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HomeMy WebLinkAboutZBA-11/19/1998 HEARINGAPPEALS x 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23' 24 25 November 19, 1998 6' 30 P.M. 53095 Main Road, Southold, N.Y. Southold Town Hall 11971 X BEFORE: Gerard P. Goehringer, Chairman George Homing, Board Member James Dinizio, Jr., Board Member Lora S. Collins, Board Member Lydia A. Tortora, Board Member Linda Kowalski, Board Secretary FREELANCE L.I., INC. - Court Reporters 259 Southfield Baiting Hollow, N.Y. 11933 FREELANCE LI, INC. COURT REPORTERS 6 7 8 9 10 11 12 13 14 15 16 17 20 21 22 23 24 25 Appeal No. 4617 THE CHAIRMAN: I will like to welcome everybody here. This is the regular scheduled meeting of the Southold Town ZBA. I will hold off on the State Environmental Quality Review Declarations until a little later. I will open the first hearing, which is Appeal Number 4617, on behalf of the Building Inspector of the Town of Southold. This is a request for town-wide Interpretation under the Zoning Code for a determination based on the question: "Can Article III, Section 100-3lA of the Zoning Code be used as the basis to disapprove a building permit application due to the design or arrangement of a proposed building?" The Building Inspector has afforded us some generic plans. We are aware of, or least I am aware of, some of the problems that exist. We are changing our discussion situation a little differently. Everybody will use the mike. Everybody will tell me who they are. And we have a court reporter tonight. If you are going too fast for that court reporter she will tell you to slow down. We will appreciate if you would apprise her of the way you are speaking. FREELANCE LI, INC. COURT REPORTERS 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Appeal No. 4617 What I basically mean is if she cannot understand what you are saying she will ask you to restate it, as is the case with all the Board Members up here. We will therefore go in the building inspector end. Mr. Boufis, would you state your name for the record? MR. BOUFIS: Mr. Chairman, and Members of the Zoning Board of Appeals, I am here now for the generic interpretation. It can be actually specific, on Article III, Section 100-31A, Lot 80 Zone Four, an interpretation on accessory structures. We have in the zoning code, which was already read, "That no building or premises shall be used, no building or part of a building shall be erected or altered which is arranged, intended, or designed Lo be used in whole or any part for any uses except the following." So the interpretation that I am really looking for is when it says, "It's designed for the following uses: One-family detached dwelling. Not to exceed a dwelling on each lot." That is a permitted use. We have accessory uses, accessory structures. "accessory structures are non-habitable, storage-type FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4617 buildings that are in the required rear yard and not to be for sleeping or habitating." Now, in the code it says, "The intended design." I have a plan here that was submitted to the Building Department. Originally, it was submitted as an accessory building with a full basement, two bedrooms downstairs with a bathroom, bedroom-loft with bath on the second floor; fully insulated. And actually, the design is what we would call "a mini-single family dwelling" because it doesn't conform to a single-family dwelling because it doesn't have 850 square feet to conform to our code. It was rejected by the Building Department because it had sleeping areas in the accessory building. It was resubmitted identically with a change. The room were presented Lo us with storage room with closets, baLh, storage room with closet, bath, and separately, three rooms with closet and two bathrooms. Same footprint just different words. So, do we as a Building Department accept that design that's intended for an accessory use? Do we accept that and say, "Well, that's fine." When you sleep in it do we have a problem like Vitis FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 ~3 14 15 17 18 19 20 21 22 23 24 25 Appeal No. 46~7 Garrulities (phonetic)? Do we have a liability to the Town even though we label non-habitable? If we do find someone sleeping in there must we pursue a legal review to get them out of that area? Is that putting more pressure on the Town? What I think the Building Department would like is if we have a little bit of leeway to look at the design and maybe give it a disapproval. Let the Zoning Board, which has an all-purposes use, look at that design and say, "Well, maybe you can use this accessory building, but you must go to these different parameters." We are getting too many that are being put into the Building Department and we have to take their word that it is a storage building. Even though it looks like a duck, quacks like a duck, we have to call it a storage building, not a duck. Really, what I'm hoping is that the Zoning Board would make an interpretation, or address this type of plan that's being sent to the Building Department. MR. CHAIRMAN: Is that plan that you have before you have a full heating system? MR. BOUFIS: It is not on the plan. FREELANCE LI, INC. COURT REPORTERS 6 ? 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 .23 24 25 Appeal No. 4617 6 It is ready to go; it might be. It is fully insulated. It has a full basement where a heating plant could be put in, which in today's market, a heating plant could go with an exterior chimney. They don't need a masonry chimney, it is a stainless steel chimney. Heating plant, hot air, the loft is open above. All they need is hot air ducts to get to the first floor and then it would rise to the second floor. THE CHAIRMAN: The entire interior of the building is insulated, electrified and sheet rocked to your knowledge? MR. BOUFIS: Yes. It is complete. Once it's insulated it must be sheet rocked, that's the fire code. It has to be covered with sheet rock fully. Like I said, "It is designed as a minz-dwetling, not to our code." We have more than we have many of them that have come in. We have to stamp them "non-habitable." If they look like some people have "I want to store my art work. I don't storage wane it to freeze in the winter time.'' They might want a little heating system in there. If it's designed that way without the configuration of FREELANCE LI, INC. COURT REPORTERS 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Appeal No. 4617 closets, bathrooms, one on each floor an accessory building I don't think it's really necessary to have two full bathrooms with shower tub, one on each floor, plus closets in the storage room. A storage room probably is sufficient closet space without putting closets in them. THE CHAIRMAN: For the record, I know we talk generically, but in general you are referring to all lots and this lot -- MR. BOUFIS: This lot is the particular one that rang the bell. THE CHAIRMAN: All lots, or this lot, they already have some sort of one-family dwelling on them? MR. BOUFIS: THE CHAIRMAN: is the mssue of permanency. Yes. Okay. The other issue These are permanent structures built with permanent specifications. These are not something that you buy from the gentlemen down on County Road 48 and have delivered to the property? MR. BOUFIS: Right. These are like small carriage houses, if you could define them as a small carriage house, or what I call them is a FREELANCE LI, INC. COURT REPORTERS 2 3 4 5 6 7 8 9 10 12 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4617 8 small, mini-dwelling. They're really designed as permanent, solid fixtures. The cost of them probably exceeds $60,000.00; the price of a small single-family dwelling. So, it's not a barn where you can buy from North Fork or Kaufold's or something like that for $2,000.00 and have it planted on your property. away from that use. THE CHAIRMAN: It is really getting At the completion of this hearing, and a decision from this Board, are you actually looking for some parameters from us, or are you MR. BOUFIS: Yes, I am. What I am really looking for is guidance. That's what I am here for, what I am looking for, because in any juror's prudence, or whenever we have a Zoning Board, there is always an Appeals Court. So the appeals should have the last say. What I am really trying to presen~ to you is this; give us some kind of control so that we can get the people to the Zoning Board and let the Zoning Board review it and say, "Well, John, this one you might be a little wrong on, and that can pass. This one, I think you're right on; we must make some changes." FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4617 You have done this with - I know we have areas where people have wooden decks that are encroaching with stipulations: It must be open to the sky forever etc.. These are the things that would be etched in granite, and then it does make it a little more -- THE CHAIRMAN: So if there is an area that you feel uncertain about, you would then deny it and send it over anyway? MR. BOUFIS: Right. That's why really I try to get into that wording of the "design." "The design can be used in whole or part for any uses except the following." When they put this in the code "a design." The design ms how it is presented to us; we do not see it. Once we pass it the design is over, now it is a structure. As the design, if it's used not [o conform to the code that's why I particularly underlined that "designed" or "arranged," so that we can look at it. This is getting off the beaten path, but there are many single-family dwellings that have been setup perfectly for two-family dwellings, but it is stipulated one-family dwelling period. FREELANCE LI, INC. COURT REPORTERS 1 5 6 7 8 10 11 12 15 16 17 18 20 25 Appeal No. 4617 10 And then later on when everybody the dust is settled and the building inspectors have gone on, you have find two kitchens and you find two families living in it and then you must proceed to bring the litigation after them. I think the Town does not want something like Vitis Garrulities in Southampton, who had been sleeping in an illegal pool house who was asphyxiated. The Town was very fortunate for the liabiliLy that was put them because they made it non-habitable, but iL still did not save a life. I Lhink that's what the intent of the Building Department is, fire and life safety, this is what we must assume, and with the guidance of the Zoning Board. THE CHAIRMAN: Before I turn this over to the individual Board Members who may have questions, could you just shed some light on the subject for the Board, on the overall window area, and the window schemes on some of these accessory structures. MR. BOUFIS: They are magnificent. We have lipoLical (phonetic) windows, they have trapezoid type windows in other words, they are FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4617 fitted into a beautiful - like this one in particular, it has a beautiful window outlay. the street it would look like another dwelling. don't know if you have a picture? THE CHAIRMAN: Yes, I do have a picture. From I MR. BOUFIS: You can see this (handing). That's a designed accessory building. THE CHAIRMAN: The question is, that there are rules and regulations from the State Fire Code, which you have adopted, which require certain types of windows in certain bedroom areas for emergency access, right? MR. BOUFIS: THE CHAIRMAN: For habitable egress, These buildings may, or yes. may not contain these windows? MR. BOUFIS: Yes. THE CHAIRMAN: So immediately there is a problem right there, if somebody intents to use this for a use other than storage? MR. BOUFIS: For non-habitable, because we are handcuffed. If we stamp on that plan "Emergency egress required as to Section 714 FREELANCE LI, INC. COURT REPORTERS 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Appeal No. 4617 12 of New York StaLe Code." What we are doing now, we are automatically labeling it as a habitable space, so we cannot do that, so the windows do not have to conform. You run into a problem with 911. If there is a fire in the accessory building they might just watch it burn because there is nobody in the accessory building, but there are people sleeping in there which they do not know. We had an incident three years ago on Banks Road when they were putting that new development in. The gentlemen in that first house on Banks Road, the gentlemen had a heart attack. His wife called the police, the police could not find the house because Banks Road was not put on our maps yet; this was a new subdivision. Fortunately, through neighbors, the police were able to take the man to the hospital. I saw his wife the next day and she was thankful he was still alive and got to the police, and they put this on the 911. So there are emergency requirements for habitable areas. Once they are in a non-habitable space - if somebody is living in there, who knows, who knows if somebody is in FREELANCE LI, INC. COURT REPORTERS 2 3 4 5 6 7 8 9 10 12 13 15 17 18 19 20 22 23 24 25 Appeal No. 4617 13 there? Or, if it's a non-habitable and there is no egress, firemen that have to save somebody now are jeopardizing their life because the exiting and the egress is not proper, or habitable space. You put a lot of people in jeopardy. I don't think the intention of any Building Inspector or Zoning Board is to use that phrase: "Let the stupid people do what they want." I think America has gotten a lot further than that. With third-world countries, if they live in goat sheds, that's their problem. But when you come here, I think we have progressed far enough that we would like to have the people live in bona fide single-family dwelling. There is fire control, there ~s police control, and also taxation control. The assessors would have a fit if they would be accessing a non-habitable storage building and there are people habitating it. You really have a full circle. It is not an isolated case and it's not a minute case, because it does have far reaching ramifications. THE CHAIRMAN: You said it's more difficult? MR. BOUFIS: It is. Yes, it is. FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 11 12 13 14 15 17 19 2O 22 23 24 25 Appeal No. 4617 14 There are more percentages. Especially, like this one here, I am only saying it generically, but the architect who presented it with bedrooms, when it was returned he is a very well-known architect -- now what he does ms returns it, he or she, with storage buildings THE CHAIRMAN: MR. BOUFIS: building. Storage rooms? Storage rooms in the And it was originally presented and turned back because it was labelled "bedrooms." It's really making a mockery out of what the code really was intended to do. THE CHAIRMAN: What you're saying is, that there wasn't one change on that plan except for the change of the words, on the floor plan, from bedroom area to storage area? MR. BOUFIS: Yes, that's what it was. They just changed the wording. It's been done in other instances where people have a four-bedroom house that was being okayed by the Health Department and it says, "Four bedrooms allowed by the Health Department." So the fifth one they labelled "studio," but they put a smoke detector in it. So that means they are eventually going to FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 t2 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4617 15 have to sleep there because the State Code requires smoke detectors in sleeping areas. It doesn't require it inside an office, or a den, or anything like that'. THE CHAIRMAN: Because you are not supposed to sleep in those areas? MR. BOUFIS: Right, that's exactly it. This is the problem that's confronted. And I think we really should be taking a long, hard look at this and something should be eased or restricted. And there are some restrictions that have not I know we could discuss something early about illuminating a basement, but they can still put a heating plant on habitable space and they can put iL in the corner; they can heat the whole house. THE CHAIRMAN: heat in. They can put electric MR. BOUFIS: Or they can put electric heat in, right. Or they can have a type of forced air. Once they put a healing system in and it hasn't been approved, then the problem can arise. They'll can put in some LP Gas. They'll throw an LP Gas Heater in. It might not be vented FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4617 16 properly. Many houses we go to now, they don't know how to vent their clothes dryers. We had two clothes dryer fires. Ed had one and the Fisherman's had one because they had inadequate venting for the clothes dryer and it started a fire. These are the things we had to inspect. We would not inspect the heating system because it's not Lhere, and then if the house burns, we didn't inspect .it. Well, we didn't inspect it because we never knew it was there. What we are trying to do sometimes is protect the innocent, or the not so innocent. THE CHAIRMAN: Mr. Homing, any questions of Mr. Boufis? MR. HORNING: Do find that a bit odd, Lhat in an accessory building there would be two bathrooms? MR. BOUFIS: Yes, I do. One on each floor, I do. MR. HORNING: I could see if the accessory building was near a swimming pool and the people have pool houses. MR. BOUFIS: I have no qualms because FREELANCE LI, INC. COURT REPORTERS 1 5 6 7 8 11 12 15 16 17 18 25 Appeal No. 4617 17 you don't want people in their bathing suits running in and out of your house with sand. They could have a shower, but most of them would be that, it is swimming times when it is warm they have the outside shower and they might have a toilet in there because you don't want them running · n and out of the house, but it is not designed -- or they'll show a little cabana room where they'll change and they'll have a bathroom, they could change their bathing suits, they have to go to the bathroom. I don't think that's what we're really looking for. We're looking for this type of accessory building. The accessory building is actually larger than the principle dwelling. I don't know if you knew that. MR. HORNING: Yes, I see that. Again, then you would say that it would be somewhat ordinary to have an accessory building that has a small bathroom, sufficient to take a shower after coming out of the pool, or coming up from the beach, perhaps a sink Lo wash your hands, but it would be quite extraordinary for this accessory building, labelled "accessory building" to have two full bathrooms complete with large shower units, FREELANCE LI, INC. COURT REPORTERS 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4617 18 sink, vanity and all the accessories and trimmings that a conventional bathroom in a conventional single-family dwelling would have. And, in fact, you could not tell the difference between the two. MR. BOUFIS: Yes, I agree. MR. HORNING: To have two of these such bathrooms like this, as you say, "Would ring a bell that there is something inappropriate about this design. That it looks and smells, not like a duck, but like a single-family dwelling." MR. BOUFIS: THE CHAIRMAN: MS. TORTORA: Yes. Ms. Tortora? I am just trying to make sure I understand what the question is because it asks for an interpretation. MR. BOUFIS- Yes. MS. TORTORA: The question is: Can this section of the code be used as a basis for disapproval of the building permits due to the arrangement and design, correct? MR. BOUFIS: Yes. MS. TORTORA: In this application, they have applied it as an accessory storage building. MR. BOUFIS: Yes. FREELANCE LIf INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 15 16 17 19 20 21 22 23 24 25 Appeal No. 4617 19 MS. TORTORA: but when you get an application like this do you make a determination as to whether it is an accessory building? MR. BOUFIS: MS. TORTORA: MR. BOUFIS' I am not that familiar, Have we? Yes. When it says "accessory building" usually it ms non like this. If they have one bathroom then we put "non-habitable." The accessory building may have a car garage underneath and they may have a small bathroom. MS. TORTORA: I guess my question is: Do you just look at the plans and say it doesn't look like a duck, doesn't walk like duck, it doesn't acm like duck, it looks like a car? You are not accessory building; denied. You can go to the Zoning Board of Appeals. You can file an Article 78. You can do whatever you want, but our determination is it is not incidental and " Do you ever subordinate to the principle use. make that determination? MR. BOUFIS: What I am trying to do really is -- the reason I am using the design is we do not have any teeth in our building permit FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4617 20 application to say, "This doesn't look like a single-family dwelling. We do have to turn you down." We do not have that. It says storage -- of course this was blatant, this was presented twice. This is why this particular plan has been singled out like I said. I don't to be redundant, but it was brought in as bedrooms originally, then it was changed to storage room. What we really want to know is: Do we have some strength in our review process when we see the design that says, "The intended use and design under 100-31," does the "intended use or design" of this building conform to the permitted uses of this zone. And this is the way it is stated in our code book. That is the original wording in 100-31 period. MS. TORTORA: I see that. I was thinking of the two in conjunction because the other part was indicated - out this MR. BOUFIS: MS. TORTORA- But this is what starts Whether you say it is an accessory, is it typically customary and incidental to have three bedrooms, two bedroom, full basement, FREELANCE LI, INC. COURT REPORTERS 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4617 21 four dormers? storage? Is that indeed an accessory MR. BOUFIS: No, it is not. MS. TORTORA: You could make that determination right off the bat. MR. BOUFIS: I know, but we do not have the -- we sent it back when it said "bedroom." We cannot deny them a permit when it says "storage room." We know what's going on there. What we're trying to do is to get the horse in front of the cart. We don't want the barn door opened, then the building is built. We try to stop it in the planning stage. That's why we are looking for some type of guidance from the Zoning Board that gives us some kind of power to say right off the bat, "The code says intended or designed for these specific uses." Do we go to the wording of the code or the AC Zone? Is this "intended design" for an accessory building? We are non laymen in the field as far as design, so when we look at this we know it does not conform to a normal accessory building, but if they make a permit application and it's pushed through, and they say "storage". Who FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4617 22 are we to assume that it is going to be living area? "I need two bathrooms because my uncle, he is a little handicapped, he wants the bottom bathroom and he stays there too long. We are going to go upstairs when he's there." MS. TORTORA: That's not storage. MR. BOUFIS: I know. There are two bathrooms there. THE CHAIRMAN: Let me say this one thing, John, just by the mere fact that there is $18,000.00, that's my quick estimate, of exterior/interior window area in this "dead accessory storage," and I say "dead" in reference to the storage aspect of it. You don't even have to go inside just to look ah it from that standpoint of view. MR. BOUFIS: I agree, but we do not have the power to actually deny them the permit; we do not. They can make every excuse in the world, but we can go to this code and use that word that "the design and intended use" is not for the permitted uses of the AC Zone, labelled the "accessory uses." We can go to that part of the code. That's what my real interpretation -- that's FREELANCE LI, INC. COURT REPORTERS 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 20 21 22 23 24 25 Appeal No. 4617 23 what I am asking for. Can we go to that and say, "We deny you because the design does not go to the intended use of the code? If you want an appeal you must go to the Zoning Board of Appeals." Then you can review the plan and make the restrictions, or the disapproval, or the approval, of that particular building. It doesn't mean every building will be scrutinized to that extent that we are going to send them to the Zoning Board, but when they are blatant we must stop it. It is not for the Building Department; it goes further than that. I am getting into the point of a liability for the Town. If a good attorney came up and said, "You did this? You passed this building and my client burned to death. Didn't you realize that they were going to sleep in there?" "No, sir, it does not look like a sleeping dwelling to me." And then they would tell me where I got educated and I would feel silly in court because it does look like a sleeping area. I have. THE CHAIRMAN: That's the only problem Does the State Code reflect anything about accessory structures? FREELANCE LI, INC. COURT REPORTERS 6 7 8 9 10 11 12 14 15 16 17 18 19 2O 21 22 23 24 25 Appeal No. 4617 24 MR. BOUFtS: Not really, no. We are into the Zoning Code. Accessory structures, the State Code does not develop into that. That goes into zoning. The State Code goes into fire and safety of habitable areas. THE CHAIRMAN: Right. Thank you. Ms. Collins? MS. COLLINS: I wanted to elaborate on what Ms. Tortora was asking, just so that our record would be clear as to what it is that you are asking, and therefore what is incumbent on us to respond to. Your memo requesting the interpretation, as we have already read tonight, asks whether this language that you read aloud before, the words "arranged and designed," whether that language can be used as the basis to disapprove a permit application because you, as experienced people in this field, look at the plans and feel that the building is designed for a purpose that's not allowed in the area. Can you d© that? And my personal answer would be, "Most definitely." And I would think that's where the Board is headed for. The thing that I don't think we are in FREELANCE LI, INC. COURT REPORTERS 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4617 25 a position to do is to provide you with any guidelines, ground rules: You know one bathroom is okay, but if they've got more than one we agree that you should be worried. I think that's not our purview, that yours, and I wanted to get at whether you were hoping to get something like that from us? MR. BOUFIS: In a way you are sort of pushing it. We could, we could say, "Two bathrooms are fine, could be." But that's not really the point. There is a slight point that's being missed. What we want to do is, we want to protect the liability of the Town, but we also want to give them -- this is their domain, this is America. They do have the right to their property. So we do want to give them an Appeals Board. We don't want the Building Department to have the final say. We don't have the final say. We do have an Appeals Board, which you people are, and we must give these people their freedom of their rights to their property. Life, liberty and the pursuit of their happiness and their property. We could be sued because we would be actually biased going into a situation like that. FREELANCE LI, INC. COURT REPORTERS 1 5 6 7 8 10 11 1:2 15 16 17 18 20 Appeal No. 4617 26 MS. COLLINS: We have Statutory Law in this Town which says, "The permitted uses in the zone are one-family houses and certain agricultural uses." You're not obliged to agonize over letting people do something with their land that's not a permitted use. My perception is, I think that you folks in the Building Department, who are in the frontline in this, you're obviously correctly concerned with protecting the innocent in a sense, and protecting the Town from liability, but I think you have to be concerned, as you are, with protecting the Town from having people do things they are not supposed to do. MR. BOUFIS: Definitely. MS. COLLINS: I have a feeling that you are looking to us to say, "Yes, that's what the code says." I think %hat's what you're after, is some sort of moral support. MR. BOUFIS: I am really after the interpretation of that part of the code. Do those words interpret the code for Article III? This is what I am really after. MS. COLLINS: One other question. Other folks have asked you, but I'll ask it again: FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 12 14 15 17 18 19 2O 21 22 23 24 25 Appeal No. 4617 27 Whether, in fact, you do, when it seems appropriate, discuss with people exactly what it is they are up to? We had a case come before us last winter: A property down on the bay with an old house, where they wanted to tear down the existing beat-up garage and put up a new garage with other facilities attached to it, which looked distressingly like a guest apartment. And I had the impression at the time that you folks in the Building Department had had sort of a negotiation with them to try to tear it down, but that it didn't really go very far, and when it got to us we Does that ring any told them what they could. bells? MR. BOUFIS: THE CHAIRMAN: MR. DINIZIO: NO. Mr. Dinizio? Without assuming anything. Without assuming that these people would break the law, and they came to you with this application, would you give them a building permit? MR. BOUFIS: MR. DINIZIO: I haven't -- Without assuming -- believe me, you have exhibited a large amount of FREELANCE LI, INC. COURT REPORTERS 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4617 28 restraint I think in this particular case, understanding that, what I would like to know is, say they came to you with a building, with these large windows, the whole bit, the baths, and you looked at the person and you said, "You know, I don't think that they would break the law." you have given them a permit? MR. BOUFIS: That's why I am here. That's really full point over. what I want to have, this interpretation. That design, when we see the design, you know, because assuming you know what the word assume means, I don't have Lo spell it out loud. Would I guess really I am not getting my Do we have the authority? That's MR. DINIZIO: I know. MR. BOUFIS: When we assume -- because we know what they are going to do because it was presented the other way. Now, to deny them their right by saying, "I am sorry, it's not designed as the permitted uses." That is what my interpretation is to the Zoning Board of Appeals. Does that hold water? Has the Town Code been written that this gives us the muscle to say, am sorry, the design does not conform to this." This FREELANCE LI, INC. COURT REPORTERS 6 7 8 9 12 13 15 17 19 20 21 22 23 24 25 Appeal No. 4617 29 is really what I am asking for. MR. DINIZIO: I think you're more asking for us to rely on your expertise in building structures to know when a duck is a duck. MR. BOUFIS: Yes. MR. DINIZIO: You're pointing to this particular part of the code, I am not going to put words in your mouth, but you looked up in the code, you said, "That looks like a duck to me." And you went to the code and you said, "Okay. Well now, how can I confirm indeed that this is a duck?" And you found this part of the code. MR. BOUFIS: Well, no. I didn't find it. I know it. MR. DINIZI0: had to be written in there. the code that you think applies in this instance; am I correct? MR. BOUFIS: MR. DINIZIO- What I am saying is, it You found something in Yes. And so the only thing that stopped you, I guess, from not granting them the permit and citing this as your reason was what? MR. BOUFIS- Well, yes, this is why I FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4617 30 want it interpreted, that this is the way the code has been written, that that word "designs" does pertain to the structure and other structures like it, that we can say, "Yes." I am looking for that interpretation. It probably is a masking type of looking for help, but it is an interpretation to say, "This looks like a sleeping unit." MR. DINIZIO: What stopped you from just doing that? From just saying, "No, I believe that I can deny you, citing this part of the law," and letting it come to us? What stopped you from doing that? MR. BOUFIS: What's stopping me really, it is worded as a "storage building." I do noc have the right to deny them. They are going to get denied anyway for a different reason because it is in a side yard, that's tomorrow, but I didn't want to get it into that process; to have it denied because it is in a side yard, and have it go to you, and then they think that it's okay. What I am really looking for is, can we really use that? That's the interpretation I am asking for from the ZBA. Can we use it? Or do you want to work with the Building Department to give FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4617 31 you if you wans. If you don't want the responsibility we'll take it but what we want to know is if I deny this permit and the person says, "Look, this is storage," and you are assuming right now that it's not for storage. Now I say, "Well, the design says, well" - "No, it doesn't matter. The design is some kind of a Gothic storage building that we used when we lived in Russia or Germany, or something." This is the type of storage building we have. MR. DINIZIO: I think you are absolutely right. I've got to commend you for the way you laid it out. It was very clear to me what you wanted to know. My only problem is, I just needed to know how you came about ih; I guess you have explained yourself very well. All I can say is, if I have seen what you have seen I don~t know that I would have reached in the same way. I think I would probably have overreacted. I think you should be commended for that. MR. BOUFIS: THE CHAIRMAN: MS. TORTORA: Thank you. Ms. Tortora? As you say, this application is for an accessory storage building. FREELANCE LI, INC. COURT REPORTERS 2 3 4 5 6 7 8 9 10 11 12 13 14 15 17 18 19 20 2t 22 23 24 25 Appeal No. 4617 32 So can't you just, using two parts of the code, can't you say: (a) It isn't an accessory storage building because you don't need bathrooms to store anything, and (b) You look at the definition of accessory that supports, then you can go to the section you pulled out, which is that it is not an accessory because of the design and arrangement. MR. BOUFIS: But there are excellent arguments for the design like the storage building. "You know, when we're there we are cleaning. In that storage building, we are doing work. I do have to bathe. I cannot go into the house because I am full of sawdust or some type of I can't go into the house. My wife wouldn't let me into the house. So I have to bathe." "What do you have a closet for in that storage room?" "You know why; because I want to keep the paints there, because when my children come I can lock that closet so that the kids can't get into that closet while I'm doing my storage." There is every excuse, and then I look like a fool. And I don't want to be put in that position. I am not asking or I am not in that position to be that I don't know the word, but FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Appeal No. 4617 33 that vindictive or that assertive that I am going to say, "No." Because they have every argument in the world; except storage. THE CHAIRMAN: What you are saying is there is an answer to every question? will be. MR. BOUFIS: THE CHAIRMAN: MR. HORNING: in this regard then too. Yes, there is. And there Mr. Homing? I would seek an answer Perhaps you could give us an idea, let's say a guesstimated idea, percentage wise: Five percent, nine percent, whatever the range in between, of applications for accessory buildings that the design also includes 2 by 6 framed walls, that are fully insulated with sheet rock, up to code, for single-family dwellings. Let's say, electrical outlets, receptacles and stuff. What percennage of accessory buildings that are being built today actually are made out of 2 by 6 framed walls? MR. BOUFIS: Not really. Most of the accessory buildings that are on the applications, or the applicants come in for, the accessory building ~s used for either a car with little FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4617 34 workshop or something for their own personal use. That's how most of them come in. But now it is starting to accelerate. There is another one in there, I just happened to look at it. There is another one in there, I should have brought it in -- I just went through some of the files. That has come in, and that has the bathroom upstairs, and it looks like it is going to be something to sleep in. THE CHAIRMAN: You also mentioned, not at the hearing but at one point that I had seen you in the Town Hall, that the propensity of these seem to be on waterfront pieces of property. MR. BOUFIS: They are, yes. And it seems that it is starting to accelerate, and that's the reason I am here. Do we just let it go like a runaway train or do we stop it? THE CHAIRMAN: We will certainly deal with it. Thank you, Mr. Boufis. We will see what else develops throughout the hearing. Just don't leave. We are not closing the hearing at this moment. Is there anybody else that would like to speak in favor? MR. FORESTER: My name is Edward FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4617 35 rather cut and dry, mathematical if you would: Forester, and I am the Director of Code Enforcement for the Town of Southold. I would be brief. I want to make a couple of points and possibly answer some questions that I heard the Board ask. First, Mr. Dinizio had asked what would we have done. Ordinarily a permit like this, similar to this, would be written and we would rubber stamp all over it "non-habitable." They would get a CO and it would say "non-habitable." They would be permitted to build it. We told them they can't inhabit it, and we set ourselves up for an expensive enforcement action some time down the line if we find people zn it. That's what has historically been done. The reason we would ask you this question is because the term "accessory" under 100-31C(1) and 100-31C(4) which says, "You can have garden house, tool house, storage and a play house. They enumerate four or five different kinds of accessories that you can have; none of them are defined. Our disapprovals to the ZBA have been It FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4617 36 exceeds 18 feet in height, it is closer than five feet to the line. Things that were easily discernible. For this, it isn't design, for some of them it is design. It is not so much going to intent, knowing they are, unless they are going to use it as a sLorage building, but it is "designed and arranged." In this case and other cases, the house is on a road, and the storage building is facing the water, that's where the windows are, and the deck is on the second level so they can see over the trees. Applicants are asked, "Why is there a deck there?" "Well, when I am visiting my sLorage stuff I might want to go out and look at the water," and, "Who is to tell me I can't store my living room furniture in this room, and I can't store my bedroom furniture in that room?" Because those definitions do not exist. A storage building cannot be this, this and Lhis. It simply says, "You are allowed to have a storage building." So the design and the arrangement are Lhe key factors and it's in the preempt of the 100-31. Then we go into (A)I being: "The permitted uses of a one-family dwelling, one per lot." The FREELANCE LI, INC. COURT REPORTERS 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4617 37 key here is it appears to be another one-family dwelling; the second one on the lot. Therefore, the basis for the disapproval. We are playing with semantics on the part of the applicant, and they have learned to call them "storage buildings." And there wasn't must in the definition to having it approved, it is not, and that's how things have been going. And we are seeing more and more of it, which is why it came to you in the form of an interpretation. Like I said, all our disapprovals have been pretty much cut and dry. It really is our interpretation of the drawing that would be appealed to you. It would appeal our decision. It is not so much that they are looking for relief from an area variance type of point of view. MR. DINIZIO: I have a question. THE CHAIRMAN: Could we just wrap it up quickly, please? MR. DINIZIO: Yes. I have just a little bit of problem with the interpretation; I had mentioned it the last time you were here, in that they don't affect everybody, and laws are abused, they could be abused both ways. We can say FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4617 38 to you, "Yes, this applies." And you go out and start interpreting this to a larger degree than we intend, and I could see that as an abuse. There are plenty of things recently going on in the Town that has happened, and on the other side I can see where you're right. People have learned not to call them bedrooms but to call them storage spaces, because that is what the code is asking them to do. I want the decision, in my opinion, to be difficult for you, I do, because that makes you think about it, and in my mind, side on the part of the applicant. In other words you are going to do everything you possibly can to determine your decision and be able to back it up. And I am just a little concerned that this law is going to gzve you a discretion %hat could be abused. That's my opinion. Not to say that you would abuse it, or Mr. Boufis would abused it, or anybody in the Building Department today would, but at some point in time down the road it could be abused. I am just wondering if there is anything you can offer? You guys were thinking about this all day long; I am sure you've been FREELANCE LI, INC. COURT REPORTERS 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Appeal No. 4617 39 thinking about it more than just eight hours. Where is the stop on this? We're dealing with intent that I don't believe you should really have. I don't think you should have that kind of discretion; we are supposed to have that. That's why I asked Mr. Boufis why he couldn't just say, "No, I am sorry, but this ~s my decision." And write that down and let it come to us, and let us hear these people stand-up and say what they have to say. Give them their day in Court, so to speak. They'll give; I know they'll give, but certainly much sooner than now. We'll probably wait two months on this here. I just had to state that on the record, that it is a concern of mine, that we give you too much leeway in that respect, and we thought everything that's designed would be designed to the way you like it. Because as I see it, the building is going to be a very nice looking building, it has large windows, it could be built out of old ware, it is installed. I don't see where that bothers anything as far as the code. It is actually better than code. Six-inch walls are fine, but it could have 12-foot walls. FREELANCE LI, INC. COURT REPORTERS 6 7 8 9 10 12 ~4 15 17 19 20 21 22 23 24 25 Appeal No. 4617 40 right. things. MR. FORESTER: You're absolutely It is the combination of all of those The orientation of the structure, and all of the things taken into combination, and that's the design and arrangement. Not any one of those things is the trigger. Like you said, "You could have windows in a storage room." Who is to say you can't have all windows? Who is to say you can't be closer to the water than the main house? But when all of the factors lead us to believe that it is designed -- arranged to be a dwelling, you want to use that section of the code, for lack of any definition in Section C, as a basis of disapproval. And not to abuse our authority or power, it is a decision that we would make, and you folks have the ability to make sure we don't abuse it. MR. DINIZIO: Okay. THE CHAIRMAN: Thank you. Is there anybody else who would like to speak in favor of this application? Yes. MS. MOORE: Patricia Moore. I am not involved in this one situation that you described. I am sorry it is a very difficult -- I don't FREELANCE LI, INC. COURT REPORTERS 6 7 8 9 10 12 13 14 15 16 17 19 20 21 22 23 24 25 Appeal No. 4617 41 represent them, but it is on the excessive side. I think in that particular case they probably could have denied it and brought it to you as "exceeding an accessory use." I think that that to me, as an attorney and as a property owner applicant's attorney, it gives me a better chance to come to the Board and explain to you why it is a reasonable, customary and accessory use. In a way, they are applying the design principles, but related to the use, and that seems to be a better hook to hang a disapproval on than just the design element. Mr. Dinizio pointed out a very sailing point that design is very subjective, and I think he mentioned that the design, the structural intent, it is architectural more than it is the use. You have to read the code in its complete context and I think that that section, combined with the use of it, not necessarily the intended use because again I think we have all pointed out that the intent of the applicant in something that they will tell you and they will state to you on the record and, in fact, what I always tell the Building Department, because I was involved in the FREELANCE LI, INC. COURT REPORTERS 1 5 6 7 8 10 11 12 15 16 17 18 Appeal No. 4617 42 situation that you described at the beach where it was going to be an accessory office it was an office space and we put in an affidavit by the owner, piled up information for the Building Department saying, "We will not use it as bedrooms; it is our office space," and as it turns out they put a condition on the building permit to limit it. It came Lo you for other reasons, for setback reasons from the water, but it was real clear, at least for anybody who would come to look at the file, that it was never intended as sleeping quarters. It is conditioned -- the CO is conditioned, and that's a great way of putting a future owner on notice that it is not to be used illegal as sleeping space. And I advise clients that if they are going to do something like that, that they are going Lo be stupid about it, that they're risking their liability, because the Town is not going to be sued. The Town has done everything to protect themselves by putting in that condition, and it is their insurance that denies coverage and their personal assets that are at stake when they violate the law. FREELANCE LI, INC. COURT REPORTERS 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4617 43 I think you can protect people so much, but on the other hand I don't want to see the Building Department to ge% to a point where absolutely everything -- they use their common sense as well. I think for the most part the Building Department does a wonderful job in assessing the situation and saying, "You know what, this one just doesn't make me feel good. Go to the Zoning Board of Appeals." In other cases we can present enough information: The design is all right, it is already drawn, it ~s reasonable, and there is enough background information they will issue a permit. So, I think they're doing the right thing, and t~hat this interpretation, it is a novel one, but I think that the combination of that design principle with the accessory use is what makes it more logical to then come to the Board, and then you have a basis for a decision, because honestly you are giving a decision that's just based on design. I am not sure that the court would like that very much. I think you're talking about architectural rather than tne actually use of building. That's just my two cents. I don't want FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Appeal No. 4617 to represent anybody here. MR. BOUFIS: more? 44 Could I say one thing THE CHAIRMAN: Sure, Mr. Boufis. MR. BOUFIS: As far as what Ms. Moore said -- the use was put down as storage building, so we really can't go into that use. The design is what we were after, but we ~o have another situation. We do have somebody living in a barn, right here on 48. The person has been given an appearance ticket, a stop-work order because they were remodeling it, they were given a cease and desist order to protect the Town. Mr. Forester has pictures of the bedroom. They're sleeping in a barn which is this is what we are trying to prevent. You are representing that client, of course, so I don't want to get into that part. MS. MOORE: I think it is not appropriate to talk about that. MR. BOUFIS: She is sleeping there. This particular person is sleeping there, and admitted sleeping in there. If she has a fire in that place they don't know she is in there; we do. We have done everything we can. Our hands are FREELANCE LI, INC. COURT REPORTERS 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4617 45 tied. We have done everything we can. She has an appearance ticket which was postponed. She has a cease and desist order. They had a stop-work order not to do any construction. That's all we can do. Do you see what our position is? That's it. We're not trying to upsurge their authority or go beyond this power trip. We're not looking for that. We spoke to these people and said, "You are in jeopardy. Something is going to happen. And we have done everything legally possible we can. department plan. is what they put down. "That is my use. going to use it as a storage building." That's when you got to that use That doesn't wash because the use I am We can't deny you that. But the design is not designed for a storage building, that's what I was looking for. THE CHAIRMAN: Would anybody else like to speak in favor? Would anybody like to speak against? Seeing no hands I, make a motion closing the hearing, reserving decision until later. MR. DINIZIO: I second the motion. THE CHAIRMAN: Ail in favor? (There was unanimous response from all the Board Members.) FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4627 46 THE CHAIRMAN: I want to point out to the Board that we will start the next hearing, but if the hearing extends past 7:50 we will stop the hearing and deal with one specific decision, which is the Burnham (phonetic) Decision, prior to a Board Member having to leave. The next appeal is on behalf of Barry and Barbara Charles. It is Appeal Number 4627. This is a request for a Variance under the Zoning Code, Article XXIV, Section 100-244B, based upon the Building Inspector's September 10, 1998 Notice of Disapproval for a reduction. Indicating a deck of approximately 16 by 20. Reducing the setback, as indicated in the legal notice, from 50 to 44 feet 3 inches. I have a copy of the Suffolk County Tax Map indicating the surrounding properties in the area. Good evening, sir, would you state your name for the record? MR. CHARLES: Barry D. Charles, 265 Peck Place in Southold. THE CHAIRMAN: Is there any intention, Mr. Charles, to enclose this deck in anyway? MR. CHARLES: No, sir. THE CHAIRMAN: So you wouldn't object FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Appeal No. 4627 47 to a restriction that it remain open to the sky? MR. CHARLES: THE CHAIRMAN: questions of Mr. Charles? MR. DINIZIO: THE CHAIRMAN: questions? No, sir. Mr. Dinizio, any No. Ms. Collins, any MS. COLLINS: Yes. Mr. Charles, the house is brand new. I am not even sure you are living there; I doesn't really look occupied. brand new. MR. CHARLES: MS. COLLINS: It is occupied. It is According to the assessor card that I took a look at, you bought the property a couple of years ago and then had the house built? MR. CHARLES: MS. COLLINS: Yes, ma'am. And the house was built with a rear yard setback that's, according to the survey we've seen, 50 feet? MR. CHARLES: Yes, ma'am. Just one room of the house. MS. COLLINS: Yes. The attic ms closest to the rear line. The house is 50 feet FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4627 48 away, which is what the code requires~ That suggests that when you built the house you knew what the code required, or your architect knew what the code required and you complied with it. Do I read the report correctly? That now that the house is built, and it's built in a way that complies to the code, now you want a variance so you can extent the deck closer than 50 feet? MR. CHARLES: Basically, that's correct. However, when I built the house -- the rear part of this house is not even, there is one bedroom that sticks out. It is at that point I wanted to put the deck. I wasn't aware that a deck had to comply with the same standards that a house has to comply to. In other words, if you have to have 50 feet clearance for a house, I was aware that you had to have the same for a deck. So I am requesting a variance for the deck. MS. COLLINS: Well, it is too bad you didn't know how the law works. THE CHAIRMAN: Thank you. Ms. Tortora, any questions? MR. TORTORA: No. THE CHAIRMAN: Mr. Homing? FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4630 49 MR. HORNING: No. THE CHAIRMAN: We thank you, sir, for coming. Is there anybody else who would like to speak in favor of the application? (There was no response.) THE CHAIRMAN: Is there anybody who would like to speak against the application? Seeing no hands, I am make a motion closing the hearing, reserving decision until later. MS. TORTORA: I second the motion. THE CHAIRMAN: All in favor? (There was positive response from all of the Board Members.) THE CHAIRMAN: We would have a decision for you, sir, in the near future. We thank you, for coming in. The next appeal is on behalf of John Holzapfel. I have a copy, or sketch, of a survey indicating the applicant is requesting a 21 by 30 foot storage building which is fairly well visible from his house and adjacent to his house, and a copy of the Suffolk County Tax Map indicating the surrounding properties in the area. Would you kindly tell the Board, FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4630 50 Mr. Holzapfel, why you want to place the building in this location? MR. HOLZAPFEL: Two reasons: One, is that there are wetlands behind the house and we want tO keep it away from that as much as possible. And secondly, esthetically, we block the water view. And since the property is so large we didn't think it would be a burden on anybody else. THE CHAIRMAN: What is the storage building going to comprise of? MR. HOLZAPFEL: Two slots for two boats, and a potting shed area. THE CHAIRMAN: are going to be involved? MR. HOLZAPFEL: THE CHAIRMAN: MR. HOLZAPFEL: not planned. THE CHAIRMAN: questions of Mr. Hotzapfel? MR. HORNING: THE CHAIRMAN: MS. TORTORA: bathrooms? What kind of utilities None. Maybe electric? Possibly, but it is Mr. Homing, any Not at this time. Ms. Tortora? Any bedrooms, FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 ~6 ~7 18 19 20 21 22 23 24 25 Appeal No. 4630 51 MR. HOLZAPFEL: That's all to be done later -- not at all. It would be storage forever. THE CHAIRMAN: Ms. Collins? MS. COLLINS: The house has your garage, which also looks like a barn, which is attached to the house, this would be fairly close to it. How big is the storage building, is it two stories? MR. HOLZAPFEL: No~ it is one story with a very low roof. The back is Only four feet tall. THE CHAIRMAN: Mr. Dinizio? MR. DINIZIO: No. THE CHAIRMAN: Let me get the approximate location. We are about 300 feet? I have a plus or minus here. MR. HOLZAPFEL: Yes. There is a diagram included. THE CHAIRMAN: I wan% to make sure that we get the placement information. pictures. MR. HOLZAPFEL: THE CHAIRMAN: There is a couple of It goes 300 feet to King Street and 260 feet, I guess, to the rear FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 17 18 19 2O 21 22 23 24 25 Appeal No. 4630 52 property line? MR. HOLZAPFEL: It goes in different directions. MR. DINIZIO: If we use these dimensions that wouldn't be a problem, you could read that, 300 feet, 120 feet and 260 feet, in our decision? When you went and built the structure, so you wouldn't have to come over for a variance, would it be a foot over, two feet? MR. HOLZAPFEL: It might be a foot or two, yes. 250? MR. DINIZIO: Do you want to go like MR. HOLZAPFEL: I think I have an approximate line in front of it. MR. DINIZIO: We can't say approximate. MR. HOLZAPFEL: I think it is very clear on the first diagram exactly where it's going to be in relationship to the house. It is measured out very precisely. THE CHAIRMAN: Can you do just a little more diligence in reference to giving us an estimate? FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4630 53 MR. DINIZIO: I would be willing to say it's 290 feet from the Main Road and 115 feet, giving five feet on either side, leeway, if that is satisfactory for him. THE CHAIRMAN: question then to the Board: Let me rephrase my Assuming that the Board is happy with that type of terminology, is that okay in the decision? And do you think a five foot variance in both directions, Mr. Holzapfel, would be adequate? MR. HOLZAPFEL: THE CHAIRMAN: Absolutely. Is there anybody in the audience who would like to speak in favor of this application other than the applicant? (There was no response.) THE CHAIRMAN: Is there anybody who would like ~o speak against the application? Seeing no hands, I'll make a motion closing the hearing, reserving decision -- comment? MR. HOLZAPFEL: THE CHAIRMAN: MR. HOLZAPFEL: Could I make a Yes. I just suggest that maybe in the future that you make a definition of FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 11 12 13 14 15 16 17 19 2O 21 22 23 24 25 Appeal No. 4630 54 "waterfront property" to avoid this. I had applied to the Building Department under the concept that I have over a hundred feet of waterfront property, and the Building Department made the determination that this isn't waterfront. So I had to come here for the variance due to that, because they interpreted "not waterfront." And it leaves me in a position that waterfront is not described in your bulletin or in your Zoning Code at all. So it is something that you might look to do in the future. THE CHAIRMAN: Thank you. Again, make a motion closing the hearing, reserving decision until later. MR. DINIZIO: THE CHAIRMAN: I second the motion. Ail in favor? (There was positive response from all the Board Members.) THE CHAIRMAN: for you shortly. MR. HOLZAPFEL: means? THE CHAIRMAN: We will have a decision Can I ask what shortly As the evening wears on we are in great hopes that we are going to give FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 19 20 21 22 23 24 25 Appeal No. 4622 55 everyone a nice Christmas present this year; and that is, make a decision in the very near future. I would say within the next couple of days. MR. HOLZAPFEL: Thank you. THE CHAIRMAN: I think we have enough time to get Mr. Dart in, which is Appeal Number 4622. This is for, the court reporter's purpose, is a continuation of a hearing. Mr. Dart, how are you tonight? I trust nothing has changed since the last time we have spoken to you? MR. DART: There have been no The signs remain up, the posters held. Do you have some green changes. THE CHAIRMAN: cards for us? MR. DART: There was one missing, but I honestly believe I have never received it back from one of the neighbors. It was clearly not back by the time of the first hearing, which is what the cards were intended to announcer and I donrt recall receiving it in the last month since the prior meeting. I could turn the house upside down and look if you want. THE CHAIRMAN: No, that's fine. We thank you, sir. Is there anybody else who would FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 12 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4622 56 like to speak in favor of Mr. Dart's application? (There was no response.) THE CHAIRMAN: Is there anybody who would like to speak against Mr. Dart's application? Yes, ma'am, would you kindly come up, use the mike, and state your name, please. MS. SHAKESPEARE: Hello, I am Margaret Shakespeare. THE CHAIRMAN: tell us? What would you like to MS. SHAKESPEARE: My property abuts Mr. Dart's property on two sides and this was not exactly the kind of welcome to the neighbor that I expected when I bought my house the end of April. To have a house built next door to mine would invade my privacy. I am surprised that the Town would consider allowing someone to build a house on a lot this size at this time. I think it would also interrupt the integrity of the community. There are 400 plus year-old houses right in front of me, mine is one of them. There is no place for his house. THE CHAIRMAN: Standing in front of Mr. Dart's house you are on the left-hand side or FREELANCE LI, INC. COURT REPORTERS 2 3 4 5 6 7 8 9 10 11 .12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4622 57 the right-hand side? Road. MS. SHAKESPEARE: I am on the North His property makes a T. THE CHAIRMAN: So, in question, assuming this Board granted this application, you would be adjacent to the vacant lot? sides. MS. SHAKESPEARE: THE CHAIRMAN: Okay. questions of Ms. Shakespeare? MR. HORNING: THE CHAIRMAN: MS. TORTORA: The property on two Mr. Horning, any No. Ms. Tortora? Then you are on the property formerly owned by Wolosik. to note, looking at this survey, that the lot proposed next to you would be a conforming lot. other words, the district is a one-acre district, and that lot would not only be 40,000 square feet, it would actually exceed it. The lot next to you would end up to be 58,229 square feet. I just wanted to know if you knew that? MS. SHAKESPEARE: It is going to decrease the value of my property. MS. TORTORA: Thank you. I just wanted In FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4622 58 questions. THE CHAIRMAN: Ms. Collins? MS. COLLINS: No, I have no THE CHAIRMAN: Mr. Dinizio? MR. DINIZIO: No. I thought the same thing as Ms. Tortora, that the lot that is going to go next to you anyone would have any right to build right there. It wouldn't be against the law. there. He wouldn't need a variance to put a house on MS. SHAKESPEARE: I would not have bought my house had I known this was a possibility. MR. DINIZIO: THE CHAIRMAN: anybody else like to speak against the application? Yes, sir. for the record. MR. BRADDOCK: Thank you. Thank you. Would Please, state your name My name is Phil Braddock. I also bought a house next to Margaret, and if this gentlemen were to build this house, it would b.e parallel to my southwest corner. And to build a new structure there, I feel it would be totally out of the character of the neighborhood. FREELANCE LI, INC. COURT REPORTERS 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4622 59 My house was built in 1860. I am very concerned. I used to live on the South Shore, and that's why I left the South Shore because I could see the guy next door using the bathroom. I came over here, and I have been here approximately a year and a half. I would care not to see a new structure in the back of my property. THE CHAIRMAN: Again, standing in front of Mr. Dart's house you are to the left of him, and you are in between Ms. Shakespeare and Mr. Dart? MR. BRADDOCK: Yes. THE CHAIRMAN: Thank you. Does anybody have any questions of this gentleman? (There was no response.) THE CHAIRMAN: Thank you, sir. Is there anybody else who would like to speak? (There was no response.) THE CHAIRMAN: rebuttal? Mr. Dart, anything in MR. DART: I have no plans to build a house. This simply a division of property, and the idea of building a structure is imagined. I have no immediate plans to convey the property either. FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4622 60 It is just that division to allow me to sell the parcel on Peconic Lane for a reduced price. THE CHAIRMAN: Thank you~ sir. Would anybody else like to speak? Seeing no hands, I would make a motion closing the hearing, reserving a decision until later. MS. COLLINS: THE CHAIRMAN: second the motion. Ail in favor? (There was a positive response from all the Board Members.) THE CHAIRMAN: At this time we would be taking approximately a five minute recess. During that time we would be making a decision on a prior application, which affects Mr. Burnham on Fisher's Island. I am changing the agenda item to a decision I am merely holding the meeting in abeyance. I am holding the agenda this agenda in abeyance for approximately five minutes. Whatever semantics you want to use -- that we could use for that, we are not leaving the room until after we make the decision, then we will recess. I am not continuing with Mr. Fink's application, which is a hearing application. I am going to Agenda III. We are dealing with the FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Appeal No. 4542 61 decision now. (The decision was held off the record, and following the decision there was a brief recess, and then the meeting resumed.) reconvene. THE CHAIRMAN: MS. TORTORA: THE CHAIRMAN: I need a motion to So moved. Second. All in favor? (There was a positive response from all the Board Members.) THE CHAIRMAN: The next appeal is Appeal Number 4542, on behalf of Walter Fink. This is a request for a Variance under the Zoning Code, Article III, Section 100-230.4B, based upon the Building Inspector's September 30, 1998 Notice of Disapproval, for a reduction in the proposed setback from the existing bulkhead for location of a single-family dwelling. I have a copy of the survey indicating a proposed dwelling at approximately 35 feet from Willow Terrace Lane, and approximately 64.5 feet from the bulkhead. And I believe, Mr. Anderson, you are ready? MR. ANDERSON: Yes, sir. Bruce Anderson, for the subject of environmental FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4542 62 consulting, for the application of Walter Fink. Walter Fink is in contract with another fellow named Keneth Swanson purchasing the house. The application is filed under Walter Fink because Mr. Fink has not closed on the house as yet. The proposal that's the subject of this application is to construct, roughly, a 1,500 square foot single-family dwelling, with a 572 square foot attached garage, a 140 square foot attached main porch, as well as a septic system and driveway. This particular lot is known as Lot 6 of the subdivision of Willow Terrace Section One, filed November 28, 1969. In order to construct a house on this property, we needed permits from Southold Town Trustees, New York State DEC, by way of a letter of non-jurisdiction, Suffolk County Department of Health Services, and finally the Zoning Variance; and we're here for the Zoning Variance. To give you just a little history of what we've been through with this: My company was retained through the beginning of this process in October of 1997. And through the survey work and FREELANCE LI, INC. COURT REPORTERS 2 3 4 5 6 7 8 9 12 13 14 16 17 t9 20 21 22 23 24 25 Appeal No. 4542 63 what not, and the appropriate applications of DEC, New York State Trustees and the Health Department were filed in December. And the Trustees granted the approval pursuant to the wetlands code in January. The DEC took a little longer and granted their approval in May, and the Health Department took the longest of all, approving it finally on September 4th of this year. We had original filed in January 21, but we were rejected on the basis of the lack of Notice of Disapproval. The problem here, and the only reason I mentioned this is because in your travels when you interface with the Town Board, you might suggest to them that that's something that probably the applicant shouldn't have to do in order to approach this Board. And the reason why say that is, the Health Department Approval can be long. It can be arduous. It can be expensive. But ultimately they really can't deny you a source of water, nor can they deny you a means of sewage disposal. Furthermore, a location of a well or a location of a septic system has no bearing necessarily on the location of the house. It took us literally nine months to FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 2O 21 22 23 24 25 Appeal No. 4542 64 get through that organization and many thousands of dollars worth in application fees, test wells, ground water testing, etc., for something I suspected this Board doesn't really have that much interest in. We wanted to be here much earlier so %hat if we were able to obtain the approval here, we could have closed on it back in the spring. So, just in your travels, if the issue comes up, I hope you would consider what I have said, not that it has any special bearing on this particular application. THE CHAIRMAN' Are you then suggesting to us that we would make the decision subject to that~ MR. ANDERSON: lot of Zoning Boards do. Yes. It is something a Most of them want to know about wetlands because it affects the location of a house, whether it be Trustees, or DEC. That's important to a Zoning Board because a house is often sited with respect to a setback, a bulkhead, or a wetland, or what have you. But a septic system and a well usually doesn't affect the siting of a house. To date we have all these approvals. FREELANCE LI, INC. COURT REPORTERS 2 3 4 5 6 7 8 9 l0 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4542 65 We have a Notice of Disapproval, and so here we are. One thing I wanted you to be aware of, is that this particular property is subject to private covenants, and I have given you a copy of the covenants. The purpose of them is to conserve the property values, promote the general welfare of the residents in the area. There are really four main areas that affect this, and one of the first is setbacks, %hat being pursuant to the covenant "that you can be no closer than 35 feet from the street, no closer than 15 feet from the side yards, and no closer than 30 feet from a rear yard." The use is restricted to private residential purposes, as the Zoning Code does, and "you can only have one single-family detached residence not exceeding 2 1/2 stories in height, and the garage must be attached to the residence." Finally, and perhaps most importantly, there are architectural standards that are set fort'h in that covenant. The covenant requires "a New England type colonial, a cape cod or a Long Island Farmstead character only." And when you FREELANCE LI, INC. COURT REPORTERS- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4542 66 draw up these plans and you site them on a survey, before you can build, you must get approval from the declared, or the original developer, who, in this case, ms Nancy Douglas. We've done that. We have that approval. I faxed you over a copy of that approval. So we are mn compliance with that private covenant. The Notice of Disapproval that we received on this is based solely on Section 110-239 of the Town Code that deals specifically with a setback from a bulkhead. And that setback is 75 feet. Under this application, as most recently amended and what we've done over the course of time here, as a function of architecture mostly, is we have reduced the smze of the house that we originally wanted primarily due to the cost of building it. The house which is presently proposed ms 64 1,/2 feet from the bulkhead, and therefore the relief requested is 10 1/2 feet. We believe that the variance %hat we're seeking here in relation to the requirements is not substantial for the following reasons: One: On the face of it, 10 -- 10 1/2 feet occurs to us as mmnor. FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Appeal No. 4542 67 Second: The requested of relief, if granted, would be in keeping with the overall development pattern of the neighborhood. The survey that is in front of you actually shows the location of the two houses, or part of the two houses, on either side of this house. And the bulkhead that fronts all three properties is straight. What we did is, we extended that bulkhead line and we measured back to the houses, and we found that essentially neither house complied with that 75-foot setback rule. The reason being, the character of this area was established before that particular rule came into effect. The size of this lot is approximately -- and all these lots are approximately 20,000 square feet. It is however zoned for 40. The final reason has to do with a previous determination this Board made concerning front and rear yard setbacks for a newly constructed house that I actually handled. As you may recall it is two houses away on the corner. I mentioned it only with respect to the question of whether the variances are substantial. In that case this Board granted, without modification, a FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 12 13 14 15 16 17 19 20 21 22 23 24 25 Appeal No. 4542 68 front yard reduction of 21 percent over what was required, and a rear yard reduction of 17 percent over what was required there. Those numbers were; for the front yard, 55 feet, 43 was granted, in the rear yard, 75 feet, for which 62 feet was granted. The only reason I mentioned that is, in the determination that you made, you ruled that that type of relief, under this ordinance, is not regarded as substantial in relationship to the requirement, and I would just hand this up. You already have it, but here is a copy of the determination of the survey. It references as well, that Notice of Disapproval. MS. COLLINS: Gerry, would you read the number of that into the record? THE CHAIRMAN: It is Appeal Number 4336. The date of the action is October 11, 1995. I remember it specifically. MR. ANDERSON: The variance we seek, if granted, we maintain would not have adverse effect or impact on the environment of the neighborhood because there are no significant environmental or physical impacts that will accrue as a result of this project to the neighborhood. FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4542 69 Secondly, we have now two independent environmental agencies; that being the Trustees and the DEC, who have both granted their approval. In one case, in the case of a permit, that being the Trustees, and in the case of the DEC, for a letter of non-jurisdiction. And when you have two agencies that are deeply involved in the environment, both agreeing to the layout, we think that assures or diminishes any impact -- having to do any impact on the environment. Also, we went through, as I said, a lengthy process with the Health Department that was impaled with intent of investigation with the ground water beneath the site in the form of test wells and testing. Also, an analysis of all the adjacent homes, and wells, and septic systems and their array, siting septic systems as you see it, and wells as you see it on that plan. That led us to the Board of Review because the lot was small and because it was impossible to maintain the requisite setback between wells and septic systems. However, when the day was done, that approval was granted and, in fact, it was granted FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4542 70 without condition. In other words, as far as applied for. We believe that the granting of this variance will not cause an undesirable change to the neighborhood because of the size of the parcel, and the scale, and the mass of the proposed development. Therefore, it is entirely consistent with the surrounding parcels. Secondly, the setback from the bulkhead is similar to the existing bulkhead setbacks on adjacent parcels along the waterfront. Again, we looked at that survey and we found that the house to the east, or perhaps north -- depending on how you look at it -- it actually sits up in the northeast direction -- it is approximately 73 feet. And the house on the other side, where this house would be placed, was 63 feet. So we fall in between the two setbacks that already exist. And none of the setbacks would comply with the 75-foot rule anyway, and that's what brought us here. Also, the location of the dwelling will not impact upon the views of the adjacent waterfront properties because they lineup in a straight-line fashion. There is no potential that FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 l0 13 17 18 19 2O 21 22 23 24 25 Appeal No. 4542 71 they would block such views. Admittedly, there are parcels, that were on the other side of the road, not having waterfront. Any house built in that area will have cause to do some obstruction to views, but I think that is a determining factor here. Then, finally, the architectural style, of the proposed dwelling is the same, or similar, to adjacent and nearby dwellings. I have with me the plans, and you should have a copy of them as well, that will give you an idea of what this will look like. I don't know if you could see this that well, but you see here is a street side of the house, and you see it is a very low-keyed, cape-cod type structure with cedar shingles, white trim, very traditional detailing. Then what you see up top here is the portion of the house that would face the water. This has more of a peak structure. There is the porch that is down here. There is a deck above the porch, an open-air deck, that's access from either wing of the house. What is significant about this particular layout we think, is that from the street side, because of the way the roof has been FREELANCE LI, INC. COURT REPORTERS 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4542 72 designed, it has a look of something that is very low %o %he ground, which we think is important for folks that are going to be driving down and looking at the scene. IL would not be out of scale. It would not be a great mass. It wouldn't have that appearance. Along Lhe side yard we see here, we have the garage that accesses, comes mn off the side yard, so that the garage doors actually do not face the street. house. This is the living section of the On the other side, which would be facing the adjacent neighbors to the east or north, owned by I believe the Dimartino's (phonetic), you have a traditional cedar-faced chimney, a small deck area where the client intends to store wood for the fireplace and what not. And if you look at the slope here you could almost get a better feel for what I am talking about. If I am standing on the street it is a much lower kind of slope. The highest point of it is that which is facing the water. THE CHAIRMAN: Is there anybody who would like to look at the plan? MR. ANDERSON: The neighbors are here, FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 9 l0 11 12 13 14 15 16 19 20 21 22 23 24 25 Appeal No. 4542 73 we have met with them. The benefit, should it be entertained, that being should the condition be achieved by any other method other than the granting of the request for variance: First7 it has to do with the design of the subdivision, and it's built on a contemporary -- a specific type of development that is proposed in this application that goes back to the covenants you have, that goes back to the file. Secondly, it has to do with the floor plan itself. What we have here is a great room that houses a living room area and living room, a screened porch as I said, a study, and 1 1/2 baths. It is quite a sufficient layout and it ms an intact layout. The second floor is simply for three bedrooms, two baths, and an unfinished storage room. And finally, as I mentioned before the original subdivision, that was permitted under that set of covenants, was a house that could be as close as 30 feet from the rear yard, which in this case could put you right on top of the bulkhead. Our alleged difficulty is not in itself created, because obviously the lot was created prior to the FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4542 74 adoption of this specific section of the Town Ordinance. The ordinance, according to your code, which was created in March of 1989, was Local Law III. The property was subdivided and the development pattern set in 1969 and the developer -- any other subsequent property owner could not have anticipated this type of zoning restriction at the time in which these parcels were created. If the parcels then were just slightly deeper we wouldn't be here tonight. Taken together, we feel that this is a classic case of practical hardship, and thus the variance, we think, should be granted. I know you're going to ask me about alternative relief, and I have asked the architect/designer, Gordon Price, to walk you through what would happen to this structure if we were to, let's say, "Eliminate ten feet of the house," and he would do that. Before I do that, I want you to understand that the time-frames involved here -- we've been at this for 13 months. We are here for the first time tonight. We've expended a lot of money in terms of architecture, FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 12 13 14 15 16 17 19 20 21 22 23 24 25 Appeal No. 4542 75 in terms of the Health Department, which turned out to be very expensive, obviously, all the time and aggravation that goes in with that, those numbers were very high. Of course, if we were to disrupt the plan right now by chopping off a portion of the house you would essentially restart us back in this process and incur those fees, or many of those fees all over again. It would, in essence in my mind, and I am not an architect, result in a house of scale and size similar to what would be a double-wide trailer. We are looking at about a 1,600 square foot home, which is not an enormous home by anyone's standpoint. So that's why I would say that something like alternative relief would not serve anyone's purpose here, but Gordon would explain how the floor plan works and what would happen if you were to eliminate ten feet off the seaward face of the house. MR. PRICE: Gordon Price, Orient, New York. This is the way it is now. This is the side that is facing the water, which the bulkhead is up here. The corner of this right now is 64.5 feet from the bulkhead. FREELANCE LI, INC. COURT REPORTERS 2 3 4 5 6 7 8 9 l0 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4542 76 Now, if we brought this back another ten feet -- actually this is a little over 13 feet here, if we brought this back ten feet you can see we would lose a room completely here, and we would lose this so called "family room," which is really the living room. You wouldn't have it anymore. You would have this small corridor, and you would lose the screened porch, which is a very important feature that the client wanted in the first place, which is where they're really going to look at the water without the mosquitoes. Then, if you went up here on the second floor, you have a bedroom here, here, and here. And this is storage space, and this is also a deck that's above the screened porch. Again, this is the corner which is 64.5 feet from the water. Again, if you cut this back ten feet, which is approximate this line here, you could see you would have a very small bedroom here, and you would have absolutely nothing here for a bedroom, it would be all the way back to here, which you would only have about three feet. We feel very strongly that this is the way to go to g~ve the client his money's worth. FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4542 77 THE CHAIRMAN: Thank you, Mr. Anderson. MR. ANDERSON: Thank you, Mr. Price. Just as a final note. I know that you are a very busy Board, and I know we've discussed this with the neighbors. We know that the neighbors. My impression is that they like the house. What is important to us is because of the lengthy amount of time it's taken to get to closing that, if possible, we would very much appreciate a decision tonight. THE CHAIRMAN: We would do the best we can. Are there any questions, Mr. Dinizio? MR. DINIZIO: THE CHAIRMAN: MS. COLLINS' NO. Ms. Collins? There is a stake with a little red ribbon on it on the land which appears to be 64 1/2 feet from the bulkhead, is it? MR. ANDERSON: Nor it is actually a little bit closer. When we first submitted the application, we proposed a house that was actually 20 percent bigger than what is before you tonight. The reason why we cut it down is that it was smmply too expense to build. MS. COLLINS: That stake represents FREELANCE LI, INC. COURT REPORTERS 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4542 78 the 60~foot setback, not the 64 1/27 MR. ANDERSON: That's correct. MS. COLLINS: I took it to roughly represent where it would be, and it certainly is consistent with the other houses along there. THE CHAIRMAN: MS. TORTORA: Mr. Anderson. Ms. Tortora? No. THE CHAIRMAN: Thank you, Is there anybody who would like to speak in favor of this application other than the architect or the environmental control? MS. THOMPSON: I am across the street and I think Charlene Thompson. I am on Willow Terrace, and it looks like a very nice house, and if it lines up with the others, as I understand it does, it should be no problem. THE CHAIRMAN: Thank you. Is there anybody who would like to speak against the application? Seeing no hands, we thank you for your presentation, Mr. Anderson. And always we thank y.ou, Mr. Price, for coming in. I would make a motion closing the record of this hearing, and recessing the hearing and reserving until later. FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 15 17 19 20 2~ 22 23 24 25 Appeal No. 4629 79 MR. ANDERSON: reserving until later tonight? Mr. Chairman, are you THE CHAIRMAN: Hopefully. We are going to run until 10:15. We will get to some of the decisions tonight. We will make every attempt to get to yours - Mr. Anderson, it appears that we would entertain %his decision right now. MR. ANDERSON: That would be wonderful. (There was then a discussion held off the record and the following occurred as a result.) MS. COLLINS: I move that the variance be granted subject to the condition discussed. MR. DINIZI0: Second. THE CHAIRMAN: Ail in favor. (There was a positive response from The next appeal is on I have a copy of a all the Board Members.) THE CHAIRMAN: behalf of Alec V. Aksten. survey indicating the proposed house, and I have a copy of the Suffolk County Tax Map indicating the surrounding properties in the area. Ms. Moore? MS. MOORE: For the record, I am submitting to the Court the green cards, an FREELANCE LI, INC. COURT REPORTERS 6 7 8 9 12 14 15 17 2O 21 22 23 24 25 Appeal No. 4629 80 affidavit of posting, the affidavit of mailing with the receipt of certified mail receipt with the copy of the poster that was sent, and a list all of the property owners. I also got today, late in the day, the Chicago Title Certification. It is the same document that I had submitted to the Board in my initial application. This one is probably endorsed to the Town of Southold in the amount of 25,000 for your records. The record pretty much speaks for itself. We have the two lots, which is Lot 42 and Lot 12. Lot 42 is the lot in the back of Reydon Shores. The parcel that it abuts in the rear is Lot 12, and it faces the Paradise Shore Road. The history of this parcel, you see this from the title certification, the property, the Lot 42, the Reydon Shores parcel, was purchased 1942 by Earnest and Helen Shack (phonetic). Mr. and Mrs. Shack, when they died, the property was gifted to Alec Aksten. In 1996 Alec Aksten donated the improved property to Eastern Long Island Hospital, and then the property was sold by Eastern Long Island Hospital to Richard Vandenburgh FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4629 81 in 1997. He had obtained, from~the Building Department, a preex~sLing CO at that time prior to his purchase. THE CHAIRMAN: You are talking about Lot 42? MS. MOORE: Lot 42, yes. I could not recall, and this is -- I kick myself because I don't have the list of exempt subdivisions from the 12 - do you have it with you? MS. COLLINS: No. I look it up, Pat, and Reydon Shores is not on it. MS. MOORE: It should appear there because this is a very old subdivision, but for some reason it is not on thaL list of subdivisions. Nonetheless, if it had appeared then it would have been exempt because the parcel would have been conveyed out prior to 1997 when the law was made clear as to when a merger occurs. In 1938 Lot 12 seems to have been created when it was deeded to Helen Shack. When she passed away in 1973 her real estate was divided by will to her good friend Alec Aksten. They were good friends in that neighborhood and she wanLed Alec to get this property. That deed was never FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4629 82 recorded. It was based on the will, and there is no need to record the document, and it was not done. When Alec Aksten died in 1996, the estate went to contract on that property, with Richard and Bridget Dial (phonetic) and then Mr. and Mrs. Dial went through -- typically, when you purchase a parcel, any vacant lot out here, you make it subject to getting Health Department Approvals, and any variances that you might need, so that you don't get stuck with a non-moveable parcel. Well they went through the process, got the Health Department Approval, and when they went for a building permit -- this is late, very late, in the game, because had they realized that there was a merger earlier on, I am sure they would have done it very differently. But they had spent all the money on the surveys, on the titles, gone through the Health Department applications, and then found out that the two parcels had merged. When we looked at the consideration for the waiver of the Merger Law, this lot, if it's FREELANCE LI, INC. COURT REPORTERS 1 2 5 6 ? 8 9 10 11 14 15 16 17 18 19 2O 22 ~5 Appeal No. 4629 83 recognized, would be consmstent with the size of the lots in this neighborhood. I am sure you have all taken a look down there at the Paradise Shore Road parcel. That parcel is flat, it is vacant, but there are no trees on it, it looks like a normal, buildable parcel. And that's what everybody imagined i% to be. There has never been an intention for the Vandenburgh property to use that parcel as part of their lot. It is clearly identified as a separate lot. You can even see the landscaping that was placed on the parcel in Reydon Shores. There ms a line of evergreen trees that creates a fence, identification marks, for where the parcels begin and end. So it's real clear that this lot -- you would not be creating a lot that would not, to the whole world, appear to be a buildable parcel. Certainly, we would avoid an economic hardship with these prospective purchases, but certainly a hardship to the estate because, again, as I stated before, this asset is the only asset remaining, and if it is not sold certainly the estate would lose, but certainly would the property owners the prospective property owners, if they FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4629 84 spend all the money and the estate has no money to reimburse them. So it would be a real hardship for everyone involved. The natural details and character itself of the lot would not be significantly changed or altered in anyway. Again, the parcel is flat, it has been cleared, and by all appearances it is normal buildable lot, and it is no different th'an any other parcel in that neighborhood. In fact, it is somewhat difficult to see which lot it was. I know that when I went to post it I had to work my way backwards from the Shore Drive to identify exactly were it was, because all the parcels are pretty much the same size over there. I also have originals -- or duplicate tax bills which show that there are two separate tax bills: A tax bill going to Vandenburgh and the tax bill that's still going to Alec Aksten, and I would put that on for the record as well. Are there any questions? THE CHAIRMAN: We'll start with Ms. Tortora, any questions? the lot MS. TORTORA: I don't see the size of the proposed new loto FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4629 85 MS. MOORE: I think there is a survey in your file, which is the one used for the building permit application. THE CHAIRMAN: 13,513.31 acres. MS. MOORE: All lots in there are 50 by almost 150 I am sorry 75? THE CHAIRMAN: 68.62 plus 21.41. Ms. Collins, any questions? MS. COLLINS: I calculated the larger one, the Oak Drive lot to be about 15,750. It is somewhat bigger because it's a little deeper. My only question, Ms. Moore, is did Mr. Aksten live in the house on Oak Drive after all this was bequeathed to him? MS. MOORE: MS. COLLINS: ho get the question of: I don't know. I am interested simply How he looked on this property? It was left to him. Was it an znvestment or was it his home? I am not sure what influence that has. I just wanted to know. MS. MOORE: I don't know. I could ask Paul Camanette (phonetic) and call you with the answer. I would be guessing. It is not really relevant. FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 l0 11 12 13 15 17 18 19 20 21 22 23 24 25 Appeal No. 4629 86 MS. COLLINS: No, it is not relevant. The point is, the two lots were left to him in 1973 when Mrs. Shack died, and he died, almost 25 years later, and in the meantime the Merger Law came into exmstence, and obviously he didn't know about it, and I was kind of getting at -- was he living there? Was this his home or was he living in California and treating this as investment back east? That's I suppose what I was asking. THE CHAIRMAN: At that time, Ms. Collins, a lot of those houses were seasonal homes. MS. MOORE: I don't know if he lived in the area, or had a seasonal home in the area, because they were all very good friends, but I don't know the details of their relationship. his plight. about this. continue. MS. COLLINS: I was curious. THE CHAIRMAN: MR. DINIZIO: I am very sympathetic to Mr. Dinizio? We all know how I feel MR. CHAIRMAN: Then we will just MS. MOORE' I think, for the record, FREELANCE LI, INC. COURT REPORTERS 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4636-postponed 87 he thinks this is an unfair treatment of property owners' rights. MR. DINIZIO: We'll get that in the decision. THE CHAIRMAN: Is there anybody else in the audience who would like to speak in favor of the application? (There was no response.) THE CHAIRMAN: Anybody who would like to speak against the application? Seeing no hands, I'll make a motion closing the hearing, reserving decision until a later date. MS. COLLINS: I second the motion. THE CHAIRMAN: Ail in favor? (There was a positive response from all the Board Members.) MS. MOORE: I know that the owners are quite anxious to know if they were -- they have a lot that they can buy. THE CHAIRMAN: tt appears that we are going to entertain this application also at this time. For people that are following the agenda, we are skipping Patrick Mortimer, which is Appeal 4636. It is postponed at the request of the FREELANCE LI, INC. COURT REPORTERS 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4605 88 applicant's environmental consultants. We are going on to a hearing %hat we had prior, which is Lieb Cellars. Current owners is Palmer. Good evening, Ms. Wickham. MS. WICKHAM: At the last hearing we presented our position, that the proposed winery on this parcel of property will have all of the attributes of the ten-acre requirement due to the continuity of the 53 acres of active farmland, which will continue in agriculture forever, due to the sale of the development rights on that parcel. I am not going to repeat the entire presentation, but I do want to highlight a few things: We feel that the concerns, as to traffic, noise, and other consequences of developing a property are not unique to this application. Those effects, to the extent they would occur, would happen even if the wineries' property and the vineyards' property were in single ownership. Since the wineries would then be constructed without a variance. They are really irrelevant to the question before us, which is that of the separate ownership of two parcels. It's therefore our position that all of the FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 1,4 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4605 89 objections of the neighbors, with the sole exception of that of Mr. Pugliese, which I will address separately in a minute, really relates to the use of the properties and winery, and not to the ten-acre requirement, which is the subject of this application. While there may be concerns of the neighbors, they are not relevant objections to this application. The Palmer property, as it is now constituted, and now zoned, may be used as a winery without the need for a variance. The applicant'has nevertheless tried to present a reasonable plan that does try and address the concerns. He has adequate room for parking. He has discretely situated the building, and the contour of the property, on the side of the property furthest from the residences. And the winery will be small compared to many of the large buildings which now operate as wineries in this Town. Traffic and the other concerns will be addressed in the site plan process. Since the last hearing, we have addressed the concern raised by Mr. Pugliese; namely, that his winery parcel was connected and FREELANCE LI, INC. COURT REPORTERS 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4605 90 was required to be connected to a larger parcel to the north. Mr. Palmer and Mr. Lieb were recently entered into a long-term land lease which creates, in effect, a ten-acre parcel for the benefit of the winery parcel. It creates a dedicated ten-acre situation. This document has been submitted to your Board and also to the Town Attorney for his review. I would submitted to you that this arrangement meets the definition of "ownership" in the Zoning Code, thus rendering the property in compliance with the ten-acre criteria. If the Board agrees with that construction of the code %hen this variance is not necessary. In the alternative, the land lease creates a complete incumbent on the property, so that the ten-acre requirement is met, and sufficiently met to warrant to the variance being granted. This is a more direct approach to the ten-acre requirement, and more than in keeping with the code than our proposal at the last hearing for a convenant enacting the winery parcel legally, if not physically, and there would still be other acreage in Cutchogue. However, the primary aspect of a FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4605 91 winery is %he agricultural connection. And I think we demonstrated at the last hearing that Mr. Lieb is committed to agriculture to the extent of his 36-acre vineyard in Cutchogue, in the same town. $o we would like to present that to you for your consideration,. If there are any questions we will be happy to answer them. THE CHAIRMAN: There will be questions. The problem is that we really have not had a significant period of time in which we could consult counsel on this new aspect. We also want to mention that Mr. Pugliese, prior to the commencement of this hearing tonight, did bring up a letter to us which we have not had a chance to produce photocopies of for your purpose, t think I will then ask the Board again to hold this off until the December 10th hearing so that we have a chance to seek counsel, review - we certainly looked at your document, but we haven't had the chance to digest it, so to speak. So the questions may be limited at this particular point, or they may be involved, depending upon how the Board Members want to get involved with it. We would see what develops. FREELANCE LI, INC. COURT REPORTERS 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4605 92 Mr. Dinizio, do you have any questions? MR. DINIZIO: You said i% would be in effect ownership. Could you explain that? MS. WICKHAM: The definition of "ownership" in the code, and it is an ownership requirement that is related to the ten-acre ~provision in our Zoning Code, has as its attributes, not only the ownership, but a controlled aspect. And when you have a long-term leasehold interest, such as that being created by this document, that does I believe meet the technical definition of "ownership" under the Town Code, that's defined in 100-13 of the Town Code. THE CHAIRMAN: Ms. Collins? MS. COLLINS: I have read the lease. The proposed lease is for land that is currently planted in mature vines I gather? MS. WICKHAM: MS. COLLINS: That's correct. Those vines would remain the Palmer vines from the point of view of whose grapes they are; is that not correct? MS. WICKHAM: They will probably continue to be harvested by Palmer but the leasehold creates an ownership interest to the FREELANCE LI, INC. COURT REPORTERS 1 4 5 6 7 8 10 11 14 15 16 17 18 21 24 25 Appeal No. 4605 93 extent defined by the code, which will give them an exclusivity as to that property. MS. COLLINS: Just to comment about that ten-acre requirement: I think that the code says, "That the winery is to be on a parcel on which at least ten acres are devoted to a vineyard or agricultural purpose." So, I don't think it is clear that a ten-acre parcel, with 6 1/2 acres of vine and 3 ]/2 acres of winery, parking, landscape land quiLe does iL. to you. I just wanted to toss that out MS. WICKHAM: My reading of the code is that the parcel iLself is Lo be ten acres. MS. COLLINS: "Shall be on a parcel on which at least ten acres are devoted to vineyards." I wanted to get it on the record and get it on to your plate because I think it is significant. MR. CHAIRMAN: MS. TORTORA: agreement so I will ask you, if, in the lease agreement let's go back Lo who is going to be harvesting the grapes from the ten acres. MS. WICKHAM: ThaL will be an Ms. Tortora? I haven't seen the lease FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 12 14 15 17 18 19 20 21 22 23 24 25 Appeal No. 4605 94 arrangement between Mr. Lieb, who is the lessee of the property. He should sublease he could continue to lease it to Mr. Palmer to do it. I don't think that use of the property is necessarily related to the long-term leasehold, in effect, it is a legal matter. MS. TORTORA: I am going down your theory of ownership, and you believing this lease establishes some type of ownership. That is not clear to me. Convince me a little more. MS. WICKHAM: I think that in ~he Law of Real Property, a leasehold interest of this nature this hype is an incumbency on real property that does have attributes of property rights. People very frequently use long-term leaseholds for development of major commercial buildings for instance. Even though they do not own the land itself, they do have such an extensive incumbency, or rights to it that it is considered a property right under the Real Property Law. Similarly, it can be mortgaged or financed by banks. It is not like renting a summer cottage. It is a long-term leasehold. It is a different concept. FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4605 95 Many properties, in other states for instance, most of the properties are owned in a leasehold fashion, Hawaii; for example, there are properties out here, but it is not as common here as in other areas. other states. question: It is more common westward and THE CHAIRMAN: Let me ask one In the State of Hawaii, unless you are an Hawaiian, you cannot own property. It is a 99-year-old lease; are you proposing that this is a similar type of situation? MS. WICKHAM: the laws of Hawaii. question. I am~not familiar with THE CHAIRMAN: I am asking that You are using the phrase "long-term," I know it is for a period of time. I am saying, "That's the feeling that I am getting when you are using that type of criteria." MS. WICKHAM: I feel it is a form of ownership in accordance with 100-13. MS. TORTORA: I guess what I am saying is, "That I am familiar with what you are saying about the 99-year-old lease, and Real Property Tax Laws, and the implication of ownership under a FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 12 13 14 15 17 19 20 21 22 23 24 25 Appeal No. 4605 96 lease agreement." However, I am not sure that that is what our code refers to when it is says, "That the land in question, the vineyards, and owned by the winery owner." I am not sure the two -- MS. WICKHAM: I am submitting that under 100-13 it does. And not only legally and technically, but as a practical matter Lieb will have pretty much exclusive control over that area for a very long-term leasehold basis. MS. TORTORA' Why doesn't Mr. Lieb purchase the property from Mr. Palmer? MS. WICKHAM' The lease gives Mr. Lieb the opportunity to purchase the property. In order to do so however, this is in the lease, the property would have to be subdivided from the remainder of the farm, and that would have to be an approval by not the Health Department and the Southold Town Planning Board, but also the County Legislature. That is provided, there is a mechanism for that in the lease. I think it is a very long-term process and it is not something we want Go incorporate into this application. MS. COLLINS: Does the lease, in fact, not say, "Were all those things to happen, that FREELANCE LI, INC. COURT REPORTERS 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Appeal No. 4605 97 Mr. Lieb is obligated to purchase?" MS. WICKHAM: Yes, he is obliged to purchase. I am sorry, you are correct. There is also, if I may answer your question a little further, a right of first refusal between the two. So, should the vineyard property ever be sold as a whole, the remainder of the vineyard property will be a provision for him to become owner should he exercise his right. THE CHAIRMAN: what develops %hroughout the hearing. Is there anybody else who would like %o speak in favor of this application? MR. COLEMAN: James Coleman, against the application. THE CHAIRMAN: I want to do the approvals first. Is there anybody else who would like to speak in favor of this application? (There was no response.) THE CHAIRMAN: Is there anybody who would like to speak against this application? MR. COLEMAN: A lease, in my mind, does not constitute ownership. Mr. Lieb and Mr. Palmer could have a lease agreement and he Thank you, we would see FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 ~7 8 9 10 1t 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4605 98 could break it within a matter of a few days, and there is no way that this Board would even know that he broke the lease. So I don't see how it constitutes ownership at all. That's all. MS. WICKHAM: As I said before, this is not an uncommon context in more sophisticated real estate transactions. And when Mr. Lieb is going to be investing thousands of dollars into this property and this project, it wouldn't behove him to merely break a lease. It is part of an overall project. MR. COLEMAN: Apparently, if he's not buying the vineyards and Mr. Palmer is going to be cultivating the grapes, he doesn't need that property for himself anyway. He just needs it to get the approval of this Board, that's all he needs it for. He doesn't need it for himself. THE CHAIRMAN: Thank you. Is there anybody else who would like to speak against the application? MS. RUDOLPH: Dawn Rudolph. I worked for Recker (phonetic) for 15 years. I worked for Bob Palmer for about six months° Let me just tell you about this lease agreement here: The parcel FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4605 99 that's right behind the barn that they wanted to turn into wine storage is four acres, the Chardonay right behind there is nine acres, then and there is a three-acre plot over to the left. If they want ten acres, they are going to have to split these parcels up, if you understand what I mean, to get ten acres. When the guy is harvesting the grapes he would have to say, "I have to stop here because this is ten acres of the Lieb property." I heard rumors a couple weeks ago that this is what he -- was going to happen. I am still in the winery business so I hear a lot that's going to go on. I heard that this would come up, that they would try to work this lease agreement. I also know from Palmer Vineyards that they like a lot of Chardonay because they have a good market for Chardonay, and I do not believe that they are going to give up any of their grapes for Chardonay for Mr. Lieb. He has his own vineyards there. This is all something to get around the ten-acre thing. I have other qualms because of John Binges' (phonetic) house, which is right directly FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 l0 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4605 100 in front of the barn that they want to convert into wine storage. I don't know if you want me to go into what John's objections are now? THE CHAIRMAN: No, let John voice his own objections. MS. RUDOLPH: Also, other things about the traffic and stuff like that. Now that they have drawn this lease agreement up, I just want you to be aware that it's not on that farm there is not any parcel that is directly ten acres. They would have to take four acres from here, certain acres from there and there, to make up ten acres or more. I just want to let you know about that. MR. DINIZIO: Is that lot behind there subdivided? I thought it was all one lot? MS. RUDOLPH: Well, it is, but each parcel - like there is four acres of Chardonay that are here, then there is a road, and there is another parcel - if you think about it, it's 43 acres of grapes, but each parcel is a certain amount of acreage of grapes. THE CHAIRMAN: types of grapes? MS. RUDOLPH: They do it that way. You mean different Yes, but that first 20 FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Appeal No. 4605 101 acres is all Chardonay, but it is not exactly ten acres. There is a four acre block that's separated between a road here, a service road here, and service road there, so that's one parcel. In the winery business that's four acres. And then the parcel right behind that, which Lieb's call "Chardonay south," that is a nine-acre parcel of Chardonay grapes. Then there's the one that's right next to the Coleman house, which is almost three acres, and then a smaller one that's right behind that, that's one acre. So if he says he wants to take ten acres, all these have to be kind of split-up. It is not ten acres of grapes per say. In the scheme of things ih is not. It would have to be, if he is going to lease ten acres he would have to take another portion of some of the acreage either on the left-hand side or on the north side. THE CHAIRMAN: Is there anybody else who would like to speak? MR. LIEB: First of all, Mr. Palmer harvests all my grapes, 36 acres on Oregon Road. And yes, he does like Chardonay, but I also happen to have 13 1/2 acres of Chardonay myself. If I FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4605 102 take 3 1/2 acres or four, of which I am leasing, I can give him some on the other side. I was listening to the semantics, and the ones behind, on the lease, would probably be the ones that I would use in the winery, and some that I have on Oregon Road, I would sell him some of that because he clearly doesn't want to give that up. I think she is trying to determine blocks. To answer your questions, Mr. Dinizio, this is not subdivided, this is one piece. And one of the things that we would do in this long-term lease is that we would probable start the process of going to the Suffolk County Litigation to get a subdivision on this somewhere down the road. But again, it is going to take a long period of time. It is a 99-year-lease. I wan%ed to get this question about, "A harvester stopping because of the lease starting here," answered. THE CHAIRMAN: Mr. Lieb, you know my opinion of you and your family; I stated it on the record. Why is it so important of having this winery on, not only this specific location, but on the Main Road? Why is that so important to your FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4605 103 family? If you want to answer the question. MR. LIEB: Yes. Because basically my idea of the winery is not going to be high volume, or higher volume, like all the other wineries, or proposed wineries. My production would probably be small; somewhere in the three or four thousand case range. I want to sell it retail. I don't want to get into distribution, selling to a lot of restaurants, liquor stores and whatever, t really just want to have a retail distribution. I am not going to get involved in weddings and having big events in the evenings and that type of thing. My time with my family is too important. It is not going to be a big event. And I know there has been problems with certain wineries with the noise level, this and that, and I am sensitive to neighbors and things like that. What I want is basically a small, retail operation, all volume, premium lines, to be sold strictly retail. I have enough acreage on Oregon Road to produce what I want to produce. I am not looking to buy 20, 30 or 40 different acres. want it in Cutchogue because my family is in FREELANCE LI, INC. COURT REPORTERS 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4605 104 Cutchogue, and I live in Cutchogue, and my vineyard is zn Cutchogue. When you look up and down 25 there is very few spots. I know there are a couple of spots on 48, but I feel that 25 is really the main spot, and that's where the wineries are. I hope that answers your question. building would be small. %hat large of a building. THE CHAIRMAN: would be small, and the It is not going to be The other question is: Could you explain to the Board why people who have larger wineries end up or why you contract with them to harvest your grapes? MR. LIEB: It is a very simple question. It boils down to what we talked about; it is economics -- equipment. To buy a harvester is about $135,000.00 or $140,000.00. You can buy them for a lot less but you can do some damage to the vineyard. We have also hand-harvested grapes, at a big expense; you have 30 or 40 people out there harvesting. It is a lot of work and we still do some type of hand-harvesting, but the Palmer Vineyard's machine harvested most of the grapes. He has got a good machine. We like the machine, FREELANCE LI, INC. COURT REPORTERS 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4605 105 how it operates, and the operator of that machine. It is back to the economics situation. That's why we do it; machine harvesting. When that question came up, "If we are going to stop here because of the lease," that's irrelevant. MS. COLEMAN: Christine Coleman. If Mr. Lieb is having a very small, retail operation I don't see why he would have to put it on a main road. Why can't he put it on his own property? If economics is such a big issue, why does he want to spend more money on a piece of property, with a 99-year-old lease, and all these other problems? If all he wants is a small, retail operation why does it have %o be at this particular place? THE CHAIRMAN: You don't have to answer that question. MR. LIEB: It is a very simple answer to the question: All I have to do is stand there and look at traffic flow on Oregon Road versus Route 25. If you are going to do retail, you're going to do it small, you want to operate where the flow of traffic zs, which is basically on 25 where the wineries are. There are some on 48, but mostly they're on 25. There is zero traffic on Oregon FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4605 106 Road. problem is. MS. COLEMAN: That's exactly what the This locaLion is a dangerous location, Mr. Lieb, it is not a good location. The location of this winery, the traffic flow is actual one of the things that I object Lo. This particular parcel is not a straight away like Pindar, or even like Palmer is in Jamesport. It is limited sight, people are they are supposed to slow down, but Lhey don't. I know because I live there, and I have to try to get out of my right of way, which is rmght on the top of the hill. IL is going to be a danger for me and the children Lhat live in the area. These people, when they go wine tasting, they just don't taste the wine and spit it out, like most of us do. When I see them at the end of day, when they're done wine tasting, they are inebriaLed; not all of them but a good portion of them. concern. THE CHAIRMAN: That's my major We are not trying make this a counter productive issue here. MR. LIEB: I would say that my counsel is jumping for me not to answer this. This is a FREELANCE LI, INC. COURT REPORTERS 2 3 4 5 6 7 8 9 10 11 12 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4605 107 step-one process. This is going to be a lot of site work that has to be done. It is a dangerous area simply because the people that got killed there last year -- I believe there was a deer that jumped out. MS. COLEMAN: MR. LIEB: properly. That's not true. The site would be developed MS. COLEMAN: TO develop that portion properly he would have to fill it in. Part of that property is wetlands. In the southeast corner it is wetlands, that would have to be filled in. That's probably where he would have to put the driveway or somewhere, I don't know. I didn't see the plans, where exactly they are applying for the driveway, but I would assume that it would be nearer to the Pugliese Vineyard than further. THE CHAIRMAN: proposed site. MS. COLEMAN: Take a look at this This is exactly where the wetlands are on the property, exactly where the entry for the driveway would be. I am assuming that this is east. MS. WICKHAM: The wetlands area that FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4605 108 she is referring to is not on that map. It is over a hundred feet east -- I would have to refer to my notes (perusing notes) -- next to Mr. Pugliese's property. I want to clarify that. THE CHAIRMAN: MR. PUGLIESE: Mr. Pugliese? Being that they are on the wetlands subject. If you are on the sidewalk over here and you look down five feet, part of that in there and towards the back, after that hundred feet, is wetlands too. You dig down, as you see in my letter, that is an old drainage area there. If you dig down one or two feet you're going to hit water. How they're going to put catch bases in there, and get permission from the Environmental Protection Agency, is beyond me. Second of all, this 3.5 acres, whatever it is, it's a parcel that I think it is ridiculous to put a winery in. It is a bad spot like they stated. I come out of my driveway, and I am at the bottom of the hill, when I make the turn I look in the rearview mirror, that's the first thing, because they come barreling right back at me. This driveway is going to be up further -- more up the hill. it is a very dangerous FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 I9 20 21 22 23 24 25 Appeal No. 4605 109 situation. As far as the subdivision of the 40 acres that was stated at the last meeting by Ms. Wickham, that Suffolk County does not permit a subdivision of 40 acre -- property that has been deemed farmland preservation. I believe you stated that at the last meeting. Second of all, the same situation that Lieb is in, I was in a few years back. My parcel was three acres and I wanted to put the winery there. The Planning Board, the Zoning Board, they said, "You can't because you don't have enough room." At that time there was no law saying that it had to be ten acres. The law was passed in 1994 on a ten-acre parcel. I was made to connect my back property by a ten-foot strip so it would be continuous and it would be one parcel. So from two parcels i ended up with one parcel; which I can understand now why the Zoning Board and the Planning Board made me do that. Because putting wineries on small parcels isn't the right thing to do. As far as leasing is concerning, that is a gimmick. You know it and I know it. This is FREELANCE LI, INC. COURT REPORTERS 2 3 4 5 6 7 8 9 10 1t 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4605 110 like trying to wash our face. I can lease 20 acres right in back of my winery. That was supposed to be an 18-acre subdivision and i was going to be part of the 18-acre subdivision. I pulled out of it. I said, "I wanted the open space." Not only that, the guy that I was partners with, Mr. Calbreeze (phonetic), he went ahead and applied for a nine-acre subdivision -- a nine-house subdivision. I convinced him not to do that now. If I needed nine, or ten, or 20 acres I could lease it from him at any time. It was out of the question, it was ridiculous. As far as the covenant, I asked that at the time, you didn't want a covenant either. You wanted me to be connected to my vineyard. If it is good for me, it should be good for him~ You treated me one way, treat him the same as you treated me. THE CHAIRMAN: Thank you. MS. WICKHAM: I just wanted to very briefly address two point: One was the harvesting issue. There is nothing in the code which says that the owner of the property has to harvest his own grapes. In FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Appeal No. 4605 111 fact, as Mark mentioned, it is very common that other owners permit other vineyards to harvest their grapes. In fact, it is common in the agricultural industry out here. In general, there is a very large percentage of farmers Lhat lease other properties for agriculLure, and there have been cooperative arrangements between Palmer and Lieb on the grapes for years that Mr. Lieb mentioned. The lease is not a gimmick. A long-term lease agreement is an ownership interest in property. Hopefully you feel this way when you review this more with the Town Attorney. We can clarify that issue. THE CHAIRMAN: Thank you. Mr. Pugliese, and Lhen we're going to wrap this up. MR. PUGLIESE: If you didn't make me lease it, I can't see how they're going to make someone else lease it. you. THE CHAIRMAN: That's all I want to tell Thank you. In the interim, between now and December 10, Ms. Wickham, we would take the letter and we would appreciate you coming in and getting a copy of it, or we could FREELANCE LI, INC. COURT REPORTERS 2 3 4 5 6 7 8 9 10 14 15 17 18 19 20 21 22 23 24 25 Appeal No. 4634 112 afford you a copy of it. I have all intentions of fairly limiting the hearing on December 10, if the Board so goes along with it. It's up to the Board, if they want to close it, we would close it. I would rather leave it open until December 10th. In that respect then, what I would do is, I would close the hearing as to verbatim testimony. And just as a matter of course we would close it on December 10th. MS. COLLINS: I think we should close it to testimony. THE CHAIRMAN: We would close it to verbal testimony. That means you could still reduce it to writing. MS. COLLINS: motion, so moved. THE CHAIRMAN: favor? would then make the I second the motion. Ail in (There was a positive response from all the Board Members.) THE CHAIRMAN: We thank everybody for coming in and for the curtesy. The next appeal is Shembri Homes, Appeal Number 4634. This is a request for a Variance under Article III, Section FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 22 23 24 25 Appeal No. 4634 113 100-30A, based upon the Building Inspector's October 22, 1998 Notice of Disapproval regarding "as built" construction as located with an insufficient front yard setback. Referenced Building Permit Number 25138Z for a new dwelling issued on 8/28/98. Location of the property is, 970 Willow Lane, Greenport, NY. The Parcel's ID is, t000-40-2 6.9. We have a house that was started and we have a piece of property, which was approximately 125 by 175, and we have an unnamed road, which leads me to believe there are two front yards on this piece of property and we have a 23 foot 6 inches side yard on the one side, which is insufficient. Mr. Shembri? MR. SHEMBRI: When I submitted the survey, the surveyor had done all the houses that were there conformed with this setback across the whole line of all the lots that were there. There was approximately 13 of them. We had applied, through the Health Department, with the same side yard setbacks across the board to keep all the houses in uniform. When I submitted this survey to the Building Department, they never told me that we FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 ~8 19 20 21 22 23 24 25 Appeal No. 4634 114 weren't conforming and they issued the permit. We went, we started the house and got halfway through the frame-job and then they told us there was a mistake that they didn't catch on the side yard on Paper Road. We had laid the house out so that it would sit conforming to the rest of them. I would be honest with you, when the Planning Board designed the lot and gave the okay for the subdivision they shouldn't have done it with a 125 frontage. Because if they're telling us it's 40, and have to conform to 25 on the side, you only have a choice of putting up a colonial, you couldn't put a ranch. Most subdivisions, what they would do is, on the corner lots, they will give you extra space so you would be able center the house still. What they're making you do here is shove the house all the way to one side of the property. THE CHAIRMAN: yards adjacent? MR. SHEMBRI: And put the two front Yes. What we did was, we put what we felt was conforming with the rest of neighborhood. I don't know if you saw the house. THE CHAIRMAN: Yes. FREELANCE LI, INC. COURT REPORTERS 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4634 115 MR. SHEMBRI: It sits real nice. We didn't see it being a problem. When we got the building permit, we thought it was a go. THE CHAIRMAN: You have not commenced any other construction on it other than what we saw was there, this house is sheeted, and that's basically it? MR. SHEMBRI: THE CHAIRMAN: MS. TORTORA: THE CHAIRMAN: MS. COLLINS: Yes. Ms. Tortora? Not at this time. Ms. Collins? I want to go back a little bit over what you said about -- what you said to whom, when. I believe that we, the ZBA, asked our Building Department for a copy of the survey, that upon which they had based the building permit, and they obviously have to base it on a plan. MR. SHEMBRI: Yes. MS. COLLINS: And the one that I received, or %hat's in our file, purportedly is that survey -- is the one that you used to get the Health Department approval. Is that consistent with your records? FREELANCE LI, INC. COURT REPORTERS t 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4634 116 MR. SHEMBRI: Yes. MS. COLLINS: It shows a setback that actually isn't measured on the survey from that little road. MR. SHEMBRI: It is showing 30 on one side, proposed 65 on the other, and so they're showing a side yard of 30 on the other. MS. COLLINS: Okay. So that's what you submitted and you got your building permit. And I guess my -- and I have seen this happen before and it troubles me, because building permits are issued on the basis of what I would call a generic house, because that's what you give the Health Department -- you say, "I am going to build a house on this lot, it's going to be sort of like this." MR. SHEMBRI: Yes. MS. COLLINS: The Health Department doesn't care about these things, and the Building Department gets these surveys and treats them as the truth, and then it turns out that this isn't quite the house you were going to build. I am saying this to get it into the record because I think there is a problem here somewhere, and t FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4634 117 don't think it's necessarily that you are the maker of the problem. But at any rate I gather then that when you built the house you, in fact, built it a bit closer to that unnamed right of way? MR. SHEMBRI: The reason for that is the garage. We didn't know if we were going to do a side-entry garage, and if we did a side-entry garage and we hugged it too far it would be encroached on the house to the Write's (phonetic) property. MS. COLLINS: This little right of way of course ends at the rear property line of this house and the adjacent lots on which you have built. What do you know about the land to the west of there? Where the right of way would go if it went anywhere. MR. SHEMBRI: That, I believe, was owned by the County so I don't believe it is going to ever be developed. I would be honest with you, I looked into it already because I bought the piece, and the back isn't wide enough to put a road through it. So if they did anything they have to put maybe a single-family house there. It is not wide enough for a road. FREELANCE LI, INC. COURT REPORTERS 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4634 118 MS. COLLINS: The tax map shows two very, very long skinny parcels starting down on North Road and going way up into the woods and I was curious whether you had any idea whatever might happen out there? MR. SHEMBRI: I looked into it and you couldn't get a yield out of it because you couldn't get a road out of it. MS. COLLINS: Thank you, no more questions. MR. DINIZIO: Obviously, the problem is that one and one equals two in mathematics, and in government you can have two front yards. The most ridiculous thing in the world would be -- and we always have this mistake I don't know why they can't correct it -- you should be able to say where your front yard is. You have a front and back and two sides, it certainly is no% your fault. I guess though that you went to the Health Department and just give them like a building envelope? MR. SHEMBRI: Yes, because we didn't know. You try to get all the approvals prior to closing on the property. MR. DINIZIO: Then you base that on FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 13 14 15 17 18 19 20 21 22 23 24 25 Appeal No. 4634 119 setbacks? MR. SHEMBRI: Yes. Most of the house was conformed within that range, give or take the size. It really sits esthetically. It is right on the money, and the building inspector -- honestly, it was just something that they didn't grab. I got halfway into it and there was no way %hey were going to let me continue, and %hat was that. MR. DINIZIO: THE CHAIRMAN: MS. TORTORA: THE CHAIRMAN: Thank you. Ms. Tortora? No. While you are standing there, is there anybody else in the audience who would like to speak in favor? MS. McCLOUD: It is my mom that's under contract with Pete on this particular home. I guess I wanted to put this human touch on this. They started in '72, my dad died in April. This is the biggest thing she has ever done. She has to move out of her house. If you guys can possibly see your way clear on this variance thing, it is creating a tremendous problem with her, it would just be wonderful. THE CHAIRMAN: Thank you. Any other FREELANCE LI, INC. COURT REPORTERS 1 5 6 ? 8 10 11 12 15 16 17 18 21 25 Appeal No. 4618 120 questions? · (There was a negative response.) THE CHAIRMAN: Is there anybody else who would like to speak in favor? Is there anybody who would like to speak against? Seeing no hands, I would made a motion closing the hearing, reserving decision until later. I would certainly entertain a motion to grant the application as applied for and circulate the findings at some later date. MS. TORTORA: I second that. THE CHAIRMAN: Ail in favor? (There was a positive response.) THE CHAIRMAN: a continuation of Manago. heard? MR. CONROY: The next application is Who would like to be Mr. Chairman, and Members of the Board, my name is Shawn Conroy, and I come for the offices of Bill Goggins, located at 11775 Main Road in Mattituck. I would like to say I represent the lawyers, who are the neighbors just to the north of the Managos. We are in support of their application at this time. We have taken a look at the plans~ FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Appeal No. 4618 121 they are exceptional. The area would certainly be enhanced by the building of this structure, and the renovation and restoration of this structure. Our only concern, I believe I had addressed earlier, is that this particular structure not the entire lot, but the structure itself, not to be used as a rental property. Our concern is that, that structure would be a rental property and that the home owner would live in the main house. If the whole lot is used an a rental property, that's not what I am asking -- the same with the structure as it would be changed. THE CHAIRMAN: As you are aware -- or I will make you aware if you are not -- there are no kitchen facilities in those two sleeping bedrooms. Those rooms are used for sleeping purposes. I could not see how that could happen unless there was a specific change, but we will discuss that amongst ourselves. MR. CONROY: Mr. Chairman, I just need to say, "My clients asked me to say certain things, and I have come up to say that." Again, it is an acceptable plan and we are fully in full support of it. FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal No. 4618 122 THE CHAIRMAN: question for the architect. figure yet? MR. TALGAT: and Steelman Architects. 6 inches, height difference. THE CHAIRMAN: I think I had one Did you give me a Ural Talgat of Samuels The dimension was 4 feet Thank you. MS. MOORE: If there is nothing else that needs to be said, I know that the Managos have expressed their desire to have certain construction done before the weather turns more serious. If you could keep that in mind when you are deliberating. THE CHAIRMAN: Thank you. Are there any questions? Seeing that there are no questions -- are there questions from anybody in the audience? Seeing that there are no questions, I make a motion closing the hearing, reserving decision. All in favor? MS. COLLINS: I second the motion. (There was a positive response from the Board Members.) (Time noted: 9:45 P.M. ) FREELANCE LI, INC. COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 14 15 16 17 18 19 20 21 22 23 24 25 INDEX APPEAL NUMBER 4617 - BUILDING INSPECTOR 4627 BARRY AND BARBARA CHARLES 4630 - JOHN HOLZAPFEL 4622 - EDWARD AND JUDY DART 4542 - WALTER FINK 4629 - ESTATE OF ALEC V. AKSTEN 4636 - PATRICK MORTIMER - Postponed 4605 - LIEB CELLARS 4634 - SHEMBRI HOMES, INC., 4618 V. MANAGO 123 PAGE 2 46 49 55 61 79 87 88 112 120 FREELANCE LI, INC. COURT REPORTERS 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 19 20 21 22 23 24 25 124 CERTIFICATION I, GAITRI REYNOLDS, a Notary Public within and for the State of New York, do hereby certify that the foregoing matter, taken at %he time and place aforementioned, is a true and correct transcription of my shorthand notes. I further certify that I am neither counsel for, nor related to any of the parties to said action, nor in any way interested in the outcome of this matter. IN WITNESS WHEREOF, I have hereunto set my hand this 17th day of December, 1998. GAITRI REYNOLDS FREELANCE LI, INC. COURT REPORTERS