that's wetland. I went and
sat down with the Trustees here one day and I said show me where
it's on wetlands now. Show me where you have any enforcement
capability to this piece of property. They couldn't. They rescinded
their citation or Whatever their stop work or whatever it was.
Then, low and behold, a little while later, I get a notification from
Mr. Forrester that I can't do it because I don't have a site plan.
And, it's clearly that somebody doesn't want that lot filled in.
Well, guess what? It's my lot, I have the right to fill it. There's
no regulation that says I can't.
l~age 13 - Hearing T~nscripts
September 24, 1998 - Board of Appeals
MEMBER TORTORA: Mr. McDonald, I think, I've been taking some
notes. From what I heard and correct me if I'm wrong, I think that
I and from what Ms. Collins says, I'm in agreement with the
statement, that 100 or 253 applied to all usage except single family
residence.
MR. McDONALD: OK, but isn't that the crux of this whole
meeting?
MEMBER DINIZIO: Yes, we haven't gotten to that point.
MEMBER TORTORA: We're not disagreeing.
MR. McDONALD: Well it sounded like it. I've got to tell you that's
not what it sounds like sitting back here.
MEMBER DINIZIO: We can't just make that decision though unless
we somehow define why, how this gentleman determined whether or
not he's going to build a house there.
MR. McDONALD: And I shouldn't have to determine that to fill it in.
MEMBER COLLINS: That's the problem. We've identified the
problem.
MEMBER DINIZIO: Well, I think an interpretation. You know we
need to discuss this. I hope that, you know, we learn from you.
MR. McDONALD:
some more ( ).
I have, I got more comment.
Let me give you
CHAIRMAN GOEHRINGER: But we have to get going on this please.
MR. McDONALD: Excuse me.
CHAIRMAN GOEHRINGER: I have to move this hearing along Sir.
Most people are restricted to five minutes. I'm restricting you now
to five minutes, continue.
MR. McDONALD: The issue before of drainage and runoff and
recharge above grade level, you know, I just can't produce
something that floods out a road, that's not right. And, there
ought to be remedies. I'm sure there is remedies. Whether the town
knows how to deal with something like that. But, to my way of
thinking it doesn't tie baek into this and if you're, if I'm reading
it the same way you are then, I guess I won't have a problem~ with
it. Anything you do as long as the residential ( ) exempted.
CHAIRMAN GOEHRINGER: Can I just ask one quick question? Did
you at all discuss this with the Highway Department and ask them to
put a drain in there or whatever the case may be?
MR. McDONALD: No.
Page 14 - Hearing ~f~nscripts
September 24, 1998 - Board of Appeals
CHAIRMAN GOEHRINGER: Why not?
MR. McDONALD: Ask them to drain it? They just did it.
CHAIRMAN GOEHRINGER: No, no, no. I'm talking a storm drain as
oppose to a culvert which is draining on to your property. Did you
ask the Highway Department to funnel this water into a storm drain
rather than directly on to your property which is what I'm
understanding?
MR. McDONALD: No, no, but, and I give you another example of
what the town has done to make it wet. Slightly west of my house,
or west of that piece of property there was a gully in the road. As
far as I can remember it floods out when it rains heavy. What they
do, is they set up a pump in there and guess where they pump the
water? Into my lot. You know, it just, you know, and then
suddenly to say, well it's wet and where it's going to drain into the
( ) now you don't understand all of this stuff but where it's going
to come and where it's going this is all, what if it was placed there
by the town and all of a sudden you tell me I can't fill it in
because you've made a swamp. This just doesn't make any sense.
CHAIRMAN GOEHRINGER:
Yes, Mr. Forrester.
Thank you. Anybody else like to speak?
MR. FORRESTER: Can I just make one more point.
CHAIRMAN GOEHRINGER: Yes.
MR. FORRESTER: Mr. McDonald made a point about 100-250 and
the applicability of that section of the code and it states quite
clear, ly that it does not apply to single family home use, residential
use. In the absence of a building permit, or a home structure in
the intent of the use of the property still remains a mystery. I
just wanted to make that clear.
CHAIRMAN GOEHRINGER: Thank you. Anybody else?
hands, making no further comments, yes, Mr. McDonald?
Seeing no
MR. McDONALD: I still don't, in rebuttal to that. I still don't
think that's what it says. It says, except the single family home
use. That doesn't mean a single family home. That's single family
home use on a single and separate lot as set forth. It's got nothing
to do whether it has a house on it or not.
CHAIRMAN GOEHRINGER: OK.
MEMBER DINIZIO: Can I ask a question of the Building Inspector?
CHAIRMAN GOEHRINGER: Of the Building Inspector?
MEMBER DINIZIO: I just want -
CHAIRMAN GOEHRINGER: I just want to wrap this up.
Page ]5 - Hearing ~i~.~nscripts
September 24, 1998 - Board of Appeals
MEMBER DINIZIO: I understand your dilemma, believe me and I'm
still trying to figure how you're going to come to the realization of
determining whether a house is going to be built or not. What in our
code says that you have a right to ask for that determination, I
guess. You don't.
MR. FORRESTER: I don't. There is no mechanism,
mechanism that exists in the code is a building permit.
of intent is not recognized and none of that.
the only
The letter
MEMBER DINIZIO: But, you can't require a building permit from
someone whose clearing their land.
MR. FORRESTER: Absolutely not. I don't want to in fact. I think
the code may goes towards the approval of what's being done taking
into account any possibility. I don't know what Planning Board of
this type of operation would entail and typically it does take into
account drainage and traffic and that type of thing.
MEMBER DINIZIO: I mean specifically we're not talking about
Planning Board approval here or site plan. We're talking about
anything with respect to a lot ( ).
MR. FORRESTER: This type of a ( ) reaction. You have a home,
a permitted home and you clear cut, ( ) and it creates a flood in
the man's basement. That's a civil action. You did something that
caused damage to his property, the town is not really involved
here. He's ( ) for the damage to ( ) because of what he's done.
Of course he has to prove it, ( ). I mean that's in civil law, that
type of thing.
MEMBER DINIZIO:
did wrong?
Right, but doesn't that apply also when the town
MR. FORRESTER: If the town was to do something that would cause
damage to your property I'm assuming there'd be some liability there.
That's ( ) simply the Planning Board's approval of this type of
operation, I need to have ( ) required by the ( ) by the section
of the code.
MEMBER DINIZlO: We just need to come to some determination.
CHAIRMAN GOEHRINGER: Right, thank you.
Mr. Boyd how are you tonight?
Again hearing, yes,
MR. BOYD: I'm fine Mr. Chairman. I did not mean to wade into
this but having heard the discussion, it seems very obvious, absent
evidence to the contrary, the Building Department is bound by the
presumption that a lot that exists single separate ownership in a
residential area is going to be used for residential purposes and
none of these requirements without further Planning Board approvals
and such would be effective. If they have some evidence that is
going to be used is something else, then perhaps they have a way to
go on. But, without that evidence, nothing.
Page 16 - Hearing T~nscripts
September 24, 1998 - Board of Appeals
MEMBER DINIZIO: Can I ask you a questions? I'll take advantage of
( ). That would mean any other use that is permitted on that lot
requires some special permit or some application to us that absent
that the presumption is that the house is being built. Is that ( ).
MR. BOYD: That would be my way of looking at it. Absent some
evidence that the property is going to be used for other and single
family residence you must build a presumption that it's going to be
used according to the zone it sits in.
MEMBER DINIZIO: OK.
MEMBER TORTORA: That's an interesting observation. One of the
problems could arise that so much of land in Southold is residential
( ) when you have a duel ( ) and then I love to hear your comment
on that.
MR. BOYD: Absolutely ( ) and the one thing that we haven't
taken into consideration, is that plans change, people do different
things, and a person may very well clear cut the land planning to
build a single family house and certain statutes change, their
thoughts change, something like that, are they then in violation
because they didn't come before the Planning Board to get approval
for site plan? No, their intent at the time they did the clear
cutting was perfectly straight forward. I throw that out as a
question to you. I don't know the answer.
CHAIRMAN GOEHRINGER: I'm not sure we do either. Thank you
counsel. Again, hearing no further comment I'll make a motion
closing the hearing, reserving decision until later.
MEMBER TORTORA: Second.
Motion carried. See Minutes for Resolution.
Page 17 - Hearing T~nscripts
September 24, 1998 - Board of Appeals
7:22 P.M. - Appl. No. 4592 - K. ZACHARIADIS
This is a request for Variances (a) under Article XXIV, Section
100-244B for a building permit authorizing the "as built"
construction of a deck addition at a minimum setback of less than 50
feet from the front property line, and (b) under Article III, Section
100-33 for permission to locate accessory swimming pool in an area
located partly in the side yard, at 1697 Little Neck Road,
Cutchogue, N.Y; Parcel 1000-103-5-2.2. Lot size: 40,604 sq. ft.
CHAIRMAN GOEHRINGER:
would you like to tell us.
first.
Norman how are you tonight. What
Would you state your name for the record
MR. ZACHARIADIS:
the property.
My name is Mr. Zachariadis.
I'm the owner of
CHAIRMAN GOEHRINGER: How do you do Sir?
MR. VOLIANO: My name is Ed Voliano. I own Pooltastie Pool Works,
I'm the builder of the pool.
CHAIRMAN GOEHRINGER: Wonderful, great. What would you like
to do? What would you like to tell us? You want to talk?
MR. VOLIANO: No, I was just (.) Mr. Zachariadis.
CHAIRMAN GOEHRINGER: OK, we have an existing deck which we
had seen when we were there and we do not have a swimming pool at
this location as of tonight, right? You are asking for permission to
build one, OK. Is there any particular reason you chose to go only
10 feet off the property line?
MR. ZACHARIADIS: I would like to save as much of the property
as I could. If I put 'the swimming pool behind the garage, it would
take my whole property away. I have three kids and I would like
them to be able to play there. When we first met with the gentleman
that he would build the pool. You know, we're ( ) and we
decided, actually it was his idea and I agreed, that the best place
for the pool would be next to the gate.
CHAIRMAN GOEHRINGER:
questions ?
OK, we'll start with Mr. Dinizio. Any
MEMBER DINIZIO: I have no questions.
CHAIRMAN GOEHRINGER: Ms. Collins?
MEMBER COLLINS: When was the deck built?
MR. ZACHARIADIS: It was built almost a year and a half ago.
MEMBER COLLINS: And the issue of the deck setback has come up
really only because you're looking to get a permit for your pool
Page 18 - Hearing ~i.~nscripts
September 24, 1998 - Board of Appeals
otherwise the deck would have been there and nobody would of
noticed it.
MR. ZACHARIADIS: Honestly I had no idea that I needed the
permit to build a deck because if was 38 feet from the fence and I
thought I only needed 10 feet from the fence.
CHAIRMAN GOEHRINGER: Well you knew you needed a permit but
you didn't know you would have been in violation of the zoning
ordinance.
MR. ZACHARIADIS: Yes. And, when I asked the inspector to come
down, the inspector told me that I was ( ) and I needed also a
permit for the deck.
MEMBER COLLINS: A further question,' Mr. Chairman.
CHAIRMAN GOEHRINGER: Sure.
MEMBER COLLINS: The property line that is in question here is the
line between your property and the right-of-way which obviously, I
say obviously, I assume was part of the layout of street plan when
the area was originally subdivided and it would seem to me that
although that right-of-way, obviously not used at this point that the
potential exist for it, turn into a real street if one of these days
people found that they wanted to buy lots, buy undeveloped lots.
Is that how you think of the right-of-way? Do you consider it a
potential street next to your property?
MR. ZACHARIADIS: A very good point. The gentleman that owns
that house right next to me, he is the one that he built both of the
houses. My house that I own for 16 years, his house and he also
owns the rest of the property. He owns 6-7 acres there. He cut
( ). He didn't even know that there was a right-of-way
there. I mean I'm there for 16 years, I had no idea there was a
right-of-way and we have if I may -
CHAIRMAN GOEHRINGER: Sure, you could.
(Board Members looked at drawing.).
CHAIRMAN GOEHRINGER: 38. OK, Mrs. Tortora?
MEMBER TORTORA: No.
CHAIRMAN GOEHRINGER: Mr. Homing?
MEMBER HORNING: Nothing at this time.
CHAIRMAN GOEHRINGER: The deck is to remain unenclosed, open
the way it is? Basically detached from the deck, right?
MR. ZACHARIADIS: It will be off the deck that is there now and
that there'll be a 5 foot brick patio that will go toward ( )
Page ]9 - Hearing T~nscripts
September 24, ]998 - Board of Appeals
CHAIRMAN GOEHRINGER:
circumference of the pool?
And that patio will go around the
MR. ZACHARIADIS: Yes, according to the survey.
CHAIRMAN GOEHRINGER: The survey, OK.
any screening against that right-of-way are?
Are you planning on
MR. ZACHARIADIS: No.
CHAIRMAN GOEHRINGER: No, OK, we'll see what developes
throughout the hearing. Is there anybody else would like to speak in
favor of this application? Anybody like to speak against the
application? Hearing no further comments, I'll close the hearing
reserving decision until later.
MR. ZACHARIADIS: Thank you.
CHAIRMAN GOEHRINGER: Thank you Sir. All in favor?
Motion carried. See Minutes for Resolution.
Page 20 - Hearing ~nscripts
September 24, 1998 - Board of Appeals
7:28 P. M. - Appl. No. 4599 - PATRICK MORTIMER This is a
request for a Variance under Article XXIII, Section 100-239-4B for:
(a) a Building Permit authorizing construction of an "as built" shed
and (b) permission to locate proposed deck, all at a setback of less
than 75 feet from the bulkhead at 3895 Paradise Point Road,
Southold, N.Y.; Parcel 1000-81-1-8; a/k/a Lot #10 on the Paradise
Point, Section 1, Subdivision Map.
CHAIRMAN GOEHRINGER: I have one letter here from Peter A.
Cooper and I have a copy of a survey indicating a raise area in pen
and an outline in pen of a wood deck and I have a copy of the
Suffolk County Tax Map indicating this and surrounding properties
in the area.
Yes, Bruce.
MR. ANDERSON: Bruce Anderson, Suffolk Environmental Consultant
for Patrick Mortimer. And I have an Affidavit of Mailing.
CHAIRMAN GOEHRINGER: Right, thank you.
MR. ANDERSON: Request as stated, Mr. Mortimer is seeking to
construct a wood deck adjacent to the rear of his property facing
the water and also to get an approval for an "as built" shed placed
on the lot next to an existing wood deck on the property. This
property is a lot that was created as part of subdivision Paradise
Point, Subdivision Section l, that was the map which was filed on
April 11, 1963. The lot property now is currently built R-80, the
plot is about 20,000 sq. ft. in size. The lot depth is less than the
required 250 sq. ft. and therefore what we ( ) preexisting ( ) lot
with respect to the current zoning ( ). The deck proposed is
approximately ll0 sq. ft., the shed is a simple 10 x 12 wood shed.
The property contains a swimming pool with surrounding wood deck
and obviously a single family dwelling with all COs. The dwelling
itself, was built pursuant to a Building Permit in 1966 and its
location is also less than 75 feet from the bulkhead. The a, what
we're dealing here is a preexisting nonconforming parcel with a
house built on it that doesn't need that bulkhead setback, and it is
due to the location of the house relative to that bulkhead and any
depth that would be attached there to create what we would say
practical hardship ( ) Zoning Board will weigh the detriment to
this applicant and will apply the rule to practical hardship and (
). The substantial vary acres from the requirement in our view is
not an issue meaning that it's not substantial to the location of the
house relative to that bulkhead. The house is approximately 52 feet
from that bulkhead where as the deck as proposed and the shed will
be 48 feet from that bulk. We're talking about a very minor
encroachment. We're talking about a rear deck which is very
common in the area. Most people who own waterfront homes have
rear decks that face the water. And, the reason for that is
obvious and I know this Board has seen over hundreds of
applications and a similar nature. I know from my own experience
that we applied for a variance and that was for the Anderson home
in Calves Neck and that was granted. The primary reason being
that it was due to the location of the house, relative to the
Page 21 - Hearing T~nscripts
September 24, 1998 - Board of Appeals
bulkhead, ( ) kind of wish it was built ( ) prior to the enactment
of this law that created that hardship. This law, this portion of
the code that we talk about really came on to the book initially in
1985 and that substantially that's 2~. years after that existing house
was built. That house at that point would have been, nonconforming
with respect to that requirement. We know that if the variance is
granted will not have an adverse affect on the physical environment
condition of the neighborhood district in a standpoint, I don't think
we're dealing with a environmental issue. We have a house, a deck
and a shed that is placed well above would hold a 10 foot parcel and
therefore is not subject to wetlands regulations prescribed by New
York State ( ). The fact thai it's not subject to those regulations
tells us right off the bat that there is no showing, that there is an
environmental danger such as the deck and the shed. Also,
included as part of your file is the Trustee's Permit that was
granted for that and the Trustees would weigh the environmental
adverse environmental effect in granting that permit by virtue by
granting that permit turning to this Board that there is no
environmental harm associated with it. To submit that the variance
if granted will not cause undesirable change to the character of the
neighborhood or even the detriment to the nearby property on which
the ( ). This property is where this is proposed is really not in
view of any ( ) in the area. The properties on either side of this
particular property are vacant and most of the available viewing if
you will, will be from the road since they're on the seaward side of
the house away from the road. Clearly the deck and a is out of
view and to the extent that the shed is in view we don't believe it
causes any importance undesirable change in the character of the
neighborhood. Of course sheds are not uncommon in this or any
other neighborhood in this town. Because of the location of the
house relative to the deck, I mean the house relative to the
bulkhead, there is no potential of constructing a deck upon the
bulkhead side. Any construction require a release from this Board
to the house itself is closer to 75 feet from the, from the bulkhead
and because the house was built subject to a Building Permit because
the lot was created subject to Planning Board approval and all these
events heard occurred prior to ( ) pre section there can be no
question that this difficulty, this difficulty was not self created.
For those of you who haven't seen the property I'll just hand you
up a series of photos that show the house. You'll notice some wood
( ) below the cores, the siding doors and that's where the deck is
to be attached and of course the shed is in plain view. Now, that's
taken from the bulkhead facing the house. If one looks in the other
direction out to where the pool is, you'd see what you merely have
is equivalent from the property to the deed is vacant. I'm sorry, (
) and finally the property on the other side of the deck is, vacant
and the property next to that is basically bulkhead. I do a lot of
work in different towns and this is kind of an interesting zoning
description for it because most of the time Zoning Boards determines
rear yard setbacks and setback relative to bulkhead or something
that is usually not a zoning question. It's usually more of a
environmental question and I thought why that might be. The only
thing that I could surmise was that perhaps it would be the
development with the building of a house substantially closer to the
Page 22 - Hearing T~nscripts
September 24, 1998 - Board of Appeals
bulkhead than to have an adjoining property that might block one's
view. I just put together a small schematic here to demonstrate how
this property is unique relative to what I think was the purpose of
putting this law into the books in the first place. The tax, you
have a tax map blowup ( ) you know who owns the property that
we speak of. You'll see the property is, is not as deep as any of
the adjacent surrounding properties and the reason for that had to
do with the bend in the road. It shows ( ). Below it you'll see a
standard situation where you have lots that simply wide enough
along the bulkhead line that's straight and you can see on the
diagram below that a house placed substantially seaward up to an
adjacent house at least blocks someone's view and I, I, the only
thing I can figure is that's why that law was put into the books.
But, if you look at the fact, that we're sought of the, of the radius
of a curve of basin, you see that that type of effect cannot result
from the construction on this property and construction has ever
been proposed there. So, feeling as though we've met our burden
to show why we require the variance and we hope you'll grant it.
I'm here to answer any questions that you might have or anyone else
might have relative to this proposal.
CHAIRMAN GOEHRINGER:
This proposed deck is an open deck, is that correct?
MR. ANDERSON: That's correct.
CHAIRMAN GOEHRINGER: OK, and what is the actual depth of the
deck? In other words, how wide is it at its widest point?
MR. ANDERSON: The depth is 14 feet wide.
MEMBER TORTORA:
ft. by 51 ft.
The Trustees from that was a 10 ft. deck. 10
MR. ANDERSON:
different point.
( ).
Well all I suggest is maybe they made it from a
It's ( ). What you're applied to ( ) 14 foot
MEMBER TORTORA:
that correct?
OK, so the deck is 14 x 51.
Not 10 x 51, is
MR. ANDERSON:
point.
Well it depends where you measure at it's widest
MEMBER TORTORA: You had said earlier this is so confusing. You
said earlier, the house is 53 feet from the bulkhead now. But, if the
deck is 14 feet wide are you taking part of the house out?
MR. ANDERSON: No, if you look at the survey, you see that the
house is actually, it's not square to the bulkhead, it's actually
turned and then there's a wing of that house that ( ) the distance
that I have ( ) to preserve the property.
MEMBER DINIZIO: You're actually requesting 6 feet? Max?
Page 23 - Hearing T~nscripts
September 24, 1998 - Board of Appeals
MR. ANDERSON: Well in reading the Notice of DisapprOval it speaks
for the entire deck. .
MEMBER DINIZlO: No, what I'm saying is as far, how close are you
going to come to the bulkhead? Are you coming 6 feet closer than
you, than you exist right now.
MR. ANDERSON: Less, less.
MEMBER DINIZIO: Well you said 52.
MR. ANDERSON: 52, 48 ( ).
MEMBER COLLINS: That's comparing the closest point on the deck
to the closest point on the piece of property?
MEMBER DINIZIO: Right, the 48 -
MR. ANDERSON: That's right.
MEMBER COLLINS: Back to the deck, you mentioned which is
certainly clear when I went down there, the firing is in, I presume
ready to go to build the deck. Has there been anything there?
MR. ANDERSON: There was a small a, it looks like ( ) that stack
of fieldstone. I actually have a picture of it here somewhere. I
believe that was submitted. It is in your file somewhere. But, it
was landscaping lots and stacked up and that was it.
MEMBER COLLINS: There was nothing that was -
MR. ANDERSON: 2 or 3 feet if you will -
MEMBER COLLINS: There was nothing structurally attached to the
house?
MR. ANDERSON: No.
CHAIRMAN GOEHRINGER: OK, everybody seemed to jump in. We
were going to start with Mr. Homing first. Mr. Homing any
questions of this gentleman?
MEMBER HORNING: The intent of building the deck is what as you
would described it.
MR. ANDERSON: It's to take advantage of the property ( )
recreational labor to keep it open. Outdoor space is concentrated at
the .~
MR. HORNING: What I'm suggesting is that being attached to the
back of the house is important to the partaking of a view that your
client wants?
MR. ANDERSON: Absolutely.
Page 24 - Hearing T~scripts
September 24, 1998 - Board of Appeals
MR. HORNING: So, if it was placed
could not accomplish that goal.
in front of the house you
MR. ANDERSON: Absolutely. Also, the interior of the pool plan
wouldn't ( ) itself depth ( ) if we were also ( ).
CHAIRMAN GOEHRINGER: You also need a front yard variance.
Mrs. Tortora?
MEMBER TORTORA: No.
CHAIRMAN GOEttRINGER: OK, the question I have is what is the
elevation of the deck above grade at the 14 foot mark to your
knowledge?
MR. ANDERSON: About, about 3-4 feet.
CHAIRMAN GOEHRINGER: OK, I have one other question I have to
deal with on the Trustee's Permit, but, we'll go back. Ms. Collins
anything else?
MEMBER COLLINS: That I, the answer to that question I assume
reflects the fact that the land slopes fairly sharply?
MR. ANDERSON: Correct.
CHAIRMAN GOEHRINGER: Mr. Dinizio?
MEMBER DINIZIO: And I would assume that's the reason why you
don't want to put the patio?
MR. ANDERSON: Correct.
CHAIRMAN GOEHRINGER: Somewhere along the line Bruce, you've
got to clear up this Trustee's Permit. We can do that in one of two
ways. You can a, we can recess the hearing and you can deal with
that aspect or you can change the application to 10 feet. But, it
appears that the Trustee's Permit is exactly as Mrs. Tortora had
mentioned l0 x 51.
MR. ANDERSON: Well the, I would, we really have two levels of
control here and I'tn not ( ) the Trustee's Permit. I do not have
direct knowledge of it but a Trustee ( ) seem to me, does not
require ( ). So, it would be my preference if the Board grant the
relief requested even if we have to return to the Trustees to amend
that permit. If we get it fine, if we don't then we simply won't
have it. But, I do think that that would preclude this Board to
move it forward.
CHAIRMAN GOEHRINGER: I don't know if they'll go, but, we'll talk
about that, OK, thank you. Is there anybody else like to speak in
favor of this application? Yes Sir, in the back. Kindly come up
and state your name. How do you do?
Page 25 - Hearing Ti~nscripts
September 24, 1998 - Board of Appeals
MR. CURCURU: My name is Ed Curcuru. I'm a member of the
Paradise Point Association and also President of the Association and
am sort of duel of chain in command and so, we have an internal
building committee that gets sites and building plans and approvals
and disapprovals as they apply. The Board of Directors do not do
that and promulgate that to a committee. The Building Committee
has concur with the granting of the title, permit granting of the
shed and also for the deck. The only issue is how far away does
the Board want ( )? I've had two other statements from neighbors
who concur.
CHAIRMAN GOEHRINGER:
concur?
What about Mr. Cooper who doesn't
MR. CURCURU: He's not here is he? ( ).
SECRETARY KOWALSKI: No.
CHAIRMAN GOEHRINGER: No, my question to you is, where does
he live in respect to the property?
MR. CURCURU: He lives probably about 300 feet off the road, (
CHAIRMAN GOEHRINGER: OK, thank you, thank you Mr.
Curcuru. Anybody else like to speak in favor? Is there anybody
like to speak against this application? Counsel how are you again
tonight, Mr. Boyd?
MR. BOYD: Very well, thank you Mr. Chairman. Members of the
Board, my name is Ed Boyd, I am the owner of the property ( ) to
the west to the opposite. Before I begin, I would like to preface my
remarks with the feeling of sympathy or ( ) for the applicant
before you. I believe that he and his family has been subjected to
come bad advise, other from the real estate broker, attorneys or
consultants just to what they can do with this property.
I have lived in the area for a period of time in access of ( )
years. I'm well acquainted with how the house was built, when it
was built, the subdivision of the lot. The bulkhead of course was
built after the house. The first owners, the people who built the
house, put together a modest structure in keeping in the size of the
lot. The second owners people by the name of Nadell, did some
substantial improvements, a number of them necessitated by the fact
that they had a terrific flood on the inside of the house caused by a
broken pipe which resulted in many, many, many thousand of dollars
worth of damage and required a redoing of the structure. The third
owners, people by the name of Mizella who I believe this Board is
well familiar decided to utilize the structure as a starting point
for complete coverage of the lot with as many different things that
they could get. They added a swimming pool, they've got fences on
both sides of the property, they have additional fence parallel to
the road. I believe part of the fence parallel to the road is
actually on property that is owned by Paradise Point Association.
They have had ( ) by the house itself parallel to the road. The
patio around the swimming pool comes right up to the property line.
Page 26 - Hearing T~nscripts
September 24, 1998 - Board of Appeals
The shed was built which is subject to part of our discussion
tonight. I don't have any idea how many of these various things
that received the blessing of the Building Department or the other
Boards that are required. The patio, the screen porch which sits
on the easterly side of this property was enclosed and turned into
an additional living space in the house.' We now have a complication
to have a deck for the house, a deck whieh is going to be much
closer to the bulkhead line to the property line that is required.
Having lived in the area for a while I can tell you that in the
summer mosquitoes there are ferocious. I don't think it takes a
great deal of effort to see what's going to happen next. You've got
an open deck although we can't use the open deck because the
mosquitoes are so bad. So, now we have to enclose the deck.
We've got to put screens on it. Onee we have screens and roof on
it, that's a pretty simple matter to change the screens and to glass
and some sort and we've got an additional room. That the lot
coverage in this particular place ( ) great piece, after piece,
after piece. If this Board would give me assurance that when I
build on my lot, I can build 47 feet on my bulkhead I'm happy to
walk away right now. I don't feel I'm going to get that assuranee
and without it, I think the only thing we can do is to demand that
we stay with the code. The code was put in for a very good reason
and I would eertainly be direetly affected by the addition of this
deck. I would be able to see it and what I build on my lot. I don't
want to do that. Thank you.
CHAIRMAN GOEHRINGER: Just a minute Judge. Standing in front
of the property you own the property to the left which is tax
number what #7?
MR. BOYD:
the road?
I would own the property to the, if I stay standing on
CHAIRMAN GOEHRINGER:
property.
Standing on the road in front of the
MR. BOYD: I own the property to the left, that's correct.
CHAIRMAN GOEHRINGER: Thank you Sir. Anybody else like to
speak against this application? Mr. Anderson anything in rebuttal,
quickly?
MR. ANDERSON: Yes. First of all this a, the house has a CO, the
pool, inground pool with fence enclosure and deck in addition to one
family dwelling as applied for the CO, Z23834, the blessings are
there. The issue of the patio is my understanding is not something
that would concern this Board because it's not something that's
subject to your ordinance. The issue of depth is clearly over the
line. But again, that's not something that we're here to talk
about. As far as the mosquitoes, it seems to me the ( ) would
proceed to that route and as far as any enclosure of the deck, it
seems to me that that subject to a Building Permit and when that
happens we come back before you. I don't know, you know, sure we
wouldn't have any objection to Mr. Boyd building a house 48 feet
Page 27 - Hearing T~.~scripts
September 24, 1998 - Board of Appeals
from a bulkhead but, quite honestly, I don't know if the Board can
regulate us face, you know, on that kind of circumstance. I
thought I had demonstrated that this property was fairly unique.
As far as it practical hardship is arrived at by the fact that the
house was built prior to this prescription coming into effect.
But, I don't see that as an issue. As far as coverage and all of
those other things, Building Permit was submitted and Notice of
Disapproval came back and the Notice of Disapproval told us only the
problem with this is it's too close to the bulkhead. I can
understand that the Board desired not to ( ), it makes sense. I
could suggest that perhaps a few answers ( ), and I don't think
that's an unreasonable condition to be adequately ( ). But, I
haven't heard anything that would ( ) me to ( ). And, I point
out that the association appears to be support of the deck. It
represents the ( ).
CHAIRMAN GOEHRINGER: Thank you. How do you want to deal
with the 14 feet 10 foot issue, ladies and gentlemen?
MEMBER TORTORA: Let's make ( ) because we've had that
problem before where a permit was from one agency is issued for one
set of plans and then another set of plans come to it that's
changed. You know that has been a problem.
MR. ANDERSON: You deal with this all the time. Jerry, what has
to happen is that they have to be recognized and the way this Board
can be active to ( ) in that ( ) agent is to require that to obtain
modification because if we don't we will be entitled to building it.
MEMBER TORTORA: When were the plans modified?
MR.. ANDERSON: Excuse me.
MEMBER TORTORA: When were the plans modified?
MR. ANDERSON: I really don't know. I come in very late.
CHAIRMAN GOEHRINGER:
close the hearing?
Alright.
So, what do you want to do
MEMBER DINIZIO: ( ) it would be relevant to accept alternative
relief incumbent to the property you know we came to a point where,
you know, yes or no, or how about something else?
MR. MORTIMER: Well, look at it this way, if you came up with a
no, it seems to me, I would be free to file a different application.
MEMBER DINIZIO: Yeah, but that wouldn't see no problem, but, I,
you know, if they disagree with what we come up with ultimately -
MR. MORTIMER: Right.
MEMBER DINIZIO: Then you wouldn't have to file for that. But, if
you don't ask for this point, then it's yes and no.
Page 28 - Hearing Transcripts
September 24, 1998 - Board of Appeals
MR. MORTIMER: Well I'll go with the yes.
SECRETARY KOWALSKI: What was the answer I didn't hear that,
I'm, sorry.
MR. MORTIMER:
MEMBER DINIZIO:
Yes and no.
No alternate relief.
SECRETARY KOWALSKI: There will be no alternative relief, OK.
MR. MORTIMER: As far as my understanding is, ( ).
SECRETARY KOWALSKI: That's right.
CHAIRMAN GOEHRINGER: Well, it takes an unanimous vote to do
that.
SECRETARY KOWALSKI: Not if it's a different application~ it doesn't.
CHAIRMAN GOEHRINGER: OK. Hearing no further comment I'll make
a motion closing the hearing reserving decision until later.
MEMBER TORTORA: Second.
Motion carried. See Minutes for Resolution.
Page 29 - Hearing Transcripts
September 24, 1998 - Board of Appeals
8:00 P.M. - Appl. No. 4600 - ELLEN ZIMMERMAN. This is a
request for a Variance under Article XXIII, Section 100-239.4B and
Section 100-244B for permission to construct deck addition with a
setback at less than 35 feet from the rear property line and less
than 75 feet from the bulkhead, at 500 South Lane, East Marion,
N.Y.; Parcel 1000-38-6-11.
CHAIRMAN GOEHRINGER: I have a survey indicating this deck to
be 28 feet on the original survey and then I have 40 feet from the
bulkhead plus or minus, OK, the top of the back is 28 and I have a
copy of 'the Suffolk County Tax Map indicating this and surrounding
properties in the area. How are you, would you like to state your
name for the record?
MRS. ZIMMERMAN: I'm Ellen Zimmerman.
CHAIRMAN GOEHRINGER: How are you?
MRS. ZIMMERMAN: Fine and I have two more letters, one from the
Old Orchard Homeowners Association, they have no objection and one
from the neighbors to the west saying that they -
CItAIRMAN GOEHRINGER: And two green cards that I need.
MRS. ZIMMERMAN: And two green cards that you ( ).
CHAIRMAN GOEHRINGER: OK, the first question I have and I'll let
you speak of course. This is an open deck?
MRS. ZIMMERMAN: This is an open deck, approximately 15 inches
off the ground, one step down to the door, just a, in fact one of
the ( ), you know, they want ( ). It's a barely visible and that
a ( ) you'll have a step down all around and a, it's a, the house
itself is, less than 75 feet from the bulkhead. If I would build it
on either side I'd run into side ( ) and you wouldn't be able to see
too well. ( ). I don't think it would change the character of the
neighborhood in any way and the people already, there's some
houses that's built much closer to the bulkhead than mine all the
way down and the, it would be visible to the beach and there are
already some steps built up including over the beach. I have
pictures. My ( ). This is one house that has a deck built much
closer to the bank.
CHAIRMAN GOEHRINGER: Oh, yeah, we know about that one.
MRS. ZIMMERMAN: Yeah. This is a deck built over the beach
down the beach and there are several houses that have a little
sought of perch above their stairs to go down the beach and this is
what the front of the house would look like. The deck is ( ), so
it's not a large one ( ) and it looks like a beach. My neighbors
have no objections, ( ). I have my neighbor to the west here who
will have a ( )-
Page 30 - Hearing T~nscripts
September 24, 1998 - Board of Appeals
CHAIRMAN GOEHRINGER: Before he gets up, we have this letter
from the Town Trustees to a Mr. Koch regarding this and they
reflect a proposal of 12 x 12, are you familiar with that letter?
MRS. ZIMMERMAN:
be 22 x 12.
Yes, that was a mistake, it was always going to
SECRETARY KOWALSKI: I called the Trustees' office today, and
they said it was applied for as a 12 x 12.
MRS. ZIMMERMAN: I don't think so.
SECRETARY KOWALSKI: I'm just letting you know.
MRS. ZIMMERMAN: I have the, the material that Mr. Koch sent to
them and all it showed was ( ). So, I think they misread it.
SECRETARY KOWALSKI: Well, you know, I don't know what to tell
you. It's up to the Chairman how he wants to handle it.
I'm just telling you what they told me today.
MRS. ZIMMERMAN: I don't know what to do about this.
CHAIRMAN GOEHRINGER: Can you discuss this with the Trustees
and get back to us?
MRS. ZIMMERMAN: Yeah, I guess I can.
CHAIRMAN GOEHRINGER: It is of concern to us, but it's not as a
greater concern is as the past application I can tell you, because
yours is a little minor.
MEMBER TORTORA:
the Trustees?
If you had, did you submit a set of plans to
MRS. Z~MMERMAN:
Building Department.
There were plans submitted, yes, to the
MEMBER TORTORA: Perhaps if you could, you know, just show them
the plans that you submitted and they indicated that it was indeed
12 x 22.
MRS. ZIMMERMAN: Then what would they do? Give you a letter?
SECRETARY KOWALSKI: They'd give you an amended letter.
MR. ZIMMERMAN: The amended letter which I would give to you.
SECRETARY KOWALSKI: Yes.
CHAIRMAN GOEHRINGER: Right.
MEMBER TORTORA: If you could go back to your records from the
Trustees and have something that shows that it was 12 x 22 it would
be easy as pie to get an amended letter.
Page 31 - Hearing T}~nscripts
September 24, 1998 - Board of Appeals
MRS. ZIMMERMAN: OK, and I could just come in like tomorrow and
do that?
CHAIRMAN GOEHRINGER: Right.
SECRETARY KOWALSKI: Yes, I asked her for all that today and
they didn't have anything on file. So, that's why it's good if you
go talk to them yourself.
MRS. ZIMMERMAN: ( ).
CHAIRMAN GOEHRINGER: OK, we'll start with Mr. Dinizio.
MEMBER DINIZIO: Nothing.
CHAIRMAN GOEHRINGER: Ms. Collins?
The rear part, 'the rear part depends upon
MRS. ZIMMERMAN: Right, we always have that problem.
MEMBER COLLINS: The seaward side of the house has an enclosed,
a fully enclosed porch.
MR. ZIMMERMAN: Yeah.
MEMBER COLLINS: Whose siding and roof look quite new. Is that a
new structure or did you just reside it?
MRS. ZIMMERMAN: No, I just resided it. I replaced the windows
and a when we replaced the windows they found there was a lot of
( ). They had to take the ( ) siding off because of ( ) so we a -
MEMBER COLLINS: Yes, right.
MRS. ZIMMERMAN: That was one of those you know, now we have
to do this because we did that.
MEMBER COLLINS: I think I have no other questions.
CHAIRMAN GOEHRINGER: Mrs. Tortora?
MEMBER TORTORA: I don't have any questions.
CHAIRMAN GOEHRINGER: Mr. Homing?
MEMBER HORNING: I have no questions.
CHAIRMAN GOEHRINGER: OK. Now we will call on Mr. Stern who
would like to say something. Thank you so much and you'll get back
to us?
MRS. ZIMMERMAN: Yeah, I can do that just by ( ).
MEMBER COLLINS:
whether you mean.
Page 32 - Hearing T~-~scripts
September 24, 1998 - Board of Appeals
CHAIRMAN GOEHRINGER:
how are you?
No, no, sure.
Good evening Mr. Stern,
MR. STERN: My name is Leopold Stern. I'm a neighbor directly
west of Mrs. Zimmerman's property. I see no reason to not to
agree to her that it would be no problem to me in spite of the fact
that my house extends to the angle and the bulkheading so, it's
certainly OK with us.
CHAIRMAN GOEHRINGER: Thank you Sir. Have a great night. Is
there anybody else would like to speak in favor? Anybody like to
speak against?
MEMBER COLLINS: May I ask another question?
CHAIRMAN GOEHRINGER: Surely.
MEMBER COLLINS: Mrs. Zimmerman, in the file we have a letter
from a neighbor saying we have no objection. I can't decipher the
signature. Where do they live. This is Thomas and Edith -
MRS. ZIMMERMAN:
of the other side.
Minnigan.
Yeah, they are directly to the east
MEMBER COLLINS: To the east, OK, thank you.
CHAIRMAN GOEHRINGER:
go ahead Mrs. Zimmerman.
OK, Hearing no further comments, yes,
MRS. ZIMMERMAN:
( ).
The Homeowners Association wants to read the a
CHAIRMAN GOEHRINGER: OK, hearing no further comments, I'll
make a motion closing the hearing reserving decision until later.
All in favor?
Motion carried. See Minutes for Resolution.
Page 33 - Hearing Tr.~nscripts
September 24, 1998 - Board of Appeals
8:09 P.M. - Appl. No. 4601 - ROBERT SMITH & ANO.
This is a request for a Variance under Article XXIV, Section
100-24]A for permission to construct proposed addition and alteration
to an existing accessory garage with nonconforming cottage use,
based upon the May 28, 1998 Notice of Disapproval. Location of
Property; 505 Pt. Pleasant Road, Mattituck, N.Y.; Parcel
1000-113-9-11.
CHAIRMAN GOEHRINGER: (inaudible).
MR. O'CONNELL: ( ) They want us to do some face lifting to the
entire house and what have you. And, we, although there wasn't
any real change in the footprint of the garage size cottage, the
interior of that cottage, the fact that it is a nonconforming use of
this ( ) they of course be here this evening. There's no change
as I said of the footprint ( ) lay the house.
CHAIRMAN GOEHRINGER: OK, you have a question or you just
want to say that was a statement OK. Unfortunately I missed the
Smiths when I was over -
MR. O'CONNELL: They did call, not me, but, they called the
contractor to apologize for that. They're an elderly couple,
unfortunately they come out here for the weekends. They thought
they'd be out here by 9:00. It turns out now I gather now, that it
was not until about 11:30 when they arrived out here and ( ).
CHAIRMAN GOEHRINGER: Just give us some information. As we
walk into that cottage we notice or we stand in front of the cottage
first, we notice that there is a garage on the right-hand side and
the actual sleeping quarters of that building, or living room
quarters of that building are on the left-hand side. If I was to
enter that what would I see?
MR. O'CONNELL: If you were to enter that you would have a closet
to your right and bath, a small bath to your left before you get to
the main sleeping quarters, ( ).
CHAIRMAN GOEHRINGER: What is upstairs?
ceiling or is there vaulted ceiling?
Is there a cathedral
MR. O'CONNELL: A vaulted ceiling.
CHAIRMAN GOEHRINGER:
any way? Do you know?
A vaulted ceiling and is that heated in
MR. O'CONNELL: I don't know.
CHAIRMAN GOEHRINGER:
air condition.
You don't know.
I think I did see an
Page 34 - Hearing Transcripts
September ~.4, 1998 - Board of Appeals
MR. O'CONNELL:
MEMBER COLLINS:
MR. O'CONNELL:
MEMBER COLLINS:
MR. O'CONNELL:
see that sign first.
MEMBER COLLINS:
MR. O'CONNELL: I believe so, but, I really don't know.
I know there was no work done in materials. ( ).
CHAIRMAN GOEHRINGER: The trellis.
MR. O'CONNELL: The trellis connecting the house to the garage
basically.
CHAIRMAN GOEHRINGER: Right, OK, and we do have a CO which I
was just reading indicating that that was mentioned in this when I
believe it was 1986, if I'm not mistaken.
MR. O'CONNELL: It probably says 88, but, -
CHAIRMAN GOEHRINGER: Yeah, OK, alright we'll start with Mr~
Homing.
MEMBER HORNING: I'm all set.
CHAIRMAN GOEHRINGER: Your all set, no questions. Mrs. Tortora?
MEMBER TORTORA: Is there a kitchen in the cottage?
MR. O'CONNELL: No.
CHAIRMAN GOEHRINGER: There are no plans to put a kitchen in?
MR. O'CONNELL: No.
CHAIRMAN GOEHRINGER: Ms. Collins?
MEMBER COLLINS: I just want to ask questions for clarification.
What has been done and what is proposed to be done? I got slightly
confused. I have been over and looked at the property. I -
You said you have?
Yes, yes.
OK.
It was quite a struggle to find it, but, -
You have to find that 4 foot patio, you have to
At any rate, as I stand from the ( ) there is a
Building Permit outstanding for the work to be done on the house
proper and I guess that also entails the work t° the extent that
there will be any on the little trellis courtyard.
MR. O'CONNELL: That. is correct.
Page 35 - Hearing Transcripts
September 24, 1998 - Board of Appeals
MEMBER COLLINS: But, what is sought here of course is permission
to do things to this nonconforming building.
MR. O'CONNELL: Nonconforming structure.
MEMBER COLLINS: But the work has not as yet been done to the
house, is that right?, or has it?
MR. O'CONNELL: The work has been.
MEMBER COLLINS: It has been. That's where I was confused.
MR. O'CONNELL: That's the contractor was told to proceed.
MEMBER COLLINS:
point of view.
OK, no, I have no problem with it from a legal
MR. O'CONNELL: It become ( ) maintain situation.
MEMBER COLLINS: It was simply that your request to us for this
variance was based on the premise that you want a consistency
appearance consistency structure and I guess my innocent eye didn't
see any big inconsistency and that's why I didn't know what had
been done.
MR. O'CONNELL: I understand.
MEMBER COLLINS: So how extensive are the changes that would be
made to llhem, the garage cottage?
MR. O'CONNELL: What you see, what you saw, is a finish product.
CHAIRMAN GOEHRINGER: Complete, it's done.
MEMBER COLLINS:
see any ( ).
Oh, I got you.
Now I understand why I didn't
MR. O'CONNELL: When we applied that was our understanding, I
only learn,-
MEMBER COLLINS: OK, I'm sorry. I sounded a little naive.
MR. O'CONNELL: The contractor got to the point of so now we're
at the garage. Can we finish this and go home or do we have to
pack up and come back and do something?
MEMBER COLLINS: So, it's an "as built".
CHAIRMAN GOEHRINGER: OK, Mr. Dinizio?
MEMBER DINIZIO: I have no questions.
CHAIRMAN GOEHRINGER: OK, we'll see while your standing there
if anybody else wants to speak. Is there anybody else in the
~age 36 - Hearing Transcripts
September 24, 1998 - Board of Appeals
audience would like to speak in favor? Anybody like to speak
against? I guess that about wraps it up Mr. O'Connell, we thank
you very much. Have a good evening. Hearing no further comment
I'll make a motion closing the hearing reserving decision until later.
MEMBER COLLINS: Second.
Motion carried. See Minutes for Resolution.
Page 37 - Hearing Transcripts
September 24, 1998 - Board of Appeals
8:14 P.M. - CLIFFORD AND RUTH CORNELL
This is a request for a Variance under Article IIIA, Section
100-30A.3 for a Building Permit authorizing the construction/location
of an "as built" accessory gazebo structure at a sideyard setback of
less than the required three ft. minimum and in excess of the 20% lot
coverage limitation of the Zoning Code at 325 Willow Point Road,
Southold, N.Y.; Parcel 1000-56-5-26, a/k/a Lot #24, Willow Point.
CHAIRMAN GOEHRINGER: I have a copy of a survey indicating the
gazebo, actually shown by the surveyor, we will ask the applicant
how far that is from the property line and a copy of the Suffolk
County Tax Map Indicating this and surrounding properties in the
area. How are you tonight Sir.
MR. CORNELL: Cliff Cornell, fine, yourself?
CHAIRMAN GOEHRINGER: Fine thank you. Could you just tell us
how close that is to that 3 foot mark, approximately?
MR. CORNELL: It's 2.4 inches to the post.
CHAIRMAN GOEHRINGER: OK, so instead of 3 foot, OK, it's
approximately 28 inches, is that what you're telling us?
MR. CORNELL: 32 inches.
CHAIRMAN GOEHRINGER: It's 32 inches, OK.
MR. CORNELL: 32. something.
CHAIRMAN GOEHRINGER: 32 inehes plus or minus, OK. That is
the only ( ) nature of this application before us? There's, there is
no electricity or anything in this gazebo is there?
MR. CORNELL: No electricity, no plumbing, no walls.
CHAIRMAN GOEHRINGER: No anything. We'll start with Mr.
Dinizio. Any questions of Mr. Cernell?
MEMBER DINIZIO: No, nothing.
CHAIRMAN GOEHRINGER: Ms. Collins?
MEMBER COLLINS: When was the gazebo built?
MR. CORNELL: A year ago.
MEMBER COLLINS: No, I guess have no other questions.
CHAIRMAN GOEHRINGER: Mrs. Tortora?
Page 38 - Hearing Transcripts
September 24, 1998 - Board of Appeals
MEMBER TORTORA: The only question I have was that in the legal
notice it said a, in excess of a 20 foot lot coverage?
CHAIRMAN GOEHRINGER: Hm, hm.
MEMBER TORTORA:
coverage?
So where does that put us in terms of lot
MEMBER COLLINS: Way over. There's a set of statistics in there.
It's attached to the disapproval. But in a nut shell, the house and
the deck, decks put you slightly over the permissible lot coverage
and then the pool adds another 500 sq. ft. The gazebo adds only
another 78 sq. st., so, it's not a big deal. But, the lot is in fact
very covered. It's 24%, "as is" with everything built.
MEMBER TORTORA: I just think it's important that we establish
what the lot coverage is since that's an issue in this application
and you know establish it as part of this decision process.
SECRETARY KOWALSKI: He had three disapprovals though.
attached to one of those three. That's what caused ( ).
It's
MEMBER COLLINS: Well, does any of us have a calculator? This
calculation sheet says the lot coverage including this gazebo is 24%,
but it's a rounded number, you know, it could be 23.7 or 24.2.
CHAIRMAN GOEHRINGER: I think we're able to calculate that.
SECRETARY KOWALSKI:
18216.
Well if the total of 4289 and the lot is
MEMBER COLLINS: Right, start dividing.
(Members doing calculation)
MEMBER COLLINS: It's 23. something.
Yes, it's very, very close to 24.0.
It's a bit less than 24.
CHAIRMAN GOEHRINGER: Well my question Mr. Cornell is, you
have no intention of increasing any more of your lot coverage, is
that correct?
MR. CORNELL: No, I don't. I don't live there any longer.
CHAIRMAN GOEHRINGER:
bet.
OK, so, therefore, 24 I think is a good
MEMBER TORTORA: I just think we just need to set it right here.
CHAIRMAN GOEHRINGER: 24, right. Mr. Homing?
MEMBER HORNING: I'm questioning actual sq. ft. coverage. There's
two figures here in the Notice of Disapproval, states 4880 actual and
the Addendum to it, states 4289.
Page 39 - Hearing Transcripts
September 24, 1998 - Board of Appeals
MEMBER HORNING:
MEMBER TORTORA:
three.
MEMBER HORNING:
MEMBER COLLINS: Oh, that's a revised, there's an amended denial.
CHAIRMAN GOEHRINGER: There's three Notices of Disapproval.
I only have the one.
I've got two of them. I don't know if I have
Oh, I have two of them.
SECRETARY KOWALSKI: The third one was for the set back.
MEMBER HORNING: Alright.
SECRETARY KOWALSKI: OK, so the second one.
MEMBER ttORNING: Thank you.
CHAIRMAN GOEHRINGER: You're welcome.
MEMBER COLLINS: I finished my arithmetic.
including the gazebo.
It's 23.5% coverage
CHAIRMAN GOEHRINGER: OK.
MEMBER COLLINS:
tiny part of that.
The gazebo constitutes obviously a very, very,
CHAIRMAN GOEHRINGER: Of course, OK. We'll just see if anybody
else wants to speak while you're standing there. Is there anybody
else would like to speak in favor? Anybody like to speak against?
OK, we'll set the lot coverage at 23.5% and we thank you for coming
in.
SECRETARY KOWALSKI: How about the setback? What's the setback?
CHAIRMAN GOEHRINGER: Oh, yeah, and the setback is?
saying is between 32 and 34 inches from the property line?
You're
MR. CORNELL:
inches.
Yeah, I believe it is.
Actually I think it's 33.8
CHAIRMAN GOEHRINGER: OK.
SECRETARY KOWALSKI: It says 2.8 on the survey.
CHAIRMAN GOEHRINGER:
34 inches plus or minus.
Yes, and we got a letter from him saying
SECRETARY KOWALSKI: No. 2.9 inches.
MEMBER COLLINS: We're very close to 3 feet.
Page 40 - Hearing Transcripts
September 24, 1998 - Board of Appeals
CHAIRMAN GOEHRINGER: Hearing no further comment I'll make a
motion closing the hearing reserving decision until later.
MEMBER HORNING: Second.
Motion carried. See Minutes for Resolution.
Page 41 - Hearing Transcripts
September 24, 1998 - Board of Appeals
8:37 P. M. - ARTHUR TORELL. Regarding properties known as 365
Westwood Lane and 465 Westwood Lane, Greenport, N.Y.; Map of
Eastern Shores, Section 2, Lots #67 and ~68; Parcel #1000-33-2-10
and 11, as follows:
Appl. No. 4603, for a Lot Waiver under Article II, Section
100-26 regarding an existing nonconforming lot identified on the
Suffolk County Tax Map as Lot 11, Section 33, Block 2, which lot
has been deemed merged with adjacent lot ref. #10, based on the
Building Inspector's August 4, 1997 Notice of Disapproval; and
Appl. No. 4604, for a Variance under Article XXIV, Section
100-244B for permission to construct dwelling with a side yard
setback at less than 15 feet from the existing property line between
Lots #10 and #11 as shown on the Map of Eastern Shores, Section 2,
or alternatively a Variance for adjusted lot sizes of Lots 68 and 67,
to reduce the square footage and lot width of Lot #68, thereby
increasing the nonconforming lot #67 for a 15-ft. conforming side
yard setback.
CHAIRMAN GOEHRINGER: I have a copy of the survey indicating
lot 68 and lot 67 and on lot 67 is a proposed house and garage
indicating the 15.4 feet which was just mentioned and I have a copy
of the Suffolk County Tax Map indicating this and surrounding
properties in the area. Good evening Sir, how are you? Could you
state your name for the record?
MR. TORELL: Arthur Torell.
CHAIRMAN GOEHRINGER:
tell us Mr. Torell?
How do you do? What would you like to
MR. TORELL: Well, I have owned the two property lots for over 25
years and it was last year that I finally decided to build a home on
the lot number 67 and prior to that I had dealt with the DEC and
the Town Trustees and I had permission to do so. Conforming to
the footprint that you see it's a small house. ( ) I always
intended to keep my purchase of both of the two lots to build two
homes. One for myself and one for my chid and I was surprised
last year when they said the application was not approved because of
the setback issue and it was at that time I found out that the lots
were merged. They said to me why are you doing this when you
have all that other land and I said why? So, anyway, that's how I
came about to inquire about what I should do to unmerge the lots
and/or variances or what's to be done.
CHAIRMAN GOEHRINGER: OK, and both lots have been held in
common ownership for 25 years?
MR. TORELL: No, over.
CHAIRMAN GOEHRINGER: Over?
Page 42 - Hearing Transcripts
September 24, 1998 - Board of Appeals
MR. TORELL: Yeah.
SECRETARY KOWALSKI: 1971.
CHAIRMAN GOEHRINGER:
Homing any questions?
OK, we'll start with Mr. Homing. Mr.
MEMBER HORNING:
lots were merged?
You never received any notification when the
MR. TORELL: Not that I know of.
MEMBER HORNING: Alright.
CHAIRMAN GOEHRINGER: Mrs. Tortora?
MEMBER TORTORA: You had originally'proposed a 10 ft. setback?
MR. TORELL: Yes.
MEMBER TORTORA: And you amended that to 15 feet?
MR. TORELL: Yes.
MEMBER TORTORA: That's the earliest? (Someone responded bm,
hm. You did have a Trustee Permit I think. Was that expired?
MR. TORELL: I don't remember the date of it.
MEMBER TORTORA: It expired last year according to the last
correspondence that I had unless there is something after that.
MR. TORELL: Before I had met with the Trustees
and I had gone down to the officers and spoke to them and told
them that I had intended to build on the property. I had the
building, I was working with an architect and I had the footprint as
drawn up by Mr. VanTuyl a couple of years ago. So, that was my
basis of my starting to deal with an architect and they said to me,
that because the application was made out at the time it was, that if
I had started to put at the property, and put in the foundation I
was within the realm of the -
MEMBER TORTORA: The DEC?
MR. TORELL: No, the Trustees.
MEMBER TORTORA: Oh, the 75 foot setback. A couple of things.
Your last permit from the, because in moving your structure from 10
to 15, while you're moving it away from the property line, the old
lot line, you're also moving it closer to the wetlands.
MR. TORELL: I'm not moving the structure.
MEMBER COLLINS: No.
Page 43 - Hearing Transcripts
September 24, 1998 - Board of Appeals
MEMBER TORTORA: You're just clipping off the structure?
Mr. Torell: I'm taking 5 foot partly from lot 68 and adding to 67.
MEMBER TORTORA: I see.
MR. TORELL: And I own the boat, so -
MEMBER COLLINS: Excuse me, Mr. Torell you're basically I think,
asking for a variance to let you build. First, you want to unmerge
the lots. We'll assume that.
MR. TORELL: That is correct.
MEMBER COLLINS: OK, and then you want a variance permitting
you to build this house where you have printed it, which is 10 feet
from the lot line, and, alternatively if we don't want to give you
the variance, you're asking for a change in the lot line, so that it
will be 15 foot setback. That's the package?
MR. TORELL: That footprint is outdoor gift.
MEMBER COLLINS: Great.
Because of the wetlands?
MR. TORELL: Yes.
MEMBER COLLINS: Thank you.
MEMBER TORTORA: I was just confused about the 5 feet difference
there. That explains. What is the buildable land on lot 68 and 67.
There are two areas shown here and I'm not sure which one should
be that buildable.
MR. TORELL: 68 I assume buildable land is, I mean it's all
buildable. It's high and it's dry and it's all creak. 67 the lot
that I wish to start work to build on as you can see from the lot, it
has sort of a contour line, it shows wetland ( ). So, the buildable
area is anything above that that top foot line.
MEMBER TORTORA: But that has not been taken out from the total
in lot area? In other words, -
CHAIRMAN GOEHRINGER:
calculation.
In other words we don't have a
MEMBER TORTORA: We don't know, exactly.
SECRETARY KOWALSKI:
waivers.
Well, we don't usually ask for that on lot
(Members talking amongst themselves).
CHAIRMAN GOEHRINGER: Are you done?
Page 44 - Hearing Transcripts
September 24, 1998 - Board of Appeals
MEMBER TORTORA: Yes, I'm done.
CHAIRMAN GOEHRINGER: Ms. Collins?
MEMBER COLLINS: No, I have no questions.
CHAIRMAN GOEHRINGER: Mr. Dinizio?
MEMBER DINIZIO: Mr. Torell,
properties?
MR. TORELL:
MR. DINIZIO:
lots ?
MR. TORELL: I always two a
SECRETARY KOWALSKI: Tax bills.
do you have two deeds to these
I have a -
When you pay your taxes, do you pay taxes on two
MR. TORELL: I always get two tax bills. I always have.
MEMBER DINIZIO: No time you got anything that notified you that
these lots were merged?
MR. TORELL: No.
MEMBER DINIZIO: Are these lots in the same name.
MR. TORELL: Oh, yes.
MEMBER DINIZIO: And that would be Arthur Torell?
MR. TORELL: Yes.
MEMBER DINIZIO: Not in wife?
MR. TORELL: No.
MEMBER DINIZIO: Just in your name.
MR. TORELL:
Arthur Torell.
As of last year there's always been two bills.
MEMBER DINIZIO: Right, you always assumed that?
MR. TORELL: Oh, yes.
MEMBER DINIZIO: You don't have, you not sharing any utilities
with either lot? You don't have your fifth floor on one lot and your
house on another or anything like that?
MR. TORELL:
Page 45 - Hearing Transcripts
September 24, 1998 - Board of Appeals
MEMBER DINIZIO: What I'm trying to establish here is that these
are two separate lots. You intended them to be two separate lots.
MR. TORELL: Absolutely.
MEMBER DINIZIO: You receive two separate tax bills and basically
you had no idea that your lots were merged.
MR. TORELL: Right.
MEMBER DINIZIO: Thanks, that's all I need.
CHAIRMAN GOEHRINGER:
of the Trustee's Permit?
stands, right?
What would you like to do about the age
Anything ladies and gentlemen? Permit
MEMBER TORTORA: It expired.
MEMBER COLLINS: According tot he letter from the Trustees, the
permit expired about a year and a half ago.
CHAIRMAN GOEHRINGER: Right, well, what do you want to do about
that?
MEMBER TORTORA:
It's hard because you don't know what was approved. The plans that
were approved by the Trustees were approved in 93. Has it been
revived since?
CHAIRMAN GOEHRINGER: Well, why don't we hold the hearing in
abeyance and let Mr. Torelt go back to the Trustees and find out if
that's exactly where they want it and if he would reactivate his
permit and when he reactivates his permit we know exactly where
the house is to be and then we can make the decisions.
SECRETARY KOWALSKI: What about the lot waiver?
CHAIRMAN GOEHRINGER: We can proceed on that.
SECRETARY KOWALSKI: Proceed on that and then he'll know
whether it's worth going back to the Trustees on that. If they're
merged then he won't have the same plan, he'll have different plan,
right?
CHAIRMAN GOEHRINGER:
two lots were merged?
Would you have a different plan if the
MR. TORELL: No. The footprint hasn't changed.
CHAIRMAN GOEHRINGER: OK.
MR. TORELL: I mean if it had changed, then as we went along and
I built it with the walk to the septic in Riverhead and then the
local town regarding where the road would be, where the septic
Page 46 - Hearing Transcripts
September 24, 1998 - Board of Appeals
would be, where the water would be. So, this is what they have
seen. I mean it may be that they have other regulations and
issues. They may have been ( ), I'm not aware of.
SECRETARY KOWALSKI: That's the only question I have because
usually we don't require all these permits to put it on for a
hearing. Is this a new procedure now, where we have to have all
permits before we put it on?
CHAIRMAN GOEHRINGER: No, no. It was an issue that was raised
tonight so, I just merely brought it up.
MEMBER COLLINS: Well, yeah, speaking for myself, when we
grant, assuming we were to grant an area variance. Let this house
be built 10 feet from the property line, one of the things that we're
required to consider is, whether that has a negative impact on the
environment on the surrounding. Not just the environment and in a
case like this I think we rely heavily on what the Trustees have
said. I certainly do because I trust their judgment and so when the
application of the Trustees was like 5 years ago and has expired,
you just feel more comfortable if you know that the Trustees are,
have step up to the plate for the same project you're approving.
CHAIRMAN GOEHRINGER:
Trustees.
Actually, it's almost a different Board of
MEMBER COLLINS: Well, yes.
CHAIRMAN GOEHRINGER: Right, so what would you like to do?
Would you like to hold that one in abeyance, the application for the
setback and then proceed with the lot waiver? Or, what would you
like to do?
SECRETARY KOWALSKI: There's a duel hearing there, so it's up to
you, whatever you want to do.
MEMBER HORNING:
moving the ( ) or
If we proceeded on lot waiver, would we go for
SECRETARY KOWALSKI: No, no, that's part of the variance.
CHAIRMAN GOEHRINGER: That's really part of the
MEMBER HORNING:
issue then.
Yes, OK.
That would be part of the other
MEMBER COLLINS: Well, I think we should a, we should move
promptly to decide the question of the waiver of the merger. I
think we should ask Mr. Torell to give us an assurance from the
Trustees that the project that he has proposed that they looked at
several years ago, is still permissible from their point of view, and
when we have that I feel comfortable about deciding the area
variance.
~)age 47 - Hearing Transcripts
September 24, 1998 - Board of Appeals
MEMBER HORNING: Well, the Board of Trustees perhaps gave their
approval based on their knowledge that this was going to be just one
lot.
SECRETARY KOWALSKI: No, no, they -
MEMBER HORNING: No, we don't know that.
MEMBER TORTORA: We don't know if it was, or wasn't.
SECRETARY KOWALSKI: Well the Merger Law wasn't in effect then.
MEMBER DINIZIO: This law wasn't in effect.
MEMBER TORTORA: But the single and separate law was in effect.
CHAIRMAN GOEHRINGER: It was exempted.
SECRETARY KOWALSKI: Five years ago?
MEMBER HORNING: It was exempt?
SECRETARY KOWALSKI: The subdivision was exempted. So, it was
merged then.
CHAIRMAN GOEHRINGER: It was merged five years ago.
MEMBER HORNING: OK.
MR. TORELL: Well the next procedure with them is these two lots.
A letter had we, we had to put the lots in sideways.
MEMBER HORNING: That's my question.
MEMBER TORTORA: Mr. Chairman just said, that this subdivision
was on the exempt five years ago.
CHAIRMAN GOEHRINGER: So, you still want to proceed on that
basis?
MEMBER DINIZIO: Well, I would like to proceed with the lot waiver.
CHAIRMAN GOEHRINGER: OK, so, what we'll do is close, we'll
recess the other portion of the other application without a date, the
variance without a date.
MEMBER TORTORA: The variance and we'll go ahead and act on the
waiver.
CHAIRMAN GOEHRINGER: OK, we'll see if anybody else wants to
speak in the audience. Is there anybody else that would like to
speak in favor of either one of these application? Anybody like to
speak against them. Seeing no hands again for the variance aspect
Page 48 - Hearing Transcripts
September 24, 1998 - Board of Appeals
we will close that without, I'm sorry~ recess that without a date.
As to the lot waiver we will close that hearing. I offer both of
those ladies and gentlemen.
MEMBER DINIZIO: Second.
Motion carried. See Minutes for Resolution.
Page 49 - Hearing Transcripts
September 24, 1998 - Board of Appeals
P.M. -Appl. No. 4606 THOMAS AND MOIRA MASTRO
This is a request for a Variance under Article XXIII, Section
100-239.4B for permission to extend fence .which would be at less
than 75 feet from the bulkhead, or along bulkhead, at 6760 Great
Peconic Bay Boulevard, Laurel, N.Y.; Parcel 1000-126-11-3.1
CHAIRMAN GOEHRINGER:
motion for October 15th.
Mastro is recalendared.
I'll make a
SECRETARY KOWALSKI: I need a second, please.
MEMBER DINIZIO: Second.
Motion carried. See Minutes for Resolution.
~Page 50 - Hearing Transcripts
September 24, 1998 - Board of Appeals
8:49 P.M. - Appl. No. 4607 JON SCHRIBER AND JANE ROSS
This is a request for a Variance under Article XXIV, Section
100-244B authorizing the "as built" raised brick terrace addition
located on a 19,476 sq. ft. nonconforming lot at a front yard setback
of less than 35 feet. Location of Property: 1295 Old Harbor Road,
Cutchogue, N.Y.; Parcel 1000-117-3-10.
CHAIRMAN GOEHRINGER: I have a copy of the survey indicating a
brick patio with timber boarder, do not have the distance on this
particular survey. However, we'll ask the applicant or his agent.
And, I have a copy of the Suffolk County Tax Map indicating this
and surrounding properties in the area.
Sir, would you kindly state your name for the record.
MR. DANGLER: Hugh Dangler, a neighbor.
CHAIRMAN GOEHRINGER: How are you?
MR. DANGLER: Fine, thank you. I have your green card.
CHAIRMAN GOEHRINGER: Wonderful, thank you.
MR. DANGLER: Very brief, our problem, our neighbors renovated
the house, they have the CO and when the Building Inspector
checked the house out he had a brick terrace shown on the architect
plan but, he said, you are too close to the road he asked for a
raised brick terrace 7 inches above the ground. You have to get a
variance for it and so that's why there here. You asked the
distance from the town road, it's 15 feet if you look at the map from
the outer edge of the brick terrace. The property is small. The
terrace is located 17 feet above the town road. So, nobody in the
road can ever see the terrace and the terrace is further screened by
a 5 foot high hedge. So, it is hidden from anybody and on the other
side facing the neighbors, the owners put an evergreen hedge. So
we have the terrace which would be legal
if it weren't 7 inches above the ground and as the Town Inspector
said to me, if you can run a lawn mower from the grass to the brick
it's legal. I said, perhaps we may go around so the lawn mower
wouldn't be so high.
CHAIRMAN GOEHRINGER: I just don't see where you see the 15
feet. Did you measure that?
MR. DANGLER: Oh, we measured it. The Inspector and I went to
where he thought the town, you know you can't tell where the town
road goes because there's no markers, at least not in East Suffolk.
So, we measured it and we figured about 15 feet. He said, that the
( ) are not part of the brick.
CHAIRMAN GOEHRINGER:
enclosing this, is there?
Thank you.
There's no intention of ever
MR. DANGLER: Never.
'Page 51 - Hearing Transcripts
September 24, 1998 - Board of Appeals
CHAIRMAN GOEHRINGER: Never, OK. We'll start with Mr. Dinizio.
MEMBER DINIZIO: No, I have no questions.
CHAIRMAN GOEHRINGER: Ms. Collins?
MEMBER COLLINS: Well, I guess I'll just put into the record why I
dismay which I've stated before, that all the players, landscapers,
architect builders were innocent of the law. I don't think the law
is obscure. I have no questions.
CHAIRMAN GOEHRINGER: Thank you. Mrs. Tortora?
MEMBER TORTORA: No, I have no questions.
CHAIRMAN GOEHRINGER: Mr. Homing?
MEMBER HORNING: No, I have no questions.
CHAIRMAN GOEHRINGER: OK, while you're standing there, we'll
ask if anybody in the audience. Does anybody else like to speak in
favor of this particular application? Anybody like to speak
against? Seeing no hands we'll make a motion closing the hearing
reserving decision until later.
MR. DANGLER: Thank you.
CHAIRMAN GOEHRINGER: Your welcome.
MEMBER TORTORA: Second.
Motion carried. See Minutes for Resolution.
l~age 52 - Hearing Transcripts
September 24, 1998 - Board of Appeals
8:%* P. M. - Appl. No. 4598 - JEFF GOUBEAUD
This is a request for Variances under Article IliA, Section 100-30A.3
of the Bulk and Parking Schedule, for approval of a lot area of
23,638+- sq. ft. in this proposed subdivision. The R-40 Low-Density
Residential Zone, established in January 1989, requires a minimum lot
area of 40,000 sq. ft. Location of Property: Extending from the
Easterly side of Gagen's Landing Road, and 2950 Pine Neck Road,
Southold; Parcel 1000-70-10-37 (63,638.03 sf.)
CHAIRMAN GOEHRINGER: (Inaudible) indicating the house
(inaudible) number 1, I've got 23,000 and parcel #2 as indicated and
a copy · of the Suffolk County Tax Map indicating this and
surrounding parcels in the area. Parcel #2 gain conforming 40,000.
MRS. MOORE: Good evening. Unfortunately we had two neighbors
that were here earlier this evening to support this application and
I'd like to just state their names and what positions on the
records. First, Mrs. Norris who is across the street, a very lovely
lady who came in. She's a Suffolk County Tax #, so I can identify
her, it would be easier, 70-6-17, on behalf of herself and also the
Pine Neck Road Association which owns a piece of property,
70-6-14. So, she was here and unfortunately her husband was left
alone and she thought she would have to leave then, a half and hour
ago she left. Also, the neighbors to the west, Mazzaferro and it's
70-6-14, also Mr. Mazzaferro was here in support of the application
and he just left about 15 minutes ago. It's pretty late for them and
we really appreciated their coming in and I hope you'll just make a
note that they were here in support of the application. The reason
this has come about is, that this piece of property is technically (
) the Estate of William Goubeaud. William Goubeaud had two sons,
Jeff and his other son, Bill. Bill unfortunately predeceased his
father and left a young child, a daughter as his heir. This
daughter was an infant at the time of his death and just recently
turned 21. So, this had to ( ) until she was old enough to really
participate in the process. Jeff has lived in his homestead, the
home that is on Pine Neck Road, his entire life. The house was
build in the sixties, in 1952 and has been there ever since,
obviously. We won't say how old Jeff is, but he's been there that
whole time. The properties were originally required as three
separate papcels. One lot was sold to Grigonis.. I think you can
remember he was also, was he a member of the Zoning Board or one
of the family members of Mr. Grigonis was on the Board. In 1959
that lot was sold to Grigonis. Thereafter, the few parcels that
remained I think the family, certainly William Goubeaud thought the
parcels were separate parcels and that that's the way they were
going to stay. Unfortunately when the estate had to be probated
and Mr. Reid and the others had to be considered it was discovered
that ( ) parking ( ) parcel. The situation here really is that
we're trying to split the house parcel which is ( ) trying to split
that off from the main parcel. The piece of property zoned is an
acre and a half in size. Over an acre and a half in size and
because of where the lot lines fell and where we thought the Health
'Page 53 - Hearing Transcripts
September 24, 1998 - Board of Appeals
Department would certainly want to consider where sanitary systems
would go, we chose rather than to do this as a waiver of merger, we
could do this as a subdivision, as a minor subdivision. So, what we
did, we started with the Planning Board, submitted a certain line for
the Planning Board. They looked at it. We moved it somewhat
because we ended up going to the Board of Review. The Board of
Review certainly, we looked, we reviewed it with them, we said, you
know what Board of Review, we have an existing house with an
existing sanitary system. We're not doing anything to that house,
it's going to remain. So that what made sense was splitting the lot
as a one acre conforming lot, that being the lot that would then be a
vacant lot and would be split from the house. The Board of Review,
really in the times that I've been there, I think unprecedented,
unanimous decision that they gave us, realized that there was a
hardship here and that there was a. certainly an application for
waiver of the Health Department Environment. We explained the
whole situation to them and they said, fine, the one acre lot
certainly complies with all of the Health Department Regulations. We
don't infringe on any of the sanitary system, the neighbor's sanitary
system and the house has been there again since the fifties and it
increases the ( ) to slightly impact anyway. So we went through
that Health Department hurdle. Very recently I guess the last
couple of days, the Planning Board came back with a recommendation
and said, well we rather you not give anything, you know, conform
to building. But, if you must, split the property equally and I told
Bob Kassner, Bob, why are you suddenly saying split them
equally? And, he said, well because we don't want to see that other
lot being split. I said no, we're not planning on doing that.
That's not the intention. They didn't know the hurdle we had gone
through with the Board of Review and it made sense really the
character of the neighborhood because the property on Pine Neck,
the house parcel on Pine Neck was actually a little larger than most
of the other lots, or actually all the lots on the same side of the
road that really came out of this subdivision. So, the house parcel
falls right in line with the other parcels on Pine Neck and than the
oversized parcel, that would be the new house, and putting a new
sanitary system in, might be of concern to the neighbors. We made
it conform to one acre requirements. All the properties in this
vicinity are half acre, some cases quarter acres, because they were
quite small to well establish the zone, small subdivision area and we
are allowing for an oversized one acre parcel. Certainly, one acre
is the zoning here, all the lots here are half of that. So, we are
really just trying to preserve Jeff's homestead, provide for his
niece who is the only other heir and split the ( ) in half and give
everybody an opportunity to live where, and stay where they always
lived. I think that, if you have any specific questions I think I
can answer them at this point. We lived through this process for
over, but I don't even know, year from year. It's going on two
years. We've explained to the Board of Review. We went to the
Planning Board and now we're going ultimately to get an approval
from you and then go back to the Planning Board. If you have any
questions.
CHAIRMAN GOEHRINGER: Mr. Dinizio?
°Page 54 - Hearing Transcripts
September 24, 1998 - Board of Appeals
MEMBER DINIZIO: No questions.
CHAIRMAN GOEHRINGER: Ms. Collins?
MEMBER COLLINS: I guess ancient history. But, I'm just curious,
somewhere in the materials that you submitted there is a statement
that says, the lots were not separated in 1966 as the family had
believed. Was something done then I didn't find anything?
MRS. MOORE: Yeah, it was very odd and we, this comes from ( )
Terry's file. Before he closed up his office, before ( ) was sold,
we went through his records because that was the family attorney.
We discovered that in 69, the third parcels, I gave you a diagram
there -
MEMBER COLLINS: Yes.
MRS. MOORE: That was parcel was sold off to Grigonis. In 1966 a
release of lien, I mean the document itself looks like a deed. If
you look at the fine print, it says, release of mortgage, release of
lien. I think, I guess the directive to ( ) at the time was, split
this deed and make sure everything is in order. He accomplished
half that task. He released the mortgage on that parcel, but never
executed a deed to establish another separate lot and thereafter you
know, nobody did anything with the property. It just remained as
it was and then it really was discovered until William Goubeaud's
death and -
MEMBER COLLINS: So, the family then I guess believing that there
were two lots thought that one lot, the house lot was a lot deeper
than your now proposing and the other was down abutting Gagen's
Road.
MRS. MOORE: Yes.
MEMBER COLLINS: For the reasons you set forth you prefer not to
live with that tot line but, with one that would create a 40,000 sq.
ft. piece.
MRS. MOORE: Yes, the house parcel actually took two lots and put
them together as a one and a half acre lot and the quarter acre lot
offered Gagen's Landing Road was completely left as a separate
saleable lot. That's not what happened and certainly I think
planning wise now and the Health Department concerns and really
with Jeff's needs, he's happy with his house. He just wants to be
( ) and the whole area in the back, I'm sure you've probably have
seen that it's all vegetated. You really don't see a thing and there
is no, you know that day of that Gagen's Landing, the parcel of
that Gagen's Landing road as it's developed, the house will have
access of Gagen's Landing Road and that whole area will be a buffer
area between the two homes.
MEMBER COLLINS: Thank you.
~Page 55 - Hearing Transcripts
September 24, 1998 - Board of Appeals
CHAIRMAN GOEHRINGER: Mrs. Tortora?
MEMBER TORTORA: No, I don't have any questions.
CHAIRMAN GOEHRINGER: Mr. Homing?
MEMBER HORNING: No questions.
CHAIRMAN GOEHRINGER: OK, while you're standing there, we'll
see if anybody in the audience. Anybody else like to speak in
favor? Anybody like to speak against? I guess that's it. Seeing
no hands I'll make a motion closing the hearing reserving decision
until later.
MEMBER HORNING: Second.
Motion carried. See Minutes for Resolution.
'Page 56 - Hearing Transcripts
September 24, ]998 - Board of Appeals
9:06 p.m. - Appl. No. 4605 - PALMER VINES, L.L.C. This is a
request for a Variance under Article III, Section 100-31A(4)(b) for
permission to construct Winery Building and establish Winery Use on
a 3.619+- acre parcel, known as 34995 Main Road, Cutchogue; Parcel
1000-97-1-11.4.
CHAIRMAN GOEHRINGER: I have four letters in the file opposing
and I have a survey indicating as such indicating the entire site
plapL area and I have a copy of the Suffolk County Tax Map
indicating this and surrounding properties in the area.
Ms. Wickham, how are you tonight?
ABIGAIL A. WICKHAM, ESQ.: I'm fine, thank you. Good evening,
my name is Gail Wickham. I'm representing the applicant .who is
actually Lieb Vineyards as Contract Vendee. We took the liberty of
borrowing the Justice Court sign - it reflects to a large extent I
think the map is entirely ( ). I would just like to take a minute
to introduce a parties that can explain the relationship. We've been
- Lieb is the applicant and Mark Lieb is here with me together with
his architect Steelman. He is the Contract Vendee of the 3.6 acre
parcel. Palmer Vineyards is the owner of that parcel and also the
adjoining into 53-acre farm to which the Development Rights had
been sold. Palmer acquired both parcels from Ressler in 1986 who
had acquired the entire parcel or complete 3.6, I think it's 3 acres
from the Robinson family in 1983. So Robinson had subdivided this,
their farm into two parcels on the Main Road containing the two
houses, the 3.6 acre parcel contains an agricultural building, and
the 53-acre farm to which they sold the development rights to
Suffolk County. The sale of the Development Rights was in 1979.
The 3.6 acre parcel includes at the north up to 50 feet of vineyard
which I wanted the Board to be aware of because that will remain
( ), so the asphalt area up there is bigger than it looks when we
on the field itself. The proposed agricultural building on the west
will be for farm equipment and not specifically for ( ). The
critical issue we have here for this variance is only from the
requirement as to the ownership of the acreage. It's not a variance
to put a winery parcel on this parcel. A winery is permitted on the
parcel without a variance but is from an owner. We're asking that
instead of the vineyard owner to the north have the clear right to
construct the winery, that it could be another vineyard owner whose
acreage is near but not adjacent to this parcel. We would be
agreeable to a Restriction that the ownership of this parcel be the
same as or at least that the principals be the same as the vineyard
owners' other property in Cutchogue, and it would be the only
variance that we anticipate using in respect to this property. The
building will be a small building. Less than 5,000 sq. ft., between
the two floors. The lower is to be built into the hillside. We'll
adjust the design which is the rest. The basis for the variance is
really two-fold. While the ownership of the winery parcel and the
adjoining farm are different, the use of the farm parcel as dictated
by the Development Rights description and the fact that there is a
vineyard on it accomplishes the purpose of the 10-acre requirement,
that a small parcel with a winery use is not being used in isolation
from the complimentary farm uses -
'Page 57 - Hearing Transcripts
September 24, 1998 - Board of Appeals
CHAIRMAN GOEHRINGER:
can't hear you.
Could you restate that, Gail?
We really
MS. WICKHAM:
little better?
Oh, I'm sorry.
Do you want me to use the mike a
CHAIRMAN GOEHRINGER: Yes. Thank you.
MS. WICKHAM: While the ownership of the winery parcel and the
adjoining farm parcel would be different. The usage of that farm
parcel is dictated by the Development Rights restriction and the fact
that it is an insured vineyard. That will accomplish the purpose of
the 10-acre requirement was designed to do. That a small parcel for
a winery not be used in isolation from some sort of farm land. In
other words, you don't have just a little piece of property with a
winery around it in isolation from sort of agricultural usage.
CHAIRMAN GOEHRINGER: So what you're saying is that you're going
to covenant this parcel and the other parcel that Mr. Lieb owns on
Oregon Road?
MS. WICKHAM: We would be willing to do that as well. We also
have here a farm directly adjoining the winery piece that it's going
to be the vineyard. It's going to look like it's all together. So
we're not having just a little piece cut out. It's just going to be
a winery with no other vineyard related use around it.
CHAIRMAN GOEHRINGER: OK.
MS. WICKHAM: The second basis for the variance is, as I said,
that the Liebs owned and operated the vineyard at the same
community at the other end of Bridge Lane which will provide for
what we would like to consider a complimentary farm usage to the
winery. The reason we can't comply with the 10 acres is that in
1979, long before that acreage requirement was established, that
3.6-acre lot was created by the Robinson family, some of whom I
think are now objecting to this variance. The Development Rights
land cannot be subdivided. The County Legislature I'm sure would
not consent, or the Planning Board (). So that is not something
that can be accomplished. The fact is that the Board is required to
consider here are long that we think that in considering them, it
would be hopefully we'd be able to adapt our particular problem to
your concern with the Board of Appeals.
First you have to address whether there would be an
undesirable change in the neighborhood. The use of the winery is
permitted here, it's not an issue. If the ownership of the farm and
the winery were the same, it could be a winery and the Palmer
residence could be a winery. So the variance itself is to the
acreage and will not probably change in that regard. The second
thing that you are charged with in considering is whether there are
any alternatives to this proposal. The Development Rights sale
concludes a larger parcel of being created to accommodate the
winery. The third question is whether the variance is substantial.
Page 58 - Hearing T~nscripts
September 24, 1998 - Board of Appeals
We have designed a small building which Mark will address in a
minute with a lot coverage would be less than 5-1/4%, that would be
20%. Moreover, the adjoining 53 acres, being right up against the
property dedicated to a vineyard really minimizes the impact of the
effect, that there is a small parcel on one acreage vineyard than
would otherwise be, and it creates a unique situation. So this
prevents, I think, the undesirable precedence that you might want
to avoid, a winery on a small parcel without its supporting farm
which was, which the ordinance was designed for then.
Another thing that you have to consider and this is obviously
very important to us, as well as the adverse affect that this might
cause; and there are several issues that I'd like to address
encompassing a response to some of the concerns expressed by the
neighbors in these letters that you've received. The first, of
course, is the issue of traffic. That is something obviously that
will have to be addressed by the Planning Board and Department of
Transportation. As I said, since the winery can be built here
there would be traffic anyway. It's just the question of the
ownership. One thing I think that you should be aware of if you're
not is that Mattituck School is in discussion right now with the
Department of Transportation and the Highway Department to put up
flashes going in either direction in front of the school at times
when traffic would be bad. So, that will be a positive impact. Not
only that, the primary weekend, that winery hours would be on
weekend while the school is not in session. Although we all
remember that as being a difficult curve when you actually do go out
there, as you come eastward, I sorry, westward in front of the
school, there is a a fairly good line of sight. It's the westward
direction that we'd normally be concerned about and from the top of
this hill if you actually go out and look, there is a very long
increase of visibility to where that driveway (changed tape) much
better than the impact from the again ( ) would be difficult, and
also I think that the traffic light while we may not like it, does
have the impact of slowing people down a bit.
There have been accidents there we know in that whole stretch,
not necessarily this particular area. It's unfortunate a fatality
was caused by a deer coming out in the road which could occur
anywhere out here, but certainly the over-grown dense woods have,
it would have been a recorded fact as you know. Another thing on
the traffic that I think is important that the Board recognize is
that there is over 160 feet from where this driveway would be or
from the easterly boundary of this property to where Mr. Pugliese's
driveway is, so it will not be right up against them. There will be
a separation, two driveways with the same usage.
Another issue that was raised by some of the neighbors was the
fact that this would now be a business that would be conducted in
their neighborhood. Well, first of all, an agricultural business is
permitted in this zone, and as I said a winery would be permitted on
this parcel. The fact that a business will be created is not
something that is created by the fact of this particular variance.
Moreover, I noticed that the neighbor, that one of the neighbors
Page 59 - Hearing ~f'.~nscripts
September 24, 1998 - Board of Appeals
who objected has a sign posted on their property advertising a
business. So I don't think that that particular argument is
something that should be a problem here. It's something that we
will address with the Planning Board.
Another issue with traffic has to do with the fact that we are
interested in keeping the traffic on the Main Road as opposed to up
on Oregon Road where Mr. Lieb could build a vineyard, well a
winery, excuse me. Obviously he doesn't want to see a lot of traffic
up there, but I think if there were traffic up there, it would be for
his benefit if he had a winery there. The detriment would be to the
other people that live up there. The other people live on Bridge
Lane and Oregon Road and that's what we were referring to in our
statement that that would be a bad location for a winery. The fact
that there's traffic on the Main Road, well, it's already there.
That's where the people are. We don't feel that it makes sense to
divert something up north to a, say, a residential community.
There were some environmental concerns that were also raised,
and I want the Board although you may be aware to be advised, that
the, there was actually another business conducted on this property
years ago besides a farming operation, and that was that there was
a commercial sand pit for mining operations conducted in the low
area to the west of this property between Palmer and Pugliese's
property in the thirties and forties which was quite a magnitude,
and that had a lot to do with sweeping out and creating some of the
low areas in there now.
As far as other environmental concerns the Liebs are going to
give a lot of considerations about what they do their development in
terms of trees and what type of clearing, will be accomplished. We
also will have to consider some aesthetic things such as screening of
the neighbor's property which is somewhat of an eyesore at this
point.
We will also be considering removing four or five traffic poles
on the front of the Main Road in order to put utilities underground
which will be not only an aesthetic improvement but probably a
considerable safety improvement as well. The fifth factor that the
Board must consider and that's the last one fortunately is whether
the problem was self-created, and it was ( ) before, and it was
done that way in 1979 era.
Just briefly addressing the building, Mr. & Mrs. Lieb think if
you need further questions clarified, their architect can answer. The
building will have a maximum of 5,000 sq. ft. of which the sales will
be about 2,000. Most of the building, about 3,000 will be for
fermentation and winery area. The accessory building in the back
will be for farm equipment. The existing farm that is there now will
be re-sided and used for storage and case wine most likely. The
building will be very nicely designed.
In conclusion I think there are bona fide reasons we have
related to an ongoing agricultural operation that's a justified
Page 60 - Hearing ~[.~nscripts
September 24, 1998 - Board of Appeals
experience and we'd like to answer any questions that you may have
concern.
CHAIRMAN GOEHRINGER: I have to tell you, Ms. Wickham, that I
was never with that interpretation that you couldn't sell a piece of
development rights property. I have to tell you, I just -
MS. WlCKHAM: You couldn't subdivide.
CHAIRMAN GOEHRINGER: Yes, you couldn't subdivide. I mean
when I, that very simply means that you can't build anything on it,
but you could not sell a portion of development rights property?
MS. WICKHAM: When you sign a contract with the County
and I think the Town does the same thing, before you can even get
to the deed, there is a Covenant in the contract, that the
underlying fee to the property in which the Development Rights are
sold, cannot be subdivided without the approval of the Town and
they're not anxious to do that. I think significant hardship here
would be to try and get the approval of the Town Legislature to do
that. It's not something that I'm even aware that you a can
subdivide it by operation of law. I think if you leave your farm to
your family. There are certain exceptions to that rule. But,
generally you're not permitted to subdivide it. Nor would the
Planning Board of this Town in any way encourage a pending
subdivision with development rights. They don't like io see farms
split up to that. If I could speak for them I think that's how it's
done.
CHAIRMAN GOEHRINGER: You have a question?
MEMBER TORTORA: No, I just of the 53 acres of the Palmers that
are sold on it, are they to the east?
CHAIRMAN GOEHRINGER: North.
MS. WICKHAM: In fact what I'd like to do, if I may give the Board
a copy of the Development Rights deed that shows the transfer was
in 1979. And I also have which might 'help you, I have a copy of a
map that was done in, I think in 1996. It's not a very good copy,
it's reduced and rephotod but that shows, excuse me, this little
piece here is our piece, and this is all the vineyard up here, except
for that wooded area and all of the Development Rights have been
sold to that. Here's the deed. And as you can see from the map,
that is us right there. It starts right here and goes all the way
up. So this parcel is really this point going to be tucked right in
front of that whole farm.
MEMBER TORTORA: What's the other document, Jerry?
CHAIRMAN GOEHRINGER: A survey. OK, this is the only
rendering that you have which is the map of the building at this
point?
Page 61 - Hearing T~nscripts
September 24, 1998 - Board of Appeals
MS. WICKHAM: Yes, they obviously didn't want to expend a lot of
time on the design of a winery until we got over the first hurdle
here. But this is a rendition of where they think the building
would go, and it's really because of the contours and the layout of
the property, it's the logical place to put it.
CHAIRMAN GOEHRINGER:
questions ?
OK. Thank you.
Member Horning, any
MEMBER HORNING: Well, I was pondering in my own mind, what
the difference would be if in fact the Palmer Vineyard developed a
winery and leased it or subleased it to these people rather than them
leasing the property and building their own winery?
MS. WICKHAM: Mr. Lieb can probably answer that.
CHAIRMAN GOEHRINGER: Just state your name Mr. Lieb.
MARK LIEB: I'm Mark Lieb, owner of Lieb Vineyards. It's an
interesting question, we talked about it in the past, but we really
have our own design you know, we bought a family owned operation,
we bought the vineyard in 1992, we expanded in 1993, and we built
a home there in 1994 and we now live there permanently as well as
our family. We want to do something very small and very unique.
We are not into generating large amount of case sales. We want to
do small and not a very high end certainly we want to do it and we
have spent a lot of time touring Napa Valley and living in California
for a while and, we have certain ideas of how we want to do it, a
very small, very unique on a scale like our home up in Oregon and
over Bridge Lane, so we're familiar with it. Mr. Palmer has built a
wonderful operation down in Aquebogue and his ideas of the winery
are a little different than ours but, we talked about that but really
because we own a vineyard right down road of Bridge Lane we have
our own ideas what should be done. Like I said, it's something we
talked about but, we really weren't going along on that, and we are
( ) that piece ( ) very successful up in Oregon Road.
CHAIRMAN GOEHRINGER: Thank you. Any other questions?
MEMBER HORNING: Nothing.
CHAIRMAN GOEIIRINGER: Mrs. Tortora?
MEMBER TORTORA: Going back to the Development Rights on the
parcel to the north, I know that you can't subdivide them, but I
also do believe that you can transfer them if it's agricultural use
to agricultural use Development Rights are sold between farmers and
farmers. Have you ever considered trying to acquire the
Development Rights to another 6 or 7 acres to makeup that 10 acres?
MS. WICKHAM: No. The Development Rights to this parcel to the
north are sold to the County. I don't know that there is an
effective Development Right sale method available at this point.
Page 62 - Hearing T~nscripts
September 24, 1998 - Board of Appeals
MEMBER TORTORA:
you had inquired about it.
MS. WICKHAM: I'm not aware of one.
worked on it for a long time. I don't
established anything.
MEMBER TORTORA: I don't know if the County does.
MS. WICKHAM: No, I don't believe the County does.
MEMBER TORTORA: That Townsend discussed -
MS. WICKHAM: Other than those Pine Barrens.
mechanism with Pine Barrens.
CHAIRMAN GOEHRINGER: They do give credit or they -
MR. LIEB: Yes, they give credit.
CHAIRMAN GOEHRINGER: Ms. Collins:
I'm not 100% sure there is, but you know if
I know, the Town has
think they have ever
I know that -
They do have some
MEMBER COLLINS: Could I just ask a couple of questions about the
business?
MS. WICKHAM: Certainly.
MS. COLLINS: You mentioned 36 acres. Is that the acreage of
the vineyard up on Oregon Road?
MR. LIEB: Yes, it's 35 acres (and).
MS. COLLINS: OK, now, are you making wine?
MR. LIEB: Currently we are selling our grapes to Palmer.
MS. COLLINS: You are selling grapes to Palmer and they are
making wine under the Palmer name and not under your name?
MR. LIEB: Under the Palmer name. Today we are selling the
grapes to Palmer and one of our varietals is made with the leaf in
the ( ). This year we're going to ( ) start some of our own
wine. From the bulk of the grape sales we started will go to
Palmer.
MS. COLLINS: So your goal here then I guess is that you want a
winery because you want your own label.
MR. LIEB: Well.
MS. COLLINS: You want to control the wine making?
MR. LIEB: Well, the answer to that is yes, but it's a little more,
it's a little longer answer than just yes. The real fact of it is
l~age 63 - Hearing T~nscripts
September 24, 1998 - Board of Appeals
for everybody sitting on the Board, it costs about $18,500 to bring
a vineyard into production, not including the cost of the land. If
you raise it properly according to the soil in the Cutchogue area
which you can get per ton, for the tonnage per acre, you will
never, ever make money on the vineyard. You will never recuperate
your investment. So in essence that's why there are not a lot of
grape growers in this area. They just cannot make money. It's a
constant battle.
CHAIRMAN GOEHRINGER:
per acre.
Point of question. You're talking $18,500
MR. LIEB: To bring it into production.
CHAIRMAN GOEHRINGER: Per acre?
MR. LIEB: Per acre not including the cost of land.
about the vines, irrigation, the trellis, the labor.
years before you've got a production.
You're talking
It takes three
CHAIRMAN GOEHRINGER: Sure. Anything else, Ms. Collins?
MEMBER COLLINS: No, I guess I was asking the question just to
get something in the record regarding why you want to build a
winery. I mean you said, you gave us part of the answer before
when you were asked had you considered moving sand in effect from
Palmer and what you said, you wanted to be the master of your own
fate, and I -
MR. LIEB: The answer is yes.
MS. COLLINS: And I was trying to expand that to get a sense of
where you stand with respect to being the master of your own fate
or the fate of your grapes, I guess.
MS. LIEB: Yes, I mean, they can be the grapes are raised. This
vineyard is a little bit unique. It was planted by the Mudds back in
1982-83. That's when the older vineyards were around when we
acquired it in 1992, we put a lot of time and effort into it and a
lot of money to the vineyard; and we've now, even people we've
been selling the grapes to besides Palmer have made some very good
wines and ones with ( ), and we've I guess we have toured both
France and California successfully and we have some ideas. We're
not looking to be the Pindar or Lenz, that use 8-9-10,000 cases of
wine. This is going to be very, very small. The 36 acres that sits
up on Oregon Road will produce approximate 6,000 cases if we were
to produce the whole thing. We will most like produce about half of
that unless they were to be sold out. So again, we want to keep it
small, very super ( ).
MEMBER COLLINS: Thank you.
CHAIRMAN GOEHRINGER: Member Dinizio?
~Page 64 - Hearing ~anscripts
September 24, 1998 - Board of Appeals
MEMBER DINIZIO: No questions.
CHAIRMAN GOEHRINGER: OK, do you have anything else,
Ms. Wickham? No, OK. Is there anybody else would like to speak
in favor of this application? Anybody like to speak against the
application, starting on this side of .the room? Yes, Ma'am, just
state your name.
MS. KUHLMANN: My name is Christine Kuhlmann. I am the
property owner of 200 Den-gel Lane which is on the, it would be
just west of the proposed site. I just wanted to bring some pictures
and show you exactly where they're proposing to build the winery in
case you haven't seen it. This is from the top of my driveway.
This is from the other side of the street. This is from the top of
the hill. The one where the site distance is terrible. This one by
the school and this is the view of the winery from my kitchen where
they propose the site.
CHAIRMAN GOEHRINGER: Anybody else would like to see these.
We can take a short break. Thank you.
MS. KUHLMANN: Well I have something I want to say.
CHAIRMAN GOEHRINGER: OK, I'm ready.
MS. KUHLMANN:
off. I'm sorry.
Alright.
I thought you were just cutting me
CHAIRMAN GOEHRINGER: No, I didn't know that you were going to
say anything.
MS. KUHLMANN: Well if Development Rights were sold in 1979 as
they are, while it's true that Palmer could build a vineyard there,
they probably wouldn't build a vineyard there because they already
have one in Jamesport on the old highway. There would be
undesirable changes as you can see there's really nothing going on
back there although there's a small garage. A winery would bring
people. It would bring people drinking, possibly wine, so that's
alcohol consumption. It's noisy. A lot of the vineyards now are
having weddings and parties and jazz on the weekends and stuff like
that so that would disturb all of us in the neighborhood. The
adverse, I mean if they're going to be selling alcohol out of this
winery, that's going to be affecting people on the Main Road.
There's going to be fatal accidents, I don't know whether you're
aware of two local women were killed in February of this year
there.
As far as the business sign, the business sign is that one of
the neighbors has a pool cleaning business. He doesn't have people
coming into the backyard or driving onto the property. They drive
by, they take the number down, and they call him and then he goes
to their house. Obviously they're not going to come to his house to
get their pool clean. I believe that this was self-created because
Mr. Lieb could put a winery or whatever, on his own vineyard on
Page 65 - Hearing ~[~nscripts
September 24, 1998 - Board of Appeals
Oregon Road. Why he wants to, he doesn't want it in his backyard
but he wants to put it in my backyard is the way I see it. I think
that's about all I have to say, thank you.
CHAIRMAN GOEHRINGER: Thank you, Mrs. Kuhlmann. Anybody
else from the center? OK, on this side of the room? Mr. Pu~liese?
RALPH PUGLIESE: My name is Ralph Pugliese from Pugliese
Vineyards. I am definitely opposed to this whole variance
application for the simple reason that it is a 3 acre parcel. And
the Town Code requires at least ten acres for a winery to be
operated and it has to be in conjunction with the vineyard, and it
has to be contiguous with the vineyard.
In 1992 I applied to the Zoning Board and the Planning Board
for a variance to open my winery. But apparently my winery was
separated from my parcel with land too. What I had to do was
connect the two parcels together and make one parcel. So by
making it one parcel it was a 22-acre parcel then, which conformed
to the Zoning Board and the Planning Board's wishes. But, at that
time there was no law stating that there was a minimum of 10 acres.
The law on the 10 acres were passed in 1994, and the law states
that 10 acres is to be devoted to vineyards which is owned by the
winery owner on that parcel. In other words what I'm trying to say
is you didn't accept it from me, and I don't think you should open a
can of worms and let anybody come in with three acre parcels, four
acre parcel, to have a winery. I believe, we have law, and we
should stick by law. It's 10 acres and I say it should remain l0
acres and that's all I have to say. And as far as the traffic is
concerned it is on a bad curve, I'm concerned because I have my
winery right there too and the property isn't a very environmental
sensitive piece of property because there's a lot of wetlands in
there and there's a lot of wild life in there and the whole parcel is
all creek. So, what I'm saying is that I think the Zoning Board
should stick with the rules and regulations. The Plannin~ Board
should stick with the rules and regulations and the Town Board, if
it says 10 acres and it should remain 10 acres. That's all I have to
say. If I had it, if I had to merge my property to make it l0 acre
to make it a 24 acre parcel to put my winery, I don't think we
should let other wineries come in and open a winery unless they
have the 10 acre minimum requirement. Otherwise you're going to
open a can of worms and before you know it, you're going to have
plenty of applications here, a 3-acre parcel here, a 2-acre parcel
there, a 4-acre parcel here and you're going to have your hands full
and that's the next step that's going to happen. As far as the
Liebs are concerned, I think they're a real asset to the Town of
Southold. I think they're very nice people, and they keep the open
space and they have a vineyard which you know it's nice. The
thing is we can't start allowing small parcels to become wineries.
As far as Palmer is concerned, Palmer's is one parcel. This is going
to be another parcel. If Palmer wants to put a vineyard there, a
winery, that's his business. The only way he's going to build it,
he's going to have to change his winery. He's going to have to
merge. I don't know if he could, the 3 acre parcel with the 40 acre
~Page 66 - Hearing T.~nscripts
September 24, 1998 - Board of Appeals
parcel. But as far as anything else, the law is 10 acres and I think
it should remain 10 acres. That's all I have to say.
CHAIRMAN GOEHRINGER:
of $he room. Yes, Ma'am.
Thank you.
Anybody else on this side
DONNA RUDOLPH: My name is Donna Rudolph. I'm kind of here
two-fold. I am the property manager of John Binns who owns the
house that is the eye sore. It's being rented right now. The
owner lives in California. He has written you a letter that he is
not in favor of having this. I also worked for Ressler Vineyards for
15 years, so I know the piece of property very, very well. Ralph
has mentioned that it is environmentally sensitive area. I don't
know if Mr. Lieb knows that in the Springtime there's underground
springs that bubble up water and that whole back thing floods.
Also, when I worked for Ressler, I saw a letter from the DEC
claiming that part of that property was deemed wetlands. Now I
don't know whether he'll be able to build on that or not. It's a
really beautiful piece of property, and I'd really hate to see it,
you know, a small winery. I also agree with Ralph that you need a
10 acre parcel and Palmer is Palmers, and Lieb is Lieb, and they
should be separate. You know, they're not, I don't believe that
because there's Palmer Vineyards in his backyard that that
constitutes a vineyard you know. It's a just a name. But that's
like I said, I know that woods very, very well. I use to hike down
there, I've seen the wild life. There's parks down there, there's
peepers and all that would be destroyed. And they would be gone
and there is a lot of open property available right now to build a
winery on and put 10 acres is a grapes for five acres or whatever.
And 'that's about all about what I'd like to say, thank you.
CHAIRMAN GOEHRINGER: Thank you. Anybody else?
WILLIAM HEINISH: My name is Heinisch, I live on 40 acres.
During the last year, I've attended many meetings with the
Architectural Review Board and the Town Planning Board. The
Architectural Review Board recently on one particular winery which
was estimated to cost much over a million dollars from start. The
Architectural Review Board insisted upon this winery to be a
minimum of 500 ft. back. I think they finally come to after many,
many, meetings, I think they finally came to a conclusion of around
300 or 250 ft. back from the road. I have a neighbor who lives
across the street from me that's going to build a very small winery
which is a little over 1,000 sq. ft. She has to maintain a minimum
setback of 150 feet. Both these wineries that I'm speaking about
are in excess of 20 acres of vineyards. I don,t think a 5,000 sq.
ft. winery is a small winery. I believe this Board also rendered a
decision not too tong ago with a split acreage that was not allowed
and who since then has his winery in Greenport. That's all I have
to say. Thank you.
CHAIRMAN GOEHRINGER: Thank you.
something you wanted to add?
Ms. Wickham, you had
Page 67 - Hearing Transcripts
September 24, 1998 - Board of Appeals
MS. WICKHAM: I just wanted to respond. Very briefly. Because I
think I did address a number of the neighbors concerned in my
presentation and I think that the pictures that Ms. Kuhlman gave
you do illustrate the point that from Den-Kel (Lane), there is a
visibility problem which does not occur when you come over the hill
and further from her backyard this winery will be on the other side
of the property. Whether Mr. Palmer would build a vineyard is not
really the issue. He could build a vineyard, I'm sorry a winery. It
is a permitted use in this district and on this property, and the
fact that you have a dedicated 53 acre parcel up to it for it's full
contiguous boundary is the basis for our application. Mr. Pugliese's
case is a very interesting one and his was resolved by connecting
with his strip. But the property that the two acres primarily
adjoins right behind him which the County Tax Map shows 12.4
which is a big piece right behind him before you get to his
vineyard. In fact, really there's no relationship to a vineyard that
wouldn't have necessarily, excuse me, at the time where as here we
do have a contiguous 53 acre parcel, so it is all contained in a
composite picture. The fact Mr. Pugliese was required to create a
ribbon between his bigger piece and his small piece, we can't do
that, but we are willing to connect ours with a covenant which we
think accomplishes the same thing plus we have the property there.
Regarding Ms. Rudloph's comment, that low area she's speaking of is
not part of this property. That is part of the Palmer Vineyard's
property which Development Rights have been sold and that will not
be touched. There may be a lot going on in there now following the
cessation of the sand pit operation but that is not part of this
property. And in answer to this gentleman's comment, the winery
will be located back 200 feet from the Main Road and it will be much,
probably about a third of the size of the winery vineyard. Thank
you.
CHAIRMAN GOEHRINGER: Yes, Sir.
JOHN DROGEN: I'm John Drogen and I live on the property adjacent
to the Palmer Vineyards, right next to John Binns' house and I want
simply to voice my strong disapproval of this plan from reasons that
are many that have been spoken of by. Donna and by Mr. Pugliese.
That environmentally, aesthetically, from the point of view of the
peace and quite and the beauty of the neighborhood, for safety
reasons, a very strong question should be entertained about the
wisdom of this. If the Lieb people want to provide for a vineyard
and for the manufacturing of wine, they have property to do it on
or they can find it, but this is not the location by any means.
CHAIRMAN GOEHRINGER: Thank you. I have come to a dilemma on
this one. I have to tell you because we have not discussed it with
the Town Attorney, and we have not done our own investigation.
And timeliness is always the issue with everyone, but I have to tell
you it is my suggestion that we recess this hearing without a date
and let us talk to the Town Attorney, seek counsel and discuss this
particular issue. And we will get back to you and readvertise it in
the near future, if it's alright with you.
~Page 68 - Hearing Transcripts
September 24, 1998 - Board of Appeals
MS. WICKHAM: Will you be closing the hearing?
CHAIRMAN GOEHRINGER: No. We may want to introduce some of
our own investigation, alright? I think it's to everybody's benefit
to be honest with you and that's my suggestion to the Board. So
I'll try to move it, OK. I'll make a motion recessing without a date
for the purposes of seeking attorney/client privilege and a -
MEMBER TORTORA: Would it be - I just, It would be very helpful
if this, I know the whole area is not flagged up, out, but I know
when I tried to visit the property it's not clear to me where the
property boundary lines are because it is 3 acres plus, and I would
like to know where exact -
MS. WICKHAM: You'd like us to flag this?
MEMBER TORTORA: Yes, if you could. That would be helpful.
MR. Pugliese: I have a question, Jerry. I just, I'm not an
attorney. I never went to college and I honestly -
CHAIRMAN GOEHRINGER: Ralph, I'm in the middle of a motion here.
MR. PUGLIESE: Oh, I sorry.
CHAIRMAN GOEHRINGER: That's alright.
SECRETARY KOWALSKI:
motion.
Well he should speak before you make the
MEMBER DINIZIO: Yes.
CHAIRMAN GOEHRINGER: OK. Go ahead.
MR. PUGLIESE: You're going to have another meeting?
CHAIRMAN GOEHRINGER: Yes. We're going to have another
meeting, OK, thanks. Yes, Mr. Lieb.
MR. LIEB: I just want to - I know I understand the concerns of
whatever. Just a couple of things I want to make clear is there is
not going to be any wholesale destruction or anything. You know,
I've walked that property carefully myself before considering doing
this with Mr. Palmer and there's a fair amount of trees that just
rotting or falling down whatever. Now, there are some very nice
trees in there and every one that's decent we're going to save.
Basically we just want to clean out all the old trees and shrubs that
is there. As far as the pond and all that, the wetlands, again
that's all on Mr. Palmer's other piece of property. We wouldn't
begin start to develop that. That's segregated.
CHAIRMAN GOEHRINGER: I have to tell you for the record, Sir,
that in seeing your operation on Oregon Road, there is no doubt in
my mind what you gentlemen and ladies would be build would be
~age 69 - Hearing Transcripts
September 24, 1998 - Board of Appeals
something spectacular. The issue here is a legal question here and
that's the issue that we have to investigate, OK. There's just no
doubt and basically anybody that's ever come in contact with you,
you know, they think you're wonderful people, alright and I just
wanted to tell you that for the record for my understanding, OK.
So, I'll move that motion I have a motion and the second?
SECRETARY KOWALSKI: Well yoU haven't finished the motion.
CHAIRMAN GOEHRINGER: To recess the hearing.
SECRETARY KOWALSKI:
privilege.
You were recessing for attorney/client
CHAIRMAN GOEHRINGER: Yes.
MEMBER COLLINS: For consultation.
CHAIRMAN GOEHRINGER: For consultation, and we will readvertise
when we complete our investigation. And so I am basically
recessing it without a date. All in favor?
Motion carried. See Minutes for Resolution.
Page 70 - Hearing Transcripts
September 24, 1998 - Board of Appeals
September 24, 1998 Public Hearings, continued:
9:57 P.M. - Appl. No. 4611 -BUILDING INSPECTOR. This is a
request on a Town-Wide basis for an INTERPRETATION submitted by
the Building Inspector for a determination answering the question:
"Does a radio tower and antenna fall under the Provisions of
"Wireless Communications" Article XVI of the Southold Town Zoning
Code, when it is intended for the private use of an owner who
operates a VHF Radio under a License issued to him/her by the FCC
for the purpose of communication, all as part of his/her business,
when located in a Light-Industrial (LI) Zoning District?"
CHAIRMAN GOEHRINGER: This is a Generic Interpretation, this is
not site specific, and therefore we are not dealing with any specific
type of property except for that type that falls within the Light
Industrial Zoning District. I therefore open the floor up for
anybody who would like to make a presentation. I know that the
member of the Building Department is not here present in the room,
so I will open it up for anyone else that would like to discuss it.
Mr. Cuddy, how are you tonight? Thank you for waiting. Thank
you for coming and I thank Mr. Rosen for coming and thank you,
Ladies, for coming.
MR. CUDDY: On behalf of Mr. Rosen who I appeared here for,
would ask you to make a positive Interpretation, positively saying
that a radio tower is not part of the Telecommunications Tower
Provisions. That the Wireless Communications facilities are
consistent with the Town Code. We have been here in one form or
another, talking about this particular subject four previous
response. April 16th, July 11th, July 23rd and August 13th.
During the course of those hearings we submitted two Memorandums,
one dated, April 15th and another dated August 7th, various
documents and we took testimony. I would ask that all of the
testimonies, all of the documents, all of the records be incorporated
in this hearing as if we had to impose the attorney for his client so
that they will be part of the record.
CHAIRMAN GOEHRINGER: I don't have a particular problem with
that. I do want to mention that, but I will mention that I will seek
counsel on that issue based upon the fact that this is not a site
specific.
MR. CUDDY: I understand, but since we couldn't keep ours, I will
agree and hope that you will allow us not to do that.
CHAIRMAN GOEHRINGER: Well on that basis, I certainly will urge
counsel that we will probably have to accept it.
MR. CUDDY: The application of the attorney, application 4544,
(voice too low to hear). I would just point out a couple of things
which we have rerun this previously. That the Radio Tower is very
different from Telecommunications Tower. I said to you before, that
Radio Towers are different in sense that the public doesn't use a
regular tower. Radio Tower does not provide the use of
15age 7] - Hearing Trunscripts
September 24, 1998 - Board of Appeals
communications for general public. Doesn't produce income and the
use doesn't get billed ( ). In addition of course the frequency (
). Those are some of the differences that we claimed are
frequency. I would like to point out to the Board something
additional to tonight's hearing in particular and that is, you're
talking about the LI District. If I'm right, and I don't have the
pattern on reading the town map, but, it appears to me that there
are only four LI Districts in the part of town. Two of them are in
Mattituck parallel with the railroad tracks. One of them is in
Cutchogue between Oregon Road and Route 48, part of them ( ),
and another one is just east of the railroad crossing at 25. 25
crosses the railroad near where Penny Lumber is, ( Boulevard).
East of that, there doesn't appear to be ( ). We're talking
essentially about four specific ( ) and this is not going to effect
an enormous ( ). I would say to you that not only have we
asserted the fact that the radio tower does not ( )
telecommunications tower. But, I had written to our local
Congressman, Congressman Forbes and asked him to go through the
Federal Bureaucracy if he would contact the FCC. I have a letter
that I would like to put in the record dated August 13th from Steven
Weingarten who is the Chief, Commercial Wireless Division, Wireless
Telecommunications Bureau, ( ). In that letter, he effectively says,
tower radio service does not call in the category in the
Telecommunications Act, and ( ) in our position and I'm going to
hand that letter to Mr. ( ) as part of ( ).
CHAIRMAN GOEHRINGER: Thank you Sir.
MR. CUDDY: Just one other thing I ask and that is that you accept
from me, the Notice of Posting and the Affidavit of Mailing. We
posted and mailed and particularly because Mr. Rosen had previously
been here and other people have relied upon our particular
application and I would therefore ask that you would accept these
indicating that the various people who are next to Mr. Rosen's site
have been notified. So, ( ).
CHAIRMAN GOEHRINGER: Thank you.
MI{,. CUDDY: Again, based on all of these previous testimony, I
would urge you to find that the Radio Towers are not
Telecommunications Towers and thank you for giving us this
opportunity once more.
CHAIRMAN GOEHRINGER: No problem. Is there anybody else
would like to speak? Please excuse me for not indicating that you
are here Mr. Bouffard, I apologize and anybody else that's here for
this generic interpretation. This is a rather unique circumstance.
The generic interpretation in general is new to us and I don't mean
to be redundant and I know time is of the essence, but, the key
players here are not here tonight and for some strange reasons they
got their wires crossed. One Building Inspector was suppose to
come and the Chief Building, the head of the department was here
for a prior application which was another interpretation and I had no
idea how this happened. I'm not making excuses for them, their
'Page 72 - Hearing Transcripts
September 24, 1998 - Board of Appeals
both reasonably nice men. So, at this particular point, the only
thing I can do, is recess the hearing and I'll do so.
SECRETARY KOWALSKI: To recess it to October 15th?
Mr. ( )o Is that a motion?
CHAIRMAN GOEHRINGER: Yes.
MR. CUDDY: Can I ask that the significance of the inspector
coming just to recite ( )?
CHAIRMAN GOEHRINGER: I, we actually wanted to hear from him
the reason why he was requesting this, when we requested from
him, or actually from you, an updated Notice of Disapproval. That's
the only think that I can tell you. We asked that from you and then
we got a request for an interpretation from him. I mean it doesn't
make sense to me, OK. But, I assure you we will put it on as
quickly as possible, or we will have a special hearing just to deal
with this aspect to close this and put it to bed. The question I
have is, I don't know when I'm going to do it, OK, and that is the
reason why. I'm hopefully I'm going to do it in the very near
future because I want to get it done. I want to find out what the
reason is, alright?
MEMBER TORTORA:
but, I'm trying
interpretation is.
Actually I don't know why he did it either
to figure out what the relevance to this
CHAIRMAN GOEHRINGER:
what the relevance is.
hypothesis at this point.
Well, that's the question. I don't know
I mean, you know, I mean, I think it's a
SECRETARY KOWALSKI: I was just wondering.
put it over to October 15th?
Are you going to
CHAIRMAN GOEHRINGER:
second atright, Marty?
Or before, this way, just wait one
SECRETARY KOWALSKI: Well you can't, you have to give a date if
you do it before, that's what I'm saying.
MR. ROSEN: I would like to put in the record, that I find it
insulting to the integrity of this Board, that the Building
Department does not have any representation here at this time.
MEMBER DINIZIO: I would like to second that.
MR. ROSEN: Thank you.
CHAIRMAN GOEHRINGER: Alright, so at this particular point we'll
recess it without a date and we will create a date so that we can
advertise it in an appropriate fashion and/or we can reconvene it
next Wednesday, it's up to you.
Page 73 - Hearing Transcripts
September 24, 1998 - Board of Appeals
SECRETARY KOWALSKI: Well, the only thing is if we do it next
Wednesday, we just need the date.
MR. CUDDY: Mr. Chairman, ( ) I'm somewhat concerned about the
( ) We can end up in a stalemate. I'm representing somebody
whose been here five times so that ( ) and the Building Inspector
( 0 we essentially never had ( ).
CHAIRMAN GOEHRINGER: What happened was this. Mr. Fish was
suppose to come and Mr. Forrester was here. So, Mr. Forrester
said to Mr. Fish, I will go since I'm already here, OK, and that's
where their wires got, there was a miscommunication, OK, and that's
the problem because our Board Secretary and Clerk here, called Mr.
Fish and substantiated that.
SECRETARY KOWALSKI: No, I called Mr. Fish and I asked him if
he was on his way because it was already 8:30, and he said,
"there's no reason for me to be there because Ed Forrester had
already agreed to be here", and Mr. Forrester was not in the
building at that time I called Mr. Fish. So, I assumed that the two
Inspectors were able to communicate who was going to handle the
hearing.
CHAIRMAN GOEHRINGER: Well, let me put it to bed right here.
Ladies and gentlemen of the Board, can we meet next Wednesday,
for the purposes of making decision and clearing up this hearing
process, OK?
SECRETARY KOWALSKI: Recessing the hearing of the date?
CHAIRMAN GOEHRINGER: Yes.
MEMBER DINIZIO: Well when are we going to have the date? We'll
have this hearing next week?
CHAIRMAN GOEHRINGER: Yes.
MEMBER DINIZIO: It's OK to have it advertised that way?
SECRETARY KOWALSKI:
to be on.
You don't have to advertise it if it's ( )
MEMBER DINIZIO: My preference would be that we add the Building
Inspector that made this request, that he be the one to be here.
CHAIRMAN GOEHRINGER: Oh, I agree with you. I sincerely agree
because I thought up to tonight, he was going to be here.
MEMBER COLLINS: So, what was the ( )?
SECRETARY KOWALSKI: Well, as of -
l~age 74 - Hearing Transcripts
September 24, 1998 - Board of Appeals
MEMBER TORTORA: Quite frankly, I think that this has been
dragged out as nauseam and I would like to close there hearing
tonight.
MEMBER DINIZIO: I think it's almost deliberate, if you ask me. I
think you're trying to wear these people down in my opinion. Well,
I just, I just, the impression I think, getting from the
correspondence that we've gotten from these people for the past two
months. This is not the first time that this happened. We had to
beg them for this.
SECRETARY KOWALSKI: Just recess it or close it, one or the other.
MEMBER TORTORA: Close it. I'll move to close it right now.
CHAIRMAN GOEHRINGER: Does anybody want to second that?
MEMBER TORTORA: To close it, to close the hearing?
MEMBER COLLINS: Then we have to, we individually have to think
about it. We as a Board have to reargue it and I guess I would
agree, that input from the Building Department (changing tape)
SECRETARY KOWALSKI: No, it would be recessed with a date and
a time. Next Wednesday is the 30th of September and the time we
were meeting is 7:00 o'clock?
MEMBER COLLINS:
operationally.
So Lydia, that really has the same effect,
MEMBER TORTORA: I know, it's just that I really -
MEMBER COLLINS: I know, you're fed up with it.
CHAIRMAN GOEHRINGER: So then, so then, somebody second her,
her motion and we'll go from here.
SECRETARY KOWALSKI: Well, nobody has second her motion.
MEMBER COLLINS: Lydia's motion was to close?
SECRETARY KOWALSKI: You don't have to second that.
CHAIRMAN GOEHRINGER: I mean I think we have enough.
SECRETARY KOWALSKI: Unless you have a new motion.
MEMBER COLLINS: My only reason for hesitating, is just, I haven't
thought to whether we're keeping our procedural skirts clean. That
this is such a mess anyway.
SECRETARY KOWALSKI:
date.
I would recommend you recess it with a
~age 75 - Hearing Transcripts
September 24, 1998 - Board of Appeals
MEMBER COLLINS: I feel now that I think about it, that having on
the record, not just a letter from the Building Inspector asking for
this, but some testimony would give and take with the Building
Inspector -
MEMBER TORTORA: That's fine, Lora, I, I don't really care as
long as you -
MEMBER COLLINS: So I would, I would do it that way.
MEMBER TORTORA: Would bring to this to a conclusion in the near
decade.
MEMBER DINIZIO: So you're making that motion?
MEMBER COLLINS: Yes, I guess I'm proposing that we recess with
a date.
MEMBER TORTORA: I'll second that motion.
SECRETARY KOWALSKI: The date, the date is, wait we need the
date. September 30th is next Wednesday.
MEMBER COLLINS: That's the one we keep talking about.
SECRETARY KOWALSKI: At 7:00 o'clock, so I just need somebody
to put that on a motion. Jim has second that motion.
CHAIRMAN GOEHRINGER: You want to go next Wednesday, or do
you want to go the following Wednesday?
SECRETARY KOWALSKI: It's in the motion already.
MEMBER DINIZIO: No, next Wednesday.
MEMBER COLLINS: Next week is good.
CHAIRMAN GOEttRINGER: Next Wednesday, 7:15.
SECRETARY KOWALSKI: 7:00 o'clock.
CHAIRMAN GOEHRINGER: No, the meeting starts at 7:00 o'clock.
The hearing will commence at 7:15.
MR. CUDDY: At that time, will there be a decision? In other
words, suppose Mr. Fish again, refuses to come, we have the same
situation ( ). When you talk about this decade we can have
millennium come and we'll still be ( ).
CHAIRMAN GOEHRINGER: I sincerely hate to bring this up because
this goes back to mid 85, but, I believe we have the power to
subpoena him. I believe we do and I am not going to exercise
that. I am very simply going to write a nice letter to the Building
Department and say, how come you gentlemen weren't here? We are
Page 76 - Hearing Transcripts
September 24, 1998 - Board of Appeals
respectfully requesting Mr. Fish to show up. That's it. This came
up in a prior hearing about 1985. OK, so we have a motion and a
second and I apologize for not moving that motion. All in favor?
Motion carried. See Minutes for Resolution.
~Page 77 - Hearing T¢-dnscripts
September 24, 1998 - Board of Appeals
10:15 P.M. - Appl. No. 4589. - ALI YUKBASIOGLU. Contract
Vendee: Soonok Kim; current owners: ROBERT and ETHEL
SCHROEDER. Applicant is requesting an Interpretation to reverse
Building Inspector's April 1, 1998, Notice of Disapproval in which
applicant applied to use premises as an automobile service station
with gas pumps. The Building Inspector disapproved the subjeet
application under Article XXIV, Section 100-241-G for the reason
that the proposed use is a discontinued nonconforming use in this
R-40 Low Density Residential District and is therefore no longer
permitted unless a variance is granted by the Board of Appeals.
Location of Property: 4380 Route 25, Greenport, near East Marion;
1000-35-5-4.
CHAIRMAN GOEHRINGER: I have a copy of a survey indicating the
present location of the gas station which we are all well aware of,
OK, it's been there for many years, and as being shown as first as
one story frame gas station. And I have a copy of the Suffolk
County Tax Map indicating this and surrounding properties in the
area. Mr. Arnoff, how are you tonight?
HARVEY ARNOFF, Esq: Good evening Mr. Chairman, tired but -
CHAIRMAN GOEHRINGER: So am I Sir.
MR. ARNOFF: Before I start I think it's interesting to note that
this business has been there for probably longer than most
businesses in the Town of Southold. We have photographic records
which I am going to hand up two copies, which by the vintage of
the automobiles dated somewhere in the early thirties or early
forties, the Schroeders seem to think it's about 60 years ago.
I just want to offer these two photographs up. It shows the vintage
of the automobiles, dressed people. I didn't take those, they
predate my existence, there isn't much that predates my existence
anymore, except for Mr. Tohill (joking), but there are people -
CHAIRMAN GOEHRINGER: Mr. who, Tohill?
MR. ARNOFF: I thought the Board would find that somewhat
interesting. Just by way of history, I think it's important for the
record to note that this, that the Town who was then Building
Inspector Fisher, on July 17, 1981, did issue a Certificate of
Occupancy, a document called a Certificate of Occupancy which was
really a Certificate of Preexisting Nonconforming Use- just as a
public garage and (inaudible). I represent, I'm here on behalf of
the owners but also on behalf of the contract vendee whose name
believe it or not is pronounced Yukbashul, Ali Yukbashul and who
wants to run it as a gas station. Mr. Schroeder who is here and is
prepared to testify, and I will have him come up and go through
some litany with you in regard to history of this property. Has
owned this property since I believe 1980 or 81 at or about the time
of the issuance of this certificate. He has run this gas station
continuously since that date, and it is our position that the
Building Inspector was wrong.
'Page 78 - Hearing T~nscripts
September 24, 1998 - Board of Appeals
The Building Inspector made no inquiry or knowledge regard to
the existence of this business and it's interesting also to note that
our Town Code is silent as to what i required to establish whether
a business is a business. In other words, if you were open one day
a month, are you running a business? If you're open one hour a
month, are you running a business? There is no definition to my
knowledge in our Town Code which sets forth what you have to do
as far as hours of operation.
So, we don't have anything as obtuse as once a month, we
don't have anything as obtuse as once a year. Mr. Schroeder has
gas records and petroleum records for this property dating back
continuously, and we have a stack of them for you tonight here some
with him, which the Board is certainly free to go through indicating
records up through and including this year where petroleum
products are being dispensed from this property. That wasn't until
recent where there were were other ground tanks. I know that
somewhere in the file in this Town there was an application made or
pending to update the station, and Mr. Schroeder found it
economically not feasible to do that, but when faced with the removal
of the DEC, the DEC requirment for the removal of the tanks, hasn't
conformed with that so what he did was, he took the tanks out.
But, he didn't just stop there. He didn't have the money to put the
tanks under ground, so he put the tanks above ground. Now we
have an individual here who has frequently bought gas from gas and
other petroleum products from Mr. Schroeder's Joseph Angevine from
Greenport who is here, who also I believe is going to come forward
and indicate to you that he has in fact also purchased. I have a
letter which that I will offer up as well from the Ocean Lobster Co.
Ltd. in Greenport, Kent Valadez, the President, indicating amongst
other things, "We have been buying fuel from the Schroeders for
then past 6 years on our way out to the ferry. It has been very
helpful to us to be able to do this. Both Bob Sr. and Jr. have
both been very accommodating to pump fuel at all hours of the day
and night. If you have any questions regarding this please feel
free to contact me during normal business hours." That letter is
dated September 24, 1998.
CHAIRMAN GOEHRINGER: When can I start grilling you?
MR. ARNOFF: Who me?
CHAIRMAN GOEHRINGER: Yes.
MR. ARNOFF: Whenever you like.
CHAIRMAN GOEHRINGER: What was the zoning on the property at
the time Mr. Schroeder owned, bought the property, approximately
1980-19817
MR. SCHROEDER: What was the zoning?
CHAIRMAN GOEHRINGER: Right.
'Page 79 - Hearing T~nscripts
September 24, 1998 - Board of Appeals
MR. ARNOFF: Agricultural A, I believe.
CHAIRMAN GOEHRINGER: OK, what is the zoning today?
MR. SCHROEDER: The same.
CHAIRMAN GOEHRINGER:
SECRETARY KOWALSKI:
CHAIRMAN GOEHRINGER:
Has the, alright -
It's on the file.
Yes, OK.
MR. SCHROEDER: I'm sorry, no.
MR. ARNOFF: No, it's an R-40 Zone now.
CHAIRMAN GOEHRINGER:
SECRETARY KOWALSKI:
CHAIRMAN GOEHRINGER:
MR. ARNOFF: R-40.
CHAIRMAN GOEHRINGER:
You're saying it's still Agricultural?
R-40.
R-40.
R-40, OK. That was basically what I
wanted to ask. When did the station actually stop selling fuel to
the general public.
MR. ARNOFF: Never.
MR. SCHROEDER: Never.
CHAIRMAN GOEHRINGER: No, no. What we have here is the sale
of fuel to selective individual. I mean, I'm not trying to bring
this, I'm just trying to ask the question, that's my job to ask the
question.
MR. ARNOFF:
that question.
I understand that. Mr] Schroeder is here to answer
CHAIRMAN GOEHRINGER: No, I will, I'm just saying, when did it
cease and desists selling, OK, to a person or persons that wanted to
drive into the station, Joe Blow from X,Y,Z, from Nassau County?
MR. ARNOFF: Our position is it never stopped, Mr. Goehringer.
CHAIRMAN GOEHRINGER: Alright.
MR. ARNOFF: And Mr. Sehroeder is prepared to explain that to the
Board, that's why he's here.
CHAIRMAN GOEHRINGER: OK, no problem. Now, we can of course
ask Mr. Arnoff since he is the representative for Mr. Sehroeder,
~age 80 - Hearing T~nscripts
September 24, 1998 - Board of Appeals
but does anyone have any specific questions of Mr. Arnoff before
Mr. Schroeder comes up?
MEMBER DINIZIO: I guess, I want to go on this nonconformance. I
guess the chronological order of things, if I heard you right,
basically if they could pump gas once every two years there, they
would still be conforming. They would still have their use of a gas
station. Because he has to be without a business by not using that
as a nonconforming for two years.
MR. ARNOFF: Two years.
MEMBER DINIZIO: That's basically what you've explained.
MR. ARNOFF: Well, my position is, that it need not necessarily be
that infrequent.
MEMBER DINIZIO: No, but you again, it could go two years.
MR. ARNOFF: The Town Code doesn't have any provision for that.
They just say "been abandoned for two years."
MEMBER DINIZIO: Right, so when you're open, you sell gas?
MR. ARNOFF: That's correct. Our position is, when we're there,
we sell gas. If you pulled in, or Mr. Tohill pulls in, or I pull in,
and Mr. Schroeder is there and you need gas, he'll pump and sell
gas to you.
CHAIRMAN GOEHRINGER:
Schroeder was not there.
Every time I went by the station, Mr.
ROBERT SCHROEDER: If you come by at 5:00 o'clock in the
morning or 5:30 every morning, six days a week, I'll fill you up.
CHAIRMAN GOEHRINGER: Just for the record, that was Mr.
Schroeder.
MEMBER TORTORA: Do you have any income tax records, sales
tax records, or any other records to provide to the Board that
would indicate that the use was not continuous?
Well, no - we have proof that it was continued, not
MR. ARNOFF:
discontinued.
MEMBER TORTORA: Exactly.
MR. ARNOFF: Yes, Mr. Schroeder has some records.
CHAIRMAN GOEHRINGER: Are you going to be able to copy those?
MR. ARNOFF: 1998, 1987, 1996, 1996.
'Page 81 - Hearing T~nscripts
September 24, 1998 - Board of Appeals
CHAIRMAN GOEHRINGER: OK. Yes, remember, this is a hearing of
which you have to state your own opinion plus you have to be sworn
in (to Mr. Schroeder). But we have to tell you this. We have to
have copies of those or we have to have the originals.
MR. ARNOFF: Fine, will provide, what Mr. Schroeder has the
Board can certainly cull through and whatever they'd like copies,
we'll copy.
CHAIRMAN GOEHRINGER:
trust, then?
OK, are you going to leave them in our
MR. ARNOFF: No.
CHAIRMAN GOEHRINGER: No, so then you must copy them.
MR. ARNOFF: Fine.
CHAIRMAN GOEHRINGER: And give them to us.
MR. ARNOFF: Yes, we'll copy them, I'll copy them.
CHAIRMAN GOEHRINGER: Alright. I wasn't in any way trying to
set you up here with these questions. I just wanted you -
MR. ARNOFF: (Inaudible)
CHAIRMAN GOEHRINGER:
Sehroeder?
Right, so are we ready now to hear, Mr.
MR. ARNOFF: Yes.
CHAIRMAN GOEHRINGER; Is there anybody else would like to speak
to Mr. Arnoff about anything? (None)
CHAIRMAN: Mr. Schroeder, you have to raise your right hand. Do
you solemnly swear the information you're about to give us is the
truth to the best of your knowledge?
MR. scHROEDER: (Raising right hand replied:) It is the truth.
CHAIRMAN GOEHRINGER: And you are? First name?
MR. SCHROEDER: Robert Schroeder.
CHAIRMAN GOEHRINGER: OK, thank you.
MR. SCHROEDER; I'll give you a little history on the gas station.
When I was a boy, ten years old, I, twice the building, was half
broken down I would ride to East Marion from Greenport, to get ()
Breyer's ice-cream or similar. Plum Island was built from that gas
station. All were light power lines built from that gas station.
All the trucks were kept at that gas station. A1 Dinizio, a very
dear friend of mine -
'Page 82 - Hearing T~anscripts
September 24, 1998 - Board of Appeals
CHAIRMAN GOEHRINGER: And mine.
MR. SCHROEDER: Ran a business from there that included fuel oil
trucks, cesspool trucks, dump trucks, engine take out, the whole
works. I came along, years later, bought the gas station from a
fella.
CHAIRMAN GOEHRINGER: OK, let's go back.
approximate time Mr. Dinizio left that gas station.
Do you know the
MR. ARNOFF: Yeah, you have depositions.
MR. SCHROEDER: I have absolutely - You should read them and
they will give you a history of that gas station from every person
who spoke, A1 before he died, and every member that owned it
now. Now a lawyer, with the the Town, accused me of converting
a gasoline filling station, you'll find it in your court records, to
a construction company, seven years after we were there.
CHAIRMAN GOEHRINGER: That must have been 19877
MR. SCHP~OEDER: Never stored a thing other than a vehicle.
CHAIRMAN GOEHRINGER: Wait a minute, that was 19877
MR. SCHROEDER: Correct.
CHAIRMAN GOEHRINGER: Was that when you painted it purple?
MR. SCHROEDER: Right.
CHAIRMAN GOEHRINGER: OK.
MR. SCHROEDER: It should have had a lot more to it, but you're
asking me to swear. I'm a good American. I believe in hard
work. That's what I taught my kids, hard work, you'll get there.
It seems as though hard work in this Town doesn't work. The
ghoul, they're coming out of the woodwork. When we had a battle
with the town -
CHAIRMAN GOEHRINGER: That was approximately -
MR. SCHROEDER: I didn't want to fight with the Town. I went out
and bought $300,000 worth of real estate and said, don't do what
you're doing, you're a nice man. I said OK, I went and bought the
farm in Cutchogue, after the I closed, damned if this wheel starts
burz~ing again. They wanted to get me into Court, somebody did.
Nobody would ever admit to it. So the gasoline station that you see
today was created by the Town of Southold. They eliminated four
peoples' job, we went out because the Judge said, $1,000 fine - by
Pat Moore, who is here tonight, $500 a day for every day you're on
the property. This is my land that I paid for and we couldn't fight
with the Court and we left and we bought $300,000 worth of land,
t
'Page 83 - Hearing T~nscripts
September 24, 1998 - Board of Appeals
and we suffered. Our business suffered.
station suffered and people lost their work.
The gasoline filling
CHAIRMAN GOEHRINGER: Now, can I just ask a question in 19877
Were you operating a gas station at that time?
MR. SCHROEDER: We operated a full-line gas station with our
construction company.
CHAIRMAN GOEHRINGER: Up until 19877
MR. SCHROEDER: Yes.
CHAIRMAN: It was at that time they said that you couldn't store
the rest of these products?
MR. SCHROEDER:
one time.
Then we had two. You can't be in two places at
CHAIRMAN GOEHRINGER: No, but was it that time they said to
you, supposedly someone in the Town, or a Building Inspector or a
Code Enforcement Officer said to you, at that time, you couldn't
store Sound Shore equipment on that site, is that correct?
MR. SCHROEDER: I could keep all the Sound Shore equipment and
I can today so long as I keep it in the building and I do that.
CHAIRMAN GOEHRINGER: OK.
MR. SCHROEDER: It has to be inside. When Charlie King was one
of the first people that come to the Zoning Board, in 1957, he was a
gentleman. Nobody showed up that night because it was raining like
hell. So the Board said to him, well this is new zoning and will you
comply with a couple of things? Will you not leave all things around
the yard? He said, sure. It had to be inside. But, it never went
inside, even in 57, 58, 59, Al, Whitey Scresek, everybody, all Plum
Island from there. All your power lines from down the island to
Orient Point were operated out of that. I was the only guy that
said, there's a technicality, let's get them the hell out of there.
Now, you asked. I tried to operate. We would open on weekends.
We would open at nights, we tried during the day, we'd close it.
If we had a man available, we'd open it. This went on until the
nineties when the county said to me, if you don't remove the tanks,
we're going to fine you $1,000. But it was worth it to pay the
county $1,000 - the receipt, he has it. I paid the county an
additional $1,000 to keep the tanks in the ground another year. I
was the last tanks to come out. The head of the Suffolk County
Health Department came himself to watch the tanks come out of the
ground and they were perfect.
CHAIRMAN GOEHRINGER: When approximately was that?
MR. SCHROEDER:
ground.
90-something.
That the last time fuel was in the
'Page 84 - Hearing T.anscripts
September 24, 1998 - Board of Appeals
CHAIRMAN GOEHRINGER: Are you going to give us that information
Mr. Arnoff?
MR. ARNOFF: I couldn't guess.
CHAIRMAN GOEHRINGER: Are you going to get us that information,
when the tanks were extracted or extricated?
MR. ARNOFF:
removed.
I will try to get you proof when the tanks were
CHAIRMAN GOEHRINGER: Thank you.
MR. SCHROEDER: That was the last time fuel was in those tanks.
We went out an bought a $5,000 tank and put it on top and we got
it licensed through the Suffolk County Health Department. I did it
like I just gave it tonight, a valid Suffolk County Certificate that
we paid the County for this fee.
CHAIRMAN GOEHRINGER: That's the tank that we see today?
MR. SCHROEDER: That's the tank that you see today.
CHAIRMAN GOEHRINGER: What is in that tank?
MR. SCHROEDER: Diesel fuel.
CHAIRMAN GOEHRINGER: OK.
MR. SCHROEDER: And I think if you read your Town Code, it
doesn't, fuel is anything that can be burned in an engine.
CHAIRMAN GOEHRINGER: Internal combustion.
MR. SCHROEDER: Whether it be jet fuel gasoline, diesel fuel or
straight oil, or kerosene or whatever. Now Pat Moore was my
attorney for the finding of when we got the fine for making it into a
construction company. The Town said it was a gas station and they
got a $1,000 bucks from us, or from Pat. I told them, just pay
them because if you pay them, it will go away and she paid the
$1,000 and accepted the $500 a day and we left.
CHAIRMAN GOEHRINGER: And you left, you took -
MR. SCHROEDER Now, Pat Moore's last words, including tonight for
Mr. Arnoff was, I told you to keep the fuel in those tanks. As long
as you do that, this Town will never be able to do you in again.
CHAIRMAN GOEHRINGER: Now wait a minute.
MR. SCHROEDER: Now, they never did another person like me
because this town realized how bad it was.
CHAIRMAN GOEHRINGER: OK, now wait a minute.
'Page 85 - Hearing T~nscripts
September ~.4, 1998 - Board of Appeals
MR. SCHROEDER: So I'm ready for more. I'm going to die soon.
I may take you all with me, you know. I'm sick of it, I'm fed up
to here with ( ).
CHAIRMAN GOEHRINGER: Now, wait a minute, I'm still trying to
get the idea here. When you said, you left the station, what do you
mean by that?
MR. SCHROEDER: I never left. I had to leave the public. I
treated that public wonderful. I gave them cheap gasoline and I try
to run a legitimate business. Some lousy individual didn't like it.
CHAIRMAN GOEHRINGER: OK, so you were cited here, 'you paid a
$500 fine.
MR. SCHROEDER: I paid the $1,000 fine.
CHAIRMAN GOEHRINGER: A $1,000 fine and when you said -
MR. SCHROEDER: And we moved the construction business to
property that was zoned for construction business.
CHAIRMAN GOEHRINGER: OK. What happened -
MR. SCHROEDER: And I operated the gas station when I could.
CHAIRMAN GOEHRINGER: OK.
MR. SCHROEDER: And it's been that way ever since. Now, we
may be the best customer in the world because I pay Uncle Sam,
Federal Taxes, highway use, an absorbent amount of money.
CHAIRMAN GOEHRINGER: But that's for your construction company?
MR. SCHROEDER: I don't give a damn. I'm Bob Schroeder and my
wife and I own that gas station. Sound Shore Excavating is not
owned by me. It's owned by that young man back there and his
mother.
CHAIRMAN GOEHRINGER: OK. I'm trying to understand,
MR. SCHROEDER: They're the best customer in the world and we
pay cash.
CHAIRMAN GOEHRINGER: OK, I'm trying to understand who buys
fuel from you other than the gentleman that you just mentioned?
MR. SCHROEDER: I've been selling diesel fuel to Joe Angevine who
I ran into this afternoon. I asked him would you come. He said,
yes I'm going to go fishing. I said OK. He said, no, I'll come.
CHAIRMAN GOEHRINGER: Now do you, do you have to be there to
sell those fuel to them, or do they have -
l~age 86 - Hearing T~_nscripts
September 24, 1998 - Board of Appeals
MR. SCHROEDER: Sure I am and I don't want to lie, but I'll say
20% of the houses in Greenport in the winter time rely on old Bob
Schroeder. They call him up or my son-in-law and they say, we're
out of fuel, ean you give us five gallons? At 10:00, or 11:00
O'clock or 1:00 o'clock or 12:00 o'clock at night. We'll open it up
for anybody that calls.
CHAIRMAN GOEHRINGER: OK, now -
MR. SCHROEDER: It's like a commercial with the father and the son
sitting on a barrel at the gas station and the place is falling down
and the father's got a torch and the son has a sledge hammer. And
you drive in and say, do you fix transmission? He'll tell you, yes.
CHAIRMAN GOEHRINGER: OK.
MR. SCHROEDER: Don't look at the appearance. The appearance is
because of the Town of Southold.
CHAIRMAN GOEHRINGER: OK.
MR. SCHROEDER: Look at the other property I own and they are
beautiful. But that piece of property was victimized.
CHAIRMAN GOEHRINGER: Right. Do you sell, do you collect sales
tax? I mean, sorry, do you pay sales tax? You asked the
question, but I want to know, do you pay -
MR. SCHROEDER: I have and sometimes I pocket the money. I'll be
honest with you. Get me for income tax evasion but it's in my
books. My book shows the sale. The work that took, you laugh at
me again, you and I are ~oing to have a problem.
CHAIRMAN GOEHRINGER: Mr. Schroeder,
can't, you cannot point to other people.
language in here.
Mr. Schroeder, you
You cannot use fowl
MR. SCHROEDER: I'm not using any fowl language.
CHAIRMAN GOEHRINGER: OK.
MR. SCHROEDER: I just made a point.
CHAIRMAN GOEHRINGER: Please, do me a favor and just answer
the question. At the 8 eents and 5 mills per gallon that you are
required to pay the state for each gallon of gas -
MR. SCHROEDER:
that's here.
I pay the Federal Government and the State,
CHAIRMAN GOEHRINGER: OK, you're going to copy that for us and
give it to us, OK.
MR. SCHROEDER: And we are our own best customer.
~Page 87 - Hearing T~nscripts
September 24, 1998 - Board of Appeals
CHAIRMAN GOEHRINGER: OK. Any questions of this gentleman?
We'll start with Mr. Dinizio.
MEMBER DINIZIO: No questions at all.
CHAIRMAN GOEHRINGER: Ms. Collins?
MR. SCHROEDER: I feel like I feel because I've been very badly
abused by this Town. I am a nice guy.
CHAIRMAN GOEHRINGER: Well, I mean, I mean I realized that, but
you see I, first of all Mr. Schroeder, you've got to understand I
don't know you. I mean I don't know you personally.
MR. SCHROEDER: Anyone that does, will know that I am a straight
shooter.
CHAIRMAN GOEHRINGER: OK, fine, you've got to understand that
it is my job just to collect this information and that's all I'm
doing.
MR. SCHROEDER: Do what you have to do.
CHAIRMAN GOEHRINGER: OK, pardon me, Ms. Collins?
MEMBER COLLINS: I don't have a specific question. My comment is
probably largely to counsel. This claim that you're making is a
claim that has to rely on documentary records. I mean it's not
going to rely solely on a bed of verbal testimony? And it has
(Mr. Schroeder interrupted.)
Please Mr. Schroeder, let me finish. And don't
MS. COLLINS:
threaten us.
MR. SCHROEDER: OK.
MEMBER COLLINS: And I think that the Board is owed an
opportunity, not a grudging opportunity to see the documentary
evidence that you think justifies the statement that the business was
not discontinued. That's the heart of the issue and we are hearing,
oh you have data, yeah, we have data, well maybe you can see -
We've got to see the data.
CHAIRMAN GOEHRINGER: And we've got to question on the data.
MEMBER COLLINS: Oh, yes.
MR. SCHROEDER: Can I tell you something honestly, nicely?
CHAIRMAN GOEHRINGER: Yes.
MR. SCHROEDER: Do you know why I agreed to sell the gas station?
Page 88 - Hearing Tx~nscripts
September 24, 1998 - Board of Appeals
CHAIRMAN GOEHRINGER: Why?
MR. SCHROEDER: I wanted the war to stop. I was going to take it
down to my grave and I can afford to do that. But I wanted to go
away with the war stopped. I wanted to go back exactly as it was,
a beautiful gas station. It was a beautiful village gas station.
Everybody in East Marion and Orient loved it. People from
Greenport would come to it. It was always clean, it was always
beautiful. It never was dirty and over the years I've softened. I
said I wouldn't. My family knows that. The buyer came along and
six months into the deal he said, "let me out please, I'm financially
suffering." I said to Mr. Bruer who is my lawyer, "let him go."
I got a call back from Mr. Arnoff who is handling the other person
who said, I have a guy who is willing to pick up the deal and will
you still extend him the time? I said, yes I will. And I am almost
giving it away.. But there was a stipulation. I wanted it returned
to what it is, not - If he wants to put a roof over it, I want you
guys to battle. Do whatever you have to do. But, if it goes back
to the way it was, do everything as is, that's the way it was sold in
the contract.
CHAIRMAN GOEHRINGER: The one thing that confuses me because
I'm not a very smart person sometimes. If you tell me that you had
to move the Sound Shore equipment, it was at that time that you
painted the facade purple and whatever -
MR. SCHROEDER: I just made that up.
CHAIRMAN GOEHRINGER: No, I'm just saying, not withstanding I
don't care, OK, but, you indicated to me that you then had to go
buy a $300,000 piece of property to go put your stuff on, and that's
what you're saying you didn't have the money to redo the tanks? Is
that what you're saying?
MR. SCHROEDER: The tanks at that time were - I don't know if
he has it, but I think I have it - $180,000 which we could reduced
because of the amount of work you can do because a certain amount
of work you can't do. It has to go to a gas contractor. People who
put these pipes together. We can do the gravel, we can do the
setting of the tank, we can lighten the price but not by a beck of a
lot. So~ the county said to me, you don't have to put them in the
ground. I have the permits. I have -
CHAIRMAN GOEHRINGER: There's no doubt in my mind that you
have the permits. We're going to see it anyway.
MR. SCHROEDER: In fact I filed the Building Permit here. The
State kept the Building Permit, I have at home. They kept it for
over 30 days which was wrong, the lawyer at that time was Bressler
and I had to come here repeatedly to get the Building Permit and
they told him we have no jurisdiction over it. I have a CO and if
you read the affidavits I was the best guy there.
~Page 89 - Hearing T~anscripts
September 24, 1998 - Board of Appeals
CHAIRMAN GOEHRINGER: OK, so you're going to give us that
information and we're going to be able to look at that and ask you
questions on it after we've looked at it. Is that correct,
Mr. Arnoff?
MR. ARNOFF: That's correct. I'll provide you with the record that
Mr. Schroeder has.
MR. SCHROEDER: One thing. I think that's Mr. Tohill. In 1987
he was younger and better looking and very busy. I asked him for
an appointment. He said, who are you? I told him. He said, oh
man, come in on a Saturday, I've got to talk to you. He said,
you've been screwed by the Town of Southold, and we talked for
two hours. He was the nicest guy, the first one I went to because
I didn't trust anybody out here. That's the truth. I figured you
all made deals. He told me he was the Town Attorney I think for
Westhampton. I talked to him on his car radio during the week. He
said, come in here. He said, this is the most amazing story I have
ever heard and we talked for two hours. He said, there's no
charge, I'm not going to take the case, I'm just too dam busy but I
wanted to hear the story. He said, "go get them." So, I hope
tonight he's probably representing the guy who use to pile out his
driveway. This guy wrote letters. He makes noise when he starts
the engine. He drives the truck but we put a lot of people to
work, and we do a lot of work.
CHAIRMAN GOEHRINGER: Thank you. Anybody else like to speak
in favor of this application? Anybody like to speak against?
ANTHONY TOHILL, ESQ. Good evening Mr. Chairman and Members
of the Board. My name is Anthony Tohill. This is the strangest
introduction I have ever received, I'll remember that for a long
time. I going to hand up with your permission series of
documents. They're premarked I think they're A through K, or J
or something like that and before I get to those and before I get too
much further, I want to hand up not as an exhibit but as a
document, a copy of the extract of the Southold Town Zoning Map
which shows with yellow highlight the property which is the subject
of this application showing clearly that that property in R-40
District. I'm not handing that up with a specific exhibit in the
ZBA exhibit but the issue was raised before. Mr. Schroeder, I
think might be partially correct. I'm here tonight representing the
Gillispie family which lives across the street and the Apodiacos
family which lives to the west. If you look at the prior records of
the Town, including the prior hearing that you had that Mr.
Bressler attended some years ago with respect to this property each
of those persons were present, and I'm representing each of them.
I believe I may be representing other people that are not here this
evening because we didn't expect by reason of a miscalculation on
our part that this matter was going to proceed and so to the extent
that this will be continued. I'm certain after tonight I'm going to
ask for an opportunity to introduce them so that they can tell you
what they've seen there. The file does not contain - a couple of
items of housekeeping before I get into the merit of it, does not
~Page 90 - Hearing ~nscripts
September 24, 1998 - Board of Appeals
contain a single and separate search. Under your Zoning
Ordinance, Section 244B, I think there should be a single and
separate search. In fact, interestingly when Mr. Bressler was here
the last time, he did produce one. I didn't see it. I haven't seen
it in the file. But he did mention it and I think that the one is
introducing a use through an application when it's required provide
it - it's not there. Second thing that I mention again only with
respect to housekeeping, is that there was no referral here properly
to the Suffolk County Planning Commission. It's an interpretation.
Interpretations are not referred to the Planning Commission. There
is no EAF of the SEQRA. Properly, here variances and
interpretations are not referred, or are not -
CHAIRMAN GOEHRINGER: Are type II activities.
MR. TOHILL: Yeah, they are type II. However~ it's interesting to
point it out because I think that everybody in the room who worked
with land use into view for sure, is immediately uncomfortable.
When I say, that the introduction of a gasoline service station, such
as the gasoline service station in Cutchogue, or if the gasoline
service station is on the Main Road in Mattituck, is going to be
introduced into that R-40 District tomorrow or the day after
tomorrow and nobody is going to talk about either what the State
Road means in terms of the County referral under the County
Charter. That's the specific reason that that County Charter was
written. It requires that there be a referral when that kind of new
use happened or that there would be no SEQRA compliance. A gas
station in an R-40 District on a 16,000 sq. ft. parcel, the exact
16,953 sq. ft. ~It makes anybody involved in land use want to sit on
the edge of their chair for the rest of the application because it's
not exactly the kind of thing that you should happen in the name of
or under the ( ) of the word interpretation. I want to stay with
that for a second. This is not an application under 241G of the
Town Code under Zoning Ordinance. 100241G provides that
whenever a nonconforming use has been discontinued for two years,
the use would no longer be permitted unless a variance were applied
for and received from this Board. No variance has been applied
for, no variance can be granted, there is no notice of a variance.
The only application before the Board is for an interpretation.
If the only application before the Board is for an
interpretation, then, Section 100-271D has to be consulted because
that set the limits what the Zoning Board's powers are when someone
comes here for an interpretation. The second part of that
subsection says that you could determine the exact location of the
district boundary. It doesn't have any application and so the only
one that's left is the first subsection.
The first subsection is that you would determine the meaning of
any provision in the Chapter. There's no meaning of any
provision. There's no provision that's been pointed out anywhere in
the application papers, anywhere in the file, or anywhere in any
presentation, and so standing here right now I'm still at a total
Page 91 - Hearing ~i~nseripts
September 24, 1998 - Board of Appeals
loss as to what application is before this Board. In fact, I
couldn't respond under the present time.
The second part of the subsection D1, under Section 100-271
the Code is that you would determine the meaning of a condition or
requirement. There wasn't any. The only thing that the Building
Inspector said was, your application for a gasoline service station
is denied and you have a remedy to seek a variance by a way of it
be a use variance but, not an area variance, a use variance under
Section 241J, the Town Code. The Building Inspector even pointed
out the specific subsection number, so that there's a problem here in
terms of housekeeping and a big problem. In fact, an
insurmountable problem right now because there's actually no
application you can decide that's before the Board that the rest of
the world has heard about and that everybody here knows the rest
of the world has to hear about what actually it is about the same
time that you do. It has to be noticed, saying exactly what it's all
about. Another item of housekeeping, there is no standing
established anywhere in the record including the presentation with
respect to the real applicant. The real applicant is the gentleman
who Mr. Arnoff described earlier. It's not the Schroeders; it's the
Contract Vendee. But, there is no basis upon which you can state
that they have standing, or he has standing, whoever this gentleman
is because there's no document in the file, or there's none that I've
seen and Mr. Arnoff hasn't dealt with that. So now, that's some of
the housekeeping.
Mr. Arnoff indicated that there's nothing in the Town Code that
deals with this. That's simply an apprehension of the Town Code.
The Town Code is actually pretty clear on this. I think that the
question, but I'm not going to concede this because I can't on the
present record figure out exactly what happened. I'm prepared to
address items so I'm going to go ahead and addressed them because
I assume we're all at this late hour interested in talking about it.
The issue that could be if it were properly asserted be before
the Board is did the property owner discontinued the nonconforming
use? That's the question right there. And so to answer that
question, the first thing that you have to do as a land use expert,
each one of you is determine what is the nonconforming use. It's
not as hard as one might think.
The nonconforming use is probably a gasoline service station
under a 1959 - exactly April 10, 1959 C.O., whieh called out
"gasoline service station", those are the exact words. And the
second possibility with the July 17, 1981 C.O., the one that Mr.
Arnoff described is different. It calls out a public garage as the
use to my recollection. Both of those terms are defined in exact
language in the Code. Under Section 100-13, a public garage is a
building - and here comes the key language- other than a private
garage, used for housing, repair of gasoline or other power driven
vehicle or where such vehicles are equipped for operation repaired
or kept for renumeration ( ) or sale. They're trying to say it's
not a place that one would keep for his own equipment, or his own
~Page 92 - Hearing ~f'~nscripts
September 24, 1998 - Board of Appeals
use, or even by the way to gas up with diesel fuel his own trucks.
The second use also under 100-13 is gasoline service stations
specifically defines a structure in surrounding land used for the
storage and sale of petroleum fuel, and sale of petroleum fuel,
primarily to motor vehicles, and for accessory uses, such as the sale
of lubricants, accessories or supplies, incidental washing of motor
vehicles, the performing of minor repairs within a building.
However, a service station is not a repair garage and body shop.
Now, the question is getting narrow. The question is now, were
those uses called out in the respective COs discontinued? And to
answer that, one then looks at 100-13D of the Town Code and it
says that if you want' to know what the word discontinue means, you
should look at Webster's Third New International Dictionary of the
English Language Unabridged. I premarked the Exhibits, I'm going
to give Linda the marked Exhibits, I'll give to each of the rest of
you the individual copies of Exhibits, and I'm going to hold off
handing up Exhibits, this will purport, until I get to the end of
this. The word 'discontinue' has the following meaning. "To break
off or give up" and so they say, the person found it necessary to
discontinue per course. Think of this gas station that's out there,
the one that Mr. Goehringer described, painted, the one that you've
all seen when you go by if you're not at 5:30 in the morning,
there's nobody there. Just think of this dictionary term
'discontinued.' To discontinue bus service between the two points,
The busses don't run anymore. To end the operation or existence
of, the school was discontinued after a sharp drop in enrollments.
This is the next one. It's interesting. To discontinue the business
after the death of his partner, to discontinue the business after the
Town gave him a hard time. To discontinue the business after the
Suffolk County Health Department directed all of the fuel tanks be
pulled out. There's no difference between my use of that language,
the language I'm giving, and the language in the dictionary that the
Town Code says I'm required to read.
What's the difference between this case and a nonconforming
restaurant? Discontinue in use for two years where the owner host
himself by making scrambled eggs in the kitchen every two weeks or
every two months, or invites one of us over to have scrambled eggs
with him every two weeks or every two months, or to pick up on
this what Mr. Arnoff said before, once every couple of years.
What's the difference between this application and a
nonconforming bar where after two years discontinued use, the
owner or even during those two years, the owner pours himself or
one of us, his host, as a host, his guest, a drink. What's the
difference? What's the difference between a bar discontinued in use
for two years where the owner stores his wine in the basement.
Does it preserve the use? What's the difference between a
nonconforming ferry operation, passenger, vehicle ferry operation is
continued where the ferry owner takes a group of former employees
out for flounder fishing in the bay, in the race, does it preserve
the ferry use, the nonconforming ferry use? Does the owner of a
nonconforming gambling casino discontinued for two years preserve
his nonconforming status if he plays a game of solitaire, or with his
'Page 93 - Hearing T~nscripts
September 24, 1998 - Board of Appeals
wife plays a game of poker, or on a Friday night invites one of us
in for a game of poker, does that preserve the nonconforming gamble
casino? Does the owner, and now I'm going to get closer to the
mark, of a service station discontinued for two years who pumps gas
into his own vehicle, or repairs his son's truck, preserve the
nonconforming use, is that the law of the State of New York? And
the answer should be painfully obvious. It doesn't make sense for
that to be the law and the law generally is accused of a lot of
things. It doesn't lack that much of common sense. The analysis of
the word discontinue does not survive here. Here's a case out of
Greenport mentioned tonight. It's not a real artifact. It's a
Suffolk County Supreme' Court, Justice Cannavo appears to have a
date of 1989 and it has astoundingly similar facts. A gas station, a
zoning ordinance, a discontinuance of use, a request to continue the
use, a challenge by neighbors, a determination by a Zoning Board, a
challenge in the Supreme Court, and virtually on 100% overlapping
facts, Justice Cannavo said the owners of gasoline service station
stopped servicing automobiles for a period of one year. Here it's
one, not two. In addition to ceasing the sale of gasoline, it could
not presume operations as a service station because they would have
lost nonconforming use status under the Village Code and he cites
the section. I'm going to hand that up as Exhibit B. (I think
Mr. Arnoff asked Mr. Tohill to see the exhibit and he answered,
yes, the name of the case is Borrelli v. Brigham, et al, and the
Index Number, it's a Suffolk County Supreme Court Case is
22253/89.
Here's another case, the exact same facts again. This is the
Second Department, Appellate Division, Town of Harrison. In this
case the Court noted, no gasoline sold, business otherwise
conducted, no tenant in possession, end of inquiry. That's
discontinuance. That's discontinuance. The name of that case is
Sun Oil Company of Pennsylvania v. Board of Zoning Appeals of the
Town of Harrison. I've marked that as Exhibit C.
Here's another case. This is called Prudco Realty Corp. v.
Palermo. Palermo was the Chairman of the Zoning Board of Appeals
in the Town of Brookhaven until a few years ago and this item is
marked as Exhibit D. In this case, the Appellate Division points
out the exact points I'm making.
In order for the nonconforming use argument on that side of
the room to work, you have to preserve the nonconforming use and
now are we on this opinion, as a gasoline service station. Not 5:30
in the morning, diesel fuel coming up from an above-ground tank to
a neighbor or to a friend. That's not operating a gasoline service
station that's defined in Section 100-13 of this Town Code and so
what's been preserved is something, but the something is not the
nonconforming use that received C.O.s twice from this Town and
therefore it can't take on a new life, out of the ashes just because
the property owner willed some third party into your lap and the
neighbor's lap at this point, it doesn't work that way.
~Page 94 - Hearing 'I,~nscripts
September 24, 1998 - Board of Appeals
The fourth case which I've marked as Exhibit E is the Court of
Appeals form, I'm sorry, is the a, the first one that I marked
earlier as D, is the Court of Appeals opinion. The next case is the
same opinion which is the Appellate Division opinion, again, un
crypto. It's marked as Exhibit E.
So case law has established how you're supposed to look at this
after you look at the word 'discontinue' and is simply applied to
wisdom collectively that has been gathered here though all these
years. There's something else you have to do. You would want to
look at the history here in the Town because twice now the Town
Attorney has expressed an opinion with respect to this matter. One
of them was Frank Yakaboski in 1987, and he ruled in his decision
as an official advisor to The town, in a letter to the then Building
Inspector that the service station had been abandoned, 1987.
MR. SCHROEDER: That's not so.
MR.~ TOHILL: In 1990, the then Town Attorney, athletic looking,
tall, trim and with a full head of hair, a similar tidy recognizable
signature, wrote a memo back to this Board, in which he agreed that
the use had been abandoned. I'm going to leave in a mystery on
the record who signed Exhibit G.
CHAIRMAN GOEHRINGER:
room?
Would that person be present in this
MR. TOHILL: Mr. Chairman, there's some things that I just don't
know. ~'m incapable of understanding it. You just touched on one
of them. If the Zoning Ordinance and the use of language has a
problem with the argument, and if the case law has a problem with
the argument, and if 15 years of Town Attorneys have a problem
with the argument, so does the Health Department. Earmarked as
Exhibit H are various records including one document from the
Estelle Kahn whose at at Horse Block Court. Of course she's still
there today in which she notes, in 1988, January 25, 1988, on
inspecting the premises and I quote, "not selling gasoline for about
2 to 3 years." I didn't write that, that's the Suffolk County Health
Deparment. They're in the business of regulating gasoline service
stations and public garages and that's what she found.
The next document is an April 17, 1989, and by the way I've
also raised this part of Exhibit H letter from Eric Youngblood, also
with the Health Department, advising that the tanks on this property
have been, to use his expression, abandoned. I believe the word
'abandon' has a similar proximity to the word discontinued without
reference to the Third World Dictionary or the Third Dictionary.
And the last document attached to Exhibit H, is dated today
and it's a document from the Suffolk County Health Department from
Horse Block Court, that says, that with respect to these premises,
all of the tanks were removed on September 27, 1990, almost to the
day, eight years ago. Eight is more than two. Not only that, the
tank that is given all new life, that's the service station out there
~Page 95 - Hearing T~nscripts
September 24, 1998 - Board of Appeals
today that you seem not to be able to see and the neighbor seem to
have some trouble finding, that thank wasn't installed until 1992.
It's right here. It's on the bottom, December 29, 1992, it's a 1,000
gallon diesel fuel tank and Article 12 of the Suffolk County Sanitary
Code, when they not operate a service station in the Suffolk County
with above-ground anything tank, nothing can be above ground and
operate a service station, a gasoline service station or a public
garage.
So now, not only does the English language, the Town Code,
common sense, case law, 15 years of Town Attorneys, and the Health
Department say, this can't be so. Here is the Town Justice Court
saying that the use has changed. This is 1986, it's 12 years ago.
And that the use that was changed was from a gasoline service
station to something else. Not only is that the accusation on
Exhibit I, but I've attached Exhibit I, a transcript of a Court
Proceeding in this room dated May 15, 1987, when the property
owners, Robert Schroeder and Ethel Schroeder, pled guilty to
changing of the use of the property. It strikes me that when one
pleads guilty in the American Court, the changing the use of
property, one ought to be hoist by his own tarde. And that means
that 12 years later you wouldn't come before this Board and say I
never changed the use at all. I preserved the use. I just kept it
a secret. I didn't let anybody know unless you were passing by
5:30 in the morning and you were a friend of my in Greenport.
Attached to that document is a Memorandum of the then-Town
Attorney explaining to the Town that that happened. The Town had
a right to rely upon what happened to this Board, to the people,
they did what they did.
Not only is all of that so, but, here I have in my hand what
I've marked as Exhibit J, which is a transcript of a proceeding
before this Board on February 1, 1990. You heard the President
during the last week in attempt to suggest that we should listen to
him when he says, it depends on how you define "is". What
happened that evening is an attempt to have you define is before
you could get anybody behind the microphone to listen to what you
were saying. An earlier variation on being what's happening here.
You see, this Board deserves respect. When the land use system in
this Town requires respect, absent respect we bring chaos into the
system. You can, I can, Mr. Schroeder can, Mr. Arnoff can, all
the people in this room. That transcript brings chaos because
you've been asked over, over, and over again, straight, intelligent,
right-thinking questions, and if you scan it you will find a single
answer. The result of that proceeding is that Mr. Schroeder would
prove the proceeding, and here we are here tonight.
Earmarked as Exhibit K is a series of letters that start in 1985
from neighbors, and I just selected a group. They go until 1988.
Everyone of them says exactly the same thing. From these people
who lived next door, they have never seen anybody, ever seen a
single customer since 1984. One of them says, since 1980. He was
overstating the position. He said ten years in 1990. That would
~Page 96 - Hearing 'I~nscripts
September 24, 1998 - Board of Appeals
bring us back to 1980. The other people said 1984. Not a single
customer. The place was never opened. The sole use of it was
what every other record of the Town said. It was used for the
storage of construction equipment. In 1992 long after all the
construction equipment had been removed, long after the tanks all
had been removed, the Health Department issued a permit for an
above-ground 1,000 gallon 'diesel fuel tank. That now has somehow
emerged as a gasoline service station on 60 years ago.
I hand up with your permission, eaeh of these exhibits whieh I
have premarked. There is no Suffolk County Health approval to
operate a service station here. There is no Department of Motor
Vehicle Permit to operate any gasoline service station here. There
is no Permit from any ageney or government including all the
agencies the Board mentioned earlier and one cannot operate a
service station without their approvals.
I'm going finish up with the following thoughts. One of the
things that you are not as an arena is a forum for surprises. No
one every comes here to be surprised. They come here for a lot of
other reasons and I think you probably have seen everyone
imaginable by now, but not for surprises. Not this kind of
surprise. One hundred years ago, a great Judge Holmes under
United States Supreme Court tried to get an Article to address the
speakers at a law school, to define what lawyers do and what the
law is. He said, "law is systematized prediction." If the best two
word definition I ever heard of what I do, what Mr. Arnoff does,
what Gregg Yakaboski does, what his father does, what everybody
that includes a lawyer does. We've used three years of training in
law school and then the accumulation of all of our practice
afterwards, in a form of a system in our heads, whether it's using
Andersons, Rathkoff, those eases I handed up before, this book,
whatever it is, it's a system and then it's a form of prediction.
Those neighbors bought into R-40. Those neighbors bought
into the history that I just put up on Linda's desk. Those
neighbors did not buy into a surprise delivered by Mr. Schroeder in
1998. They didn't buy into a collapse Of the system from the Town's
point of view. They didn't buy into surprises. I ask that the
record be kept entirely open. I ask even if you have to use your
subpoena power, that you really have, that Mr. Fish be here at the
meeting so that he can describe what he thought about when he
wrote that denial letter to Mr. Arnoff on his client, and I think
it's important to have it on the record and at that time I'll have my
clients present, we'll have some photographs since they're
important. Photographs in this case will tell me whether or not you
have a service station, a gasoline service station. I just have a
hunch about that. (voice very low) I wouldn't buy that building with
that. So I'm going to ask your indulgence to do that. Thank you
very much.
CHAIRMAN GOEHRINGER: Thank you. Mr. Arnoff, you're going to
give us those copies, and then when we receive those -
~Page 97 - Hearing T._~nscripts
September 24, 1998 - Board of Appeals
MR. ARNOFF: Yes, I'll get those copies to you rather quickly.
CHAIRMAN GOEHRINGER: OK, and then when we receive those we
will try to schedule a hearing here as expeditiously as possible.
So at this particular point and a, we're not goin~ to give you a
date, we're just going to wait for those and then we'll stick it in
whatever way we can - so we can get it going, OK.
MR. ARNOFF: Fine, OK.
CHAIRMAN
courtesy.
everybody.
GOEH RINGER: So, thank you, everyone, your
Thank you, Mr. Schroeder for your testimony and thank
I'll make a motion recessing without a date.
SECRETARY KOWALSKI: Anybody what to second that?
MEMBER DINIZIO: Second.
Motion carried. See Minutes for Resolution.
End of Hearings.