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HomeMy WebLinkAboutZBA-01/21/1999 HEARINGTHE SOU'Ti{OLD TOWN Transcript of Public Hearings January 21, 1999 Southold Town Board of Appeals (Prepared by Lucy Farrell from Tape Recordings) 6:46 P.M. Appl. No. 4627 - BARRY AND BARBARA CHARLES 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 deck attached to dwelling (instead of proposed step area) at less than 50 ft. from the rear property line. Location of Property: 265 Peck Place, Southold, NY; Parcel ID 1000-63-7-14; a/k/a Lot 14 on the Map of Harvest Homes Estates, Section One. CHAIRMAN GOEHRINGER: Any comments Ms. Collins? I don't mean to put you on the spot. MEMBER COLLINS: No, you're recollecting that I had quizzed Mr. Charles as to how come they hadn't planned the deck as part of the house when they were planning the house in the first place and his letter to us indicates, that the house was kind of cookie cutter I think in the sense that they didn't really control the architectural process and I think the ease he made is a sympathetic one and puts him the category of the person who buys a house where things are not exactly the way you want them to be and you want to fix it. So, I'm less skeptical of the situation than I was. CHAIRMAN GOEHRINGER: OK. behalf? Anybody else like to speak on this MEMBER DINIZIO: Well, certainly it indicates by the applicant that the lots are small, you know, that's what so credence to the fact that - CHAIRMAN GOEHRINGER: Yes, well, you have 135 feet. Normally what we deal with is 150 feet. So, you're absolutely correct. Anyone else? OK, hearing no further comment I'll make a motion closing the hearing reserving decision until later. MEMBER TORTORA: Second. Page 2 Hearing Transcripts January 21, 1999, Board of Appeals Motion carried. See Minutes for Resolution. Page 3 Hearing Transcripts January 21, 1999, Board of Appeals 6:48 P.M.-Appl. No. 4616 - CAROL MAGGIO This is a request for a Variance under the Zoning Code, based upon the Building Inspector's August ?, 1998 Notice of Disapproval, and Article XXIV, Section 100-244B for a proposed deck attached to existing nonconforming dwelling with a reduced front yard setback at 1350 Bailie Beach Road, Mattituck, NY; Parcel 1000-99-3-11.9. CHAIRMAN GOEHRINGER: This also is a hearing that we closed and then reopened on the Board's Motion and Mrs. Mag~io is here. How are you tonight Mrs. Maggio as I wished you a Happy New Year before when we opened? MRS. MAGGIO: I thank you and I say the same to all of you. CHAIRMAN GOEHRINGER: What would you like to tell us and what are you proposing now? MRS. MAGGIO: Well, Mr. Szymborski gave you new drawings? CHAIRMAN GOEHRINGER: Right. MRS. MAGGIO: And is that acceptable to you? I think that's the way -. CHAIRMAN GOEHRINGER: It's fairly acceptable to me. As you know I went out and physically discussed this with you after the Board -. MRS. MAGGIO: And I did it exactly the way we discussed it. CHAIRMAN GOEHRINGER: Right. Do any of the Board Members have any questions of this nice lady? MEMBER TORTORA: What's the size of the deck that you're proposing now? MRS. MAGGIO: I think it's a, I don't even know. CHAIRMAN GOEHRINGER: It's 8 deep by 16'8. MEMBER TORTORA: all the way across? MRS. MAGGIO: Yes. MEMBER COLLINS: MEMBER TORTORA: The prior deck was 26 x 10, right? It went And it was also a little deeper?, I believe. It was a - CHAIRMAN GOEHRINGER.' 10 or 12. Page 4 Hearing Transcripts January 21, 1999, Board of Appeals MEMBER TORTORA: Actually it was 26 x 10. CHAIRMAN GOEHRINGER: Yes. MEMBER TORTORA: And you are 12 feet from the property line what you were proposing then. You reduced the width of that by 2 feet which to 8 feet. So, I'm trying to figure out how you picked up a, instead of going you know, from 12, I would think you'd go it being 14 feet from the property line. How did you get to 18 feet from the property line? CHAIRMAN GOEHRINGER: OK, I have to tell you I did the measurements when Mrs. Maggio was there and the house as it is shown on this particular 3 lot, 4 lot sketch here, is not necessarily, I don't mean to answer your question, it's a little more skew and does not fall an actual line with the road line or the property line as it is shown there. And so what it does really, is put one corner out as you see it, alright. The main thrust of dealing with the 8 feet is the most north easterly portion or the northerly portion, actually it's the north easterly portion of the property. The corner of the deck, the proposed deck which it falls almost exactly in line with the neighbor's deck to the east. If you remember us measuring that? First I went over and measured the neighbor's deck and then we came back and measured your deck, OK, which only puts that little section of the deck on the westerly portion of the deck out, OK. MEMBER TORTORA: neighbors? But it still would be closer than the other CHAIRMAN GOEHRINGER: Yes, that little corner would be closer. That is correct, OK.. The magic number is 21, OK. It puts approximately 3 feet of that deck. Yes, you're al~solutely correct. MEMBER COLLINS: Mr. Chairman if I could - CHAIRMAN GOEHRINGER: Yes, I apologize to cutting into - MEMBER COLLINS: No, oh, not to apologize. No, I think that the compromise that Mrs. Maggio has come in with is a real compromise and I don't have a problem with it. Just to comment on Mrs. Tortora's comment. Lydia I'm not sure you have the old and the new in front of you,- MEMBER TORTORA: Yes, I do. MEMBER COLLINS: the house - But, the original deck went the whole width of MEMBER TORTORA: Yes, right. MEMBER COLLINS: And therefore ended up really close to the road because the house isn't perpendicular to the road and by cutting the deck so that it doesn't go the full width of the house their closest Page 5 Hearing Transcripts January 21, 1999, Board of Appeals spot to the road goes back a good deal and I think that's an excellent compromise. CHAIRMAN GOEHRINGER: It could actually be a little farther than 18 feet at that point. I have to tell you the positioning of these houses as they're posted on here are not necessarily surveys where the houses lie, OK. BOARD SECRETARY KOWALSKI: It's more like 17. CHAIRMAN GOEHRINGER: It's, it's fairly close to 18. The house is actually as I said, a little off the square in reference to the size of the trap is the nature of the property. Mr. Homing any questions ? MEMBER HOi~NING: No. CHAIRMAN GOEHRINGER: Mr. Dinizio any questions? MEMBER DINIZIO: No. CHAIRMAN GOEHRINGER: OK, anybody else like to speak in favor of this application? Anybody like to speak against the application? Seeing no hands we wish Mrs. Maggio a safe trip back to the city and we will close the hearing reserving decision until later, OK. MRS. MAGGIO: Do you want the cards that I had gotten back? CHAIRMAN GOEHRINGER: Sure. BOARD SECRETARY KOWALSKI: Thank you very much. MRS. MAGGIO: You're welcome. CHAIRMAN GOEHRINGER: OK, we'll be back to you very shortly. BOARD SECRETARY KOWALSKI: motion, please. MEMBER COLLINS: Second. Motion carried. Do we have a second on that See Minutes for Resolution. Page 6 Hearing Transcripts January 21, 1999, Board of Appeals 6:55 P.M. Appl. No. 4650 -NORTHEAST OVERSEAS TRADING CO. This is a request for a Variance from Article XXIV, Section 100-244B under the Zoning Code, for an insufficient setback from the rear yard based upon the Building Inspector's December 22, 1998 Notice of Disapproval and new construction under Building Permit No. 24521-Z, at 3570 Kenney's Road, Southold~ Parcel 1000-54-5-23. CHAIRMAN GOEHRINGER: I have a copy of the survey indicating the, basically a foundation survey at this point, indicating the dimensions of the front yard, side yard and rear yard and a copy of the Suffolk County Tax Map indicating this and surrounding properties in the area. I believe Mr. Brown, you're representing? MR. BROWN: That's correct. CHAIRMAN GOEHRINGER: How are you tonight, Sir? MR. BROWN. I'm fine, thank you, how are you? If I may I have the affidavit of posting. CHAIRMAN GOEHRINGER: Thank you very much. like to tell us about this particular situation here? What would you MR. BROWN: Well due to an unfortunate series of misinterpretation of misunderstanding of the corner of the new construction is a little over 2 feet over the rear party line. As you can see from the survey and the foundation survey, the building is angled on the property. So we're really just talking about a square feet of building area that protrudes. I would also like to point out that the owner of the property is in negotiations to buy the parcel directly behind it~ which as I understand currently with your Building Code because it's in L shape property which already has a structure on it and no road access to the back of it, even if it were to be subdivided so, even though it can't be as such. CHAIRMAN GOEHRINGER: property? OK, so you'd be merging that with this MR. BROWN: We'd be merging that with this property and there'd be no, there is no real possibility of any structure being built in the adjacent, currently the adjacent property behind this property. CHAIRMAN GOEHRINGER: architect? OK. Mr. Dinizio any questions of the MEMBER DINIZIO: I just have a, it's 2.9 feet, that's the variance that you're looking for? MR. BROWN: Yes. MEMBER DINIZIO: The .9 is not 9 inches, it's -? Page 7 Hearing Transcripts January 21, 1999, Board of Appeals MR. BROWN: Actually it's a, I guess it's 10 inches. MEMBER DINIZIO: So it's 2 feet 10 inches? MR. BROWN: Yes, approximately. MEMBER DINIZIO: Alright, thank you. That's all I have. MR. BROWN: I don't have my calculator with me. MEMBER DINIZIO: No, it's just that I saw it there. maybe it's 9 inches. I said, well MR. BROWN: No. CHAIRMAN GOEHRINGER: Ms. Collins? MEMBER COLLINS: Mr. Brown this is one of those files where we on the Board read a bunch of pieces of paper that have been submitted and you can't quite can't get the whole story and I just wanted to ask, the Building Permit was applied for and approved in December, a year ago, December of 97 according to the Building Permit form and then something happened in July of 88 because there's a note on the Building Permit form that says, amended plan submitted and then in December, excuse me 88, 98, December of 98, there's the disapproval which I presume occurred after a foundation survey was done? MR~ BROWN: That's correct. MEMBER COLLINS: Is that right? MR. BROWN: Yes. MEMBER COLLINS: So, did something substance happened to these plans during the course of the summer? MR. BROWN: The original Building Permit Application, was a just establish a buildable lot. They were engaged to design the structure. They were done with a couple of modifications during the process. At the bottom line there was a Building Permit issued and it was during the foundation inspection it was realized by all parties that an error had been. MEMBER COLLINS: OK, I wanted to ask about it simply because I've only been on this Board for a year and I'm kind of surprised at the number of times that cases end up here where the Building Permit was originally issued for what I would call a generic house. MR. BROWN: That's very often is done. MEMBER COLLINS: And subsequently when the house turns into a real architects and builders set of plans, it isn't' the same house and the setbacks aren't the same setbacks and you always kind of Page 8 Hearing Transcripts January 21, 1999, Board of Appeals have a feeling where the equities is. You know sought of who. Who did what, when? In this case it's - MR. BROWN: Yes, it sought of puts everybody on the spot when that happens, but, I think it's done to establish the buildability of the property. MS. COLLINS: I understand that. I'm just troubled by how frequently in turns into a variance problem when the concrete has been poured, I have nothing further to say. MR. BROWN: I would agree with you. CHAIRMAN GOEHRINGER: Mrs. Tortora? MEMBER TORTORA: No questions. CHAIRMAN GOEHRINGER: Mr. Homing? MEMBER HORNING: I must say I noticed the same discrepancies that Ms. Collins noticed and I did want to question the amendment of July 8, 1998. What exactly was amended? What was the amendment to the Building Permit? Can you explain that? MR. BROWN: The July 8, amendment. Can you bare with me? CHAIRMAN GOEHRINGER: Sure. Take your time. MR. BROWN: Excuse me just one second. MEMBER COLLINS: May I speak Mr. Chairman? CHAIRMAN GOEHRINGER: Sure. MEMBER COLLINS: George, you know, my reading of this is, that probably that was when they came in with the real plans for the real house. MR. BROWN: No, that was actually prior to that. MEMBER COLLINS: It was prior to that, OK? MR. BROWN: And the July amendment was slightly an enlarge house which was - MEMBER HORNING: Yes, indeed. In fact that's why the Notice of Disapproval was issued I believe. MR. BROWN: No, actually the Notice of Disapproval was issued based on the foundation survey. But, the site plan of the Building Department had at the time did indicate the way it was built. CHAIRMAN GOEHRINGER: OK. Page 9 Hearing Transcripts January 21, 1999, Board of Appeals MEMBER HORNING: Thank you. CHAIRMAN GOEHRINGER: Anybody else like to speak in favor of the application? Anybody like to speak against the application. OK, seeing no hands I'll close the hearing reserving decision until later. MEMBER TORTORA: Second. Motion carried. See Minutes for Resolution. Page 10 Hearing Transcripts January 21, 1999, Board of Appeals 7:03 P.M. Appl. No. 4640 - (12/10 Resolution for continuation): KIM CAMPBELL Variance under Article III, Section 100-32 for an insufficient front yard setback regarding proposed addition to dwelling, at Parcel 1000-4-4-16, East Harbor, East End Road, Fishers Island, NY. CHAIRMAN GOEHRINGER: We'll start with Mr. Ham. there something you would like to continue on this? Mr. Ham is MR. HAM:: Yes, I would. When I last was here on December 10th, I left with two plans trying to avoid the necessity of a variance and I'm back, so I'm back successful. I went to the Building Department as you know. I showed the County that the road that they had on the Tax Map was really not a road and it was deleted from the Tax Map and I went to the Building Department. In fact, the Assessors got involved with that information and to make a long story short they insisted that I let Mrs. Campbell's setback not from that road that was now eliminated from the right-of-way that was shown on the survey that was submitted, a point with which I disagreed and which I'll go into a little further. A second alternative to avoid a variance was suggested by Mr. Homing and after I guess some correspondence with communication with Dr. Campbell that perhaps the right-of-way could be relocated to the edge of the property, adjacent to where the road on the Tax Map was shown. He did not realize that that would require, it's not something that could have been done, you know, unilaterally by now. But, it would of required the consent of Mrs. Balcom, the owner to the north who has that right-of-way. So I wrote to Mrs. Balcom to see if she would be willing to do that and just to make it easy for her, I had two lines, I'm willing, I'm not willing and I have her response so we didn't spend a whole lot of time and she indicated that she is not willing to agree to a relocation. So I'm here to argue two points. One is that the Building Department was incorrect in determining that Mrs. Campbell had to setback from a private right-of-way. have and then even if you don't agree with me, but agree with the Building Department, this case strongly warrants the granting of a variance anyway. And just to save time, I know you have a busy calendar, I've summarized the argument for you, remembering everything and making sure I don't forget anything. But I just want to go through that briefly. And that is we're denied on the basis of Section 100-32 of the Code which is the incorporation by reference of the Bulk Schedule which has the setbacks in the back of the code. If you look at the Bulk Schedule we have to go to the line for front yard and you see it as a 6 foot requirement. But, the analysis does not end there. You have to determine where the front yard is. And, if you go to the definitional, the definition section 113, you learn that a front yard is defined by reference to a street line and to know what a street line is, you have to know what a street is. And the street is also defined in 'that section 113 as one of four possibilities. Basically it's a public street, a street shown on a Planning Board approved subdivision map, a street Page ll Hearing Transcripts January 21, 1999, Board of Appeals shown on a map filed with the County before there was a Planning Board, the old filed maps, or, a street shown on the town official map, the zoning map. Now, the only arguable street in the vicinity was this road that was on the tax map which is also shown on the town official map and that's why I took, I made a great effort to have that road eliminated. It was brought up at the hearing here as well as. by the Building Department that there is a further definition. However, I maintain that that does not apply. That the analysis should end when you find there is no street here. The nearest street is about 500 feet away, East End Road. But, the Building Inspector when I went through that analysis with him, pointed to a definition that stands by itself in the code of right-of-way lines. And again, I think that's unnecessary to even look at that definition because the analysis should end when we're not near a street. But, if you do look at that definition of right-of-way lines and I quoted in the Memorandum and I would like to read it, at least a part of it. "Right-of-Way Lines. The boundary lines of land and this is important, used or intended for use as streets and then it goes on to say as shown on these plats of the Master Plan." So an essential element. If you're going to take the position that right-of-way lines are applicable here, you have to also show that they're used or intended for use of streets and that brings you back again to a definition of street and of which I think you have to agree, that this right-of-way, cannot be construed as a street under the town's definition and I've even, I have some dictionary definitions for you which I've attached and it would not meet under any criteria. And the final point on this argument is, that under New York State Law and I've quoted several Courts of Appeals cases, the highest court in the state, that Zoning Laws are in derogation of Common Law rights to use your property freely and therefore must be strictly construed against the municipality. So I think that we have here at best, as far as the town is concerned in denying us a Building Permit an ambiguous situation which should be construed against the municipality and in favor of the owner and therefore that Mrs. Campbell should be entitled to a Building Permit for this addition as a matter of right. That's argument number 1. If you don't buy that argument, and obviously the Building Department did not, we're left with asking your Board for a variance and as you know your essential duty under town law in looking at whether an applicant is entitled to a variance is to weigh the benefit of the permit to the owner as opposed to the detriment to the public or the neighborhood. That's an essential balancing test that goes before all the other criteria that you're going to look at under "town law", and I quote that law in the Memorandum and here is a case where in my view the benefit to the applicant far outweighs any detriment to the public because this addition while it will be only 8 feet from this right-of-way is 500 to 600 feet from the nearest right over anyone over which anyone other than Mrs. Balcom, the Campbells or FIDCO which uses part of the right-of-way for its golf course has any rights. In other words nobody, the public has no right to drive up Belcom driveway and I can report that the deed description and you have it on the survey, that right-of-way ends right at the Balcom property line. So nobody, the public can't deliver water over that route. It's not essentially a public street Page 12 Hearing Transcripts January 21, 1999, Board of Appeals and therefore you should tilt heavily in favor of the applicant in this case. And I've made some other arguments in there but I don't want to take too much time. CHAIRMAN GOEHRINGER: Good. Any questions of Mr. Ham? Mr. Homing? MEMBER HORNING: I have none at this time. CHAIRMAN GOEHRINGER: Mrs. Tortora? MEMBER TORTORA: I've been reading through your analysis and I think you've raised a significant number of points that are valid. CHAIRMAN GOEHRINGER: For the record we have been dealing with this aspect for years in reference to the Building Department's interpretation of private rights-of-way, OK. MR. HAM: Right-of-ways. CHAIRMAN GOEHRINGER: has said. Ms. Collins? MEMBER COLLINS: No questions. CHAIRMAN GOEHRINGER: Mr. Dinizio? MEMBER DINIZIO: No questions. CHAIRMAN GOEHRINGER: MR. HAM: Thank you. CHAIRMAN GOEHRINGER: And we will deal with it as Mrs. Tortora We thank you Mr. Ham. Is there anybody else would like to speak in favor? Anybody like to speak against? Hearing no and seeing no, I'll make a motion closing hearing reserving decision until later. MEMBER DINIZIO: Second. Motion carried. See Minutes for Resolution. Page 13 Hearing Transcripts January 21, 1999, Board of Appeals 7:15 P.M. - Appl. No. 3426 -(12/10 Resolution for continuation). GERALD DOROSKI, Owner, by ALEX AND STEPHANIE VILLANI, Contract Vendees Request for a Variance for establishing minimum construction standards under Section 280-A, New York Town Law, regarding access over private rights-of-way extending from the north side of CR 48, Peconic, to applicant's parcel identified as 1000-68-4-10.1. CHAIRMAN GOEHRINGER: Is there somebody that would like to start out with this? How are you tonight Sir? MR. VILLANI: OK, fine, how are you? CHAIRMAN GOEHRINGER: You are the Contract Vendee? MR. VILLANI: Yes. CHAIRMAN GOEHRINGER: name for the record. Yes, then would you just state your MR. VILLANI; Alex Villani. CHAIRMAN GOEHRINGER: We had received a call today from I believe the gentleman was an attorney. He may be here tonight. Oh, he is here, wonderful, OK, and there are certain issues that he wants to bring us to light on regarding your right-of-way and we will then deal with that aspect either through counsel or whatever happens at this point. Thank you. Sir, you're Mr. Van Dyck? MR. VAN DYKE: Yes. CHAIRMAN GOEHRINGER: How are you? MR. VAN DYKE: Good evening Members and Board. As you've already discovered my name is Lawrence Van Dyke. I represent Lola Gould who owns about 21 acres in between the subject property and CR 48. It's the Gould's position, that there is no right-of-way over their property and something that the Board should know, is that on January 14th, Mrs. Gould entered into a contract of sale to sell her property to the Suffolk County Water Authority. In relation to that sale, the Suffolk County Water Authority contracted with Fidelity National Title Insurance Company to do a title report on the property and I have a copy of that for the Board's review. In that title report, under covenants restrictions and/or anything of record is the word, "none". So in the title search that that company did with regard to my client's property, no rights-of-ways were disclosed. I contacted a represented of the title company I'm use to using, Intracoastal Abstract Company, and I had a gentleman by the name of Chris Murphy do a title search of not only my client's properly, but of the parcel, the subject parcel and what's strange about this whole thing is that apparently there's language in the Page 14 Hearing Transcripts January 21, 1999, Board of Appeals deed, that is the deeds behind the Doroski's deed that refers to a right-of-way over my client's property that .was granted to them by some other's case. That, the best person to tell the title history would be Christopher Murphy who is here tonight. This gentleman has over 38 years of experience examining titles and is also an attorney. He can much better than I can, described what the title discloses with regard to any right-of-way language. CHAIRMAN GOEHRINGER: Could I have a copy of the title report? MR. VAN DYKE: Yes. CHAIRMAN GOEHRINGER: soon as we get it. Yes, we'll give you a copy of that as MR. VAN DYKE: you too. I also have a copy of the survey I'd like to give CHAIRMAN GOEHRINGER: Sure. MR. VAN DYKE: This survey is a 1983 survey that was done by my client's husband. CHAIRMAN GOEHRINGER: OK. MR. VAN DYKE: It also does not disclose the rights-of-way, but, you should know that the Suffolk County Water Authority has ordered a new survey. We do not have that at this time. CHAIRMAN GOEHRINGER: Thank you. Mr. Murphy, OK, did you want to say anything else Mr. Van Dyke? MR. VAN DYKE: I'd like to turn it over to Mr. Murphy who could then go into more detail with regard to what the deed said. CHAIRMAN GOEHRINGER: Mr. Murphy we would normally swear you in. You are an officer of the court, so it is not necessary. Just state your name for the record. MR. MURPHY: My name is Christopher J. Murphy. I'm counsel for Intracoastal Abstract Company. We were asked by Mr. Van Dyke to do a title search of the property owned by his client named Gould and the property that is the subject of the variance report. In the chain of title of the Gould's property there is no reference to that property being subject to any right-of-way over it. In the chain of title to the property that's the subject to the variance, there are very vague in precise general references in deeds in the back pack chain of titles. In other words this is an area where large farm tracks, a vintage tracks were broken up. Some of the earlier deeds covered pieces as large as 25, 35 or 22 acres, and they'll have general recitals in them together with a right-of-way over adjoining lands to CR 48. Without any monumentation as to exactly where that right-of-way would lie. I also reviewed at Mr. Van Dyke's request the survey that he mentioned to you and you will note that Page 15 Hearing Transcripts January 21, 1999, Board of Appeals does not show to delete any right-of-way over the Gould's property. Also, was mentioned to you we had a title report from a reputable title underwriter. Their title report in the exception, it says, covenants description, easements, etcetera, it says, "none". I would also offer that if the owners of the property that are requesting the variance ought to come to me and ask us to affirmatively insure that they have a right-of-way over Gould's property. We would in our underwriting discretion decline to do so. CHAIRMAN GOEHRINGER: OK. MR. VAN DYKE: If I may add something else. Apparently this same property was before the Board approximately 10 years ago for the same variance and it's my understanding on information and belief, that the variance was denied at that time because the right-of-way was indistinct and there was no way for the Board to set down any sought of guidelines as to what could be built with regard to a roadway. CHAIRMAN GOEHRINGER: I'm not sure that is the case. BOARD SECRETARY KOWALSKI: No, it wasn't denied. MR. VAN DYKE: And also something else you should know, is that apparently the Goulds prohibited anybody from intruding any driveway over their property and we have an issue of adverse possession extinguishing a right-of-way, if one existed. My point is that the applicant I believe is in the wrong forum. It should have brought a declaratory judgment action to declare a right-of-way and get the court's help, in number 1, establishing whether there is one and number 2, delineated where it is and I think without that, the Board can't act. CHAIRMAN GOEHRINGER: Well, the only thing I do say, that the Board if counsel so desires, our counsel, OK, could set improvements on a right-of-way, if it exists. And we've done it before, OK, and I have no idea - BOARD SECRETARY KOWALSKI: If it's a legal right-of-way. CHAIRMAN GOEHRINGER: Yes, if it's a legal right-of way. But, we'll deal with that aspect of it. Let me just, while you gentlemen are there, do any of our Board Members have any specific questions that they would like to ask these gentlemen? Yes, Lore. MEMBER COLLINS: they now own? How long have the Goulds owned the property MR. VAN DYKE: I believe it goes back to - MR. MURPHY: The original deed improved was 1983. MR. VAN DYKE: And their grantor got it in 1974. Page 16 Hearing Transcripts January 21, 1999, Board of Appeals MEMBER COLLINS: Thank you. MR. MURPHY: And we did a chain of title back to a Sorski to 1946 and at that point we would have been part of a track at that time which covered 57 acres. MR. VAN DYKE: And one last thing, I believe also on information and belief from my discussions with the Suffolk County Water Authority's representative, that they are not in favor of the variance. They know that I'm here tonight and I'm here with their approval. CHAIRMAN GOEHRINGER: The only thing I wanted to say Mr. Van Dyke, not being an attorney, that when I leave the, actually when I enter the property of CR 48, which on this it shows as CR 27, OK, but it is CR 48 and I go through the first piece of property and then go on to what is shown on your map is the formally Edgar J. Acker property, now or formally which is quite honestly the property with the green houses on them, the newly established green houses and then I enter on into Mrs. Gould's property, OK, I notice a travel road, a travel road which is opened and unobstructed and of which I have ridden on at least twice during the establishment of this application before our Board, OK, and that road appears to have been transversed by many people because it shows the track of cars, OK. Now, I'm not saying that I'm making adverse possession claims here and I've done it for 10 years because I haven't. But, I'm just saying to you, as the nature of what appeared to be a winery or a vineyard rather which doesn't exist anymore I have not seen any extension of vines over or any types of stanchions that have held up these vines, OK, thereby blocking this right-of-way. MR. VAN DYKE: I think that what the Goulds did was, they prohibited property owners from the north from using the right-of-way and from improving it. CHAIRMAN GOEHRINGER: I see. MR. VAN DYKE: So we have an issue of abandonment or/and/or has the possession of distinguishing the right-of-way. CHAIRMAN GOEHRINGER: Alright, we thank you gentlemen. have anything else we'll get back to you. If we MR. VAN DYKE: Thank you very much. CHAIRMAN GOEHRINGER: Yes, you want to question them? MEMBER TORTORA: Yes. CHAIRMAN GOEHRINGER: Oh, I'm sorry we need another question. MEMBER TORTORA: property and - Do you have copies of the title on the Gould Page 17 Hearing Transcripts January 21, 1999, Board of Appeals MR. VAN DYKE: chain of title. I can give you copies of all the deeds in their MEMBER TORTORA: Could you do that and also with specific reference to the a, you had referred to Hillards Bay in reference to the Doroski piece. Could we have copies of that for me? MR. VAN DYKE: property, yes. I can give you copies of the deed to the other CHAIRMAN GOEHRINGER: OK, you haven't seen the most recent survey have you, with the travel shown on it? MR. VAN DYKE: I haven't seen any survey other than the 84. CHAIRMAN GOEHRINGER: I have a survey here dated a, guaranteed to US Life Insurance Company, dated April 18, 1985. You're welcomed to borrow it for a second but I need it back. MR. VAN DYKE: Like I said, the Suffolk County Water Authority is in the process of having an updated survey. CHAIRMAN GOEHRINGER: OK, I'm just going to call on another person while you're studying that. Does anybody on the Doroski, Villani side want to discuss this at this point? We will make copies' for you and we will certainly give you every opportunity to deal with this aspects Ms. Dory. Who are you representing at this point? MS. DOTY: I represent the Contract Vendees, the Villanies and a, at least I think I am. Am I? CHAIRMAN GOEHRINGER: That's the reason why I asked the question. I didn't know if you represented the Doroskies or the Villani family. MS. DOTY: No, the reason why I say that is they were representing themselves before the Board until they said yes, to me tonight. I'm handling the purchase of the property, which is subject to the granting of the actually over the right-of-way. The Board correctly pointed to the fact that there is on the Van Tyle survey from 1985, not just one right-of-way, probable roadway that existed but another along the eastern edge of the property as well as a proposed driveway down the middle of the property. I have a reduced photocopy which I'd be happy to show the insurance if they wish to to have it. CHAIRMAN GOEHRINGER: Why don't we suggest this. you caucus with them for a short period of time. Why don't MS. DOTY: I don't intend to get into a debate. In fact, I - CHAIRMAN GOEHRINGER: No, I don't wang you to get into a debate. I want you to take the information they've give us after we photocopy it for you and then gives us a determination of where you Page 18 Hearing Transcripts January 21, 1999, Board of Appeals would like to go at this point regarding this hearing, OK. It was brought by your applicant and I'm sorry, your Contract Vendee and Doroskies who are the owners and we certainly want to resolve the issue to everybody's liking at this point. MS. DOTY: I also have a copy of the Doroski's title report which I will show to the Board if you wish, the title policy. CHAIRMAN GOEHRINGER: OK. Thank you. Do you want to discuss this with Ms. Dory or not? This issue that you're bringing up tonight? MR. VAN DYKE: Discuss it with who? I'm sorry. CHAIRMAN GOEHRINGER: Ms. Dory is an attorney. Would you like to discuss this with her at this point or do you - MR. VAN DYKE: It would be privately outside? CHAIRMAN GOEHRINGER: Outside in the hallway. MR. VAN DYKE: Sure, thank you. CHAIRMAN GOEHRINGER: In a pragmatic sense. I mean you look like a beck of a nice gentlemen so I'm sure it's not going to be a problem. OK, we need your wife to make some copies for us, if you would. BOARD SERETARY KOWALSKI: You're authorized to use the machine out there. CHAIRMAN GOEHRINGER: It's very rare that we do this. In an attempt to come to some realization on this, we will recess this hearing for about 15-20 minutes and then reconvene it. Can I have a motion ladies and gentlemen? MEMBER HORNING: I make such a motion. CHAIRMAN GOEHRINGER: Second. All in favor? MEMBERS: Aye. Page 19 Hearing Transcripts January 21, 1999, Board of Appeals 7:26 P.M. Appl. No. 4646 STEPHEN PESSINIS This is a request for a Variance, based upon the Building Inspector's October 8, 1998 Notice of Disapproval (for a Building Permit)~ Article IIIA, Section 100-30A.4, to locate an accessory building in a yard area other than a rear yard defined by the Zoning Code, at 520 Oak Drive, Southold, NY; Parcel 1000-80-2-13. CHAIRMAN GOEHRINGER: I have a survey by Robert VanTyle P.C., indicating one story framed home which has been moderately changed. The nature of this application is a 12 x 20 ft. proposed storage building which basically sits relatively close to which is proposed to be placed relatively close to a private right-of-way, which is in the rear of the property and I have a copy of the Suffolk County Tax Map indicating this and surrounding properties in the area. How are you tonight? Would you state your name for the record? DIANE PESSINIS: Yes, I am Diane Pessinis. CHAIRMAN GOEHRINGER: to tell us? Nice meeting you. What would you like DIANE PESSINIS: of Posting. Before I start here tonight I have the Affidavit CHAIRMAN GOEHRINGER: Right, thanks a lot. DIANE PESSINIS: There is one card that I did not receive back. Being that we have the right-of-way behind the property I'm considered to have two back yards and no Your 12 x 20 is incorrect. It's going to be 12 x 18. CHAIRMAN GOEHRINGER: OK. DIANE PESSINIS: It's just a shed we would like to put up in the back for stuff for the beach. Along this right-of-way in the back there a, the properties there are a number of very large garages, etcetera behind almost every home on that particular street. We're just requesting to put a shed in our back yard. CHAIRMAN GOEHRINGER: OK, the normal question is, what kind of utilities would be placed in the shed, anything other than electricity? DIANE PESSINIS: there. Mostly possible we might store our jet skiing CHAIRMAN GOEHRINGER: No, no, I meant the utility for the purpose of storage. You're probably going to put electricity in?. DIANE PESSINIS: Not necessarily. Page 20 Hearing Transcripts January 21, 1999, Board of Appeals BOARD SECRETARY KOWALSKI: a light, though, right? Lighting, a light? You might have DIANE PESSINIS: Oh, we might possibly put a lamp there that would be there all the time. CHAIRMAN GOEHRINGER: Alright. I have no objection to this. We'll start with Mr. Dinizio. Any questions of Mrs. Pessinis? MEMBER DINIZIO: No, no questions. CHAIRMAN GOEHRINGER: Ms. Collins? MEMBER COLLINS: What is the large gray object that is already in the back yard? Campus covered? DIANE PESSINIS: over my boat. Oh, no, that's a temporary garage. It is put up MEMBER COLLINS: Over the boat. I figured it was a boat. But, wasn't going to go peeping underneath it. DIANE PESSINIS: It comes down in the spring and it goes back up in the fall again just to cover the boat. MEMBER COLLINS: The private road back there is mapped at being 25 feet wide. It's obviously - DIANE PESSINS: It's obviously a lot less. MEMBER COLLINS: A lot less than that which means I believe that your property line is probably well up into those trees and brushes that are between your lawn and the road. So, are you going to be putting this shed in where the trees are, or up on the grass? DIANE PESSINS: are. MEMBER COLLINS: DIANE PESSINS: No, we were going to nestle in where the trees In where the trees are? Yes, that's setting it back approximately as far as everybody else on the street as the garages setback. MEMBER COLLINS: No, I have no problem with it, I just wanted to visualize exactly what you were going to do. DIANE PESSINS: And also, the picture of the shed that we had submitted, shows the doors to be on like one of the long sides. We put the doors on one of the ends instead of the side. CHAIRMAN GOEHRINGER: though, right? OK, it's going to be a one story shed DIANE PESSINS: Yes. Page 21 Hearing Transcripts January 21, 1999, Board of Appeals CHAIRMAN GOEHRINGER: Mrs. Tortora? MEMBER TORTORA: No questions. CHAIRMAN GOEHRINGER: Mr. Horning? MEMBER HORNING: No questions. CHAIRMAN GOEHRINGER: OK, we thank you very much. Is there anybody else would like to speak in favor? Anybody like to speak against? Hearing no further comments I'll make a motion closing the hearing reserving decision until later. MEMBER DINIZIO: Second. Motion carried. See Minutes for Resolution. Page 22 Hearing Transcripts January 21, 1999, Board of Appeals P.M. Appl. No. 4643 -JOHN MESLOH This is a request for a Variance, based upon the Building Inspector's October 14, 1998 Notice of Disapproval (for a Building Permit), Article IIIA, Section 100-30A.3, to construct a deck addition with a front yard setback at less than 50 feet, at 2150 Arrowhead Lane, Peconic, N.Y., Parcel 1000-98-2-16.2. CHAIRMAN GOEHRINGER: I have a letter here. We have six letters I believe of objection to this. I have a letter from Bay Creek Builders, which says, "I'm writing on behalf of Mesloh's application for a variance hearing a 35 foot setback at the front yard. In light of the very recent objection to the proposal from the neighbors I would like to request that the hearing be postponed until the next available opening.", and at this time we will redesign the proposed addition with input from the neighbors and make it more acceptable to them.", and it's signed Douglas McGahan. Is there anybody here that came to this hearing that would like to be heard? Yes Sir, just quickly if you would, we'll a, as I said, we'll reserve decision. MR. McGUIRE: I'm President of the Arrowhead Cove Association. CHAIRMAN GOEHRINGER: we'll a. Yes, just tell us who you are and then MR. McGUIRE: My name is Thomas McGuire. I'm President of the Arrowhead Cove Association and you have one letter in there from myself. This is a structure that's going up that is in violation of the covenants and the buildings on Arrowhead Lane and I guess the applicant wants to sit down with the neighbors at this point. So, I just want to acknowledge for the record that I'm here. I'd like to add to your record there about the covenants. CHAIRMAN GOEHRINGER: I was just going to ask you for those. was looking to see if we had them. We thank you Mr. McGuire. MR. MeGUIRE: neighbor. The covenants and one additional letter from another CHAIRMAN GOEHRINGER: Great, thank you sir, I appreciate it. Alright, I'll recess this hearing without a date until we hear back from Mr. McGahan. MEMBER TORTORA: date? You want to set a date for the next available CHAIRMAN GOEHRINGER; No, because it may take him longer than that with the winter time to do so and then you know, we'll do it on the Board's Motion. I mean the house exists. It's very simply an addition to the house I mean it's up to you. 'I don't care. It's up to the Board. Page 23 Hearing Transcripts January 21, 1999, Board of Appeals BOARD SECRETARY KOWALSKI: But, that's at least a two month recess. Yes, we can always recess it again. CHAIRMAN GOEHRINGER: You want me to recess it for two months? BOARD SECRETARY KOWALSKI: No, I'm saying if you recess it to the next meeting, then, they won't have to wait two months. CHAIRMAN GOEHRINGER: OK, we'll recess it to the next meeting. CHAIRMAN GOEHRINGER: OK, we'll recess it to the next meeting and then if there not ready, we'll recess it again. I offer that as a resolution. BOARD SECRETARY KOWALSKI: The next meeting is February 23rd. CHAIRMAN GOEHRINGER: February 23rd. BOARD SECRETARY KOWALSKI: Who would like to second that motion? MEMBER COLLINS: I'll second it. Motion carried. See Minutes for Resolution. Page 24 Hearing Transcripts January 21, 1999, Board of Appeals 7:35 P.M. Appl. No. 4644 MARIA TRUPIA This is a request for a Variance based upon the Building Inspector's Notice of Disapproval dated November 20, 1998 (for a Building Permit), Article IIIA, Section 100-30A.3 for approval of an "as built" entry stoop addition with a side yard setback at less than the required 15 feet, at 1395 Sleepy Hollow Lane, Southold, N.Y.; Parcel 1000-78-1-10.20; a/k/a Lot 14 on the Map of Sleepy Hollow, Filed Map No. 6351. CHAIRMAN GOEHRINGER: This hearing is being postponed at her request. I am not literally actually opening this hearing at this time. I will if somebody wants to speak. If not, - BOARD SECRETARY KOWALSKI: I think Mr. McLaughlin is here. CHAIRMAN GOEHRINGER: Oh, Mr. McLaughlin, that's right, you wanted to speak. I will open the hearing. I'll waive the reading of the minutes and we'll just take your testimony~ Sir. MR. McLAUGHLIN: You're going to adjourn the hearing for purposes of the applicant coming in? CHAIRMAN GOEHRINGER: Yes. What had happened was the builder or the person, the carpenter that constructed the nature of the reason why you are here, OK, is away. MR. MCLAUGHLIN: adjourn date. I'd just assume reserve my comments to the CHAIRMAN GOEHRINGER: Sure, OK, great. MR. MeLAUGHLIN: Will that be the next hearing date? CHAIRMAN GOEHRINGER: Yes, we're going to give it a shot at the next Board Meeting. We'll certainly let you know if we here anything before this happened, this just happened at the eleventh hour today. MR. McLAUGHLIN: The next Board Meeting is? CHAIRMAN GOEHRINGER: February 23rd. BOARD SECRETARY KOWALSKI: Well, I was going to ask for a resolution. That's the next thing. MEMBER COLLINS: 2/23. BOARD SECRETARY KOWALSKI: I need a resolution. CHAIRMAN GOEHRINGER: I'll make the resolution. Page 25 Hearing Transcripts January 21, 1999, Board of Appeals MEMBER COLLINS: I second. CHAIRMAN GOEHRINGER: Thank you Mr. McLaughlin. Motion carried. See Minutes for Resolution. Page 26 Hearing Transcripts January 21, 1999, Board of Appeals 7:27 P.M. Appl. No. 4621 RENEE PONCENT~ Contract Vendee (Judith Deegan~ Owner). This is a request for a Variance, based upon the Building Inspector's August 26, 1998 Notice of Disapproval (for a Building Permit), Article XXIV, Section 100-244B, to construct a single family dwelling with a front yard setback at less than 35 feet, at 702 Wiggins Lane, Greenport, NY; Parcel 1000-35-4-20. CHAIRMAN GOEHRINGER: I have a copy of the survey indicating the dwelling as proposed at 24 feet 4 inches from one edge of the right-of-way, and the other I believe is conforming and I have a copy of the Suffolk County Tax Map indicating this and surrounding properties in the area. Good evening Sir, how are you? JAMES FITZGERALD: I'm fine Sir. How are you? CHAIRMAN GOEHRINGER: Would you state your name for the record? JAMES FITZGERALD: representing - My name is James Fitzgerald. I'm CHAIRMAN GOEHRINGER: I see your in the red tonight. JAMES FITZGERALD: Brick. My wife says brick. CHAIRMAN GOEHRINGER: Oh, brick, excuse me. JAMES FITZGERALD: This is I think relatively straight for the Board, a request for your assistance in enabling the Fitzpatrick which is Mrs. Poncet's husband to build this house on this piece of property. The problem of course is the fact that it is technically a corner lot. The private road is not really indicated as applied and wrote on the tax map. It's indicated as a separate parcel which is privately owned by an individual. The travelled area which is shown on the survey and it's only shown here as 10 feet wide. It might be 12 feet wide which puts the north property line of the lot some 25 feet further away from the travelled area than the property line indicates on the side where we're looking for the variance. It's a modestly sized house and fits in very well with the other houses in the area in the neighborhood, and I don't think it's going to have any significant or any adverse impact on the neighborhood. There isn't any other way we would take a house that would be suitable for these people in that area on this property. CHAIRMAN GOEHRINGER: Except for a maybe a Cap Cod. assume is a Ranch or some facsimile. This I JAMES FITZGERALD: Well the house itself is only, is less than 40 feet wide, the living area of the house. Page 27 Hearing Transcripts January 21, 1999, Board of Appeals CHAIRMAN GOEHRINGER: Sure, sure. Mr. Dinizio any questions of Mr. Fitzgerald? MEMBER DINIZIO: No, but it is 24.4, right? On one of the survey it was 28.3. But, it's 24.4. JAMES FITZGERALD: 24.4 is right. MEMBER DINIZIO: That's all I have. CHAIRMAN GOEHRINGER: Ms. Collins? MEMBER COLLINS: I just wanted you to repeat a point you made in the beginning of your remarks to make sure I understood it. I think what you were saying is, that road, that lane, that right-of-way, is mapped at I think 25 feet in width? JAMES FITZGERALD: No, it's l0 feet in width. MEMBER COLLINS: You were making a point about something being less or more than it would appear. CHAIRMAN GOEHRINGER: You said 10 to 12. MEMBER COLLINS: I did not follow. JAMES FITZGERALD: Well the travelled area is a one lane. MEMBER COLLINS: It's a very narrow lane, yes, right. JAMES FITZGERALD: A one car width and it is shown here in the middle of a 50 foot wide piece of property which is not shown, which is not named as a private road on the tax map. But rather it is indicated as a parcel - MEMBER COLLINS: As a parcel. JAMES FITZGERALD: Individually owned. MEMBER COLLINS: But your point, I want to make sure I understand your point and I would agree with it is the property line from which the setback is measured, is a good way back from where the cars, the cars such as they are. JAMES FITZGERALD: Yes, oh yes, it's very similar to the question you asked before. MEMBER COLLINS: OK, thank you. CHAIRMAN GOEHRINGER: Mrs. Tortora? MEMBER TORTORA: Holding that line of thinking, in other words that's not a 50 foot right-of-way, as designated on the official map? Page 28 Hearing Transcripts January 21, 1999, Board of Appeals JAMES FITZGERALD: It is not a "right-of-way". MEMBER TORTORA: Right-of-way. It's a private piece of property? JAMES FITZGERALD: Yes. MEMBER TORTORA: Why are you here? JAMES FITZGERALD: As a matter of fact, the owner is one of the people that was notified of this hearing. CHAIRMAN GOEHRINGER: I think it goes back to a similar question to the Fisher's Island aspect. MEMBER TORTORA: I'm trying to , I'm trying to figure out, why you're here?, because if it's not a road, it's not designated on the map as a road, and, there is no right-of-way, then there's no front yard. You don't have two front yards. You don't any have front yards at all. JAMES FITZGERALD: That's why I was listening so intently to the - CHAIRMAN GOEHRINGER: Kim Campbell hearing. JAMES FITZGERALD: Hearing before. The woman was talking about streets and roads and right-of-way. CHAIRMAN GOEHRINGER: years or so. This has been going on for at least 25 MEMBER TORTORA: It's rather confusing because a - BOARD SECRETARY KOWALSKI: It's not legally abandoned. CHAIRMAN GOEHRINGER: Can I just say - MEMBER TORTORA: Your problem is access to your property. Not with setback as far as I can see. BOARD SECRETARY KOWALSKI: saying? It's a paper street is what your JAMES FITZGERALD: In practice, it is a right-of-way because if it, were it not, there would be no access to this property and the other properties further down. MEMBER TORTORA: Presumably. CHAIRMAN GOEHRINGER: Can I just say this. When anymore than one person has the right over regardless of what it is, OK, and the Building Depal~tment determines it to be a road, regardless of who has title, how the title was acquired and all the rest of those neat little things that we're discussing and I'm not trying to reduce it Page 29 Hearing Transcripts January 21, 1999, Board of Appeals to its right situation. I'm just trying to tell you that is the reason why it was denied. I assume, OK, and, so we go from there. JAMES FITZGERALD: Yes, I considered it to be a road in the sense that it would apply to the establishing of the setback requirements on two sides of this piece of property. CHAIRMAN GOEHRINGER: Mr. Homing, any questions of Mr. Fitzgerald? MEMBER HORNING: Yes. Are you telling us then that the applicant would use this as their right-of-way to the property? JAMES FITZGERALD: Yes. CHAIRMAN GOEHRINGER: Yes. It's really their own access to it, except by water. JAMES FITZGERALD: Right. MEMBER HORNING: And the adjacent parcel, do they use that right-of-way also? JAMES FITZGERALD: To the south of it? CHAIRMAN GOEHRINGER: The two houses to the south. JAMES FITZGERALD: Yes. MEMBER COLLINS: In fact, we had a variance on the house immediately to the south within the last six months. CHAIRMAN GOEHRINGER: Right, that's correct. And I saw the building they put up and it MEMBER COLLINS: looked quite nice. MEMBER HORNING: OK, thank you. CHAIRMAN GOEHRINGER: Thank you so much. Is there anybody else would like to speak in favor of this application? Anybody like to speak against the application? Seeing no hands, I'll make a motion closing the hearing resgrving decision for later. MEMBER TORTORA: Second. Motion carried. See Minutes for Resolution. Page 30 Hearing Transcripts January 21, 1999, Board of Appeals 7:45 P.M. - Appl. NO. 3426 DOROSKI-VILLANI hearing reconveyed. CHAIRMAN GOEHRINGER: Alright, go ahead Mr. Doroski. MR. DOROSKI: Good evening, I'm Jerry Doroski, owner of the property. Back in the , there was a statement made that something about Mr. Gould possibly said something about not using the property. When I first purchased the property, it was around the springtime. I did see Mr. Gould out there and at that time there was a farm road on the east side and the current right-of-way that's listed in the deed on the survey on the west side, and I was using both right-of-ways. He asked me not to use the right-of-way. And, I said well, why? He said something about dust and the grapes. So then I pointed to the other right-of-way and I explained to him that I had a deeded right-of-way from the survey map. With that he acknowledged that I was using that right-of-way. He said, it was alright to use that right-of-way. CHAIRMAN GOEHRINGER: And that was the right-of-way that I was discussing. That I had driven over. Is that correct? MR. DOROSKI: That's correct. Yes. CHAIRMAN GOEHRINGER: Alright. I just want to go down. Let me rephrase the question. I just want to state for the record, OK, that we are prepared to deal with the improvements over that right-of-way and we have been prepared, OK, to deal with those improvements over that right-of-way. To meet the normal specifications, OK. In the beginning there was some discussions about the enhancement and the filling of the right-of-way in the area of 'the new nursery area. However, since then, the approvements that have, that we are working on sought of speak, are really enhancements of that and do not require retaining walls or anything of that nature, OK. So, when you do get this resolved we are ready, OK. I just want Mr. & Mrs. Villani to be aware of that situation, OK, because I know they're sitting there on the edge of their seat and I would be too if I was in their position and I want you to know, that we are very considerate of your concern as well as the sellers, Mr. & Mrs. Doroski and we thank Melanie for making those copies for us. Did you give a copy to Ms. Dory? No, OK, we can do it right here. MR. DOROSKI: Another interesting note is the title company that I used back at that time is the same title company that this gentleman has about this property currently. They changed names and a - CHAIRMAN GOEHRINGER: From Fidelity and something else, yes, US Guarantee, OK, great, thank you sir. Mrs. Tortora? MEMBER TORTORA: What's the length of the proposed right-of-way? MR. DOROSKI: Excuse me. Page 31 Hearing Transcripts January 21, 1999, Board of Appeals MEMBER TORTORA: The length, the length? MR. DOROSKI: The length. It's approximately 1200 feet. MEMBER TORTORA: Do you have a conception and to serve as the property in question which is roughly what 11 acres? MR. DOROSKI: acres. It services 11.5. On some maps some say it's 11 MEMBER TORTORA: Yes, but conception development plans for this parcel? MR. DOROSKI: The new owners, I can't speak for them to be, but, their conception was a single family house at one point. MEMBER TORTORA: On 11 acres? On 10 acres? MR. DOROSKI: 11.5 acres. Back at the time when I put in for minor subdivision, back at 1985-86 thereabouts, I had five children. At the time I was making $21,000. I processed some of the paperwork. I found that in processing it, the surveys together, the surveys were denied. They asked me to redesign my property landmarks with subdivision. I didn't have the capital to continue the project. That's why I at that time backed out. I realized that it was then too much for my pocketbook. MEMBER TORTORA: So what you're saying is, this is going, the right-of-way is going to serve one house? Is that correct? MR. VILLANI: That's correct. CHAIRMAN GOEHRINGER: That answer was by the Contract Vendee. We thank you Sir. MR. DOROSKI: Thank you. CHAIRMAN GOEHRINGER: Thank you. Hearing no further comment I'll make a motion recessing this to the next regular scheduled meeting. BOARD SECRETARY KOWALSKI: Give a date with that please. CHAIRMAN GOEHRINGER: February 23rd. MEMBER DINIZIO: Second. Motion carried. See Minutes for Resolution. Page 32 Hearing Transcripts January 21, 1999, Board of Appeals 7:50 P.M. Appl. No. 4649 SOUTHOLD TOWN PLANNING BOARD~ by B. ORLOWSKI~ JR. This is an Application for an Interpretation, requested by the Planning Board, to consider whether or not additional tables and a service area for alcoholic beverages are accessory to a food service, as determined by the Building Department in its November 4, 1998 Determination (ref: Site Plan Application of TFG Acquisition Corp. (Drossos / Drosco) at Main Road, Greenport, NY; Parcel 1000-45-1-12). The determination of the Building Department states that: "the planned renovation calls for additional tables and a service area for alcoholic beverages accessory to the food service. The area involved and number of tables are matters you may have to consider when reviewing this project~ the use is permitted in the zone and the accessory service of alcoholic beverages is common to restaurants in the Town." This includes a possible Town-Wide Interpretation under Zoning Code Section 100-9lA regarding Restaurants and/or Drinking Establishments in the Limited Business (LB) Zone Districts of the Town of Southold. CHAIRMAN GOEHRINGER: I have a copy of an interior site plan of and an exterior site plan produced by Fairweather Brown. There's been a recent update on this which we have requested of Mr. Brown who has gratuitously given to us and delineating those particular areas which are the nature of this application and I have a copy of the Suffolk County Tax Map indicating this and surrounding properties in the area. I believe Mr. Kassner you're going to start this off for the Planning Board. How are you tonight Sir? MR. KASSNER: I'm just fine, yourself Sir? CHAIRMAN GOEHRINGER: Fine thank you. MR. KASSNER: Good. CHAIRMAN GOEHRINGER: It's such a pleasure having an employee of the Planning Board come before us and discussing specific issues. MR. KASSNER: It's my pleasure and good evening Mr. Chairman and Members of the Board. My name is Bob Kassner. I'm the Town Site Plan Reviewer and I together with Mr. Orlowski, our Chairman, and Richie Latham, a Member of our Board, are here to present the Planning Board's request for a Town Board's Interpretation regarding restaurants and drinking establishment in a Limited Business Zone. We're also requesting an interpretation on Appeal, the Building Inspector's determination regarding Drossos. What I plan to do, is read a prepared statement for the record after which I can give you a copy of this statement and Mr. Orlowski and Page 33 Hearing Transcripts January 21, 1999, Board of Appeals myself, and Mr. Latham will answer any questions. So, as you know, the Zoning Code defines restaurants but not drinking establishments. The issue is, at what point does an accessory bar use increases size and operations so as to cross a line and become a second primary use as a drinking establishment? Drinking establishments are permitted by Special Exceptions in certain District Zones. But, not in a Limited Business Zone which Drossos is located. The question is, how can the Planning Board reasonably determine when a restaurant or drinking establishment or both are primary uses? The Planning Board has determined that the proposed business expansion of Drossos is a drinking establishment for the following reasons: 1. The site plan submitted with the application says, "tavern" on the plan. The illustrated book of Development and Definition published 1995 by the Center for Urban Policy Research, Rutgers University, defines taverns as follows: An establishment used primary for the servicing of liquor by the drink to the general public and where food or packaged liquors may be served or sold only accessory to the primary use. 2. The proposed tavern, as shown on the submitted site plan, calls for the construction of a 12' by 12' foot bar. That's 144 sq. ft. floor area, with 12 bar stools within an existing building area of 1,155 sq. feet. Of this 1,155 sq. ft., the bar area is 580 sq. ft. and the cocktail table area is 575 sq. ft. The tables that are in this cocktail area are 2' by 2' with two chairs at each table. This is in the restaurant area. The bar lounge area is adjacent to a 400 sq. foot dance floor. The cocktail table area and the dance floor comprise 975 sq. ft. or 84% of the 1,155 sq. ft. area of the so-called tavern area. 3. In a recent advertisement in the Cross Sounder News, the advertisement contained the following statement in the end, "New Hide-Away Lounge and Dancing." The dictionary definition of lounge includes the following: 1. A public waiting room; 2. A bar where alcoholic beverages are served. In addition, as I am sure you are aware, the State Alcoholic Beverage Control Law 105-5 permits bars and taverns to sell alcoholic beverages until 4:00 A.M. The State Law pre-empts any municipality concerning the hours of operation of a bar or tavern. This is the PEOPLE V. DeJESUS, 54 NY 2d, 465, which is saying, that the town, any municipality cannot suburb those hours. That's bar hours. In conclusion for all of the above reasons the Board has determined that the proposed expansion at Drossos most closely approximates a drinking establishment which is not a permitted use in this Limited Business Zone. Page 34 Hearing Transcripts January 21, 1999, Board of Appeals The Board is aware that the applicant is desirous of re-establishing the tavern. But, by calling it another name doesn't change the reality of what's being proposed. Our second request tonight, is for Town-Wide Interpretation under the Zoning Code, Section 100-9lA regarding restaurants and/or drinking establishments in the Limited Business (LB) District). I said, I've prepared remarks with the Chairman. I'll give you a copy of them for now. Mr. Orlowski, Mr. Latham and I would like to answer any questions you may have. CHAIRMAN GOEHRINGER: OK. I will a, I'll reserve my questions and start with Mr. Homing. Do you have any questions of these gentlemen regarding this application? MEMBER HORNING: I will reserve my questions also. CHAIRMAN GOEHRINGER: OK. Mrs. Tortora? MEMBER TORTORA: I didn't have your prepared statement in front of you Mr. Kassner but, Mr. ~Brown had given us calculations of that you really, I don't know if you have them or not. MR. KASSNER: On what?. MEMBER TORTORA: On estimates. Where he said, that the existing food services, 2200 sq. ft. and the dance floor etcetera. I have about six sets of calculations on how much space we're taking up after revealing all of your file. MR. KASSNER: I couldn't really comment on it. CHAIRMAN GOEHRINGER: Here right here. I don't want you to comment on it. I want you to know that I discussed those with Mr., I asked for those Mrs. Tortora. BOARD SECRETARY KOWALSKI: Yes, the Board asked for that. was entered into the file yesterday. It CHAIRMAN GOEHRINGER: I asked for them last week from Mr. Brown. Mr. Brown was kind enough to give them to us. I reviewed thoSe with Mr. Brown on the phone and basically what they incorporate is that cross out area on your copy which is the most recent copy, which is dated January 15, 1999, OK. That does not incorporate all of it. That is the entire building, OK. We'll have to delineate those areas out there, cross out which I will duplicate if you'd like, OK. MEMBER TORTORA: OK, it's just very confusing because there's about five different calculations on how much is the restaurant and how much is the dance floor and how much is the Snack bar and restaurant. I thought maybe you had the answer. Page 35 Hearing Transcripts January 21, 1999, Board of Appeals CHAIRMAN GOEHRINGER: Well we could ask Mr. Brown if he would be kind enough to do that. He's here tonight but I mean we don't have - MEMBER TORTORA: I don't have anymore questions at this time. CHAIRMAN GOEHRINGER: Ms. Collins? MEMBER COLLINS; Mr. Chairman, exaetty where are we going to go with this? That has a bearing on whether there's something I want to say at this time or reserve until later. Obviously, Mr. Latham, Mr. Orlowski are here to answer questions. But, I gather they're not intending to make presentation. That Bob Kassner was carrying the ball on that. Are we expecting to hear formally as distinguished from in response to questions from anyone else? CHAIRMAN GOEHRINGER: Yes, I believe Mrs. Costas is here with her attorney. MEMBER COLLINS: OK. CHAIRMAN GOEHRINGER: questions until then? So you may want to hold off those MEMBER COLLINS: Oh, no, then I'd like to just state how I see this. As I understand it, the, this is partly a statement for the record and partly perhaps to see if, you know, where it sync. As I understand it, the heart of this matter is as you outlined, that the Building Department has taken a position pretty much formally, in a memo, that the proposed renovations at Drossos entail putting in alcohol service that will be accessory to a restaurant. And, alcohol service is a typical accessory in restaurants and assuming it's an accessory it's a permitted use. And, the Planning Board looking at the fact says, it doesn't look like an accessory to us. It looks like a tavern or drinking establishment, but something not defined in the code. That's the bottom. That's the core here and the question is, what's our role in this? We have the authority under State Law and the Town Code, to interpret the code. That I think is limited and I would be enormously resistant to any effort to get us to interpret the meaning of drinking establishment which is used in the code but not defined. Because, to interpret it, would be to write law and we are not to be writing law. Accessory on the other hand is something that we probably should interpret more frequently than we do when cases come before us. Is this thing that Mr. So & So wants to build really an accessory structure or is it a second house on his property? And, I think on the facts of a specific case it's probably legitimate for us to say, is this an accessory use or not? And, I think that's what you're asking us to do. But~ the idea of a Town Law and any kind of generic interpretation I think, is just not something that we ought to get into. CHAIRMAN GOEHRINGER: we can take part of it. As you know, we can take all of it, or Page 36 Hearing Transcripts January 21, 1999, Board of Appeals MEMBER COLLINS: I just wanted to get my views on the record. CHAIRMAN GOEHRINGER: part of it. So we may take all of it or we may take MEMBER COLLINS: I gave a lot of thought to this. I think in fact, that the thing that you really would like us to do, is something that we're empowered to do but, we didn't publish the legal notice this way. And that is, to review, I can't remember the exact words in the code, but we can review and we ean reverse, overturn, amend~ etcetera any decision of the Administrator Officer charged with interpreting the code. In other words, we can say, Building Department, we've study the facts in this case and your wrong. It's not an accessory. Go and correct your action. I think that's probably what you're really asking us to do. But, we didn't advertise that. BOARD SECRETARY KOWALSKI: it that way. I don't think we have to advertise MEMBER COLLINS: OK. I, I, as I said I'm just - BOARD SECRETARY KOWALSKI: I think it's fine the way it is. MEMBER COLLINS: I'm just getting my thoughts out as to what we're being asked to do. Because, what we're going to find here in the next 15 minutes is interleaving of sought of principal and the specific facts of the Drossos renovation project. And, I think it's going to be difficult to sought out exactly what we're doing. And as far as I'm concerned, I think all we should be doing, is looking at the facts of this project and addressing whether or not it's an accessory, accessory use. I just want to get my views on the record. CHAIRMAN GOEHRINGER: Mr. Dinizio? MEMBER DINIZIO: I agree about 90% of what Ms. Collins just said. You know I think that I would feel more comfortable looking at this from the Building Inspector's point of view. The determination of the Building Inspector as opposed to an opinion of the Planning Board. I think it gives the applicant more weapons to use and t mean you know how I feel about you know about these interpretations. Certainly generic interpretations of this is not something I feel we could possibly would want to tackle. I think that's more for the Town Board to certainly look at, especially in light of the fact that Mr. Kassner you're giving us definitions out of dictionaries which I'm sure that the applicant you know, has in his mind what the tavern is and it may not be what you think it is. You know, his idea of a tavern he just might want to call it a tavern. It doesn't necessary have to be a definition out of a book. You know to hold him to that, when the Building Inspector didn't hold him to that, I think it's a you know, disingenuous. I think you, I don't know why anybody would go through all that trouble Page 37 Hearing Transcripts January 21, 1999, Board of Appeals and if I could ask you just what, what was the reason for going into the hours of operation? You know with your presentation. MR. KASSNER: The differentiations that we were trying to make this evening is between a restaurant and a drinking establishment. A restaurant generally closes down at 10:30-11:00 o'clock. A drinking establishment closes at 4:00. That's a change in the MEMBER DINIZIO: But, now in the Town Code, is that so that if you want it to be a restaurant you must close down at 10:00 o'clock? MR. KASSNER: Oh, no, no, I'm just giving you- MEMBER DINIZIO: You can be a restaurant and be opened until when? MR. KASSNER: Pardon. MEMBER DINIZIO: You can be a restaurant and be open until what time according to the Town Code? MR. KASSNER: The Town Code is silent on that issue. MEMBER DINIZIO: OK, and a bar which has different regulations concerning you know, alcohol licenses, they have certain limitations. So, restaurant could be open 24 hours a day? MR. KASSNER: Could be, some are. MEMBER DINIZIO: Alright, but not necessarily. MR. KASSNER: Not in this town. CHAIRMAN GOEHRINGER: We thank you Mr. Kassner. We'll see what develops throughout the hearing. Thank you for your presentation. We will go to the other side and we will ask Mr. Cardinale if he would like to deal with this aspect or at least discuss it? How are you tonight Sir? MR. CARDINALE: Good evening. Joe Cardinale. I was asked to appear here on behalf of the applicant. Partially to listen because as you know, we're not really an involved party in this dispute but we are very intimately affected party since the project is being made has delayed us, as debated, has taken place in regard to the language which incidentally is not that critical to my client since they know what they want to do. They have indicated to me it isn't a tavern regardless of the initial word used which I may add was subsequently removed from the application by a letter which they sent interestedly enough without date, but, in December of last year. However, let the Board know which they do, that Brown, the architect is very familiar with the project here and Irene Costas is here as well on behalf of the applicant. The other thing that I wanted the Board to make certain at this point, is that the Suffolk Page 38 Hearing Transcripts January 21, 1999, Board of Appeals County Health Department has issued as you know, existing restaurant permit on this and the application for the bar use on this incident is in addition to an accessory to that existing restaurant permit. So, we're not looking to put a tavern in it. If we were, our application to the Health Department would have to let that go. It doesn't at this point. The Suffolk County Health Department requested and we have complied that the application which Mr. Brown is familiar with, which he made, it will be accessory to an addition to the restaurant permit. It won't be a separate permit. I want to endorse what Ms. Collins said about he had respectable hesitancy to get into the rem of creating definitions as opposed to interpreting them. The creation of the definition being obviously the task of the Town Board. I'd like to get a copy of the prepared remarks of Mr. Kassner, although I've spoken to him on the phone, I haVen't actually heard it enunciated reasoning and I'd like the ability to keep the hearing open for a week so I can respond in writing to those remarks because they're inaccuracies in what was said. For example, the word tavern was taken out of the application and the square footage is way off. Other than that I just want to make Mr. Brown available and I want to underline the Suffolk County Health Department application is inconsistent with the contention of this establishment. I want you to try and get us a decision as soon as possible because pretty much whatever you say in regard as to whether this is an accessory use. We know it's an accessory use because we know it's going to be a restaurant with this other use as accessory. We just want to get started so we can get this construction completed. So, I urge you to make a decision as quickly as possible. CHAIRMAN GOEHRINGER: Quickly just for a point. Mr. Brown is available. Is he going to speak on a prepared statement or what? MR. CARDINALE: statement? Rob do you want to speak tonight on a prepared MR. BROWN: No, I don't have a prepared statement. CHAIRMAN GOEHRINGER: No prepared statement, OK. MR. CARDINALE: I think what he wants. I think there was some - I haven't study the specifics of the plan at this moment. But, there may be some confusion about how much space is devoted to restaurant, how much space is devoted to bar. I know it's incorrect what you got from the prepared statement of the Planning Board. So, I think what we'll do is submit the final word as we understand it, when I submit the response to what was indicated by Mr. Kassner. I'll get Rob to give you the applicant's space differentiation as to what portion percentage for. CHAIRMAN GOEHRINGER: So there's really no reason to discuss that with him tonight at this point. MR. CARDINALE: No. Page 39 Hearing Transcripts January 21, 1999, Board of Appeals MEMBER COLLINS: I have questions for Mr. Brown then. CHAIRMAN GOEHRINGER: OK, fine. MEMBER DINIZIO: I have questions for him. CHAIRMAN GOEHRINGER: OK. Whose this gentleman. Oh, you have questions for Mr. Cardinale. Well, let me just finish with him, OK. Is Mrs. Costas going to make a statement tonight? MR. CARDINALE: No, she does not intend to make a statement. I think her statement was essentially what I've said. They're anxious, they feel like they're a. Their basic concerns is that they feel although affected they're not involved in this dispute. It's actually between the Building Department. As you know the Planning Board which is something I wanted to mention so I'm glad you reminded me. Our gladiator apparently didn't show up this evening. The Building Department which is arguing. Actually, our position, I understand he had some other duties. CHAIRMAN GOEHRINGER: He is here. Mr. Forrester is here. MR. CARDINALE: So I would expect that Mr. Forrester might want to defend the Building Department's position because what we really have here is a dispute which involves two town agencies in which we are being as the applicant delayed. So I would expect Mr. Forrester would want to defend his position and I expect we would agree with Mr. Forrester's position and we would give you our formal reaction to what is said tonight in written form within the next week. CHAIRMAN GOEHRINGER: OK. Wait we have a question here. MEMBER DINIZIO: No, I didn't know Mr. Forrester was here either. MR. CARDINALE: Thank you. I didn't neither. CHAIRMAN GOEHRINGER: So you don't have a question Mr. Dinizio. MEMBER DINIZIO: No, I'm going to wait for Mr. Forrester. CHAIRMAN GOEHRINGER: Would you like to say something. It's a pleasure to see you tonight also. As you can see from the point of view of the audience presentation here and of this hearing that this is not the normal type of zoning hearings that we have, OK, with these interpretations. We're ready any time. Your words of wisdom. MR. FORRESTER: For the record my name is Edward Forrester. I'm the Director, Code Enforcement for the Town of Southold. I am the department head of the Building Department. Prior to making formal application I did meet with the applicant at the site and we walked through the structure and I got to visit what exists and what the plans, renovations and expansions were to be. It's all within the original footprint and I made observations and I Listened to the words he was telling me and that went towards part of why I made Page 40 Hearing Transcripts January 21, 1999, Board of Appeals the decision I had made. The risk of sounding very elementary but, I have to make a determination on permitted use. The code gives me that authority, it gives the Building Department that authority. I don't want to just quote singularly. The Building Department has that authority. We use all of the information that we have available to us to make that determination. In doing so and reviewing the application for this project, it did meet the printed definition of restaurant in the code, with the accessory applicable service use. Nowhere in the code did, nor was I instructed to take the size of those square footage available to each one as separate into making my determination. I looked at it as an entire picture. So all of the square footage calculations that were spoken about tonight were not Dart of that. I used the Code and the Code language to make my determination. I sent the applicant to the Planning Board for site plan review. The Planning Board's statement here tonight, I said, how can they make the determination of when something is a, (1) used for an accessory or (2) permitted are two separate uses? And then, in support of the Building Department, that is our determination to be made and they can appeal our decision that's their right by code. But, by code we can make a determination on permitted use. I agree with Member Collins on that fact that this is more of an appeal of our decision and interpretation of what the code says. I've looked at the floor plans originally submitted by Mr. Brown. I haven't seen his latest revision, t don't know if it differs dramatically from what I first reviewed, but, I would stand by our determination that it is an expansion of an existing restaurant with the addition of accessory alcohol service. CHAIRMAN GOEHRINGER: and gentlemen? Any questions of Mr. Forrester, ladies MEMBER DINIZIO: Yes, by expansion what would you mean by that? MR. FORRESTER: They're adding more service area, not service area, preparation areas. There's a full service permitted, Health Department permitted kitchen on the premises. That's not being enlarged. It's the table area that is being served , the area that is being served. Again, just to repeat myself, the size of the tables was not taken in by this area. Just their existence and within the structure and they were being added to what already existed. MEMBER DINIZIO: And then, when you make the decision, (where is it), you said, basically said, made mention that the tables would be something for the Board, for the Planning Board to look at. What did you mean by that? MR. FORRESTER: The parking tabulations take the number of seats within a structure. You know, the size of a, the number of seats would determine how much parking is required. I guess it would also go into their a, their tabulations how much traffic would be generated on the site and ingress and egress would be addressed at that point. Page 41 Hearing Transcripts JanuarY 21, 1999, Board of Appeals MEMBER DINIZIO: In your opinion, it's a permitted use? MR. FORRESTER: Yes. MEMBER DINIZIO: So if someone said, that it was not permitted in that zone, that someone made that determination it certainly wasn't you? MR. FORRESTER: It was not me or the Building Department. CHAIRMAN GOEHRINGER: Well, would you rephrase that question Jim? What did you say? BOARD SECRETARY KOWALSKI: Nobody said that. MEMBER DINIZIO: Yes, someone did make that determination on June 11, 1989, "The Planning Board has received your letter of May 11th regarding a waiver request for reestablishing a bar. Please be informed that a bar is not a permitted use in a limited zone. Very truly yours, Bob Kassner, Site Planning Review." CHAIRMAN GOEHRINGER: What was that date? MEMBER DINIZIO: June 11th. MEMBER COLLINS: Last summer. BOARD SECRETARY KOWALSKI: No, 89 you said. MEMBER COLLINS: No, 98. MEMBER DINIZIO: No, no, 98. BOARD SECRETARY KOWALSKI: OK, I want to correct the record. MR. FORRESTER: And that was signed by who? MEMBER DINIZIO: Bob Kassner. MR. FORRESTER: But, he's not in the Building Department. MEMBER DINIZIO: I, I, just Wanted to be clear on that. MR. FORRESTER: OK. CHAIRMAN GOEHRINGER: OK, any other questions of this gentleman? Mrs. Tortora? MEMBER TORTORA: I have the plans, Fairweather Brown plans dated, maybe this isn't the most recent, January 15, 1995, for tavern schedule application. As you said, that you did go through any of'this and looked at the size of the rooms or take that into consideration when you determined that this wasn't a drinking Page 42 Hearing Transcripts January 21, 1999, Board of Appeals establishment, that this was a restaurant with an accessory use, is that correct? MR. FORRESTER: Yes, I made a statement. There exists at that location, a restaurant within that structure. The proposed renovation is in addition to what already exists there. MEMBER TORTORA: The heart of the matter here I think is really very simple, is the principal use, a restaurant? Or, is the principal use a drinking establishment? And, in order to determine that, I think you have to look, not you, this Board has to look at this very specifically and determine in terms of percentage, which is commonly done in the report. Look at use, look at income, there are hundred ways that have historically been used to determine whether something is accessory or principal. It can be a fine line. But, I'm having trouble with how you just determined this~ if you didn't go off the square footage, if you didn't go off of, of a what they're proposing, the size of the existing restaurant, the decree of expansion, use of the expansion. So, help me a little bit here. MR. FORRESTER: OK. As I said before, there exists within that structure a restaurant at this time. They're looking to expand' based on my conversation with the applicant that use and adding to it the alcohol and beverage service with the accessory to it. MEMBER TORTORA: Just let me ask you. Right now there is a 16 feet restaurant, right? MR. FORRESTER: Correct. MEMBER TORTORA: And right now under the plans that I'm looking for there's 24, 12 bar stools. In another area where it says, there's 24 two seats, a dance floor and a game room and the storage for the food tavern. As an outsider, as a layman, just looking at this, I would say, yeah it could look like a tavern, it could look like a drinking establishment. So I'm asking you to help me to determine where the primary use is a restaurant. Where the main income for the principal income, where the principal business is going to be a restaurant? Give me some support on that. MR. FORRESTER: What is proposed to go on it, meets the definition as stated in the code of a restaurant. That was the basis of my determination in addition to other things. At any give time could there be more people, drinking alcohol and eating? Yes, I have some local knowledge to the restaurants in the area what is being proposed. There is common reStaurants in the town. In fact, I had dinner in a very popular restaurant just this evening prior to the meeting and I was the only one eating in the establishment. MEMBER TORTORA: I hope it was good. MR. FORRESTER: Yes, it is a widely recognized and quite popular restaurant within the town. Page 43 Hearing Transcripts January 21, 1999, Board of Appeals CHAIRMAN GOEHRINGER: I just wanted to mentioned that Mr. Brown wanted to shed some light on that. Would it be OK for him to do so at this point? Mr. Brown. MR. BROWN: Can I interject for one second? CHAIRMAN GOEHRINGER: Certainly. MR. BROWN: On the list of square footage breakdown that the Board received from me, you'll notice that the gable was listed as 600 sq. ft. These are approximate numbers on this plan. And, the post table seating is 580 sq. ft. On the building as it now exists, we did some work in a describing the plans for the building seating of occupancy which now exists. That area that is described as the game room was approved as seating area where technically just moving that seating area from what is now being used as a game room to the other side of the building. CHAIRMAN' GOEHRINGER: So we go back to a game room. MR. BROWN.:. No that 600 sq. ft. was always approved as restaurant seating from the beginning which is fine. CHAIRMAN GOEHRINGER: OK. Let me just go down in the record here for one second. What Mr. Brown is going to give us, OK, is his square footages which he has already given us because we requested it as of last Saturday, alright, that Mrs. Tortora has before us, OK. What I am going to request at this point is, that we do a physical inspection of the building, OK, and hopefully Mr. Cardinale will grant us that inspection with either him, he himself, Mrs. Costas, Bob Brown, you know; whoever wants to be there. Yourself if you want to be there, Members of the Planning Board if they want to be there, OK, and then reconvene this, you know, to just elementary close the hearing because Mr. Cardinale wants to make some remarks regarding the Planning Board's prepared statement and you know, that's my overall objective at this point. So what we're saying to you is that a, you certainly will have the right to look at this plan again based upon those individual square footages and you know, and so if there's anything you would like to add it, you can do so by writing, you know, after this. I mean what I'm saying is, you know, I don't know sitting here, he doesn't have the plan in front of him. That's rather difficult for him to answer that question. MEMBER TORTORA: No, and the Planning Board doesn't have this so I think we should do the inspection. Let them all have a chance to review what's been submitted. It's not at all clear to me what's before us here. In fact, what I think should be before us, is a request to reverse the decision of the Building Department. That's what I think is being asked for here. BOARD SECRETARY KOWALSKI: If that is a decision. MEMBER TORTORA: That's seems to be altered. Page 44 Hearing Transcripts January 21, 1999, Board of Appeals CHAIRMAN GOEHRINGER: Well, that seems to be a decision too. mean that's another option. MEMBER TORTORA: That seems to be what is requested here. BOARD SECRETARY KOWALSKI: Well, you may want to consult with the Town Attorney. CHAIRMAN GOEHRINGER: Yes, we have to consult with counsel on thac aspect of it. But, what we're dealing with, is what we're dealing with what we have right now, OK. And, what we're saying, at this point is that Mr. Brown was extremely helpful in giving us those square footages. Now, we want to see the inside of the building and then, we want to hear Mr. Cardinale's comments to the Planning Board and we want any comments back from the Planning Board at that point, and we will read everything and then we will close the hearing on February 23rd and that's it. I mean that's the way I suggest that we deal with this aspect. And, we certainly under a attorney-client privilege can discuss it with our attorney at the time, or you know, in that general period of time. MEMBER TORTORA: I think that CHAIRMAN GOEHRINGER: And then, we will make a decision and that's it and I mean, I don't foresee that there's any opposition to my suggestion at this point, is there? MEMBER DINIZIO: Yes, I oppose to it. CHAIRMAN GOEHRINGER: Well you always oppose. true Jim, I'm only kidding. No, that's not MEMBER DINIZIO: I think you're doing a defacto decision here on an applicant that is not even an applicant and you're not giving him a fair shot at, you know, installation. You know I think if the Building Inspector determines that he doesn't need to have these types of calculations for him to make a decision, you know it's something to be said for that. In that his expertise should have a little more weight you know in that regard. I can tell you from personal experience, Drossos was always a bar. It was always a restaurant and as far as I know they had a CO for such, and you know now to go knit pick at, you know, to try and determine how much money can be made from a drink as oppose to a hamburger, and make a decision on that when the applicant doesn't have the opportunity to fully discuss that, I think is offensive because the only reason why the applicant has the opportunity is because we're granting him that. CHAIRMAN GOEHRINGER: OK. I think it was clearly stated by the Planning Board, the employee of the Planning Board that the Town of Southold, but it's the Planning Board he works strictly, the Site Plan Reviewer, that the Zone was changed, OK? I think it was also clearly stated that the reason why this application, it wasn't' clearly stated but, I'm going to clearly state it, that there was Page 45 Hearing Transcripts January 21, 1999, Board of Appeals some period of time that this operation did not exist, alright? And, I think that's one of the reasons why we're here and dealing with this aspect. Secondly, my question to you, Mr. Forrester is, what happened when the site plan was sent over to you for certification at that point? Was it sent to you for certification? MR. FORRESTER: It generated the memo dated November 4th. CHAIRMAN GOEHRINGER: saying, OK? So it was not certified is what you're MR. FORRESTER: The site plan that they're working on and from their latest memos they're still requesting more information from the applicant. They need a complete site plan before we certify it. The memo on November 4th, is a precertification of the use. CHAIRMAN GOEHRINGER: OK, alright, at this point I'll entertain any other discussion. If not, seeing no hands, I'll make a motion that we - BOARD SECRETARY KOWALSKI: There's a man here. CHAIRMAN GOEHRINGER: are you? Oh, I'm sorry, Tom? Mr. Talbert, how MR. TALBERT: Good. My name is Tom Talbert and I'd just like to make a comment. It's not directed at Drossos. It's more directed at the difference' between a restaurant and a drinking establishment. And the difference is whether it seems very to be night and day to the people that's affected most, and that's the people who perhaps do work on this operation and when you say, how long can a restaurant be open? Can it be opened 24 hours or? In this town restaurants aren't opened 24 hours. People go out to dinner at he normal dinner hour and they stop serving you know, serving dinner at 10:30-11:00 o'clock and then maybe 12:00 o'clock in the summer. But, restaurants don't stay open until 4:00 o'clock in the morning. So, to call a place a restaurant and have it open until 4:00 o'clock in the morning, is really not It creates a big problem. You know, you want it. I got it first hand knowledge of how an operation that acts or operates after the plant of the Building Department had made a determination whether it's going to be a restaurant and not a bar. It can be very clearly stated he's going to be a restaurant because he has a stove, the place has a stove and ovens and it serves food. But then, see, if it doesn't become successful, let's say he has a lousy cook or something and it has a good bartender it becomes more of a successful drinking establishment and then it will turn into that, it's more of a drinking establishment. And then, the problem is having to enforce it afterwards. My comment is not so much as the first part of it directed at Drossos, but, it is more the fact that I was here to give you said that you would give a clarification about the town going there. CHAIRMAN GOEHRINGER: We may and may not. Page 46 Hearing Transcripts January 21, 1999, Board of Appeals MR. TALBERT: I just wanted to make that comment that there is a difference, day and night between a drinking establishment, whether you call it a lounge, a tavern or whatever and a restaurant. It's pretty obvious to see after the place is opened up and what it turns into. CHAIRMAN GOEHRINGER: OK, thank you Sir. MEMBER HORNING: Mr. Chairman? CHAIRMAN GOEHRINGER: Yes. MEMBER HORNING: For the record, could the owners of Drossos or the representative enlighten us a bit as to whether the premises has a liquor license right now and the history of how long they had the liquor license? CHAIRMAN GOEHRINGER: Mrs. Costas. How do you do? MRS. COSTAS: My name is Irene Costas and yes we do, we have a conditional approval. We had it up until December and then we had to write for an extension because of everything that is going on. So now we have it until May, which in all probability will have to be extended again. But we do have a conditional. MEMBER HORNING: You do have a conditional? That this is recent for you. Is that what you're saying? MRS. COSTAS: What's recent? MEMBER HORNING: The conditional liquor license. MRS. COSTAS: We applied for, we sent the application in, we got this conditional approval and it was good up until December of 98. And, because we couldn't open up the establishment by December of 98, then we had to file for an extension which is good now until May of 99. MEMBER HORNING: And this is the first time in history that this premises has had a liquor license? CHAIRMAN GOEHRINGER: No, no, it use to be. MRS. COSTAS: No, no, my uncle had it as a restaurant bar and he passed away and it went to his wife and then she sold it and it went back to her and Mike Constantopoulos was the last person to have it and that went into foreclosure and my husband who is Nick's nephew dealt with the bank and we bought it back into the family and slowly but surely we've been trying to - CHAIRMAN GOEHRINGER: Reestablish ? MRS. COSTAS: Put this building up for operations. it's a mortgage. Not a lease, Page 47 Hearing Transcripts January 21, 1999, Board of Appeals MEMBER HORNING: Could you tell us the approximate year as to the last time it had a valid liquor license? MRS. COSTAS: Whenever Constantopoulos had it. You know we, the building had been vacant I think four years, three to four years. You know looking for a CO for the building, you know there's a file folder this big with violations on that building from the previous owner and I can't give you an exact date as to when he had his liquor license. You know Nick had opened the bar I think 1965 or 1968. So, you know the premises had a liquor license then. MEMBER HORNING: During this time period was it still operating as a motel for this whole period? MRS. COSTAS: The Drossos have been there for 52 years. CHAIRMAN GOEHRINGER: Yes. MEMBER HORNING: But, you mentioned the building being closed etcetera. MRS. COSTAS: Well that piece they're building. It had belonged to my uncle. That building was closed. The Drossos have been up and running for 52 years. MEMBER HORNING: As a motel? MRS. COSTAS: As a motel. The golf course is there. bar has been there. You know it's not a new business. The snack MEMBER HORNING: How about what you were determined as a restaurant? Give us a little history on the restaurant. MRS. COSTAS: On Nick's restaurant? MEMBER HORNING: Yes. MRS. COSTAS: Which is where my gift shop in now. It's in the front of the building. There was a restaurant there in the front and then there was a service bar in back, a visible service bar. There was dancing and stuff there. MEMBER HORNING: OK, thank you. CHAIRMAN GOEHRINGER: While you're up there Mrs. Costas, what's a good day on a Saturday for us to get together with you? MRS. COSTAS: Whenever you want to be there. I'm here, so, you know you let me know what time you want to be there. CHAIRMAN GOEHRINGER: So we could deal with it this Saturday or the following Saturday. MRS. COSTAS: Oh, sure, bm, bm. Page 48 Hearing Transcripts January 21, 1999, Board of Appeals CHAIRMAN GOEHRINGER: OK, very good. We'll make that determination and get back to you. Maybe even before you leave tonight, OK? Any other further comments? OK, it appears to me that I have to modify my statement. I think we have to close the hearing at the next regularly scheduled meeting and leave the verbatim part of the testimony open after the inspection in case we have specific questions. That's my option as a request. It's not my option as a vote because I only have one vote that applies. MEMBER TORTORA: I would agree with you. CHAIRMAN GOEHRINGER: OK. So therefore, I'll make the motion and hopefully Mrs. Tortora you will second that? MEMBER TORTORA: I'll second it. BOARD SECRETARY KOWALSKI: meeting which is February. OK, we have a date for the next CHAIRMAN GOEHRINGER: The next meeting is February 23, OK? I'm also going to ask the Board at this time since we have Mrs. Costas here if you would like to make it this Saturday or the following Saturday? I am not available the Saturday after that. MEMBER COLLINS: This Saturday I can't come. CHAIRMAN GOEHRINGER: OK. appropriate time, 9:30 ish or so? and Members of the Board? This Saturday, what is an Is that OK with you Mrs. Costas MRS. COSTAS: Sure. BOARD SECRETARY KOWALSKI: At the site? MEMBRA TORTORA: We're talking site inspection this Saturday? CHAIRMAN GOEHRINGER: This Saturday, 9:30. MEMBER COLLINS: Day after tomorrow? BOARD SECRETARY KOWALSKI: At the site? CHAIRMAN GOEHRINGER: At the site. MEMBER TORTORA: OK. CHAIRMAN GOEHRINGER: OK, I have a motion and a second. All in favor? Motion carried. See Minutes for Resolution. , Pag~ 49 Hearing Tr~scripts January 21, 1999, Board of Appeals CHAIRMAN GOEHRINGER: I need to recess at this point. Reconvene please. MEMBER DINIZIO: So moved. CHAIRMAN GOEHRINGER: Ail in favor? MEMBER HORNING: Second. Motion carried. See Minutes for Resolution take approximately 3 minute Page 50 Hearing Transcripts January 21, 1999, Board of Appeals 8:48 P.M. Appl. No. 4645 -DIANE TRENTACOSTE This is a request for a Variance, based upon the Building Inspector's November 17, 1998 Notice of Disapproval (for a Building Permit), Article XXIV, Section 100-244B, to locate proposed addition/alteration with a combined side yard total of less than 35 feet, at 180 Strohson Road, Cutchogue, NY: Parcel 1000-103-10-17. CHAIRMAN GOEHRINGER: I have a copy of a survey prepared by Stanley Isaacson, Jr., indicating and highlighted the proposed addition which reduces the side yard to 15 feet on that one side and a copy of the Suffolk County Tax Map indicating this and surrounding properties in the area. How are you tonight Sir? MR. TRENTACOSTE: Fine, thank you. CHAIRMAN GOEHRINGER: Would you state your name for the record. MR. TRENTACOSTE: My name is Bob Trentacoste. CHAIRMAN GOEHRINGER: What would you like to tell us Sir? MR. TRENTACOSTE: First I have brought sketches which you requested me to bring. The original sketches you already have and we've all changed the size of the house referring back to the building. I think now we're only over three feet over the proposed addition eliminating the side porch. CHAIRMAN GOEHRINGER: Is it shown on there? MR. TRENTACOSTE: Yes it is. CHAIRMAN GOEHRINGER: OK, could you just - MR. TRENTACOSTE: CHAIRMAN GOEHRINGER: OK. MR. TRENTACOSTE: And I also I was to bring in these. BOARD SECRETARY KOWALSKI: Yes, the cards. MR. TRENTACOSTE; We're missing one. BOARD SECRETARY KOWALSKI: OK. MR. TRENTACOSTE: There's the original and the new. CHAIRMAN GOEHRINGER: OK, why don't you show us which one. MR. TRENTACOSTE: I don't know which is which. CHAIRMAN GOEHRINGER: You don't know which one is, OK. Page 51 Hearing Transcripts January 21, 1999, Board of Appeals BOARD SECRETARY KOWALSKI: We don't have any of these plans yet, this is the first time, so. (Members and applicant reviewing the plans. ) MEMBER TORTORA: Let's just try to find out what we have here. MR. TRENTACOSTE: It's now 17 feet. It was 15 instead of 17 feet. We made this - MEMBER TORTORA: Could you talk in the mike so that we can this into the record, please? Just give us the overall dimension of the proposed addition now? CHAIRMAN GOEHRINGER: Well, I don't think he has it, because he just gave us the plan. MEMBER TORTORA: Oh. CHAIRMAN GOEHRINGER: What your saying now is, that instead of 15 as a side yard with the proposed plan, it is now 17 feet? MR. TRENTACOSTE: That's right. CHAIRMAN GOEHRINGER: Right, OK, thank you. MEMBER COLLINS: Has anything else changed that has an affect on size? It's still' the same? MR. TRENTACOSTE: Well the original plan had a wraparound porch. We eliminated that because it was encroaching on everything that's We eliminated the side. We would just love to keep that little gazebo standing there because the squareness of the house is what we're looking to do. A very square structure. MEMBER TORTORA: So the closest side yard would be 17 feet then? MR. TENTACOSTE: From the end of the porch about 26-27 feet from the house itself. The open, an open porch area. The house itself is 26 feet from the side yard. MR. NOTARO: Excuse me. It's 20 foot six. CHAIRMAN GOEHRINGER: Right. MR. NOTARO: The actual structure porch to the gazebo is MEMBER TORTORA: But that hasn't changed then? CHAIRMAN GOEHRINGER: Well it's in addition to the house regardless if it's opened or closed, it's still an addition to the house. Alright, OK. MEMBER TORTORA: So it is setback 7 feet? Page 52 Hearing Transcripts January 21, 1999, Board of Appeals CHAIRMAN GOEHRINGER: It's the new setback 7 feet, OK. MR. TRENTACOSTE: Our goal is to break up the squareness of the house. It's a very old home. We just want to give it a more of a look than CHAIRMAN GOEHRINGER: OK. Mr. Dinizio any questions of this gentleman? MEMBER DINIZIO: No. CHAIRMAN GOEHRINGER: Ms. Collins, any additional questions? MEMBER COLLINS: No. CHAIRMAN GOEHRINGER: Mrs. Tortora, any additional questions? MEMBER TORTORA: Well then the variance you're seeking now would be 5 feet, roughly, is that correct? MR. TRENTACOSTE: I think it's, yeah. MEMBER TORTORA: You need 35 both yards. CHAIRMAN GOEHRINGER: Yes, he's got 13'1". MEMBER TORTORA: You would have 13 and 17. Just about a 5 foot variance. OK, thank you. MR. TRENTACOSTE: You're welcome. CHAIRMAN GOEHRINGER: Mr. Homing? MEMBER HORNING: No questions. CHAIRMAN GOEHRINGER: OK, thank you Sir. MR. TRENTACOSTE: Thank you. CHAIRMAN GOEHRINGER: Anybody in the audience like to speak in favor? Anybody against? Hearing no further comments I'll make a motion closing the hearing reserving decision until later. MEMBER TORTORA: Second. Motion carried. See Minutes for Resolution. Page 53 Hearing Transcripts January 21, 1999, Board of Appeals 8:55 P.M. Appl. 4609 MARY MURPHY This is a request for a variance, based upon the Building Inspector's August 14, 1998 Notice of Disapproval (for a Building Permit), Article XXIII, Section 100-239.4 for permission to locate new dwelling with a setback at less than 100 feet from the top of the bluff on Long Island Sound, at private right-of-way extended north of Bridge Lane, which parcel is known as 9206 Bridge Lane, Cutchogue, NY: Parcel 1000-73-2-3.3. CHAIRMAN GOEHRINGER: I have a copy of a survey from John C. Ehlers, indicating a proposed house, at its closet point of 42 feet to the top lip of the bluff and I have a copy of the Suffolk County Tax Map indicating this and surrounding properties in the area. Who is representing Mrs. Murphy? Mr. Lark how are you tonight? MR. LARK: Richard Lark, Main Road, Cutchogue, N.Y., on behalf of the applicant Mary Murphy. I have with me tonight also Mary's representative, Sonja Hagna. So, ff the Board has any questions after I make a few remarks by all means she's here to answer them. As you know this is an area variance request for a setback. The Code 100-239.4 requires 100 feet from the top of the bluff in the Zoning Code and the relief requested is to reduce that down to 42 feet as you see on the survey. The benefit following the statutory criteria under 267, an area variance the benefit to the applicant, Mary Murphy, by the Zoning Board feels granting the relief from the 100 foot setback as compared to any detriment to the health, safety and. welfare of the neighborhood and by denying this application is fairly clear. First I submit, there is no detriment to the community and I'll address that specifically in a moment by granting this variance request. On the other hand if it is denied, Ms. Murphy will not be able to construct a residence on her property at a11. The reason I say that, if you can just take the mean linear distance from the top of the bluff to the southerly property line. By that I mean the little portion of the property and scale it off you'll see that there's about 145 linear feet from the top of the bluff to the property line. So it's obvious to locate any type of residence on the property. Some sought of relief has to be granted. OK, a little bit of history that the Board might have but, I'll just put it in for edification some of the newer members. On October 2, 1987, Southold Town Planning Board granted a minor subdivision to the property of Mary Murphy and Robert Raeburn. It consisted of three parcels. This is parcel 3. To the west was parcel 2 and then parcel 1, was where Mary Murphy's house was at that time. The a, after that the Zoning Board of Appeals on December 5, 87, that same year and appeal number 3564 on the property immediately to the west of the subject premises here tonight is now owned by Mr. Malekan and the Board at that time granted that applicant which I believe was a Mr. Dempsey, a 44 foot setback from the top of the bluff. That's immediately adjacent. Lot number 2, which was granted a 40 foot setback is almost identical in size and shape. It is a little bit, it has a little more linear length from the southerly boundary due to Page 54 Hearing Transcripts January 21, 1999, Board of Appeals the a,. position of the Long Island high water mark on Long Island '.Sound and the right-of-way. They're not exactly parallel. So, as you move further west the property gets a little longer but the area is almost identical in that subdivision. And lot 1, which is a little bit larger lot, as I indicated the time subdivision approval was owned by Mary Murphy, that house situates as it is today. It is owned by Sharon Lee, 35 feet back from the top of the bluff. Now, the property immediately to the east of the property is owned by a lady by the name of Ms. Peacock and that is about one-third smaller than the subject parcel which is under consideration tonight and the house on that lot sits 28 feet from the bluff and the deck which is attached to the house sits 18.71 feet, 21 feet from the, 71 feet from the bluff. A little over 8, let's call it 19 feet from the bluff. So, you can see as I generally described, and with the tax map that you have and the survey that you have, that the size and the shape of the adjacent properties, this application in fairness should be granted because the applicant is seeking nothing more than what her neighbors already enjoy, and the reduced setback of the 100 foot requirement from the top of the bluff. Now, the Zoning Ordinance are the, excuse me, the Town Law 267.3 discusses certain specifics that have to, the criteria that should be considered by the Board and I submit it, I submit that these criteria this application does meet because it will not create an undesirable change in the character of the neighborhood because it's going to remain residential which is what it is today. It is submitted in order to get permission for a Building Permit, we are going to need the variance otherwise the Building Permit application has been denied which is the reason why we're before you. So, the lot in all other ways according from what I gathered from the Building Inspector would conform to the side yards and the front yards setbacks due to the existing other dwellings there. It was just the requirement that he requires that the ZBA Rule on the setback from the top of the bluff. I submit to you, that the request is not substantial because when you consider it under the regulation and the size and shape of this property as well as all of the adjacent properties. And as the Board knows to the west of the property of Sharon Lee which is lot 1, there are four additional parcels~ all of which, which was known to you euphemistically as the Baxter subdivision, all have setbacks less than 100 feet from the top of the bluff mainly because due to the size and shape of the property. And the land that is on the top of the bluff back to the southerly boundary, is sufficient as I indicate to construct a one family dwelling. Mr. Ehlers when he did the survey he thought that would be the most appropriate spot and I know after Sonja talked to the people soil, and the Health Department Soil & Water Conservation, they got approval as you see on that map to put their proposed well and their cesspool locations. Again, the problem is not self created by Ms. Murphy and even when she had the subdivision, the property dimensions have remained the same. That this had been created probably 60-70 years ago when the farmers in that case was the Joan family decided to sell off the front acreage on Long Island Sound and keep the back acreage for farming. So, that's something all the properties, not all, but a good number of the properties as the Board knows on Long Island Sound have the Page 55 Hearing Transcripts January 21, 1999, Board of Appeals problem with the high bluff and the limited depth in order to construct you know get a home on the property within the four corners of the property and try to maintain any assemblage, quote "front yard" if you would. So, that's basically it. The application is self-explanatory. I note, that some of the older Board Members are well familiar with the property having had prior applications before it at one time or another. So, if there's any questions t, if I can answer them or Mrs. Hagna will be here to answer them. CHAIRMAN GOEHRINGER: Is there any type of erosion control that Mrs. Murphys, Ms. Murphy is anticipating on this bluff? MR. LARK: I'll let Sonja. Do you want to answer that questions Sonja? The interesting thing is, that Sonja here has become somewhat of an expert on erosion on properties on Long Island Sound. Having been with this property whoever builds a house here I will say this in candor will probably put up a bulkhead first. The reason for that is the property immediately to the east created a bulkhead with the return directly as you see on that map into this property. Property number 2, does not have a bulkhead. But, property number I, on subdivision on lot number 1 does have a bulkhead and when you get the northeasters and in the second and third day, the normal deflection in the literal drift that you would get, is skewed because of the bulkheading and the pounding of it. And so somebody putting up that type of an investment I render to say, would in fact stabilize the toe by a bulkhead. In fact, it's been encouraged by the soil and water people. I have personal familiarity with that living not too far from here and in an environment that's just like this on the sound. And once you bulkhead one you have to bulkhead them all. Curiously enough and Mrs. Hagna will talk about it, the erosion has been minimal on this property at this particular time. That doesn't mean we went through one good hurricane or north east back to back with the bulkheads now in place that there couldn't be a problem. As you know, further to the west on the Baxter subdivision owned by Wexler and , a couple of other people, they bulkheaded most all their properties. So, it's like groins. Once you start one you've got to put them in. I know that's a long answer to your question, but I think that's what will be the stabilization ultimately when the house is erected will be a bulkhead. Sonja you want to? MS. HAGNA: I do. I think Mr. Lark has answered it perfectly. I was looking at this for about five years now. There is no question that the bulkhead to the right and to the west is frequently there is no (inaudible) necessary for a bulkhead or some sought of hard stabilization as this piece of property. Whether it should be a wooden bulkhead as there is to the east or whether it be more of a or something that sought it doesn't I also belief very, very emphatically that planting between and along the bluff, I think the Town Hall Board is on record is saying that you prefer a approach which the wave action is Mr. Lark started to indicate is so what protected by the sand bar and walks The wave action he has is 75 foot bluff area. You're going to get winds and rains, whatever. Planting is what's going to help that. Planting . Page 56 Hearing T scripts January 21, 1999, Board of Appeals the bluff. It's really the basis I think the fundamental things that has to be done there. CHAIRMAN GOEHRINGER: OK, thank you. Mr. Lark, my only concern is that of the possibility of granting a variance and having something significantly happen to the lip of this bluff which would a cause a future problem for the house. As you know I have had a relative that has have this happen to their house, OK. Is there any disclaimer that would release the town from liability that you could entertain for us if we were so inclined to grant a variance on this piece of property? MR. LARK: I would think on consent by the a landowner which when in effect if a Building Permit was granted it would be a disclaimer that can be because I know that should not become a burden to the municipality because someone wants to build right on the beach. I think there is some history to that over on Dune Road in the Westhampton area where they require that of homeowners to hold a municipality. Let them use your land but don't hold us accountable for it if the ravage of nature take it away on you. Yes, I think it can be done. I don't have a problem with it in other words. CHAIRMAN GOEHRINGER: OK, thank you. Any questions of either one? No, yes, OK, I'm sorry. MEMBER TORTORA: I'm very troubled by this application because many, many years having lived out here, I've seen a lot of erosion, the bluffs, and I can't speak for the enjoining properties that were granted variance or what not. But, I do know that I don't recall any situation in the last four years I've been on the board, that we've ever g~anted a 42 setback from the top of the bluff on that kind of relief. Particularly in view of soil and conservation's report. I think their report is, is, you know they're very strong. They say the property has problems. The edge of the bluff is unstable. There is no toe stabilization. The unvegetated area is at risk of erosion. You know I'm sure you've read the report. MR. LARK: Yes, I have. MEMBER TORTORA: It's not very favorable in terms of this piece of property. One of the things that they suggested, and you didn't address but I'll ask you to address is, why can't the house be close to the right-of-way? Why is that an impossibility? MR. LARK: Because the Zoning Board has always wanted to have some sought of a quote "front yard". In this neighborhood it is 60 feet and in effect by moving it back this length it would end up as 50 feet. If the Board wanted to make it a 50 foot setback but keep in mind, that within, literally within 50 feet of the property the Board, this Board has also granted a variance for. 40 feet. So, yeah, you could move it back. There's no requirement and then you just cut off your front yard even closer. That's fine. Page 57 Hearing Transcripts January 21, 1999, Board of Appeals MEMBER TORTORA: Well the front yard is not at risk of erosion. MR.. LARK: That's true. MEMBER TORTORA: The front yard is not at risk of serious damage in erosion. There is no parallel involved in that and you do have and it appears to me and from looking at the property you do have an alternative location that would not require the kind of variance that you're requesting. As far as the detriment to the community (changing tape) because in Southold Town we have seen firsthand houses with cracked foundation that had to be moved back. Not once, not twice, some as many as three times. That's why you know, in my mind the law there is very clear wise there and in this case the Soil and Water Conservation has said this is a hazards area. So, I would ask you to seriously consider locating the house as far away from that bluff as possible. I am receptive to looking at a front yard variance. I don't see any environmental damage. But, I do see potential with tremendous environmental damage based on Soil & Conservation's report. And, even with their suggestion in this report. The thing they say, "numerous attempts have been made by landowners to stabilize the slopes", and they give you a number of suggestions. The next line is, "only a few have succeeded." So, rather than go down that route, I would really for myself, I'm not speaking for the rest of the Board Members, I would really prefer to see this house come back from the bluff. My thoughts. CHAIRMAN GOEHRINGER: I have no objection. Mr. Homing? MEMBER HORNING: No questions. CHAIRMAN GOEHRINGER: Anybody else have any questions? No. MS. HAGNA: If I may. MR. LARK: Sure, go ahead. MS. HAGNA: I don't think, I wouldn't characterize. What the Soil & Conservation Department said is, an environmental hazard. They were asked to come out there because I asked them at one point and I met with the gentleman. What is needed there, is planting. That is perfectly obvious. The 43 foot, 42-43 feet is more than a sufficient setback for that particular area. The planting that has to be done will be done. That is more than enough to take care of that. That property has been there since 1925. The deeds going back, going back that far. It goes back to Mr. Parr who had the property in 1944. You can look at pictures, photographs I have them right here with me showing what the bluff looked like in 1960, 1965, 1978 and today. It is not that different. CHAIRMAN GOEHRINGER: You don't have surveys though do you? MS. HAGNA: Yes Sir. Page 58 Hearing Transcripts January 21, 1999, Board of Appeals CHAIRMAN GOEHRINGER: You do have survey? Would you submit those surveys to us? You don't have to right this minute. Please no, after this hearing, tomorrow. MS. HAGNA: What we have are surveys that Mr. VanTuyl gave us. CHAIRMAN GOEHRINGER: Yes, we'd like to see the distance, you know, what the erosion factor really has been over the period of time. I mean that's what our concern is. MRS. HAGNA: year, yes Sir. It's a minimal. About 2.86 inches per year. Per CHAIRMAN GOEHRINGER: OK. Anybody else? attorney or the real estate broker? Questions of the MEMBER DINIZIO: Well I recall the congregation like Lydia did. I know Westlers. They had trouble with the right-of-way there. They stabilized that very well to the point where, I mean I know they spent a lot of money on it, but, I don't see where it's an impossibility to do that and most of it. I mean they did put a bulkhead but they planted a lot. And I, you know, I'd like to recall I believe they lost about 10 feet of that bulk before they did that. And they got the 10 feet back. I think you can stabilize that bluff. I don't think it's a problem. MS. HAGNA: Of course we can. CHAIRMAN GOEHRINGER: It depends upon the money that's all. MEMBER DINIZIO: Yes. it? How much money do you want to spend on MR. LARK: It's, it's a financial and that's why I said, I think anybody building that type of, paying that much fair market value for the lot and putting up a house there of any consequence is going to spend the money because it's foolish not to, because the other people have and as he said, and she said, it has been fairly stabilized if you take the right measurement to do it, which is a functional CHAIRMAN GOEHRINGER: else like to speak in favor. Tohill, good evening Sir. OK, thank you we'll go on. Anybody Anybody like to speak against? Mr. MR. TOHILL: Good evening Mr. Chairman, Members of the Board. My name is Anthony Tohill. I'm an attorney, my office is at 12 First Street, in Riverhead and I represent the indigenous easterly neighbor Mary Peacock. So, for those of you who have been to that site and I suspect that all of you have, we would be the house at the end of the dirt road, just passed this parcel. CHAIRMAN GOEHRINGER: It use to belong to Becky Johnson. Page 59 Hearing Transcripts January 21, 1999, Board of Appeals MR. TOHILL: That's right. Before that as the young lady indicated, my other clients now dead, the Paars, and so I have some familiarity with that property going back actually to when I was actually being born. So, we're not going to get into that. CHAIRMAN GOEHRINGER: That was a long time ago. MR. TOHILL: We're not getting into that. along at this point. I'm going to move right CHAIRMAN GOEHRINGER: Excuse me, I'm sorry Mr. Tohill knowing that you and I are about the same age. MR. TOHILL: I'm very sensitive of that. What I'd like to do tonight instead of going on here for about 40 minutes in my normal characteristic style I'm going to with your permission, introduce a professional engineer with coastal expertise, represents a number of municipalities, has examined this site, is familiar with the site and is particularly familiar with the engineering technology that is really before the Board here tonight. His name is Steve Maresca. He will first speak and then at the conclusion of his oral presentation with your permission, I will hand up an affidavit that summarizes we hope in very clear terms everything that he is saying so that the Board has an opportunity after tonight to see exactly what it is that's going on on that site. It's a lot more complicated than the applicant, the applicant's representatives just indicated to the Board. So, with your permission I'll introduce Steve Maresca. At this time, the CD by the way is attached to the affidavit when we hand it up. He's been a, he's been a, any number of occasions an expert witness in this area in Spring Port, State of New York and he regulates views before other Zoning Planning Boards that represents - CHAIRMAN GOEHRINGER: We're just going to swear him in. MR. TOHILL: OK, I'll get out of the way. MR. MARESCA: Good evening. CHAIRMAN GOEHRINGER: Mr. Maresca do you solemnly swear the information you're about to give us is the truth to the best of your knowledge? MR. MARESCA: I do. CHAIRMAN GOEHRINGER: Thank you. State your name? MR. MARESCA: Yeah. My name is Steve Maresea. I'm called Maresca Associates. 188 West Montauk Highway, Hampton Bays. What I'd like to do tonight is to discuss several factors related to the development on this property, existing conditions that we have, basically talk about stability and then talk about what I would suggest could happen in the future. I was at the site yesterday. Page 60 Hearing Transcripts January 21, 1999, Board of Appeals I've taken some photos and if I may, I've made several sets. like to be able to show them to the Board. I'd CHAIRMAN GOEHRINGER: Please. Thank you. MR. MARESCA: If you take a look at the photo number 1 that we have, shows a photo from the top of the slope. CHAIRMAN GOEHRINGER: OK. MR. MARESCA: This gives you a general idea how steep the slope is at this point. You can note that it's actually a vertical face, if ~ot, actually concave on some areas going down 8 to 10 foot of the slope. CHAIRMAN GOEHRINGER: We need you a little louder. MR. MARESCA: The slope is up to elevation 77. After the 10 foot the slope continues down to the beach where it has no protection of the vertical slope. And, if you see along the slope it's those roots and the sand down below. Photo number 2, is a photo of the Murphy property, but, looking more towards the east and you can see an arrow that I've pointed out where you actually have a fail slope. This one was more of a catastrophic failure. Something we hope don't happen, but, it could possibly happen in this area. You can see how vertical the slope lies on the side of that. It's rather small in the photo but, you can see it. Photo number 3, is looking down on the MUrphy property. Towards the middle of the photo you can see the end of the bulkhead we have. The bulkhead is on the Peacock property to the east of the southerly property we have. You can see how the soil has eroded passed that bulkhead? CHAIRMAN GOEHRINGER: Hm, bm. MR. MARESCA: And the soil is also eroded on the Peacock property itself. What essentially happens, is the vertical slope recedes and goes behind the bulkhead upon the back system. But then you have failure the bulkhead itself as well as the slope above. In this photo too, you can see towards the left hand side sanded that has recently been deposited at the slope. We're able to see many ravines, many crevices in the soft, and sand down at the bottom. In fact, it has not even been affected by high tides or has not been flatten toward beach yet. I would think this erosion is very recent. It may be as recent as the rains we had last week. On photo number 4, I'm looking from the Peacock property over to the Murphy property you can see how vertical that slope is. What's also important, you're able to note open crevices in the sand down below that. What this shows me is active failures in the slope. The next photo actually has a little better view of this open crevices. This indicates movement most recently in the slope. In photo number 6, it's more of a view from the Peacock residence overlooking the Murphy property. You can see the amount of vegetation that was on the Peacock residence and then a photo lack of vegetation on Page 61 Hearing Transcripts January 21, 1999, Board of Appeals the Murphy residence on the property I should say. This indicates to me, that this erosion is active. Notably, landscape that the would survive. It would get if the slope was stable, you would be getting some sought of vegetation taking hold and trying to grow in the area. Any areas of this particular slope is pure sand. That would indicate to me that it is an active bluff that we have here. Photo number 7, is essentially the same thing. Now, we're not really going to talk that much about the exact analysis of a slope. You don't have the information necessary. But, I think many of the things said already by people are the major items affecting a slope. The angle of inclination on the slope. Basically sand likes the seepage of sought of angle called angle because I believe that this existing slope is steeper than the natural angle that was proposed, the sand being held together by a different type of soil in the soil. It's able to stay up on an all but steeper slope. The top of the soil is actually vertical because that top soil vertical because it can hold together for a certain length of time, but, it's not Other problems, water vibration. Watering coming through a ground water seeking its way to a sound and also a void that may be going over the top of the slope or the terrain coming down the slope. Well we certainly can see from the photos that we do have a lot of erosion due to the rain. You can see the , you can see the crevices. Vegetation on the slope. Well there is none. Certainly it's the right to go is to vegetate. Any sought of super impose loads on top of the If we built a building right on that top right next to the bluff, ~ertainly we agree that it would push that bluff right down. So, at what point is it, that it doesn't effect it? Well, the thought about it can that up. The slope is 77 foot high. 40 foot is not that much to go back. We also have vibration. Any vibration, earthquake. Certainly we can knock the slope down. Machinery on top. Digging excavation, storing of top soil next to the bluff. It's certainly going to effect the bluff. I don't think there's any doubt about that. This particular bluff exhibits all of the four characteristic's that you look at this development. Now, as far as the future, I would certainly think that this bluff will continue to erode if left alone. Bluff vegetation, extreme angle soil, active water runoff and more importantly no bulkhead to effect the of this soil. I think that the erosion will spread to the west and to the east effecting the neighbors if this is not taken care of. I think that the erosion will effectively by-pass the Peacock and cause damage. It was mentioned how close their house is. Well unfortunately that's true and I guess that's more of a concern for Mrs. Peacock at this point. It is how will it affect the house? They're going through the expense of putting the bulkhead in. They also went through the expense of terracing putting small bulkheads down the slope trying to stop and try to stabilize this soil, if vegetation should take hold. This erosion will certainly increase in any activity upon the Murphy property. I think there are several steps you can take as we've mentioned already of bulkhead is probably the most important. Installation of vegetation is important but, the slope can be somewhat stable to begin with before you can plant vegetation. That would mean adding fill to the bottom and try to increase the amount of angle or, knocking off the Page 62 Hearing Transcripts January 21, 1999, Board of Appeals top of the bluff bringing the total bluff further back to increase the angle. Once you do that, then you can vegetate. It helps to increase the strength of the surface of the slope. I also suggest in fact, that certain amounts of activity can be curtailed with the top of the slope. Not allowing grass right to the top of the slope. Natural vegetation is probably better. You want to try and do as much as possible to stop any runoff off the top of the slope. I think that would basically say what my feelings on that and if anyone has any questions. CHAIRMAN GOEHRINGER: I know this piece of property very well and I think you've answered my questions. Let's start with Mr. Dinizio. Any questions? MEMBER DINIZIO: So you say that it can be stabilized? MR. MARESCA: Oh, it certainly can. MEMBER DINIZIO: And the neighbors have put what, some type of in their bluff? MR. MARESCA: Oh, what they've done is this, you know have taken 2 x 4, and 2 x 10, running parallel. You know two on top of the slope, put tape in front of them and doing that at numerous locations down the slope in hopes to stop any water from and to avoid the soil and effectiveness. It also helps the vegetation to regain root. MEMBER DINIZIO: I got to say, you know, just in difference, I mean there three lots down, there's a right-of-way, and you know, just the opposite really I think, what was happening was that the owner did not want to maintain his part of the property and like I said, if the landowner lost a good portion of his property down the hill because their person was not responsible not to fill the 25 or 30 foot bulkhead and the builder's obligation is that the bulkhead would be the most important I'd like to know that, if that's - MR. MARESCA: I would think that in fact, the bulkhead is very important along with the vegetation. To do the vegetation you would have to somewhat stabilize that slope meaning that the bluff would be further back than it is in the survey than it is right now. The proposed house would be in fact closer to the property line than it is fully indicated. MEMBER DINIZIO: Then knocking the top down, I mean, what percentage of that would go? MR. MARESCA: Well personally I would rather add fill to the bottom and try to build up the base on the bluff rather than try knock off the top and try to leave the top alone as much as possible. MEMBER DINIZIO: Right. Page 63 Hearing Transcripts January 21, 1999, Board of Appeals MR. MARESCA: It is certain it will collapse on its own eventually to a certain point. MEMBER DINIZIO: Thank you. CHAIRMAN GOEHRINGER: Ms. Collins? MEMBER COLLINS: No, I don't think I have any questions. CHAIRMAN GOERHINGER: Mrs. Tortora? MEMBER TORTORA: No. CHAIRMAN GOEHRINGER: Mr. Homing? MEMBER HORNING: No questions. CHAIRMAN GOEHRINGER: Thank you very much Sir. MR. TOHILL: At this point I would like to hand up Mr. Maresca's affidavit and at the same time I'm going to hand up copy of the Coastal Erosion Hazard Act Map, which I picked up downstairs and I called Mr. McMann's office. I'm not sure if we're using that as his office but that's where I always go to get it. CHAIRMAN GOEHRINGER: I'm not really sure where he is. MR. TOHILL: 'The map is always there, right. (laughter) CHAIRMAN GOEHRINGER: Kidding of course. MR. TOHILL: I would like the record to reflect that I'm handing to Mr. Lark, this time, a copy of each of the documents that I just handed up. The reason specifically that I handed up the Coastal Erosion Hazard Act Map as difficult as it is to read, is that if you take the north parallel and head toward the sound you'll go right through the Peacock residence and if you have the eyes of an 18 year old superman, you will see, that the black coastal erosion hazard line is against the north east corner seaward side of that house. Now, that's not shown on the Ehler's survey. But, I want to go back to the question that the Chairman addressed of disclaimer to Dick Lark before because that hits the nail squarely on the head. Couldn't of done better hitting it on the head. The natural effect according to Steve Maresca's affidavit of the failure of this bluff is that the erosion landward will meet or correspond with the coastal erosion hazard line which is to say, that the back yard of the Peacock residence will do what so many of the back yards from Dolphin Way back in Riverhead 20 years ago when a fellow Mr. Schafman, a School Administrator was shaving one morning and noticed that his view of Connecticut was clearer than he had seen the day before. Realizing, that the back yard had slipped into the sea overnight. Of course, what happened in the outcome, there was that a house had just been built, guess what? Immediately contiguous in west and it was a change in the dynamics of the Page 64 Hearing Transcripts January 21, 1999, Board of Appeals shoreline that caused that to happen. We had another one where Sealick Real Estate was attempting to sell to clients of mine, in Mattituck, up on the sound only within months a beautiful house which I was asked to go and see in September and went I got to the portion of the view platform, that one would see on the Peacock property and you're all invited to go up there and catch this, the sense that I'm trying to describe and one look immediately to the west. This is just down the road in Mattituck. Their scallop help was the concave top of the slope where as a result my clients from New York brought in an engineer from New York and he explained to them, that that slope will find its natural angle of repose, that there's nothing that can be done to prevent it other than to start at the bottom and then come back to the top. But, even starting at the bottom, the shore line erosion bulkhead, the control bulkhead, it will achieve its natural angle of repose. It's simply mother nature at work and when it does that it will cut east and it will cut west and if one goes to look at the Murphy parcel tomorrow, you will notice something. That soil and conservation report say that the top of the slope is vertical. Try vertical. Have your dictionary in your left hand. Walk over to the west edge of the Murphy parcel. In fact, keep walking west of the Murphy parcel onto the vacant parcel and you'll notice vertical is not vertical it's virtually concave and that's happen within recent weeks. So, when the young lady indicated that this is a slow process and it will be there after we're all gone. In fact, the erosion on this property is happening right now. It's substantial, the site is that halt, it's about to fail. The horizontal lines that are described in Mr. Maresca's affidavit combined with the vertical rills so that if you look at the top, you'll see horizontal lines from side to side. Cracks in the soil. If you then look again, you'll see rills of vertical sweeps where the water is running now. What that's showing, is that the whole bluff is heaving. It's about to give and of course as one then introduces construction or any kind of activity, much less stock piling of materials, stock piling of soil, excavating the foundation, bringing in the truckloads of equipment and the material to build the house. Why that, imagine last Monday afternoon's five o'clock rain, with all of that kind of activity happening on top of the bluff and you understand that that bluff is going ~[o fall and as it falls it will go east and west and if Mr. Dick Paar is correct and I think he is, that the Peacock house, they're there since the second World War, then the Paar residence is 19 feet off the edge of that bluff on the north east corner. There's no forgiveness. There's no tolerance. It's a going then Sherman's specific question on disclaimer, how would one get a disclaimer from the adjacent neighbor from the west whoever that is and whose already impacted it and the adjacent neighbor to the east?, that's my client, they're not going to offer disclaimers. In fact, Mrs. Peacock is a typical property owner, a typical client that you would have in your office if you did what I do for a living. Since she retained me last Friday afternoon at 4:00 o'clock she has asked me what is the liability of the town if they were to grant this application? If Mr. Maresca is correct and that top of the slope fails, are they liable, having been put on notice, in writing, in an official hearing? Pubic setting, that there is this risk, are they Page 65 Hearing Transcripts January 21, 1999, Board of Appeals liable? And the answer of course, everybody knows in America today and for a long time has been the municipality always has the deepest pockets. If in fact, if you think about it, the party who would be offering you the disclaimer won't even be there. Look at what I hand up to you now. Here is a Real Estate Broker's sale sheet for this property. Notice what this document says. First of all, this property is for sale. Second the sale price is not anything I'd be embarrassed to report to my accountant. That's a significant sale price for a postage stamp parcel such as we have in terms of the upland. The third thing is that, my gosh you have already granted the variance down to 40 feet. Look at that, it's already been granted in the write-up. This is a document in public circulation. Taken for granted? Whose the victim of this? Mrs. Murphy? Is Mrs. Murphy going to be there to respond disclaimer or not? The property is being sold. Mrs. Murphy won't be there at all. However the Town of Southold is not planning to leave and the flag will continue to fly in front of the building and the pockets will continue to be deep and all of us will scratch our heads and say, "gee wiz, different people said that night that this was a problem but, the applicant gee wiz, the applicant said, it's not a problem at a11." I think, all of us in town, have an obligation to make sure that the victim who some poor sole probably a lawyer god for bid, in New York City, whose going to take his IRA or his KEO, 401K, and he's going to look at, what did they say? Rare sites of the sound? And, he's going to say, "Dear, this is it, this is where I want to come to die", little understanding, that that depth may be abbreviated period of time after he wakes up and finds out that his house is closer to Connecticut and may even need a new zip code by weekend. The bottom line is, that the victim is a member of the public and the only people that this Board, actually on this particular application is here to serve, is that unknown person in the public and by the way, I think it's fair to say, that this Board should serve to protect the town. And, as tax payers I don't think it has any obligation to provide economic windfall to Mrs. Murphy under any circumstances here. CHAIRMAN GOEHRINGER: Mr. Tohill? MR. TOHILL: Yes. CHAIRMAN GOEHRINGER: I have to tell you, that one of the concerns a, the disclaimer of course is, an issue we have been thinking about for quite a bit of time. However, the ultimate concern of this particular piece of property is, and the area that you were just describing when you described the rain of last week and of course the rain that we're going to have this week, so on and so forth, was one of concern to me when the Board went out and did their initial inspection, cause I usually do the pre-inspection on most of the property and I had an ultimate concern with the Board Members walking out to the lip of that bluff. Basically with that erosion factor which the bluff appears to be longer than it real, the lip of the bluff appears to be longer than what it really is, because what it is now, is a para? sought of speak, OK. Page 66 Hearing Transcripts January 21, 1999, Board of Appeals MR. TOHILL: Yes, right. CHAIRMAN GOEHRINGER: And so I do. I am definitely you know within great thoughts of what you are saying. However, had do you protect the town, OK?, and how do you protect individual property owners' rights? And that's the issue that's before us. MR. TOHILL: It's a very fair question, and that's the one I want to address. If we do it as a variance application tonight, and we understand this is 1999, not 1987 when the Dempsey application which was pointed up to you, as the , the binding precedent I mean. In 1993, half way back toward 1987, the State Legislature changed the law here in Southold. Changed it State Wide and it said, the old practical difficulty test doesn't apply anymore. We invented a new test. The only test that's going to apply after this and after that in a case called Sassa v. Osburb, just like if I a Court of Appeals coming up out of Rochester, they said, don't continue to use the practical difficulty test. If this were a practical difficulty test, and a law student were asked to render a opinion, on an exam, he would have to say, that the Board would have to grant relief for the exact reasons that Dick Lark mentioned before. If the front to the back of the lot is 145 feet and they're required to maintain 100 foot setback, then they're going to need a variance either to the front yard requirement or to 100 foot setback. That's pure practical difficulty. They will get some kind of relief. Now, the next point is a little bit more suttle. Do they get under under the old practical difficulty test reduction from 100 feet to 42 feet? And, the answer is absolutely no. They wouldn't get that if they were as Ms. Tortora indicated in lesser variance that could be granted, because even then, back under the old standards, if it were the least variance necessary, that was the direction that the Board would have to go. If it was the most variance, then that wasn't the direction the Board had to buy into. So, lets do it where we take the 1993 standards and see where we end up because I think we're going to end up where the individual property owner's rights are going to be protected. But, the difference between the old rule and the present rule, is that in addition, the neighborhoods' rights are going to be protected. We never had that concept prior to 1993 and among the people in the neighborhood, is Mary Peacock whom I represent. So here we go, the first standard under 267-B is whether an undesirable change will produce or detriment to nearby properties created by the granting of the variance. In my career over the past six years since 1993, I have never been before a Board on either side, and I do this three plus nights a week, where that standard has been dramatically exposed, rubbed , in front of the Board. If this application is granted as is requested, then the present record says, that that slope will fail, that the fail will extend eastward and westward as a result of which the granting of this variance will cause a detriment to nearby properties. A classic example. So now we have one standard away and you have to say on the applicant side, it's not a plus in terms of result. Second, whether the benefit can be achieved by some method feasible for the applicant to pursue other than the variance. That's Mrs. Tortora's question. What says Page 67 Hearing Transcripts January 21, 1999, Board of Appeals under the laws of either God or man, one can't move landward on this property? Absolutely, one can move landward. And, in fact, if you say one should move landward you can also say, and you'll only move landward as you did in Dempsey by the way, if you build the following shore line erosion control system, starting with the bulkhead and working your way up following the kind of material that Mr. Maresca has provided you. So, here we are second standard. That's not a plus for the applicant objectively stated or at least on an academic basis and we'll keep it that level. The third is the area variance substantial? Mr. Lark said no, but my math starting with my seventh grade parochial school background is that 42 to 100. That's substantial, folks, that's more than 50%. That's in fact more than 100% because 42 is tess than half of 100 and so that's not good for the applicant either. So now they're down 3 out of 5. The fourth is whether the proposed variance will have an adverse impact on the physical conditions of the neighborhood. I don't need to count that one. It's obviously going to create problems. Now we're 4 out of 4. We don't have to reach the fifth because as you know because it's not a turning tradition to self creating difficulty. On this test, which is now a balancing test and I'm coming right back to your question, that individual property owner has the right in my opinion, and we're not taking any position differently tonight, to build a residence, but the residence should be landward where they're proposing and should not place the neighbors at risk including my client. It should be a small house and if possible, in my opinion, you should condition, you should condition the grant of any variance on either a conservation easement, or a scenic easement, the entire seaward portion of the property, from the back of the house seaward, so that there is no disturbance, so that's not an area where one would congregate. Now if somebody is coming like the proverbial lawyer that I described before to empty out his 401K, he's going to want to have the major share of life's activity on the seaward side of that house. It means then that instead of building a house as big as this, 40 feet by 60 feet, one could build a smaller house and have a deck on the seaward side and then limit the pedestrian activity to the top of the deck so then the bluff is not pushed around so that they can have exactly what they're proposing but not at the risk of neighbors and not in defiance of the five standards or the four first listed standards. And the reason is, this is not Dempsey, this is none of the other houses, you never granted a variance since 1993 along the entire bluff line of the town along the entire length of Long Island Sound of this dimension and I don't think you ever will. I really can't imagine circumstances where these particular facts would ever grant a variance. This is not a hard case that's going to make a bad loss. They can move landward even the way you advertise it. It permits you to move the landward. In fact, you did exactly that. You did that in Dempsey. There was an application for certain level of a variance. You denied that and you granted a lesser variance even with the old practical standards. So I don't think Dempsey is authority for anything. I think the most important thing, is what one or two of you have said here already tonight. 239.4 says 100 feet. Somewhere in this items one said 50 but I could be wrong. It's been here a long time, his wisdom to Page 68 Hearing Transcripts January 21, 1999, Board of Appeals it. The wisdom benefits Mrs. Murphy would have liked. It's mostly intended that would be victim, the purchaser of that property. It clearly benefits my client and it clearly benefits the town. So, I say, start with the 100 feet and then see how little of that can be eroded. Nobody can object if the house is pushed up by that dirt road. They're not affecting anybody. They're looking out on an X number of acre farm field. There's nobody there, and I can't imagine that anybody would object in my mind, but that would be a part of the results, OK. Thank you everybody for listening to me. CHAIRMAN GOEHRINGER: Any questions of Mr. Tohill before he leaves? Seeing no hands, thank you Mr. Tohill. MR. LARK: I would just like to add a comment. I know I didn't want to but. I don't really know what he's asking because according to his so-called expert if we do nothing, loom and doom is going to happen to his property, yet, the facts of the matter are since 1987 they doubled, tripled the size of that house. Mr. Paar had it, it was just a little bungalow and they've added steps going down to the beach and everything else. If we do something, we're going to bring destruction and yet if we don't do anything we're going to be destruction. And again, I have to note, that I do admire his hutzba? because his client has encroached on this property. No-one is there. Ms. Murphy lives in the City. CHAIRMAN GOEHRINGER: What is that encroachment? MR. LARK: That's an encroachment created by Ms. Peacock so that she could have a garden on our property. CHAIRMAN GOEHRINGER: Are they hay bales, what are they? MR. LARK: No, it's a regular, go there and take a look. It's got arborvitaes and all kind of perennial flowers and all kinds of nice things. They just trespassed on the property. I do admire them and I don't really know what they want? Because, if we don't do anything according to them, loon and doom is going to have to loom. If we do something and the property is successfully sold which it is not, and an applicant can build a home, he's going to do all of those things because obviously he wants to protect his own investment, not necessarily as well as anybody that's next door to him. So I don't quite get it. MR. TOHILL: You mean it's puzzling? MR. LARK: Yes, what are you going to do about the encroachment? MR. TOHILL: We haven't thought about that. MR. LARK: What are you going to do about the steps? MR. TOHILL: Ms. Peacock did not plant any hedges. She hasn't planted anything. She didn't build anything. She hasn't built any stairs. Mrs. Peacock bought the property from Becky Johnson who Page 69 Hearing Transcripts January 21, 1999, Board of Appeals did all of that after Mrs. Paar died. I have something in the area is that because I was involved with the attorney for the Paars. Ms. Peacock bought the property two years ago, or a year and a half ago and has lived there and I think she has replaced some sliding around one window because they've changed the window. But, you'll see as you pull into the driveway it's right in front of you you'll see the difference in the sliding. When Ms. Murphy discovered that Ms. Paar I believe, Ms. Paar had planted, the hedges where they were, she received an agreement in the mail from Mr. Lark asking her to waive her rights to adverse possession. She consulted with an attorney and she signed it and it was sent back to Mr. Lark and I don't think that that's hutzba. So far I don't think I've said anything that's hutzba, at least not where t live. Now, the loom and doom part, what are we going to do? What do you want? I didn't think that was unfair, but let me restate it again so that Mr. Lark has trouble following it, he'll follow it now. This parcel is different from other parcels that you normally deal with. This parcel is different from other parcels along the Long Island Sound. This parcel is about to suffer a big failure. That's what Mr. Maresca is saying. The failure is so great that the near introduction of bulkhead will not cure the top of the slope moving landward. In his affidavit he indicates that that could be 15 to 20 feet. It will happen naturally. If one ant introduces the activity incident to the construction of a house, it will cause it to happen more quickly and more certainly and more dramatically. None of us has to have anything more than a college course in geology to understand that. It just makes practical sense if anybody goes up and looks at the property one would see it instantly. That's what we've been trying to say. I don't think there's anything wrong with bringing that to the Board's attention. In fact, I think it's applicatory of anybody stating that this might be wrong to say ihat to you. To tell you that if that's what the professional opinion of that person licensed by the State of New York obtained in that area is CHAIRMAN GOEHRINGER: Could I just have one quick question I'd like to ask Mr. Maresca? Could I just ask you one quick question? In your expertise do you feel that any specific type of foundation would be less impacted on the bluff? And, let me just preface this by saying to you, that we had been at one time minorally swamped with a construction of swimming pools on the bluff. And we even gone as far as had the weight of the compacted soil weighed, OK, to see if that was heavier than the water that existed or was going to exist in the swimming pool along with the cement for the gunite. You know, that surrounds or holds the water. These were not minor pools. These were gunite, black pools or just gunite free flow pools. But, going back to my question, is there any type of foundation that would give you less impact in reference to causing a greater hazard? I mean certainly you wouldn't want to drive pilings because that may be the greatest hazard of all. MR. MARESCA: Yeah that's correct. I was going to say if the piling was circular first I couldn't imagine requiring pilings on a Page 70 Hearing Transcripts January 21, 1999, Board of Appeals house like this. A normal poured concrete foundation would be no worse than the - CHAIRMAN GOEHRINGER: A block. MR. MARESCA: Than any block foundation. CHAIRMAN GOEHRINGER: OK, thank you. Hearing no further comment I'll make a motion, yes? MEMBER TORTORA: How far the a, what's the distance to the right-of-way between the front of the house that's the nearest, the closest is 50? Is that right? CHAIRMAN GOEHRINGER: It looks like it's 50 on the corner. MR. LARK: I don't understand your question? CHAIRMAN GOEHRINGER: What's the setback from the front yard - MEMBER LARK: What's the front yard setback, the proposed front yard setback? MR. LARK: As it is here, 50 feet. He's got that on there. quite light, but it is there. It's MEMBER TORTORA: alternative relief? The other question is would you consider MR. LARK: mind? That's an openhanded question. What do you have in MEMBER TORTORA: It's a question we generally ask. people say yes, sometimes they say no. Sometimes MR. LARK: Well what do you have in mind? CHAIRMAN GOEHRINGER: Well she's talking about a reduced front yard setback. I'm not reading her mind but, I think that's what she's talking about. MR. LARK: Oh, I indicated that before. This was what the surveyor had thought a, taking the coastal what Mr. Tohill talked about, the erosion line end and the fact that the existing setbacks of the other house, the other houses along there as well as what the Board had granted as a variance. That's what he come up with. Yeah, you want to go back another l0 feet or so, whatever is reasonable, but, you have to keep in mind that Ms. Hagna told me that you wanted to be able to make sure that you could have a driveway that you can turnaround on the southerly end and that's why you see that driveway, you know, that circular driveway Situation there. So you did not want vehicles as has been indicated here going up in forward of the house so you know, any type of that activity. That's the reason that Mr. Ehlers settled on 50 Page 71 Hearing Transcripts January 21, 1999, Board of Appeals feet. But 40 feet would do it, or 36 feet, whatever it is, that's fine because it really doesn't impact anything that way. CHAIRMAN GOEHRINGER: OK, and also you're welcome to pass those out, but I just want to make a statement. I'm going to request to the Board that we physically close the hearing tonight as per verbatim, OK, but I do want to physically close it on February 23rd because I want to go out and reinspect it based upon all of the data that we have received. And, if we have anything you know, that occurs that's of great concern to us, you know we reserve the right to reopen and we'll let you know if we reopen it. I mean we will be here, there will be known it will be a performer act. I make a motion closing the hearing on February 23rd and that's it, OK. But, if something should change we'll contact both attorneys. MS. HAGNA: The a, this is from Jay Tanski, I'm sorry Jay Tanski of the New York Sea Grant Extension Program, extremely helpful, but, as the gentleman says in the first paragraph there. Erosion is a complex and not even by anyone in spite the gentleman here, well understood by anybody, very complicated. I think that Mrs. Peacock when she thought of purchasing the property that she, her deck is about 18 feet from the bluff and her house is about 28 feet from the bluff. I am talking about a 43 foot setback. That is considerably more than what she had asked. There is some just for believing that the bulkhead that she has put in is contributing to the erosion. I think you run into that both on the north and south shores. So, I really think there's tremendous room for argument in this case and I think I'm sorry to say I think Mrs. Peacock should of consider moving the cottage back before she started to build up. Thank you very much. CHAIRMAN GOEHRINGER: Thank you. Again hearing no further comment I'll make a motion closing the hearing as verbatim tonight and closing it totally on February 23rd. I offer that as a resolution ladies and gentlemen. MEMBER COLLINS: Second. Motion carried. See Minutes for Resolution. Page 7,~ Hearing Transcripts January 21, 1999, Board of Appeals 10:00 P.M. Appl. No. 4633 - WILLAIM & ROSE MAURY This is a request for a Variance under Article IIIA, Section 100-30A.3 and Article XXIV, Section 100-244B, based upon the Building Inspector's September 18, 1998 Notice of Disapproval for a Building Permit to construct additions and accessory shed, with a total building area at 20% over the code limitation. An alternative plan for a smaller deck was submitted by applicants as a follow-up to the December 10, 1998 hearing and discussions. Location of Property 3145 Minnehaha Boulevard, Southold, NY.; Parcel 1000-87-.3-35. CHAIRMAN GOEHRINGER: This is a recessed hearing and we did receive your letter. I did go back and reinspect the site last Saturday. I was standing on the rear of your property looking at your addition you're requesting and is there anything you'd like to say? Sorry to hold you up so late. MRS. MAURY: It quite alright. Like I say, that a tough act to follow. First I'd like to turn in these cards and mention for the record that there is one that was not returned. I tried checking with the post office for all intensive purposes it was lost. It's the people that are across the street on the water, so we'll send out another one I guess. We received our revision and after discussion with Evelyn, we are I think except for these returns we had to leave, we were asked to go back and reconsider and repropose the scale down. So what we've done is, ask if you'll consider a deck that would be 12 x 12 feet, it would be only 144 sq. ft. verses the prior proposed deck which is an excess of 600 sq. ft. and that would reduce the lot coverage that we originally asked before by over 500 sq. ft. and that scales back the total lot variance to 25%. And, you also personally Mr. Goehringer, had recommended that we give a call to our neighbor and discuss their letter and their concern of privacy issue and maybe offer putting in hedges or discuss with them what their issue was. So the Saturday after we visited the 12th of December. My husband called and spoke to Mrs. Tisbo in great length and her primary issue was privacy and we explained that our view instead of using the side area outside of our kitchen that now it's gets on the concrete patio and by enclosing it (tape inaudible) would offer more privacy to the both of us and we also offer that we'd put in some type of greenery all the way down the property line up to you know to the garage or something, and she said that she would discuss it with the family and get back to us. Well that was the and that hadn't happen. We are aware because someone was nice enough to get in touch with us the day before yesterday, that they sent another letter to you. But, this time it doesn't mention privacy at all. It mentions that what we're asking for in terms of a side yard variance is going to detrimentally effect the neighborhood and the market value of their property which since we didn't make any plan changes other than offer to landscape the property, I guess I'm really am at a loss to - Page 73 Hearing Transcripts January 21, 1999, Board of Appeals CHAIRMAN GOEHRINGER: What to do. MRS. MAURY: Not so much what to do, but actually to understand. MR. MAURY: How it's detrimental to the actual property value and the community. MRS. MAURY: We've been homeowners and we've lived with homes that our parents were home owners of. I guess it's just generally felt that people that live next door to you or across the street from you, might negatively effect your market value if they do something like let their house fall under disrepair, or let the lawn overgrow to your sides, or you know stuff like that. MR. MAURY: Paint it odd colors. MRS. MAURY: Dump garbage, or you know, paint it neon. I guess when you do almost all of those things and not ask for a Building Permit or ask for a variance and detrimentally effect the neighborhood and other neighbors. And I'm just trying to square off the footprint of the house and come within 11 feet on one side of our property. I just, I don't really understand how they could make a bold statement like that, that it would maybe affect the market value of their property. However, Mrs. Tisbo did mention, that they were considering selling their property in a year or two. There's the possibility that a family member might be interested in buying it. I don't know it's, you know, whether that's important or not, I don't know. But, I would like to for the record state that before we went to get a Building Permit at all, we spoke in our driveways between the two homes with Mr. Tisbo and explained precisely dimensionally, not with plans because we didn't have them yet, you know, what we were planning to do and everything was fine, you know, borrowing one here, borrowing a cup of sugar there and this has really taken us by surprise. MR. MAURY: Then we went ahead and incurred the cost of going to the plan and considering the plan to be processed. One other thing I would like to let you be aware of is, in effort to explore a reduction of whose houses something like that, that might have an economic effect. The cost of doing something creative to give it an angle or something like that. It's knowledge that it esthetically be displeasing to us it was too costly in terms of putting a square room now. MRS. MAURY: A rectangle. MR. MAURY: And if you went still a little far back the question that came back the fact of what difference does it make from a privacy issue or from a value issue to come out a little bit, or you know, a little bit further? Again, just a question that we have, and especially having seen the property again, I think perhaps it's not that odd a question to understand whatever that is. Page 7~ Hearing Transcripts January 21, 1999, Board of Appeals MRS. MAURY: We would really like to enclose the space and of course if we do it without a variance it would be a small space but it would also be at an angie, it would be a triangle going from 15 feet down .to 11 feet. So now we have a very odd-shaped house and then we have something that was possibly less marketable to any future buyer because no-one is going to want something that it is not as aesthetically pleasing or dimensionally eorrect. We have a flat wall to put a piece of furniture or a chair. I don't know how much an opinion of your forever detrimental value of our property. I don't know how far that - CHAIRMAN GOEHRINGER: Well, it's a very broad statement. It's one that the Board does take into consideration in dealing with the aspects of these types of variances. I guess the question would be the same question that we just asked the attorney from the prior applieation and that is, will you accept alternate relief? I mean we discussed this with you before. MEMBER TORTORA: Is the application for variance considered two separate pieces? Would you accept alternate relief for total yard, for total lot coverage? Or, would you accept alternate relief for side yard setbaek? MRS. MAURY: In other words (more than one person talking). CHAIRMAN GOEHRINGER: Well if we cut square footage we're going to impact, you know, lot coverage anyway. So I mean - MR. MAURY: In other words, if square, if the total lot coverage footage was still a more significant issue, then to say to reduce another 144 sq. ft., in fact at 1.5%, yes we would - CHAIRMAN GOEHRINGER: No, I mean, we are, I can't answer that question, OK, not that I don't want to answer it, but, I just wanted to tell you that I know that this unheated room is very important to you, OK? And, we are aware of that. But, you have to understand that when we deliberate, OK, which you're certainly welegme to, I mean it's not going to happen tonight, but, you're certainly welcome to sit in on it, OK. That it is what we can agree to as a Board. Three of us can agree to it as a Board, as Board Members, OK. And, I have no idea how my fellow Board Members are going to vote, OK. So, it's a give and take situation. So, it would be unkind of me to say this, you know it really would because I don't how they feel at this point. We have taken a stand in that area in reference to maximum lot coverage and I don't know if that stand can be changed at this point, a, I mean use the word - MRS. MAURY: Can it be public? Can you tell us what your - CHAIRMAN GOEHRINGER: I don't remember at this point. MEMBER COLLINS: It was 24. I looked it up today. Page 7.~ Hearing Ti~scripts January 21, 1999, Board of Appeals CHAIRMAN GOEHRINGER: It was? Did you really? Yes, it was 24, OK. I don't know if that's going to stand or not stand, but, you know, that's about where we are. I'm suggesting to you, that you allow us to do our job to the best of our ability and that you allow us to do alternate relief and we'll see what we come up with. BOARD SECRETARY KOWALSKh Or the option is, they can reapply and start over again. CHAIRMAN GOEHRINGER: Or you can reapply and start over again. BOARD SECRETARY KOWALSKI: That's the difference. MR. MAURY: Well I'll you, that's not a very difficult question to answer. I will say this though to make it clear as well. Yes, we will do alternate relief in that respect, especially understanding what is the most valuable portion of what we're looking to do here. CHAIRMAN GOEHRINGER: Right. Well we understand that. I mean you're trying to protect that room that you want to construct. MR. MAURY: It's the only thing that makes sense in our eyes planing to do a room to do that. We'd just assume not do one if it's going to be all that bad. MRS. MAURY: The shed came up because we don't have a crawl. We don't know if they were really actually living there. Most of the houses in the area have either a full basement or a crawl, have extra storage. But if that has to go it goes. I mean we use the garage for storage or use the house for storage. CHAIRMAN GOEHRINGER: Can you just do something for me which I failed to do last weekend because I forgot my 25 foot rule when I was there. Could you measure the depth of that slab that's presently there? MRS. MAURY: You want the height? CHAIRMAN GOEHRINGER: No, no, the depth from the edge of the side yard to the house. The cement slab that's there? MEMBER COLLINS: It's here somewhere. MRS. MAURY: We have a, sought of on the edge of it, the closest corner to the Tisbo property is, 2.8. MEMBER COLLINS: No, that's setback, not depth. CHAIRMAN GOEHRINGER: Standing a - MEMBER COLLINS: Here, it's on, this is a scale drawing. CHAIRMAN GOEHRINGER: Let me see that. OK, it is there. Page Zl~ Hearing Transcripts January 21, 1999, Board of Appeals MEMBER COLLINS: the new dimension. Do you have a ruler? The 14.6 is the new, is CHAIRMAN GOEHRINGER: I'll measure it. figure? OK, I'll measure it off of that. it. I have it here. 11 you OK, I do remember seeing MRS. MAURY: I totally realize these things are so elaborate and we thought that you know, for us to bring in a real estate expert might help. CHAIRMAN GOEHRINGER: It's a learning experience. MRS. MAURY: It really is. When we started out, we really were led to believe you start it straight forward, all you had to do, you started straight forward and then we had more elaborate plans drawn in the original one and delivered it to the Building Department because we told that was necessary and I think that what's happening it's becoming a two dimensional discussion rather than a three dimensional $600 planned one and I guess I'm worried about, is there any consideration as to you know, why we are so impassioned about enclosing the space and having a room, and having it the size that it is as oppose to just covering the lot. I mean we don't want to do that at all and I think we had originally expressed that we didn't think of any alternative other than a deck because we have a septic. It's the first big tank we've ever had. So now we'll just you know, do something else with the up?. CHAIRMAN GOEHRINGER: OK, well let's wait and see what - MRS. MAURY: coverage and - You have to give up everything in terms of lot CHAIRMAN GOEHRINGER: Wait and see what unanimity we come to on this issue. I mean, that's my suggestion. MEMBER HORNING: May I ask a quick question? CHAIRMAN GOEHRINGER: Yes. MEMBER HORNING: slab or is that ? That lot, the existing house that is on concrete MRS. MAURY: Yes that's CHAIRMAN GOEHRINGER: Any other questions of the Maurys? Any other questions in the audience for or against? We thank you and we will certainly deal with it. It will not be until around the end of the month. We will be discussing it, OK. I know we're only approximately a week away from the end of the month, but, it will be around that time. We haven't set a date yet for a special meeting, OK? MRS. MAURY: Thank you very much. Page 7q Hearing T]~lscripts January 21, 1999, Board of Appeals CHAIRMAN GOEHRINGER: Hearing no further comment, motion closing the hearing reserving decision until later. MEMBER TORTORA: Second. Motion carried. See Minutes for Resolution. I'll make a Page ? Y Hearing Transcripts January 21, 1999, Board of Appeals 10:10 P.M. Appl. No. 4648 - ROSE DIACHUN This is a request for a Variance under New York Town Law, Section 280-A and Section 100-235A of the Zoning Code, and the Building Inspector's Notice of Disapproval, for a determination establishing the minimum construction standards for safe and sufficient access for emergency and other vehicles to travel over designated rights-of-way, extending northerly off the north side of Peconic Bay Boulevard, Laurel, over land identified as District 1000, Sec. 127, Blk. 8, Lot 17.3 to the applicant's vacant lot (proposed for single-family dwelling use), known as 430 Diachun Road, Laurel, NY; District 1000, Sec. 127, Blk. 3, Lot 10. CHAIRMAN GOEHRINGER: I have a survey with a penned in area showing the right-of-way over 1000-127-8-17.3 shown as it goes down the existing Diachun driveway and around Mrs. Diachun's house and along the easterly side of her property to the subject lot and I have a copy of the Suffolk County Tax Map indicating this and surrounding properties in the area.. I believe Mr. Lark you are representing. MR. LARK: I was hoping that Mr. D'Onowski who was instrumental in getting this application together would be here tonight but he informed my office late this afternoon that he would not be able to be here. The application is fairly self-explanatory in that in order to reach her property the Building Inspector said, you had to get approval from the Board of Appeals under Town Law 288. So, that's the thrust of the application. Just to give you a little history, this property has been in the Diachun family since about 1944 and after the death of the father they a, the family divided up the property in the estate whereas you can this particular parcel of land ended up in several parcels as it is in the tax lot and it shows the owner. There were two brothers at the time Leo and Theodore. Eleanor is Theodore's widow and Rose is Leo's widow. That's how they acquired it down through when their respective spouses died and they acquired their interest. The deeds that when they created, when they did the estate planning after the death of George Diaehun, all contained a right-of-way from the respective properties to Peconic Bay Boulevard and if you look on your map that's the one all the way to the north which is owned by Eleanor Diachun just north of where the blue lot is. The blue lot is owned fifty-fifty as tenants in common by Eleanor and Rose. Just to explain it, the red lot is owned by Rose and the balance of the property is owned by Eleanor and then her house is a separate lot which you see over there, which you indicated Mr. Goehringer. So, the right-of-way, was not legally described in the deeds. The old roadway that was used for years and years by the family through PecOnic Bay Boulevard up to the property to the north of that northerly lot that the father and the mother lived, it was felt that that was not a, today a suitable location for economy real estate values to locate the right-of-way, not to mention the wetlands problem that you would have because of the nearness to Brushes Creek. So, it was pretty much agreed I thought by everybody, at the instrumentality Page 7~ Hearing Transcripts January 21, 1999, Board of Appeals of Mr. D'Onowski and myself to move the right-of-way, over to, to have it located officially if you would, for a lack of a better word over on the easterly property line because that would not split that tax lot 17.3, which is I think a 8 acre piece owned by Eleanor because otherwise if you ran the right-of-way like the old wood road was, right through it, it would just split the property right in half and probably Mr. D'Onowski said, destroy any economic value that it would have. So, this is what was compromised to put it over there. Curiously enough, I know from my own knowledge in talking to the two decedents, Theodore and Leo, that they come to the same conclusion, and if they had lived they would have probably constructed the right-of-way, over on the eastern side because that's where they thought it was best to do and as a practical matter, you have to destroy the fewest amount of trees along that line than you would because it's heavily wooded the other property. Portions of the property. Now, what's happened with 280-A, they amended the law there last year again where they now throw it in to the requirements of an area variance. So they refer you back to 267 where as under 280-A before you just kind of looked at it and that's a lot of the right-of-ways. You got it created in Town by the Board of Appeals but now, we have to look at it in relationship to 267 and again the balancing test of the benefit to the applicant versus any adverse impact that it would have on the adjacent properties. So, that would be a, and that's why Mr. D'Onowski and I did this, we thought it probably would be best to put it on the easterly side. Again, to avoid the wetlands issue. Also it had a more defined area hard up against the property line and again after consulting with Mr. Ehlers, and he walked the property also, it was felt that the 25 feet would be adequate, 50 feet would be overkill. I wanted to tell you that the deeds when they did these, their estates back in the fifties and the sixties after George Diachun died, he created 50 foot right-of-way. We've agreed to cut it down to 25 feet because the 50 foot was just as t said overkill because it'll be really nothing more than a driveway as I envisioned it there'd be no difference in the existing driveway that exists today to go to Mrs. Diaehun, Mrs. Eleanor Diachun's house and then it would just be created with the standards that would be laid down by the Board of Appeals and Mr. Ehlers felt that after looking at them, 25 feet would be sufficient. So, looking at the criteria I do not think that there would be any undesirable change in the neighborhood. There'll still be a residential motif. If you notice, there's no plans to subdivide and the parcel that is in question where you have your instant application is over 3 acres. So, we're not talking abOut an insubstantial piece of property here and as I say, it will remain residential and the surveyor felt that the 25 feet would be more than amble to service this and the property, the two properties if you would to be to the north of it. Obviously you cannot get a Building Permit or Mrs. Rose Diaehun cannot sell her property unless she has a legal right to get to it which is approved by the town so a Building Permit could ensue. So, there's no other thing that we can do other than go through the Board of Appeals to get approval of a 280-A right-of-Way to the property. And, the other requirements, well the a, as the difficulty has been so created, not it hasn't. It was a, you can't fault the widows for the Page ~ ~ Hearing Transcripts January 21, 1999, Board of Appeals situation that was created by their predecessors many, many, many years ago. And, like I say, the relief is necessary because you can't be able to do anything with it to build a residence unless you do have a legal right-of-way and I don't believe that it'll have any adverse impact on any neighboring properties and we've kept it as far away from Brushes Creek and the wetlands area that is, which Brushes Creek does have and there is some wetlands on the westerly boundary of those properties and that's why I don't think especially with the Rose Diachun and the Rose Diachun and Eleanor Diachun property and the one to the north that there will be any further subdivision. Those will always remain as large lots and the reason I said, well first of all I'd have to have Planing Board approval to do anything anyway and due to the wetlands and the way they're created there, I think that they, with the woods and everything, that they'll probably stay in those configurations. I cannot speak for the 8 acre piece and that was one of the reasons that we did not. Mr. D'Onowski in particular, that Eleanor Diachun's property, did not want to cut the right-of-way right through it because you would end up with the, considering all the setbacks that you have to have from the wetlands, which the Board is aware of. There wouldn't be and then you'd have the right'of-way or the roadway through it. There wouldn't be much left. So, that's why it was put up, again another reason put up on the easterly line. So, if the Board has any questions I'd be happy to answer them from what I do know about things. CHAIRMAN GOEHRINGER: I read a deed into Eleanor Diachun which said, that the right-of-way, is to be on the westerly side of the property, meaning the westerly side of the piece that this particular right-of-way has now been moved to the easterly side. Now, you said there was an agreement with Mr. D'Onowski to move it over. MR. LARK: side. I've never seen a deed where it said on the Westerly CHAIRMAN GOEHRINGER: I read the deed but, I don't know where MR. LARK: I have the deeds here. I'll get them out. CHAIRMAN GOEHRINGER: I did read the deed where it said, the right-of-way was on the westerly side. MEMBER TORTORA: Together with a 50 foot right-of-way for ingress and egress on the westerly side of the property. MR. LARK: Yes, I have early photographs, a surveys of VanTuyl, I think going back I think in the early sixties or late fifties where it shows where the wooded, where the right-of-way was at that time was on the westerly portions, yes. MEMBER TORTORA: I agree with your thinking to put it on the right hand side. This way you know, it's that other parcel, 'Eleanor Diachun's parcel, originally subdividing it. I guess my concern is, that you're creating this right-of-way now. Page 8 f Hearing Transcripts January 21, 1999, Board of Appeals CHAIRMAN GOEHRINGER: Well, the question is, he's creating a right-of-way over somebody else's property and that's the problem. That's the only question I have, OK. I don't know, if Mr. D'Onowski agreed to this, show us some documentation that he has. MEMBER TORTORA: A legal document showing this was done. CHAIRMAN GOEHRINGER: That it was changed this , from the westerly side to the easterly side because his clients don't know that quite honestly and that's been the major problem that I have with, you know this right-of-way. MR. LARK: OK. CHAIRMAN GOEHRINGER: the issue, alright. And that's where we are. I mean that's MR. LARK: OK. CHAIRMAN GOEHRINGER: And we certainly you know, we'd like to hear it from Mr. D'Onowski. MR. LARK: Oh, yeah, just as a correction for the record you reminded me. Where you read that right-of-way on the westerly. That is subject to a right-of-way. At that point in space, when they got the property in a foreclosure about 1944 as I indicated, they used that to get to their house, meaning George and Mary Diachun which was further north of a, and that was what is referring to the subject. If you notice in that same deed two paragraphs before, it says, "together with a right, a 50 foot right-of-way, for ingress and egress in the above described premises to Peconic Bay Boulevard." There is no question that the property owned by Rose and Eleanor do have a right-of-way. The question is, where is it legally? That's why this location problem. CHAIRMAN GOEHRINGER: OK, I agree with you. But, the westerly right-of-way still exists. It's still there. You can actually (changing tape). But somewhere along the line, we have to have an agreement to show that this is where the right-of-way is going to be established. Whatever renumeration is going to be established. Whateve~ renumeration is going to be a curb here, if there is any. So that we know that this is where these people are going to faced to have this right-of-way. MR. LARK: OK. CHAIRMAN GOEHRINGER: Because, you know, I mean I just, that's one of the things that. I mean, it's just a concern. MR. LARK: No problem. CHAIRMAN GOEHRINGER: So what are we going to do? ~ ~ Page 8~ Hearing Transcripts January 21, 1999, Board of Appeals MR. LARK: Well I would, on a, as to that aspect of it, I have no objection to your remaining open until you see that, until you receive that legal document which would have to be executed by both Rose and Eleanor Diachun. I know Mr. D'Onowski has such a copy. CHAIRMAN GOEHRINGER: OK. MR. LARK: OK, that's not a, I agree with you. No problem. OK, no problem. MEMBER TORTORA: The only other thing is, this is, you do want access to lot 9, right? The Eleanor Diachun property? MR. LARK: Oh, yeah, Yeah that's why it was drawn all the way up, all the way up to lot number 8, which went around not only 10 which is owned by Rose, but, 9 also, yeah. MEMBER TORTORA: Yes, the application - CHAIRMAN GOEHRINGER: Well, their one lot now, aren't they? MR. LARK: Yeah. CHAIRMAN GOEHRINGER: They've never been subdivided? MEMBER TORTORA: I'm questioning him. No, these are two separate lots. That's why MR. LARK: Actually, if you look at that map, with the property where the road traverses there's four tax lots, OK. The northerly portion owned by Eleanor, the next one coming down from the north owned by in blue, owned by Eleanor and Rose own together and then Rose owns the piece there which is outline in red and then Eleanor owns the balance. BOARD SECRETARY KOWALSKI: We didn't advertise it for lot 9. CHAIRMAN GOEHRINGER: No, we advertised it for lot 10. BOARI) SECRETARY KOWALSKI: Barbara and I were talking about. Only for 10 because this what MR. LARK: Yes, that right. Only for lot 10, that's correct. But the agreement would be for all the way up to lot number 8. That would be, yes. CHAIRMAN GOEHRINGER: We're going to have to go from there. MR. LARK: Right. CHAIRMAN GOEHRINGER: We're going from the tangent to the edge of lot number 10. Right through that area. Page 8~ Hearing Transcripts January 21, 1999, Board of Appeals MEMBER TORTORA: 9. Than your not going to end up with access to CHAIRMAN GOEHRINGER: that. Well, they're going to have to deal with MR. LARK: The agreement will deal with it. I know exactly what you're talking about. I understand what he's saying. The agreement will deal with it. MEMBER TORTORA: OK. The other thing as far as the width of the right-of-way. As you know, the county is going for a 50 foot right-of-way. In the event if this will serve more than one house. You may have to go back to include it to a part of the standard at that time. You understand that? MR. LARK: As you get down towards the Boulevard I don't know where you're going to get the extra 25 feet. CHAIRMAN GOEHRINGER: Well I don't think you, you never go wider than 25 feet, natural road down there. MEMBER TORTORA: No, not natural road. CHAIRMAN GOEHRINGER: You never go wider than 25 feet. MR. LARK: Well, OK, I misunderstood, yeah, cause I just envisioned that it'd be a driveway. MEMBER TORTORA: No, if it's in fact the 25 foot right-of-way, you know, maybe 18 feet of it, or 15 feet might be fresh stone. MR. LARK: Under the criteria it might be old town law. 15 feet because you had to have, that's correct. Mr. D'Onowski is aware of that, that's true, you had to have 15 feet. CHAIRMAN GOEHRINGER: attorney. No, OK. OK, thank you. Any questions of the CHAIRMAN GOEHRINGER: Come on up and speak Eleanor. have to state your name for the record. You just ELEANOR DIACHUN: OK, Eleanor Diachun - CHAIRMAN GOEHRINGER: And Ronald Diachun. ELEANOR DIACHUN: First of all, everybody is planning what I should have and I don't know about it. I've got paper to sign and I was under so much pressure until finally someone said to me and read it to me and said, "do you know what you're signing?" And then another thing is, the right-of-way went right through where - MR. DIACHUN: May I show you the map? Page 8~ Hearing Transcripts January 21, 1999, Board of Appeals CHAIRMAN GOEHRINGER: Sure. ELEANOR DIACHUN: Wait, whore Rose's husband built the house. They built a house there and by the way, they built the house there. And by the way, would go through their house. Now, they want the right-of-way to go through my lawn, my driveway, that is my driveway. I mean they don't have to buy a right-of-way. What right do they have to go through my house? Everything is planned without me. Instead of sitting and talking like human beings and not calling anybody names. Mr. Diachun and Members looking at map. CHAIRMAN GOEHRINGER: I thought you had another one Ron, that you showed me. Wasn't there a later one about five years later that actually showed the right-of-way, or is this the only one you have? You have another one, don't you? ELEANOR DIACHUN: Well I had surveys that I had Mr. Van Tuyl do for me. By mistake, he thought Barbara was my daughter and he send them there. I called up Barbara. She was very rude to me. She said you're not getting them. Don't you understand and she hung up and my survey are there, over there from Van Tuyl and I have the latest one made and I have proof because I have a witness that was at the house. MR. DIACHUN: it. I'll let you read the deeds too because it refers to MEMBER HORNING: Where is the right-of-way out there? CHAIRMAN GOEHRINGER: Well, it clearly states the westerly side. That's the issue, OK. So, it's land with the westerly side. MEMBER HORNING: So, you're saying it's up in here. (Discussing amongst themselves). CHAIRMAN GOEHRINGER: This is an October 24, 1962, between Theodore Diachun and Eleanor Diachun and this is the one that says, together with a 50 foot right-of-way and the width of 50 feet from the north westerly corner of the premises, southerly about 450 feet to Peconic Bay Boulevard. (Everyone speaking at one time.) OK, we've got to restrict this to only one person speaking. So we're going to attempt to clear this up with your attorney. We're not going to close the hearing. So, we're going to have Mr. D'Onowski here the next time where he's going to submit the affidavit and he should be getting in touch with you. Those are originals by the way. Eleanor I've got to have a copy of this. Do you want to make it, or can we make it? Can we keep those two documents, and we'll give them back to you? ELEANOR DIACHUN: I'll tell you, I have other things that weren't given back to me. I trust you, but it's just that - Page 8,5~ Hearing Transcripts January 21, 1999, Board of Appeals BOARD SECRETARY KOWALSKI: can wait for it. Well bring it in tomorrow. You CHAIRMAN GOEHRINGER: Ron can bring it in. You can bring it in tomorrow can't you Ron? RON DIACHUN: Yes, I can bring it in. BROAD SECRETARY KOWALSKI: You can wait while we copy it. CHAIRMAN GOEHRINGER: right back to you. We'll copy it for you and we'll give it ELEANOR DIACHUN: problem. And the deeds if you want them too, it's no CHAIRMAN GOEHRINGER: Sure, thank you. ELEANOR DIACHUN: OK, thank you very much. CHAIRMAN GOEHRINGER: Alright, is there anybody else that wants to speak. Mr. McVeigh, do you want to say anything? MR. McVEIGH: Well I'm probably a, it sounds like the right-of-way is going through my house and it seems like a - CHAIRMAN GOEHRINGER: That's why you're concerned? MR. McVEIGH: I'm concern you know, the westerly side is wetlands and I was just, my concern being here tonight was that, if the right-of-way road is going up the driveway I have no problem because there are beautiful pine trees the Diachuns have planted years ago and if the road had to go right along my property, the property line you would have to rip out all of those trees. So my concerns was this. CHAIRMAN GOEHRINGER: and we'll go from there. So, lets wait and see what develops here MR. McVEIGH: OK, let's see. OK, so long as I won't have to move my house? ELEANOR DIACHUN: See, another thing is, they made profit on theirs. My lot is going to be ruined and my driveway is going to be taken back. That is my driveway to my house. That's my lot. You know what, some people don't understand. I know you understand. CHAIRMAN GOEHRINGER: That's a specific question that you have to deal with your attorney on that issue. So I mean, you know, in the interim a - ELEANOR DIACHUN: And you know why too? It was emphasized by somebody, that oh, we don't go straight to the . But, see, Page 8~ Hearing Transcripts January 21, 1999, Board of Appeals they're not seeing what's good for me. It's going to move all around my house too. The property around my house is going to be torn. All those trees are going to be gone. I'm going to be like something sitting in the middle of nowhere. Thank you. CHAIRMAN GOEHRINGER: Your welcome. Alright, hearing no further comment I'll make a motion recessing the hearing for the next regular scheduled hearing and request Mr. D'Onowski to be here. MEMBER COLLINS: Second. Motion carried. See Minutes for Resolution. End of hearing.