HomeMy WebLinkAboutZBA-03/25/1999 HEARINGPp.
INDEX
TRANSCRIPT OF ZBA HEARINGS
HELD March 25~ 1999
1 Appt. No. 4662-PATRICIA RUSHIN & PAMELA MOTTLEY
19 Appl. No. 4665-J. BOYLE & HANDS FUEL CO.
22 Appl. No. 4660-EMPIRE PETROLEUM
32 Appl. No. 4667-JOHN & LUCIA SICA
38 Appl. No. 4663-DR. FRANK & JEAN MIRCHEL
40 Appl. No. 4664-ROBERT LUSGARTEN (Joseph Travano,
Contract Vendee )
59 Appl. No. 4666-ROBERT & JOYCE BARRY
67 Appl. No. 4669-GERALDINE FEREND
68 Appl. No. 4671-HENRY L. FERGUSON MUSEUM
71 Appl. No. 4668-SOUTHAMPTON LUMBER CORP.
Transcript of Public Hearings
March 25, 1999
Southold Town Board of Appeals
(Prepared by Lucy Farre11 from Tape Recordings)
6:43 P.M. Appl. No. 4662 - PATRICIA RUSHIN & PAMELA MOTTLEY
This is a request for Variances under Article III, Sections 100-32,
100-33, and Section 100-235A(2) based upon a Notice of Disapproval
issued December 10, 1998 in this pending subdivision project, as
follows:
(a) Insufficient lot width for each proposed Parcel A and B, for
one singie-family dwelling use on each parcel;
(b) Insufficient lot area of proposed Parcel A;
(c) Insufficient side yards for each proposed Parcel A and B;
(d) Insufficient total side yards for each proposed Parcel A and
B.
(e) Proposed Parcel B - with "no safe and convenient access";
(f) Accessory building on Parcel A (reference noted in the
Disapproval).
Location of Property: 6850 Indian Neck Lane, Peconic, N.Y.; County
Tax Map Parcel 1000-86-7-5 (containing 3,43+-acres).
CHAIRMAN GOEHRINGER: I have a copy of a subdivision map and I
shorten it, hearing notice indicating, received by us on February 8,
1999, but, the date is August 19, 1998. Parcel A being 67,451 sq.
ft. and Parcel B, 81,771 sq. ft. I have a copy of the Suffolk
County Tax Map indicating this and surrounding properties in the
area. Ms. Moore I just have to ask you, you still have another
application pending before us on this that we have been holding in
abeyance for some time?
MS. MOORE: Yes, apparently there was one application that was in
and depending on how this goes, I would imagine that's going to be
Page 2 Hearing Transcripts
March 25, 1999 - Board of Appeals
ultimately withdrawn.
least at present.
But, you know, keeping them both alive at
CHAIRMAN GOEHRINGER: OK.
application?
What is the purpose of this
MS. MOORE: Can I start?
CHAIRMAN GOEHRINGER: Hm, bm.
MS. MOORE: Thank you. Well before I begin I just want to
introduce Para Mottley is here today, she's one of the owners.
Patrick Brennan is the architect. He's the one you have certainly
met before. He unfortunately had an emergency. He's down at the
emergency, so he couldn't be here tonight. But, he sends his
apology.
CHAIRMAN GOEHRINGER: Did we meet Ms. Mottley before?
MS. MOORE: No.
BOARD SECRETARY KOWALSKI: No.
CHAIRMAN GOEHRINGER: No. Did we meet Ms. Rushin before?
MS. MOORE: Pat Rushin? No I don't think you have.
BOARD SECRETARY KOWALSKI: No.
CHAIRMAN GOEHRINGER:
it.
We only met the architect then.
That's
MS. MOORE: Right, right.
CHAIRMAN GOEHRINGER: OK.
MS. MOORE: Pat is in Atlanta. I'll start right off the bat with a,
we have the affidavits of posting and notices that I left on there on
the dais.
CHAIRMAN GOEHRINGER: You have those right?
BOARD SECRETARY KOWALSKI: Yes, there're fine.
MS. MOORE: Thank you. The first a, we have several elements
and I'm going to go through the elements and address the facts that
I think are pertinent to the elements that you have to consider and
at any point in time if you want to interrupt by all means I'll try
to answer any questions that come up and Para also, if you, if I say
something that's either not quite accurate please interject. The
first issue is, is that there's no undesirable change to be produced
in the character of the neighborhood or detriment to nearby
properties if the variance is granted. As the Chairman pointed out,
this parcel is 149,221 sq. ft. which the way the parcel is proposed
Page 3 Hearing Transcripts
March 25, 1999 - Board of Appeals
to be divided would create one Parcel A, 1.6 acres and Parcel B, 2
acres. Two acre zoning is here, so one lot would be conforming as
far as lot size. The other lot is the nonconforming size. The
proposed division of the parcel 2 or more conforming parcels will not
change or effect the character of this neighborhood. The parties
have been, the properties have been developed in the same manner
that you saw. I would hope that everyone had an opportunity to
inspect the property. I have some photographs here. But, if you'd
like, I'd be happy to meet with you there for anyone who hasn't
seen the property and point out the imaginary line that's being
proposed here. The properties were developed with preservation of
privacy of the two homes and with preservation of privacy to the
neighbors. The vegetation has been preserved in its natural state
for the entire time that this has been in there. Ownership and we
have four almost five generations of family members coming on to six
generations that have lived in this house and wish to continue to
live in these houses. The homes as you saw are staggered. You can
see from the subdivision map, the homes are staggered and the
subdivision itself will have very Iow impact on the character of the
area. I took the time, I took from your records a copy of the tax
map and what I did is, I took yellow highlighting. I'll give to you
at the end with a copy of my outline that I'm referring to. I took
the tax map and identified every parcel within this area that is
applicable under Section 86 of the Suffolk County Tax Map and
identified what I thought was going to be a quick trip to the Zoning
Board ended up being quite a, quite an extensive trip because it,
almost every single parcel that is on the same side of the road as
the Mottley-Rushin parcel as well as across the street has had an
application for a variance at one point in time or another and when I
went ahead and highlighted every single parcel, this area has been
the subject of numerous variance applications. Some properties
receiving variance applications if not themselves but, certainly
every parceI that I have identified has come for a variance at one
time or another. I'm going to specifically address four parcels or
four property owners in the development of these parcels that are
almost identical to what we have here before you. I'll refer to
Suffolk County Tax Map number just to start with and then the
name. It's Section 86-7-2, Koslowsky. The Koslowsky family.
We're talking about families that have stayed in this area for
generations and are contemporaries to my clients family history.
The Koslowsky family in 1979 divided their original parcel with
insufficient lot width and each house was created was essentially
developed quite close to the beach. In that particular case
Koslowsky family, it was a brother and a sister and they divided the
property and later in 1996 variances for tennis courts and
insufficient setbacks were permitted as to that parcel, lot 2. Then,
we go to lot 86-7-4.1, 4.2 and 4.3. Those parcels are owned by
Varano. That is actually filed subdivision that from the records it
was filed in June of 95. So it's quite recent. It's a minor
subdivision of three lots and each lot is on average (inaudible).
Well, there under two acres. Each lot is an average of 1.7 7-5.
That is, that set of three parcels is the, is, are properties
directly adjacent to the proposed subdivision. Varano I'm sure
you're familiar with the history. Some Board Members were around
Page 4 Hearing Transcripts
March 25, 1999 - Board of Appeals
at the time, some of the newer Members may not. That the Varano
family had built, the history shows that there had built an illegal
apartment and out building in the garage. The town denied that.
A lawsuit entailed and then the town ultimately won that case.
Unfortunately Mr. Varano passed away and the property was
ultimately subdivided in 1995. That's not to disparage anything that
history of the property or the Varano family. It's just a comparison
of the development of this area and the fact what we're proposing
here is consistent with the character of the neighborhood and the
development of all of the properties in this vicinity. The third
set of properties is 86-7-3.1, identified as the Katzenberg
property. Here is a situation where two houses on one property
similar to what we have, two house on one property. That property
was split off with .4 acres with one house that was deeded over to
Martin in 1972. The ZBA granted variances for a setoff undersized
lot with existing residences and I have an appeal number of 1535 and
in 1998 Ruth Miller obtained variance to construct an addition to the
house and that was appeal 4550. So again, a parcel, Katzenberg is
two houses, two parcels down from this one. And there are many
but, these seem to be the most similar to the application we have
before you. And, finally 86-7-7.2, 7.3 and 7.4, that subdivision
was the Prellwitzer, Prellwitz.
CHAIRMAN GOEHRINGER: Perellowitz.
MS. MOORE: What was it?
CHAIRMAN GOEHRINGER: Perellowitz.
MS. MOORE: Perellowitz, thank you. In June of 81, probably Mr.
Goehringer your history of the Board you know all of this but, for
the benefit of the -
CHAIRMAN GOEHRINGER:
that we've ever done.
It's the only five lot minor subdiVision
MS. MOORE: That's right. I don't see you as a Member. OK,
would you like to testify? (laughter) The minor subdivision was
created on an average, a three of the lots. There was a five lot
but, three of these lots were l-l/2 acres undersized lots. These
properties are all beautiful properties. This is a wonderful,
beautiful area and the development that is being proposed is
consistent with the development of this area. The second element
that we have to consider is that the benefit sought by the applicant
cannot be achieved by some method feasible for the applicant to
pursue other than an area variance. I know you know the history
of the two sisters and the a, through your other application there
was an extensive record of why they were looking to do what they
were doing. They were advised at one point in time, that to
improve the cottage and I call it the cottage and I'll go into that
later but for purposes of describing one house from the other, the
cottage being the smaller of the two houses, but by no means to
diminish the fact that it's a full scale house heated with all of the
amenities that a single family dwelling has , my house would have.
Page 5 Hearing Transcripts
March 25, 1999 - Board of Appeals
The cottage, lets see. What they had originally proposed was that
they wanted to improve the cottage and they were advised that
because there are two homes, full size homes on this property, that
to make any improvements to the cottage would be considered an
expansion of the nonconforming use and that's not permitted. It's a
legal a, a, under the Building Inspector's interpretation of the
code. The two families, they wanted, the families wanted to be
comfortable. They wanted to continue to live there and as I said,
the hall was to improve that second house. So the alternative for
them was based on a long conference we had on how we were going
to deal with this. Whether to apply for an expansion of the cottage
or to do really what I thought based on the code and the policies of
the code to eliminate nonconformity. Yes, you do have to grant
variances but, you would of probably needed to grant variances for
the conversion of the, for improvements of the cottage. Here, we're
dealing with a situation where the subdivision would create an arb, I
don't want to say arbitrate because it was very thought through.
But an imaginary line as if we were to a, it reminds me of the
movies where the two people are divorcing and they put a line
through the house. I know it'll come to me later. But that's
essentially what we're doing here. We're not, they all get along.
They're creating an arbitrary line to establish the title difference
between the two properties in order to allow the full development of
that second house. Without the need for now or in the future
having to come before this Board for variance one variance after
another. That's really what happened in this neighborhood with the
properties that had two houses on one piece of property. It always
made sense. In fact, years ago the policy of the Planning Board
and the Town was to encourage people to split off the subdivisions
and I recently saw an application. Someone came, had me look as
something that there had been a requirement in the approval of the
CO by the Building Department that the subdivision was going to be
applied for. So there was a time when these houses was the
splitting of two houses on one property was encouraged and was the
policy of the town. I hope that that still continues to be the
policy of the town. I haven't seen really anything to the contrary.
The history of the property, Robert Davidson is the applicant's
grandfather. In 1940s he bought this house. He had two
daughters. The two daughters had two daughters and they now
have children and ultimately one side has grandchildren and the
other ones not. She is the younger daughter. So the younger,
(laughing). So we have five generations, as she said, six
generations, grandchildren that are enjoying this property, want to
continue to enjoy this property. As I said, the division line would
eliminate it on conformity and there is no plans to sell this
property. Everything is going to remain exactly the way it is now.
The only difference being that that cottage would be improved in
accordance with the application you have before you. As far as the
houses of the detail of the houses. The houses were built each with
their own sanitary system and well. Both houses are designed as
year round homes with heat and insulation. As I said before, the
cottage is just because it's smaller of the two homes. The other is
a very stately beautiful home. The cottage is about 1100 sq. ft.
footprint. So it's also quite a large home. And, the cottage hasn't
Page 6 Hearing Transcripts
March 25, 1999 - Board of Appeals
been renovated since a, or actually the homes have not really been
renovated to any great extent since about 1945. In fact, we have
some pictures that they will present that shows the loving care and
the documentation of the renovations of the houses, or of the house,
the main house. The third standard we have to consider is that the
area variance is not substantial. That the application is, that the
application, the balancing test weighs in favor of the grant of the
variance. The proposed parcels will provide for road frontage.
Maximum setbacks for existing residences. The houses are there.
They're in the development of the subdivision line. There was great
care taken in creating the maximum setbacks possible to make both
houses have a fairly comfortable side yard. Both houses to have
adequate front yard road frontage. The Building Inspector cited the
access issue, but mostly because they want to share the driveway.
I think ultimately we could formulize it with a license agreement.
But while everybody is there still living the same way as they were
the day before the lot line setoff as the date after the lot setoff,
there's no urgency to do anything with it such but they're prepared
to do it. As I said, the properties will remain the way they are.
So the variances are both impact and minimal. Again, it's just that
arbitrated line that's, that's created. The fourth issue is the
variance will have no adverse affect or impact on the physical
environmental conditions in the neighborhood or district. As I
described for you, these houses have their own sanitary and their
own well. The houses are there. Any improvements to the co!rage
are going to be structural in nature to improve what is a 1940s
construction and upgrade it to a 1990s construction with materials
and the light. The properties have been maintained over time and
improvements have been with a sensitivity to this property. The
history here is, that at one time there was a water tower, there was
a barn, a chicken coupe. All of these things were removed. The
bulkhead and the dock have been repaired after storms and the light
to keep them in their current functioning condition. In reading the
transcript from the other hearing, it was real clear and reading
between the lines there was a concern and I think a legitimate one.
Well if you were to convert this big house into a two family and you
still have the cottage, now we're talking about three families and
you know, what if, certainly their family has no intentions but
maybe down the line somebody is going to come in and consider
subdividing further. That's a very, that was good thinking on your
part. That was never the intention. I don't think that they even
thought of that but, certainly you've seen all kinds of things come
before you where people have said, they're never going to do
anything like that and then low and behold somebody comes to you
and ask for permission to do something after the fact. Not my
clients of course. So, a, boy, you guys.
CHAIRMAN GOEHRINGER: I haven't even gotten started.
MS. MOORE: OK. A, there, now I lost my trend of thoughts.
Sorry aboUt that, sorry.
CHAIRMAN GOEHRINGER:
just arrive this.
Let, let me, before you go, lets, lets
Page 7 Hearing Transcripts
March 25, 1999 - Board of Appeals
MS. MOORE: Alright, go ahead.
CHAIRMAN GOEHRINGER:
and her sister is it?
Now, you're telling me that this nice lady
MS. MOORE: Hm, hm.
CHAIRMAN GOEHRINGER: OK, are going to keep this property in
common ownership. Is one going to take fee in one name and one
going to take fee in the other name?
MS. MOORE: Yes.
CHAIRMAN GOEHRINGER: So they're going to be -
MS. MOORE: Two lots.
CHAIRMAN GOEHRINGER: Two lots.
MS. MOORE:
all about.
Well, yeah, two lots.
That's what the subdivision is
CHAIRMAN GOEHRINGER: OK, is that what's going to happen?
MS. MOORE: Yep, exactly.
CHAIRMAN GOEHRINGER: OK, cause, cause, your testimony to me,
led me to believe that it was going to be held in common ownership.
MS. MOORE: No, no, no, no. It's common family. It's not going
to change. The family is going to remain there the way its always
remained there.
CHAIRMAN GOEHRINGER: No, but I'm saying if they were merged,
what was the difference of drawing a line between the two of them?
That was my point. If they were going to be held in common
ownership. That was -
MS. MOORE: Oh, no, no, no. Yes, we wouldn't do that. No, in
fact, the whole purpose here is to make a one house equal in value
and size and so on. It's not size, I know that. But equal in value
to the other house with the splitting of the property in such a way
that the main house has a little bit less land than the smaller
house, but in value and equality, they're both equal. One family
member, one daughter has one house, the other daughter has the
other house. The way they're through agreement, family agreement,
that's how they've been working it out. But, the next generation
doesn't have any, you know, everybody has to agree to sell, not to
sell, buy out, not buy out. It does create difficulty down in the
future and when we sat down and considered all the options and the
possibility of coming before this Board and asking to expand the
cottage through the code, we debated and weighed all the pros and
cons and certainly the pros here I thought was to legalize conformity
to the greatest extent. Yes you're granting variances to do this,
Page 8 Hearing Transcripts
March 25, 1999 - Board of Appeals
but you have to grant variances either way and as to the policy
considerations, certainly it outweighed to subdivide this property
setoff. It's a two lots. To Create two separate distinct properties
that could be held separately and one family member doesn't
necessary have to agree to what the other one is doing. So that
was the ultimate goal. The fifth consideration is that the alleged
difficulty was not self-created. Certainly not here. This property
was developed in the 1940s. They bought it with most of the
structures that are here today and its remained in communal
condition. They've taken very good care of it. The variance
suppresses the minimal variance practical given the personal benefits
anticipated by the applicant. Again, the two residences want to be
preserved. The cottage wants to be improved and with regard to a,
again~ all kinds of things can be worked out and we talked about
the owners and I talked about what conditions you might want to
impose and we're certainly open to conditions that you might worry
about this family going away and a new family coming in that's not
so sensitive. It doesn't have the loving care to this property and
certainly clearing restrictions. They want to keep the area wooded
in the front. No impact, no change to the neighborhood. That the
road frontage, nobody should know after this approved subdivision
that anything has happened, other, in fact, the signs don't
change. So a, and that's what we talked about. A shared access
as a possibility or leaving it to them to decide some day in the
future or their next several generations from now what t° do
there. As far as the condense from the Planning Board. I want to
clarify or correct some of the misunderstandings I guess from the
documentation that's a, I will blame them. I think it's what the
documents say but don't say. The CO was issued in 1986, but
that's not completely' accurate. The main house was built in the
1890s, early 1900s as a 1-1/2 story framed wood framed building. We
have a photograph of that. In the 19, it was renovated in prior to
1959, 45 now that I've seen the pictures. In 1945 there's pictures
of the house really the way it is today, the main house. There's a
full second story that hasn't changed. It has 2-1/2 baths, a large
kitchen. It's heated. It has it own~ as I've said, own sanitary and
own well and it has 6 bedrooms and a cellar. That's what's there.
There is a barn, a garage, a two car garage with a storage tool
shed and workshop that's never to be occupied. It's a tool shed,
it's a work area and if you look at it, it's going to stay that way.
The gazebo is by the beach and' that too in 1945 the cabana was
there and the gazebo I think has been improved architecturally but
it's standing. It's pretty and the: cottage which they describe as a
cottage began the size of the house if you've gone to see it. I
started living in a house much smaller than that. 1-1/2 stories, it
has an exterior staircase to a second story loft that has windows and
it has been used in the years as access sleeping and storage area.
It has one bath, a full kitchen, three bedrooms, a great room and
dining room area, cellar, it's oil heat. That oil heat was installed
1963. Formally you had a pot belly stove in it. Own well and
sanitary as I said. The cottage is approximately 1100 sq. ft. and
proposed would be a 1600 sq. ft. So it's squaring off to make a
nice size house. Two story house with dormers and two full baths.
The Planning Board, they get, they gave this recommendation and I
Page 9 Hearing Transcripts
March 25, 1999 - Board of Appeals
turn around and I see the applications or approvals for subdivisions
next door that were approved in 1988, 95. I mean, so I kind of
look and say, it's kind of disingenuous to make the kind of
recommendation that was given. It just didn't make sense. And
finally, the whole point here is that we are subdividing this
property to eliminate a nonconforming situation. Two houses on one
property with one property being two acres and the other property
having to remain in acreage of 1.6 acres. They're two sizable
properties and are consistent with the sizes in the area. So given
all that we ask you to approve our application and we'd be happy
to, do you have questions or comments?
CHAIRMAN GOEHRINGER: You want us to take questions Ms.
Mottley before we go down the line with the Board Members or would
you like to make a statement first?
MS. MOTTLEY:
said.
I don't think I have anything to add to what Pat
CHAIRMAN GOEHRINGER: OK, great, thanks.
questions of Ms. Moore, Mrs. Moore.
Mr. Dinizio any
MEMBER DINIZIO: Well, just some comments I think. You know, if
I'm looking at this A through F list that we have here, if you start
with the first one I guess that's pretty much why we're here
because there's insufficient lot area.
MS. MOORE: Oh, you're looking at the Notice of Disapproval?
MEMBER COLLINS: He's looking at the legal notice.
MEMBER DINIZIO: The legal notice.
MS. MOORE: Oh, the legal notice.
MEMBER DINIZIO: Insufficient lot area. That's something we've
pretty much always dealt with, you know, come close that's pretty
good. I have no objection to that. Insufficient side yards. The
side yard is insufficient whether this is one lot or two lots. So I
don't know if that would be a problem.
BOARD SECRETARY KOWALSKI:
line, Jim.
No, it's from the new division
MEMBER DINIZIO: No, no, I see that. I know that. But what I'm
saying is, if you look at appearance you're saying, I mean you have
insufficient side yards right now.
MS. MOORE: Right.
MEMBER DINIZIO: It exits. So and as far as access, I didn't know
that the town code required you to have a driveway. I think you
can just park your car out front and walk to your house.
Page 10 Hearing Transcripts
March 25, 1999 - Board of Appeals
CHAIRMAN GOEHRINGER: There may be a new issue on the safety,
health, safety and welfare.
MEMBER DINIZIO: Yes, OK.
CHAIRMAN GOEHRINGER: Particularly when you have a 1200 foot
driveway which this isn't quite 1200 feet. Down farther it's 1200
feet.
MEMBER DINIZIO: Well, that's all I have to say.
MS. MOORE: It's 500 feet.
CHAIRMAN GOEHRINGER: No, no, the parcels down going west
are, some of them are as much as 1200 feet deep.
MS. MOORE: Oh, OK. That's the first time I've seen that but, I
think if you look at the drawing you go OK, we'll give access when
it's split. They have to get to their house whether they do it by
share driveway or they do it with individual driveways. I think it
would make more sense, at least my recommendation to them, is we
take a one entrance off of the road so that you don't change the
area at all. You can make it a nice green entrance with nice
Rhododendrons of the bit and you come into a stately entrance way
that then splits off between two properties. That's something they
considered, they think it would be wonderful and they're willing to
do it. They don't need to do anything now. It's just the thought
of god for bid something happens to one side of the family and
they're forced to sell what they're doing. If the Board wants to
dictate what kind of access we don't care. If you want to make a
recommendation we'll talk about it.
CHAIRMAN GOEHRINGER: Ms. Collins?
MEMBER COLLINS: In a nut shell what you have is a family
compound and it has two dwellings on it, and the family wants for
reasons both of structure integrity and family use to improve one of
them.
MS. MOORE: Correct.
MEMBER COLLINS: And they can't because there's two of them on
one lot and what are you going to do. And, what you're proposing
to do, is to split into two very, very, skinny lots so that legally
the cottage will be on a separate lot and you can go ahead and
improve it.
MS. MOORE: Other than your description of very skinny lots, I
agree with everything you've said.
MEMBER COLLINS: 55 feet is pretty skinny in my estimation.
MS. MOORE: Well, alright, it's a matter of opinion.
Page 11 Hearing Transcripts
March 25, 1999 - Board of Appeals
MEMBER COLLINS: At any rate, I mean all those lots
down there are very narrow to begin with. It's why every neighbor
has been in for a variance. Do I understand that the drawing that
we have, this from Brennan & Brennan which shows the existing
cottage, the existing smaller house, square it off, that that
represents what the plan is more or less -
MS. MOORE: Correct.
MEMBER COLLINS: For the smaller house and therefore the setbacks
that are on here from the new lot line for that house are what you
have in mind?
MS. MOORE: Correct, that would be the maximum.
MEMBER COLLINS: The reason I bring that up is, if they weren't
what you had in mind, what you would find is, you'd get your lot
line split and then you would have a nonconforming house and you
would once again be back for variances if you want to change the
footprint further. So I wanted to make sure that this is what you
had in mind.
MS. MOORE: Yes, there was a long, they met, I know that Pat you
met with a, Para I'm sorry with Patrick a long time on the getting a
footprint that they can work off of and that certainly they'll take
however long they want to take to design around that footprint, but
yes.
MEMBER COLLINS: I gather from what you've said, that there are
not, at ]east now, any kind of family of course there's no reason for
it I suppose now, it's just one lot, any kind of family arrangements
or agreements for right of first refusal buy backs, that kind of
thing.
MS. MOORE: No their joint tenants on the property so they would
have to agree to sell.
MEMBER COLLINS: OK. But when they split the property they're
going to be individually held.
MS. MOORE: They're going to be, yes.
MEMBER COLLINS: The reason I'm getting at that is that you know
you will hear from, if we hear from neighbors what you'll hear and
what you might hear from Board Members is, well, sure, what
they're proposing to do now, is maintain what they have and do a
legal step that enables them to improve the house and not change
the nature of the property.
MS. MOORE: Correct.
MEMBER COLLINS: And, you know, sought of, is that a bad
thing? No, but you'll hear people say well, but, what happens ten,
fifteen years from now? And it seems to me what happens then, is
Page 12 Hearing Transcripts
March 25, 1999 - Board of Appeals
supposing that one branch of the family decides they don't like the
North Fork anymore, they want to live somewhere else. I can't
imagine that anyone would buy that property who wasn't prepared to
either become part of the family or buy out the whole thing. I mean
it is a .family compound and I'm not really worry about the stranger
who is going to come in and buy the other half of the property
because what he's buying into is somebody else's side yard. So I'm
just saying -
MS. MOORE: Well whoever buys, buys knowingly.
MEMBER COLLINS: Yes, and so I don't, I don't, I think that's
sought of a false concern and I don't fear it and I just want to go
on the record.
MS. MOORE: OK.
CHAIRMAN GOEHRINGER: Thank you. Mrs. Tortora?
MEMBER TORTORA: As far as the family compound concept I don't
really look at it that way. I look at it as a subdivision
application. An application for area variances and frankly you could
walk out of here tomorrow and sell it to whoever you want and that
would go with the variance. We have no control over ownership as
you well know. The variance runs with the land. So that's not an
issue in my mind.
CHAIRMAN GOEHRINGER: Sir?
MEMBER HORNING: I would like to ask how well the fine the access
is right now? Is it just like it is shown here?
MS. MOORE: Yes. There, it's a really wooded area over there in
this whole vicinity and what they have is, there's some beautiful
trees that are in, on this property and when the dirt driveway was
established it was hindering around the trees. They would like to
preserve what's there the way it is because they really don't want to
touch any of the vegetation, the big trees. In fact, what we talked
about as far as planning for future, while they're both confident and
both thinking the same, including restrictions between each other on
this property as far as the clearing, you know, trees that are over
six inches in diameter shouldn't be touched. So, it's a fear that as
you say that tomorrow after the subdivisions are approved, the
family could disagree and say, you know what, I finally can get
away from you. That's possible, but we're going to have, before
that can be done because they're joint tenants right now on both
properties, there are certain agreements that they both have to come
to and some of those agreements are you know, limit the clearing,
sharing an access so that the entrance out to Little Neck Road, you
don't have two driveways. You have plenty of room for two
driveways but it's nice the way it is and you can do a really nice
job with a shared access, and when you deal with shared access I
alw~.ys tell clients as long as everybody is OK in family, but, as
soon as you get somebody who is not family they might want a gold
Page 13 Hearing Transcripts
March 25, 1999 - Board of Appeals
leaf black top and the other guy wants blue stone. You know the
blue stone guy doesn't want to pay for the black top so you want to
come up with sharing, you know, sharing agreements on maintenance
and so on of access. So these are ail issues that we're ready and
willing to address. We can address them here with you. I don't
think it's necessary. I think that they're of the right mind to do
this at a later date, because as you say, yes, you're not concerned
about the family compound but for now, it is a family compound and
the property even after the subdivision or at the time the
subdivision is actually finalized there has to be a deed out to the
two family members. Before that happens, believe me the two
sisters are going to sit down and say, OK, while everybody is
Kosher we're going to make agreements amongst ourselves, and put
them in as conveyance against the property so that you know after
I've, here's the deed to you, you can't say goodbye, and then, oh,
yeah, I promised that but I really don't want to do it. So there's a
ptan to put all this as a comprehensive protection of the property
and keep everything the way it is because they've been since the
40s the properties remained pretty much the way it is and they want
to keep it that way. That's the way they grew up and their
children are growing up the same way, so.
CHAIRMAN GOEHRINGER: Thank you Ms. Moore. Is there anybody
else would like to speak in favor of this application? Anybody like
to speak against the application? Yes Ma'am. Kindly come up and
state your name.
MRS. VARANO: Good evening. Kathleen Varano and I own the
property just west - adjacent to and Ms. Moore you're an eloquent
speaker, you're used to this~ I'm not. I'm a very unassuming
person, this makes me nervous, but I do object. A lot of things
you had said even about our subdivision were incorrect. But I'm
not going to go into that. The only thing I'm saying is that the
subdivision that we had, also we want to keep it in the family. I
have three sons. I want each of them to have a part of our land
which was just under 6 acres. So we, our subdivision really meant
that two parcels would be correct and the one would be a little
less. But like Para and Pat, we also want to equalize if possible,
and that's what we have come do. I can't imagine having the
cottage. They've been great neighbors, and we do enjoy them. But
the cottage is lovely. It's right on our property line. We've
managed to put shrubberies there. They have put some things
there and it's worked very nicely. I mean they're quiet neighbors
and it really has worked nicely. Our neighbors on the west of us, I
don't know legal or not legal, they have extended their house right
up to our property line. Their parents were lovely people but as
the generations come, they became very loud and boisterous and
have had parties that even if I could complain, Pam has called me up
and said~ you're making too much noise when it's not even us. It's
our neighbors because why, they're right up against the property
line. I don't want in the future anything to come between Para and
myself because of, not even us so much because she's a very quiet
lady, but children and the children after them. The two families
have gotten along and I would like to remain as sueh. To have a
Page 14 Hearing Transcripts
March 25, 1999 - Board of Appeals
nice little cottage and have this big two story house in the same
spot, I feel it would encroach on our privacy and our serenity which
is why we are on the North Fork to begin with. We like it here,
we've been here and we want to continue. My sons that are
married, that have families now and we would like them to also enjoy
it. They love coming here and they want to continue to come here.
That's a way of a family to stay together and to have this large
house there. I just, I don't know. I guess I'm a little leery
about it - experience tells you (interrupted).
CHAIRMAN GOEHRINGER:
Mrs. Varano?
What large house are you talking about,
MRS. VARANO: The cottage to be made into a large two-story
home. A nice quaint little cottage is what it is now. It really is
lovely, but to have a large two-story home the size of the house, I
don't know, I guess I'm just leery about that. You don't know what
the future brings. As far as the plumbing, well to me a little
cottage and then having a large house - maybe the plumbing should
be affected, I don't know -I don't know too much about plumbing,
but.
CHAIRMAN GOEHRINGER:
the properties?
Are you objecting to the subdivision of
MRS. VARANO: No, not as a whole because I mean I can see why
two sisters would want to have their own in name for their own
children and grandchildren. Their own. I mean there must be
many ways to subdivide. I'm not familiar with that. They've gone
over that. So as far as that's concerned I mean, that's up to
them. I'm just, I'm afraid of a large house on my property line.
That's, you know, the boat house is great- I mean all the other
things that they have listed down, I think they should be able to
enjoy their property as sisters. I would like to be able to enjoy
mine and have my children and grandchildren also enjoy quietness.
CHAIRMAN GOEHRINGER: OK, thank you. Anybody else like to
speak against? Anything quickly in rebuttal, Ms. Moore, we have a
long agenda.
MS. MOORE: Yes. I just to point out two things that I actually
noticed. The house will not be encroaching any greater than the
existing setback. That's been a, certainly she was sensitive to that
since the Varanos are the closest property to the cottage. They
maintain any addition is not going towards their property line and
secondly I just asked, well would you be willing to put in more
shrubbery to create a greater bluffer so that you will have their
shrubbery as well as their, both sides would intermittent shrubs so
that there's a noise barrier as well as visual barrier. That's
something she's certainly willing to do to mitigate any impact that
they might have.
Page 15 Hearing Transcripts
March 25, 1999 - Board of Appeals
CHAIRMAN GOEHRINGER: Why don't you come up with a
landscaping plan and submit it to the Board and submit it to Mrs.
Varano also.
MS. MOORE: I, I don't think it needs to be such an elaborate
landscaping plan. I think that shrubs of a certain size, I can have
Patrick Brennan tell us what size is a reasonable size to be done.
CHAIRMAN GOEHRINGER: And then send it to us.
MS. MOORE: Yeah, that's alright. I just don't want to leave the
hearing open indefinitely for a simple - what's not even ().
CHAIRMAN GOEHRINGER: I'm closing the hearing on it. Just,
pending the receipt of a, we'll refer to it as a landscaping plan.
MRS. VARANO: Can I just say one more thing?
CHAIRMAN GOEHRINGER:
Go ahead.
Go ahead.
This is Mrs. Varano again.
MRS. VARANO: I'm sorry. It's not just that I mean, keep the
trees up, but, if we put a house on a separate parcel which would
be just a little bit north of the cottage, you put all these large
big trees or a big house, I mean, that will obstruct our view of the
water also. It will be literally our back yard.
CHAIRMAN GOEHRINGER: Just so you understand. They're utilizing
the existing cottage and they're making it bigger.
MRS. VARANO: Right.
CHAIRMAN GOEHRINGER: So they're not building any house bigger.
MRS. VARANO:
stories.
No, it's bigger not only this way, it goes up two
CHAIRMAN GOEHRINGER: Right, that is correct.
BOARD SECRETARY KOWALSKI: It's closer.
MRS. VARANO: So if you're low like this, you're not really seeing
anything much. I mean you know our house is there, but, when
you're up high there's always, I mean you're just looking out down
into somebody's home. Maybe across from bedrooms to bedroom or,
down into the yard when you want to relax in your bathing suit or
something. It's just a, that's what I'm objecting to.
CHAIRMAN GOEHRINGER: The height?
MRS. VARANO: The whole big structure as itself.
CHAIRMAN GOEHRINGER; The height? Yes~ the mass of the
structure.
Page 16 Hearing Transcripts
March 25, 1999 - Board of Appeals
MRS. VARANO: Right, right. When things are setback to the
property lines, you don't notice it as much, as if it were on top of
you. It's not like city apartment buildings where they want to live
next to each other.
CHAIRMAN GOEHRINGER: OK.
MRS. VARANO: I don't know if I made myself clear.
CHAIRMAN GOEHRINGER: Well, I have to tell you that the purpose
of my asking you if you objected to the subdivision was to say that
this property Certainly could be dealt with, with two houses on one
piece of property without the subdivision, OK. That is not what is
before us tonight, alright. And, that the skewing of the house
could be further to the east or to the northeast which would take
some of the saturation away from that setback, that 10.5% setback,
OK. However, that is not to my knowledge what is proposed at this
point. So a, you know.
MS. MOORE: It's funny we were actually when we were creating the
line and the setbacks of the expansion of the house a little bit
because it's not really, when you add up square footage footprint
500 sq. ft. and you're going from a one and one-half story cottage
to a two story but dormered so it's not going to be bulky, it's going
to be with second story full rooms. We were trying to be sensitive
to the setback to the property line. We got an existing setback
right now, and that's why we're you know -
CHAIRMAN GOEHRINGER: You're holding that setback. My
question is, did you show Mrs. Varano a copy of the plan for the
house?
MS. MOORE: We don't have, well we have a draft of it, but it
changed so many times. I don't know if we got a final. If we knew
what the footprint size is we could kind of work with some detail of
the plan, but it was kind of going backwards. She had some idea of
what she wanted, but, without knowing that the subdivision was
going to go through and that you know, where you were going to
draw the lines. I didn't want them spending money architecturals
when we're really kind of, we have to back into it. So we can give
you conceptual of what's, what I think the outside might look like. I
think you have that part of design on that part.
CHAIRMAN GOEHRINGER:
Varano?
Why don't you share that with Mrs.
MS. MOORE: Sure.
CHAIRMAN GOEHRINGER: And if she has any objection to that, we
will close the hearing but pending. We will not make a decision and
pending any concern that she has after she's looked at the plans.
(changed tape).
Page 17 Hearing Transcripts
March 25, 1999 - Board of Appeals
MS. MOORE: We're sensitive to her concerns and we'll try to
address them but we don't want limitation on we got a two story
there to build a ranch. This is' not something that would
esthetically look good there. We're not proposing a ranch on their
property so we can see in that direction. I don't think it's fair to
do the reverse.
CHAIRMAN GOEHRINGER: I understand that but this is a issue
where both property owners get along and it would be nice to at
least do that and -
MS. MOORE: We have no objection to that.
CHAIRMAN GOEHRINGER: Yes, OK. So you're going to get back
to me with some, get back to the Board with some -
MS. MOORE: Landscaping.
CHAIRMAN GOEHRINGER: Landscaping and in the interim, Ms.
Mottley will show Mrs. Varano the plan, and Mrs. Varano if you'll
call us, or, you write us a letter and say, you still have an
ultimate concern regarding the plan, we'll reopen the hearing.
MEMBER DINIZIO: Can I ask a question?
BOARD SECRETARY KOWALSKI: If she asks to reopen it.
CHAIRMAN GOEHRINGER:
MEMBER DINIZIO: Jerry?
CHAIRMAN GOEHRINGER:
If you ask, if you ask.
Yes, surely.
MEMBER DINIZIO: It's funny, the ad'ditions to this cottage. Did
you say to tear the house down and build a new house?
MS. MOORE: Are we going to tear the house down?
MEMBER DINIZIO: Yes, are you tearing down the cottage, you're
just putting additions to it?
MS. MOORE: No, there's a foundation there. You're not changing
anything?
MS. MOTTLEY: No.
MS. MOORE: No because it can actually be dormered out so that
with some -
MEMBER DINIZIO: OK, so it's not like you're reconstructing a new
footage.
MS. MOORE: Let me give you some pictures. Have you seen the
house?
Page 18 Hearing Transcripts
March 25, 1999 - Board of Appeals
MEMBER DINIZIO:
ask that question.
No, no, that's fine.
No, no, I just wanted to
MS. MOORE: OK.
MEMBER DINIZIO: Thank you.
CHAIRMAN GOEHt~INGER: OK. So we'll leave it at that point. So
hearing no further comment I'll make a motion closing the hearing
pending the receipt of the landscaping plan and anything else that
the attorney for the applicant submits which may include a rendering
of the house or at least a copy of what the potential house would
look like, the cottage that is. At the same time she will
unilaterally present that to the next door neighbor who is Mrs.
Varano. Alright ?
MS.'MOORE: Fine, OK.
BOARD SECRETARY KOWALSKI: And Mrs. Varano may give a
letter. -
MEMBER TORTORA: Make a comment so that Mrs. Verano/-
BOARD SECRETARY KOWALSKI: Mrs. Varano can respond.
MEMBER TORTORA: Yes, you did mention one of her questions so
that if she wants to respond to us.
CHAIRMAN GOEHRINGER: It's alright with me.
BOARD SECRETARY KOWALSKI:
resolution?
Are you adding that in your
MEMBER TORTORA: Sure.
CHAIRMAN GOEHRINGER: I can, sure.
BOARD SECRETARY KOWALSKI: OK.
CHAIRMAN GOEHRINGER: We're going to leave it open for a written
comment and we'll make a decision in April.
MS. MOORE: OK, for both of us to submit any comments, OK.
CHAIRMAN GOEHRINGER: No further
BOARD SECRETARY KOWALSKI: The written, the written -
CHAIRMAN GOEHRINGER: Yes, no oral, no more oral.
MS. MOORE: I don't want to hear from you, (jokingly)..
Second by Member Collins; Motion carried. See Resolution (Minutes).
Page 19 Hearing Transcripts
March 25, 1999 - Board of Appeals
7:35 P.M. Appl. No. 4655 -J. BOYLE & HANDS FUEL CO.
(Continuation from February 23, 1999). N/S Main Road, Orient, N.Y.
CHAIRMAN GOEHRINGER: The hearing was recessed from February
25th. Mr. Hughes, I believe you're next on the Hit Parade. How
are you tonight Sir?
MR. HUGHES: Fine. How are you?
CHAIRMAN GOEHRINGER: We have read your affidavits.
anything else you would like to submit to the Board?
Is there
MR. HUGHES: The only other thing I'd like to bring up to the
Board is a short explanation on the a, sought of a critic note you
got from the Planning Board. I met with the Planning Board.
Basically the only issue that we were discussing was whether they
had any adverse reaction to creating a landlocked lot? And they
didn't have any objection to that. The only objection they had in,
you may not be able to understand it from Mr. Kassner's note.
They want us to lay out the right-of-way that will be created in
such a manner that the lot that would be bounded by the
right-of-way on the east and the north and by the Main Road on the
south by the gas station on the west 'would conform to 80,000 sq.
ft. That's what that note meant. I don't know if you all figured it
out. I figured it out because I was there when he said it.
CHAIRMAN GOEHRINGER: Even that he presented that to me at an
opened forum we were discussing because he did, Mr. Kassner did
not understand the application. So, I do understand what you're
saying.
MR. HUGHES: OK.
CHAIRMAN GOEHRINGER: So mine was in person also.
Board wasn't, OK. We'll start I think on this side.
But, the
MEMBER HORNING: No questions.
CHAIRMAN GOEHRINGER: No questions. Mrs. Tortora?
MEMBER TORTORA: No. I read through the affidavits. It'.s clear
from the affidavits that the use of that parcel is continuous and
preexisting nonconforming.
CHAIRMAN GOEHRINGER: Ms. Collins?
MEMBER COLLINS: Oh, I certainly agree that that's what the
evidence shows. I guess perhaps alas because I'm you're local
lawyer. I believe in procedure and the question is, exactly how
we're going to dispose of this? Mr. Hughes asked us in his letter of
March 17th, when he sent the affidavits, that we give him a finding
Page 20 Hearing Transcripts
March 25, 1999 - Board of Appeals
or decision that are, this is a preexisting nonconforming use and I
don't think we can do that.
MEMBER TORTORA: I think maybe all we have to do is reverse the
decision of the Building Department and say that a, -
MEMBER COLLINS: Lets see, what is the Building, I mean, I, I,
you know I think Mr. Hughes, that there's no question that this
Board, at least the majority of this Board agree that the evidence
exists that Section 241 covers this thing and it can continue to be a
nonconforming use as long as it doesn't grow. Really the question
is, how we satisfactorily close the file?
MR. HUGHES. I raise this issue briefly with the Planning Board at
the time in reading the code. It doesn't really say who is in charge
of Section 241 which is what you said. And a, because I wanted to
find out whether the Planning Board felt that we were stepping on
their toes. Mr. Orlowski said no, that's something that the ZBA can
take care of basically is what he said to me and I took him at his a,
you know. That they certainly had no objection to the ZBA doing
it. Exactly what the procedure is, I don't know.
MEMBER TORTORA: Well, the ZBA can agree, reverse, amend, on
appeal of decisions of the Building Department. So it's very simple
to reverse its decision. It's not a permitted use on the basis that
it is a preexisting nonconforming use as supported by the applicant's
sworn statement.
MEMBER COLLINS: Right.
CHAIRMAN GOEHRINGER: Go ahead Lora.
MEMBER COLLINS: Lydia, I agree and I had, when I just made this
comment now, I had not refreshed myself as to exactly what the
Building Department's approval said. And, they said, the proposed
lot line change will create a nonconforming use in an R 80 Zone.
Andi that's true. But, the point is that the R 80 doesn't create it,
the use has been there, nonconforming since before time.
CHAIRMAN GOEHRINGER: It's preexisting.
MEMBER COLLINS: And, you know, we, I guess we can just simply
pass, make a resolution ourselves sayin~ that that's what the fact
situation is and therefore it should not stop them from doing what
they want to do, OK.
CHAIRMAN GOEHRINGER: So why don't you do that.
MEMBER COLLINS: It is appellate, I agree.
CHAIRMAN GOEHRINGER: Is there anybody else while you're
standing 'there Mr. Hughes, anybody else like to speak for or
against this application? Seeing no hands I'm ready. What do you
want to give him?
Page 21 Hearing Transcripts
March 25, 1999 - Board of Appeals
MR. HUGHES: Could I interject one thing? Is there any chance
that we can, I'm under some -
MEMBER COLLINS: Time pressure.
MR.HUGHES: Some sought of deadlines. Is there any chance that I
can get a definitive resolution on this, this evening?
CHAIRMAN GOEHRINGER: There's the 'possibility you might be able
to get it right now.
MR. HUGHES: I'm pushing, I'm pushing.
MEMBER COLLINS: Since people -
MEMBER DINIZIO: I'd be willing to make a motion.
MEMBER COLLINS: Well yeah, but we want to word it right. Mr.
Chairman, can I make a suggestion?
CHAIRMAN GOEHRINGER: Yes, sure.
MEMBER COLLINS: Some point this evening we will take a little
break. It's clear what we're going to do, Mr. Hughes. Since this
is my case to draft, I don't like to draft while talking. I will
draft something and we will vote it later.
MR. HUGHES: I will wait. I'll wait,, I'll stay here. I want to
find out what the story is.
MEMBER COLLINS: This is going to be very exciting.
CHAIRMAN GOEHRINGER: It may be the wee hours.
MR. HUGHES: Well, that's alright. I'm willing to do that.
CHAIRMAN GOEHRINGER: OK, we thank you. Hearing no further
comment I'll make a motion closing the hearing reserving decision
until later.
MEMBER DINIZIO: Second.
CHAIRMAN GOEHRINGER: All in favor?
Motion carried. See Minutes for Resolution.
Page 22 Hearing Transcripts
March 25, 1999 - Board of Appeals
7:40 P.M. Appl. No. 4660 - EMPIRE PETROLEUM
Contract Vendee (Owner: Wilhelm Franken). This is a request for a
Special Exception under Article XX, Section 100-10lB-12 to establish
a new Retail Gas Sales-Convenience Store. Location of Property:
74495 Main Road, Greenport, N.Y.; County Tax Map No.
1000-45-4-4.1 (or 4).
CHAIRMAN GOEHRINGER: I have a copy of a site plan from Garrett
Strang, Architect, dated 3/15/99, indicating the present pump
islands, the retail gas sales and convenience store position and the
question of the wetland area that's a question we'll be dealing with
at this point and asking the agent for the applicant and a copy of
the Suffolk County Tax Map indicating this and surrounding
properties in the area. Mr. Strang we're ready.
MR. STRANG:
sign.
I just want to submit a affidavit of posting of the
CHAIRMAN GOEHRINGER: Thank you, appreciate it.
BOARD SECRETARY KOWALSKI: Thank you.
MR. STRANG: What we presented here I think is a road to the
straight forward application. The plan as it's been developed meets
all the criteria of the zoning to the best of my knowledge. I've
been in preliminary conferences with the Planning Board as well as
the Trustees on this matter, but we really can't take much further
action with any of the Boards involved including the DEC in light of
such time as this Board renders a decision with respect to the
Special Exception Use on the property. As you're aware there was a
gas station on this site and service station I believe that it was
discontinued. I believe it was due to a fire on site that caused the
termination of that use and it has since or vacant if you will,
with the exception of some derrick buildings that are there, sheds
and the light for the last 15 to 20 years to, that's to my
understanding. My client is looking to reestablish their gasoline
service use without service bays, but to have a retail convenience
store there as well, which is very typical today, gasoline sales
facilities. I'll address any issues that the Board may have at this
time. I don't know if there's really much more that can be said
about the application. It speaks for itself.
CHAIRMAN GOEHRINGER: What is the, what are the issues between
the Boards at this point? Are the Trustees involved in this at all?
MR. STRANG: I'm meeting with the Trustees as of yesterday, their
work session and they are coordinating with the DEC to walk the
site and confirm that the staking that we had done to a private
consultant, staking the wetlands is in fact a concurrence with the
DEC would and the Trustees would agree to. In principal based on
what they saw on the site plan, they really didn't have any serious
Page 23 Hearing Transcripts
March 25, 1999 - Board of Appeals
objections as of our discussion was yesterday. Assuming again, that
the wetlands are in fact where they're shown to be on the map.
CHAIRMAN GOEHRINGER: Is there going to be a letter forthcoming
from them, or anything of that nature that you know?
MR. STRANG: I"m assuming there will be. Yes, but as I said,
we've been somewhat holding back with going ahead full until the
other agencies and application and formal application process is
until we knew that we'd be given a Special Exception for this use.
CHAIRMAN GOEHRINGER: Our concern is that of enviro, my
concern is that of a environmental at this point and that's we're we
are, OK. I'm not positive that we can close this hearing until we
really know what the environmental aspect is and that's where my
concern is, OK. As you know that the special permit aspect is a
matter of right. There are certain restrictions you can place on it,
OK, normal restrictions and you've seen those before with many
applications that you served, you know. Clients before this Board.
So, we a, you know, I'm not speaking for the Board, but a, you
know, it's an appropriate zone, it's an appropriate location. But,
the questions is, is the location of everything else that's there
appropriate, OK? And, that is the back parking lot and so on and
so forth. So, that's, that's part of my concern. We'll start with
Mr. Dinizio?
MEMBER DINIZIO: Well I'm just concerned, I know we had
discussions concerning the canopy over the pumps as to whether or
not that's a structure and whether that should be located 100 feet
from the road. Do you have any idea on that?
MR. STRANG: Well I believe the canopy is detached from the
building. I think by definition it could possibly be considered any
accessory, but, then again, it would be in a front yard. So, what
are we looking at there?
MEMBER DINIZIO: Alright.
MR. STRANG: But I would like to call to the attention the fact that
the zoning code as I understand it, says that your setback can be
an average of the neighboring properties. And, the properties to
our east which are both of which are developed. The Sunrise Coach
which is two lots to the east is 50 feet back from the property
line. The parcel immediately to our east, is their canopy which is
attached to their buildings is almost right on the lot line, within a
few feet of the lot lines. So if we were to average those with the
required hundred I think we're, we're that, you know, within the
roam of raising the ability there.
MEMBER DINIZIO: That's all I asked. Thank you Garrett.
CHAIRMAN GOEHRINGER: Ms. Collins?
MEMBER COLLINS: No, I don't have any questions.
Page 24 Hearing Tr/~['scripts
,March 25, 1999 - Board of Appeals
CHAIRMAN GOEHRINGER: Mrs. Tortora.
MEMBER TORTORA: I'll just go through a few quick ones.
MR. STRANG: Sure.
MEMBER TORTORA:
be located where?
The underground gasoline tanks are going to
MR. STRANG: The underground tanks will be located in front of
the pump islands, between the pump islands and the road. Well
between the pump islands and where the sign is shown on the site
plan.
MEMBER TORTORA: The only thing, I'm looking at the Special
Exception criteria and I'm going to say this so that you can kind of
make a note of it. They have to be located 35 feet from the
property line other than the street line.
MR. STRANG: That's correct.
MEMBER TORTORA: So, as long as you're in that area and you can
submit something in writing to that effect to us, or in the
alternative, Garrett just put it on the map so that we can make sure
that criteria has been worked out, that's fine with me.
MR. STRANG: It'll ultimately show on the site plan. Just a point
of reference. My preliminary location of the tanks are approximately
40 and 60 feet from the side lot lines.
MEMBER TORTORA: About 40 and 60?
MR. STRANG: 40 and 60. So, we'll be within that
will 'be in excess of the 35 feet.
So we
MEMBER TORTORA:
sufficient room to get
about 15 feet to that.
more or less?
OK, fire access. The canopy, is there
fire vehicle on that both sides? You got
I guess that's a buffer zone you're running,
CHAIRMAN GOEHRINGER: It says 25 here.
MEMBER TORTORA: Is that 25 feet or is there a vegetated buffer
area along there?
MR. STRANG: Well there's 25 feet from the property line to the
actual canopy which is elevated. There is l0 feet of planting area -
MEMBER TORTORA: That's what I thought.
MR. STRANG: That the Planning Board is looking for.
MEMBER TORTORA: Yeah, so you got 15 feet in there -
·
P~ge 25 Hearing Tra~l~scripts
March 25, 1999 - Board of Appeals
MR. STRANG: The canopy is elevated.
MEMBER TORTORA: And it's sufficient for a fire access?
MR. STRANG:
underneath.
Yes, definitely sufficient for fire apparatus to move
MEMBER TORTORA: Same question on the west side of the property
where that fence is.
MR. STRANG: Yes.
MEMBER TORTORA: Fire access to the rear of the building to that
end of the building. I'm just concerned about the fence.
MR. STRANG: OK, if that's a concern we can have, we can address
one or two issues with that. We can have an operable gate and
fence or we can delete the fence if that's a serious concern of the
Board.
MEMBER TORTORA: Well you don't a, realistically it's goner, it
would actually if there was a fire in the back of the building, it's
not going to be the easiest thing to get to because you've got to go
around the planters and then you've got to go around the second
planter around the parking lot. You don't have access to the west
side of the building and one of the things we look at in a Special
Exception is health, safety welfare and a fire access. So, if you
would, I would like, you know I'm not saying to delete it. The
concern is, make it available for fire vehicles in some way. That's
the concern.
MR. STRANG: I don't think the building problem
MEMBER TORTORA: The only other question I had. You've got
one entrance, a front entrance?
MR. STRANG: To the building? I'm sorry, yes.
MEMBER TORTORA: Yes, one entrance.
MR. STRANG: There will be one entrance right in the center of the
building in the front only.
MEMBER TORTORA: With the so, it, it's convenience store?
MR. STRANG: Well let me correct that, OK. I want to correct
that. There is by code a requirement for second needs of egress.
So there will be another exit if you will, which could I guess serve,
if you will as an entrance in the rear of the building which you can
exit out into the rear parking area.
MEMBER TORTORA: No, because logically I was looking at that and
saying yes, if somebody wants to roll in for a coke or a cup of
coffee, there not going to come around to the back -
Page 26 Hearing Transcripts
March 25, 1999 - Board of Appeals
MR. STRANG: That's right. That's true.
MEMBER TORTORA:
entrance.
Go back to the front without a second
MR. STRANG: That's true.
MEMBER TORTORA: So, those are my concerns. If you can find a
way to address those concerns I think you have sufficiently met the
criteria of a Special Exception.
MR. STRANG: Just to reiterate, I believe the only issue we haven't
addressed at this point, your concern is the fence. Am I correct?
MEMBER TORTORA: The fence. Indicate that there will be a
second you know, access and what else did we go through? The
Trustees are going to confirm the wetland area, which is the DEC,
correct?
MR. STRANG: Yes, they will. We'll be working with them.
CHAIRMAN GOEHRINGER: And tell us the height of the canopy so
that we know that fire vehicles can get on.
MR. STRANG: OK, that will be specified. At this point we're
probably looking at 14 - 15 feet to the underside of the canopy.
CHAIRMAN GOEHRINGER: OK. Mr. Homing any questions. No,
OK. Mr. Strang, while you're standing there, is there anybody else
would like to speak in favor of this application? Speak against the
application ma'am? Thank you Mr. Strang. Kindly state your name.
You can use either mike Ma'am, that's fine. Just state your name for
the record please.
MS. GIOVANELLI: My name is Carole Giovanelli from Greenport.
CHAIRMAN GOEHRINGER: How do you do.
MS. GIOVANELLI: I oppose the gas station and the convenience
store. First of all there's a gas station right across the street.
Secondly you've got 711 down the street and I don't know if any of
you were around when we had the explosion then. There wasn't a
fire, there was an explosion.
CHAIRMAN GOEHRINGER: I heard that.
MS. GIOVANELLI: And it was very difficult for the fire trucks to
get there. You can ask any of the firemen and I think you should
think about this. The explosion was very, very bad.
CHAIRMAN GOEHRINGER: Thank you. Anybody else. Yes Ma'am.
Please state your name for the record.
Page 27 Hearing Transcripts
March 25, 1999 - Board of Appeals
MS. MARTIN: Amy Martin, I'm a residence of Greenport. In the
two miles that consists basically of Greenport, a little bit outside
the Village, there are three gas stations, three convenience stores,
two delis, four cafes, one super market, two ice cream parlors,
three pizza parlors and six existing restaurants and two proposed.
I really find, I mean this is already an unattractive spot. There
are family owned gas stations in town that have struggied for years
to maintain enough clientel and I think this is a serious excess and
I like you to consider that. I don't think this is the right use of
the property.
CHAIRMAN GOEHRINGER: Thank you. Anybody else? Yes Sir, for
the record please state your name.
MR. REICH: I'm Norman Reich.
CHAIRMAN GOEHRINGER: How do you do?
MR. REICH: I own the gas station that's across the street.
CHAIRMAN GOEHRINGER: Hm, bm.
MR. REICH: I'm sure everybody knows. My concern is in the
summer I have on weekends anywhere between 10 to 12 trucks,
trailers with boats which pickup truck with a 22 foot boat on the
back measures approximately 45 feet long and there's not going to be
any possible way for someone to pull into a 25 foot entrance way,
curve way, with a boat and a trailer without pulling into the
oncoming traffic lane, making a swing to get in there. Once they
get in there, they're not goin~ to get out unless they back out and
the traffic being what it is in the summer on the Main Road with just
coming out of my station is near accidents all the time. I could
just imagine directly across two people trying to come in and out
with boats coming in getting halfway stoped in the middle of the
road which is going to happen and then having to back out once
they realize they can't get in and I think it's going to be a, you
know, someone is going to get killed.
CHAIRMAN GOEHRINGER: How much road frontage do you have Sir?
MR. REICH: 200 feet.
CHAIRMAN GOEHRINGER:
approximately the same way.
Road -
Your island would be set up
It's a, set up parallel to the Main
MR. REICH: No, my island runs east and west. They want to go
north and south of theirs the way it's setup, correct?
MEMBER TORTORA: No, it's east and west.
CHAIRMAN GOEHRINGER: East and west also.
MR. REICH: It is east and west? Then I misunderstood.
Page 28 Hearing Transcripts
March 25, 1999 - Board of Appeals
MEMBER DINIZIO: No, no, the pumps are going to be north and
south.
CHAIRMAN GOEHRINGER: The pumps are north and south but the
island itself is -
MR. REICH: So, when you pull in, you're going to be pulling
north. You're going to pull in straight in to the pump.
MEMBER DINIZIO: Unless they turn around.
MR.REICH: So, if you have a vehicle that's, is 45 feet long -
CHAIRMAN GOEHRINGER: Oh, I see what you're saying.
MR. REICH: It's 40 feet from the road to the beginning of the
pump.
CHAIRMAN GOEHRINGER: Right.
MR. REICH: In order for them to get there to the island to pump
gas, they're going to have their truck into this
MEMBER DINIZIO: No, it's 50, almost 60 feet.
MR. REICH: It just says 40 -
MEMBER DINIZIO: That's to the top of the canopy.
MR. REICH: To the top. Any rate, some of these people, the
people who own these vehicles, they cannot back up. I mean I have
them come into my station and several times I had to get out and
help them get away from the pumps because they couldn't figure out
howto get in reverse and I can just imagine what's going to happen
when people start pulling in there and it's going to happen because
there's, it's going to happen and it's going to be a mess. I mean I
think that you're talking about worrying about safety and concerns
about people's welfare. This is something to be concerned about.
That's all I have to say.
CHAIRMAN GOEHRINGER: Thank you.
a rebuttal and we'll wrap it.
Anybody else? Mr. Strang,
MR. STRANG: OK. Quickly with respect to the concern about the
explosion of the station that was there previously I can appreciate
the fact it would be a valid concern on anyone's part. However,
that was a station that was somewhat antiquated. At best I would
say given how long ago that happened, it most likely didn't have the
best of fire safety equipment and the protection of the tanks and the
liability with respect to preventing that from happening. This
obviously is a new facility. It has to be all to date current
standard with respect to fire safety and the likelihood of an
occurrence of that particular situation is negligible I think at
Page 29 Hearing Transcripts
March 25, 1999 - Board of Appeals
best. Although it was a valid concern using that criteria we have
to basically say, that we can't build anymore gas stations anywhere
in the town because there's a possibility of an explosion, so I don't
know that a. I think that issue would be addressed by the fact that
we're building a State of New York facility. Secondly, with respect
to Mr. Reich's comment about access upon north site. I think some
of those issues may be addressed when we get further on with the
Planning Board and a good possibility that the code cut size may
change when we speak with the Planning Board and the DOT, but I
basically tend to agree with him, yes, there are many people who
drive out there pulling trailers behind them that really have no
business doing that and if they knew how to operate it, they
probably wouldn't have as much trouble as they do have.
CHAIRMAN GOEHRINGER: Mr. Strang what is the distance between
the pump and the sidewalk in front of the retail gas sales and
convenience store?
MR. STRANG: I believe that's 40 feet.
CHAIRMAN GOEHRINGER:
could be ?
OK.
Is there a possibility that that
MR. STRANG: The difficulty in doing that would be then that
should be more than adequate to maneuver a vehicle through there.
But, the problem with that would be to move the building back
further which would push everything closer to the wetlands which
we're trying to avoid. The other situations would be move
everything forward which would reduce the amount of stacking if
you would consider how much stacking you would have as cars -
CHAIRMAN GOEHRINGER: No, we definitely don't want to move
forward, that's for sure. This is an issue that I would like you to
take to the Planning Board in reference to the site plan aspect.
Particularly on the basis it was a very appropriate question that Mr.
Reich brought up by the way. We a, I definitely have a concern
about that. There's no two ways about that. Either the building
has to be shrunk, but we've got to get more room. There's got to
be more room between that pump island and a -
MR. STRANG: One other alternate I may discuss with my client if it
looks like it's a feasible with the turning irritation of the pump
island and change the traffic flow so that it enters the site close
east and west and exit the site as opposed to approaching the pumps
in the south direction. We can study that a little further. And
lastly no to delay this much further but, with respect as to whether
this is an appropriate use in the area given the fact that there's
other similar uses in the area, I don't know if that is a, again, I
can appreciate a concern on the part of the community with respect
to how many gasolines can be installed and the like of want and
would want to have. But, it's sought of driven by the market if
you will and obviously the Village of Greenport has made great
strides in the increasing of tourists industry and is continuing to
do so by developing attractions that bring tourists out here and
Page 30 Hearing Transcripts
March 25, 1999 - Board of Appeals
those tourists are going to need to be serviced and lastly I think
any of us enjoy is when we're on vacation to have to wait an
time to fuel up the vehicle before you can go anywhere. Certainly,
I wouldn't want to see 42 gas stations in a row throughout the
village, but, the site did have a station on it originally.
Unfortunately it met with its demise and I think the site is, I think
it's an appropriate site for this type of use. I rather see it here
then elsewhere.
CHAIRMAN GOEHRINGER: Welt what we need you to do is, where
that fence is for the dump, dumpster there -
MR, STRANG: Yes.
CHAIRMAN GOEHRINGER: We need a stake there to know exactly
where the end of this parking lot is and then we can adjust from 15
feet on to where the wetland grass is actually start when we do an
inspection.
MR. STRANG: OK.
CHAIRMAN GOEHRINGER: The last time I was there of course there
was snow on the ground. I just want to point out for the people
that spoke. This is a preliminary hearing. We have not in any way
completed this process, so please be aware of that and we do
appreciate your comments. Just a second Mr. Reich, I'll be right
with you. Now, yes, go ahead.
MEMBER TORTORA: Just please before we close the hearing, make
sure that you put the location of the underground tanks on here.
MR. STRANG: I'll be certain to do that.
MEMBER TORTORA: Because I think it's very specifically one of
the criteria for gas stations, so that there won't be exact setbacks
and loeation of them on there.
CHAIRMAN GOEHRINGER: Mr. Reich?
MR. REICH: I'd like to say one thing that is of concern mentioned
that the need or the possible need for another gas station. When I
moved out here in 1976, there were six operating gas stations in the
Greenport area. At one point it was down to one and since then, I
invested a lot of money and had the tanks put back in and opened
back up and selling gas and then a year after that, the village, the
Planning Board granted George his tanks at which time, at this point
right now is being leased to the people who want to set up another
place and if there was a need for gas stations and if there was that
much gas there was, first of all the buying of gas in Greenport,
there's not enough to support another gas station. If there was,
the six stations that were in use at the time that I moved here, they
would still be in business. There not in business anymore because
it's a very small amount of gas. I mean I've gone before Empire
opened up with George we were doing 15-1600 gallons a day, right.
Page 31 Hearing Transcripts
March 25, 1999 - Board of Appeals
In the winter I was doing 7 to 800 gallons a day. Now, I'm doing
400 gallons a day in winter and in the summer I'm up to maybe 1200
gallons. So, by .putting another station in Greenport which is going
to make four stations now because George is not going to close
down, you're just going to divide the pie again and I can't
understand why they even want to do it. But, that's not for me to
decide. I mean as far as there being a need and people having to
wait to get gas and as far as the people coming out, they gas up
when they leave. They drive out, they park their car in
Greenport, walk around Greenport, get in their car and leave.
They don't buy gas in Greenport. 90% of the people that come out
today. That's all I have to say.
CHAIRMAN GOEHRINGER: Thank you. Mr. Strang.
MR. STRANG:
at this point.
I don't know it there's anything else I need to add
CHAIRMAN GOEHRINGER: OK, the question is as you have heard,
our calendar is well saturated OK, with hearings. I think the best
thing to do, is let us know when you've arrived at a point of you
know an agreement on where these wetland areas are and the actual
placement of what's going to be done and then you've put that stake
in so that we can look at the whole process. And possibly stake the
pump islands for us so that we can look those also. I realize they
may not be there. I realize people you know, may walk over and
take them out or whatever the case might be. To the best of your
ability. At least if we get two out of the three so we know what we
have.
BOARD SECRETARY KOWALSKI:
date?
You're going to recess without a
CHAIRMAN GOEHRINGER: Yes. I guess we'll recess it without a
date. Let us know when we're ready to go and we'll be all set then.
MR. STRANG: I'll notify you. I believe that the Trustees are
attempting to get coordinated with the DEC within the next two
weeks to three weeks to walk the side of the street.
CHAIRMAN GOEHRINGER: Great, thank you.
MR. STRANG: Thank you very much.
CHAIRMAN GOEHRINGER: Thank you. Hearing no further
comment, I'll make a motion recessing without a date.
MEMBER COLLINS: Second.
CHAIRMAN GOEHRINGER: All in favor?
Motion carried. ~See Minutes for Resolution.
Page 32 Hearing Transcripts
March 25, 1999 - Board of Appeals
CHAIRMAN GOEHRINGER: We everybody's indulgence we'll take a 3
minute break here and then we'll come back with one decision and
then we'll continue with the hearings.
8:15 P.M. Appl. No. 4667 - JOHN & LUCIA SICA
A variance is requested under the Southold Town Zoning Code,
Article XXIV, Section 100-244B and Article XXIII; Section 100-239.4B
for permission to locate proposed dwelling with setbacks at less than
75 feet from the existing bulkhead and less than 40 feet from the
front property line (facing private right-of-way). Location of
Property: Private right-of-way extending off the south side of Main
Road; (S.R. 25), East Marion, N.Y.; Parcel 1000-31-14-9.
CHAIRMAN GOEHRINGER: I have a copy of the Map indicating the
proposed house and the setbacks from the bulkhead and the
surrounding properties, property lines, and I have a copy of the
Suffolk County Tax Map indicating this and surrounding properties
in the area. Let me just finish this hearing.
MEMBER COLLINS: Sure.
CHAIRMAN GOEHRINGER: Good evening.
state your name for the record.
How are you? Could you
MRS. SICA: I'm Lucia Sica and my husband -
MR. SICA: John.
CHAIRMAN GOEHRINGER: How do you do?
MRS. SICA: I would just like to say first to the Board please, that
we did send out all of the necessary letters to our neighbors
surrounding us and up until this morning, only one was not ever
returned. Neither the letter nor the green card. Do you need to
know the names or the parcel number of that particular lot?
CHAIRMAN GOEHRINGER:
now?
Do you have any that are returned to us
MRS. SICA: Pardon ?
CHAIRMAN GOEHRINGER:
We have everything, OK.
Do you have any green cards to return?
MRS. SICA: Everything has been submitted Sir.
CHAIRMAN GOEHRINGER: Do you want the name of the one?
BOARD SECRETARY KOWALSKI: Yes, the name of the one green
card that's missing.
Page 33 Hearing Transcripts
March 25, 1999 - Board of Appeals
MRS. SICA: Mr. George Mangini.
BOARD SECRETARY KOWALSKI:
MRS. SICA: 31-5-8.1 property.
BOARD SECRETARY KOWALSKI:
MRS. SICA: Thank you.
CHAIRMAN GOEHRINGER: OK.
you like to tell us?
OK, thank you.
Thank you.
How are you Mr. Sica? What would
MR. SICA: I just made a few copies here to verify things and make
it a more easier on the I guess. (inaudible) of what I have and
what I docketed is where I"m suppose to be.
CHAIRMAN GOEHRINGER: OK. What does the cross area
represent that you've just given us?
MR. SICA: Well that is a cross section of where the 75 feet of the
bulkhead is where they are.
CHAIRMAN GOEHRINGER: I see, I see..
MR. SICA: And this will encroach on to the septic system which I
don't have 1;oo much room to move east, west, south or north.
CHAIRMAN GOEHRINGER: OK.
MI{. SICA: And by moving it southerly and off the bulkhead 35
feet, 36 feet, it will leave me room to not to disturb the septic
system that has already been approved.
CHAIRMAN GOEHRINGER: OK. How big is the house square
footage wise? Do you know?
MR. SICA: The square footage is 21 x 60 something.
CHAIRMAN GOEHRINGER: OK.
MR. SICA: That's with the garage.
CHAIRMAN GOEHRINGER: Right. The proposed deck is -
MR. SICA: The whole area is 17-17'10".
CHAIRMAN GOEHRINGER: Thank you. The proposed deck. Is
that a raised deck Mr. Stoa?
CHAIRMAN GOEHRINGER: No, it's a even with the first floor.
CHAIRMAN GOEHRINGER: Even with the first floor. OK. I don't
have any specific comments at this point. We'll start with Mr.
Page 34 Hearing Transcripts
March 25, 1999 - Board of Appeals
DINIZIO. Any questions of this nice man Sir? MEMBER DINIZIO:
No, not now.
CHAIRMAN GOEHRINGER: Ms. Collins?
MEMBER COLLINS: I gather that the Suffolk County Water
Authority has not reached your area. That it didn't go further east
and around the post office. Is that true?
MR. SICA: Well, did the water-
MEMBER COLLINS: I'm asking whether you have public water Sir,
because of these issues of the location of the septic and wells.
MRS. SICA: Yes, well if I can bring all of us up to date on this.
As far as this morning was concerned, I have called a number of
times the East Regional Water Supply in Westhampton and I called a
Mr. Zimmer and Mr. Zimmer again, this morning, when I called back
because we were concerned wondering if the water was coming
through down to our direction of East Marion and we were informed
that the water is coming through. That they had put a moratorium
on building new buildings going up. But, he did give me further
directions of who to contact and I'm writing him a letter tomorrow.
I'm sorry if I don't have that name.
MEMBER COLLINS: Well that's alright.
MRS. SICA: I should have brought it with me. But, I'm writing a
letter tomorrow and Mr. Zimmer told us, that we should explain what
we've been going through from the Health Department going down.
Something about a hardship case, or something we're suppose to ask
about. And, because of our septic system and where the Health
Department has insisted we place everything, we are going to put
that down too and hopefully we will get water in East Marion. They
will take the moratorium let's say off of our new home.
CHAIRMAN GOEHRINGER: OK. Does that answer your question?
MEMBER COLLINS: Well, yes. Clearly as a practical matter, if
this house is going to be built, I expect it's going to be built and
the septic system is going to be ,put where the Health Department
says it has to be put long before Suffolk County Water reaches
them. I really was asking whether the water had already gotten
there?
MRS. SICA: No ma'am.
MEMBER COLLINS: I didn't think so. OK.
MRS. SICA: It has not. Not yet.
MEMBER COLLINS: Another question -
MRS. SICA: As far as I know.
Page 35 Hearing Transcripts
March 25, 1999 - Board of Appeals
MEMBER COLLINS: When I went to the property I did not walk all
the way down to the bulkhead because my legs aren't in great
shape. There are two, there are houses on each of the properties
adjoining you. Can you tell us how far back they are from the
bulkhead?
MR. SICA: Yes. On the east is a, par? less than 20 feet and on
the west part 40 feet.
MEMBER COLLINS: OK. This right-of-way which is creating one of
the basis for your denial that it give you, surprise, surprise of
second front yard.
MR. SICA: That was a surprise.
MEMBER COLLINS: It is located. I want to make sure I understand
it. It's located beyond the existing kind of wire fence on the west
side of your property.
MR. SICA: Right.
CHAIRMAN GOEHRINGER: Right.
MEMBER COLLINS: And it serves the house that's all the way down
the bay and that's what it does.
MR. SICA: But thatis not really being used.
MEMBER COLLINS: No, I realize that the driveway looks like it
isn't actually where the right-of-way is. I just wanted to make sure
I understood where it was because it's a legal fact. OK. That's it
Mr. Chairman.
CHAIRMAN GOEHRINGER: Mrs. Tortora.
MEMBER TORTORA: No, the only question I had is the length of
the house is 56 feet long?
MR. SICA: That's the width. 55, 54' 6"
MEMBER TORTORA:
from the bulkhead?
54" 6" and you're proposing a setback 36 feet
MR. SICA: Yes.
MEMBER TORTORA: Is there no way that you could rearrange that
deck to bring it over to the westerly, I guess it would be north
westerly property line so that you would gain some distance from the
bulkhead? To get it further back from the bulkhead?
MR. SICA: Well there is two. There's another deck on the opposite
side also which is a covered deck off the master bedroom.
CHAIRMAN GOEHRINGER: We'll look at the plans here.
Page 36 Hearing Transcripts
March 25, 1999 - Board of Appeals
MEMBER TORTORA: We only see one proposed deck on this.
CHAIRMAN GOEHRINGER: I guess the question we're asking is, if
we can't come to an agreement on the 36 feet, will you allow us to
grant alternate relief?
MR. SICA: To eliminate the deck?
CHAIRMAN GOEHRINGER:
Make it a little smaller.
No, to maybe less than the impact of it.
MR. SICA: Smaller? Well it's a, what about 12 foot down?
CHAIRMAN GOEHRINGER: Is it 12 or 157
MR. SICA: 12.
CHAIRMAN GOEHRINGER: 12, OK.
MR. SICA: It's quite smaller.
CHAIRMAN GOEHRINGER: Well, you know, it goes on unanimity
when you're doing the decision conceivably. So, I mean that's my
point. You know, you certainly don't want to hold up a house for a
deck.
MR. SICA: No.
CHAIRMAN GOEHRINGER: And there's no question about it. You
know what I'm saying? We, I certainly, we understand your problem
with the Health Department. We understand that that's where they
want it and we understand that puts the house forward and we
understand also, that you probably would rather be forward anyway
then to be beyond the Main Road.
MR. SICA: Yeah because of the noise also is a problem.
CHAIRMAN GOEHRINGER: Right, right,
what happens. We'll see what develops.
pardon me.
so, you know, we'll see
I mean but we may a,
MEMBER DINIZIO: You should explain to him that if we can't agree
on that 36 feet and you say to us, that you don't want to accept
alternate relief, the only alternative we have is to deny it.
MR. SICA: Oh, in other words I have to accept -
MEMBER DINIZIO: No, you don't have to. You can take your
chances and find out that, you know, if we agree, that 3 out of the
5 of us agree that there's OK, then fine. If not, if you can
settle for a 10 foot deck, you know, ihen, you know, you may not
get denied and have to come back involved with a different plan or
something like that.
Page 37 Hearing Transcripts
March 25, 1999 - Board of Appeals
MR. SICA:
thing..
Well I guess I'll have to just accept that, that's the
CHAIRMAN GOEHRINGER: I think that's the proper thing to do.
MEMBER DINIZIO:
aware of that.
I'm just saying this to you just so that you're
MR. SICA: OK.
CHAIRMAN GOEHRINGER: Thank you Jim. I thought this
gentleman understood. My fault for not explaining it fully. I'm not
saying that's going to be the case. I mean, you know, but, you
know we asked all the applicants that so, we're asking you the same
question, OK?
MR. SICA: OK.
CHAIRMAN GOEHRINGER: We thank you for your candor and your
honesty and we appreciate everything.
MR. SICA: Thank you very much.
CHAIRMAN GOEHRINGER: Your welcome. Is there anybody else
would like to speak in favor of this application? Anybody like to
speak against the application? Hearing no further comment I'll make
a motion closing the hearing reserving decision until later.
MEMBER DINIZIO: Second.
CHAIRMAN GOEHRINGER: All in favor?
Motion carried. See Minutes for Resolution.
Page 38 Hearing Transcripts
March 25, 1999 - Board of Appeals
8:30 P.M. Appl. No. 4663 - DR. FRANK & JEAN MIRCHEL
This is a request for a Variance under Article XXIV, Section
100-244B, based upon a Notice of Disapproval issued January 27,
1999 for approval of the setback location of an "as built" addition
to dwelling located at 2485 Yennecott Drive, Southold, N.Y.; County
Tax Map Parcel 1000-55-4-16.
CHAIRMAN GOEHRINGER: I have a site plan produced by Warren
Sambach Architect, indicating a rear yard of 35 feet at this
location. What we have here is a second story deck which is
partially enclosed and a copy of the Suffolk County Tax Map
indicating this and surrounding properties in the area. Mr.
Sambach it appears that this has been there for some time.
MR. SAMBACH: Since the 70s.
CHAIRMAN GOEHRINGER:
of this gentleman?
Mrs. Tortora do you have any questions
MEMBER TORTORA: No, it's pretty straight forward. I understand
the application very clearly. It was built many, many years ago.
You want to only legalize it, correct?
MR. SAMBACH:
them.
The owners are here if you have any questions of
MEMBER TORTORA: Your application is very clear. I don't.
CHAIRMAN GOEHRINGER: Ms. Collins?
MEMBER COLLINS:
plans to improve it?
If this little structure is legalized, are there
MR. SAMBACH: What was that?
CHAIRMAN GOEtIRINGER: Further improve it?
MEMBER COLLINS: Are there plans to improve this little a, I called
it a structure? This little plant room, solarium. Are you going to
fix it up? The steps, I wouldn't go near those steps.
MRS. MIRCHEL: If we have the CO, they'll be fixed.
MEMBER COLLINS: But, you're not planning on expansion?
MR. SAMBACH: No.
MEMBER COLLINS: That's probably what I'm getting at. Do I have
anything else? I'm sorry I got myself confused.
CHAIRMAN GOEHRINGER: No problem.
Page 39 Hearing Transcripts
March 25, 1999 - Board of Appeals
MEMBER COLLINS: No, I guess not.
CHAIRMAN GOEHRINGER: Thank you. Mr. Dinizio?
MEMBER DINIZIO: No questions.
CHAIRMAN GOEHRINGER: OK.
MEMBER COLLINS: Oh, yes, excuse me Mr. Chairman.
CHAIRMAN GOEHRINGER: No problem.
MEMBER COLLINS: In the application, Sir, there was language that
suggested that you were claiming that when this little room was
built, 25 years ago, that it did conform to setback requirements at
the time. Do you have any evidence to that effect?
MR. SAMBACH: That was a different zone.
50 foot rear yard, so.
They still required a
MEMBER COLLINS: OK, so you're not claiming that you were zoned
into nonconformance?
MR. SAMBACH: No.
MEMBER COLLINS: OK.
CHAIRMAN GOEHRINGER: Mr. Dinizio?
MEMBER DINIZIO: No, nothing at all.
CHAIRMAN GOEHRINGER: While you're standing there Mr.
Sandbach, is there anybody else would like to speak in favor?
Anybody like to speak against? Seeing no hands I'll make a motion
closing hearing reserving decision until later.
MEMBER TORTORA: Second.
CHAIRMAN GOEHRINGER: All in favor?
Motion carried. See Minutes for Resolution.
Page 40 Hearing Transcripts
March 25, 1999 - Board of Appeals
8:38 P.M. Appl. No. 4664 -ROBERT LUSGARTEN (Joseph Tavano,
Contract Vendee)
This is a request for a Variance under Article XXIV, Section
100-244B, based upon a notice of Disapproval issued January 19,
1999 to construct a new dwelling, after demolishing existing
dwelling, which building area will exceed the 20% code limitation for
total lot coverage of all buildings and be located less than 35 feet
from the front property line. Location of Property: 2575 Old
Orchard Lane, East Marion, N.Y.; County Tax Map 1000-37-6-7.1
CHAIRMAN GOEHRINGER: I have a copy of a survey. It appears
that it was received by us on February 4, 1999, It indicates the
flood plan elevation zone. It indicates the placement of the
proposed residence which is basically a complete renovation of what
exists at this present location at this time and a copy of the
Suffolk County Tax Map indicating this and surrounding properties
in the area. I want to say two things to the public at this point.
We had requested that this hearing be held over pending some
additional work from the Engineer and additional map. We are aware
of the property. We are definitely would like to have this
information prior to this hearing. This may be only a preliminary
hearing. We ask anybody in rebuttal that if they have spoke
persons speaking for either Gardner's Bay Association they do so,
and we of course will take any testimony from anyone but we ask
you to keep it as brief as possible. We are about one hour and
forty-five minutes down in the calendar and we apologize but a, that
is the problem. Sir, it's a pleasure to meet you. Could you state
your name for the record.
MR. VOLKMAN: Good afternoon, good evening as it is now. My
name is Alfred Volkman. I'm an attorney-at-law, practicing at
Patchogue. I represent the applicant Joe Tavano. Mr. Tavano is
the Contract Vendee of the property which is the subject of this
application and the contract allows him to make the application. The
closing will take place on this property only if, as, and when, they
will, a grant is received from this Board allowing the project or
project which is agreed to.
CHAIRMAN GOEHRINGER: I just want to hold up one thing. I
apologize. I have several letters in the file. The Board, all of
which 'the Board are, is aware of in reference to objections. Excuse
me, go ahead.
MR. WDLKMAN: Yes, in the a, Ms. Kowalski was good enough to
send me copies of them. I have had a chance to look at them prior
to the preparation of my comments to this evening. May I approach
the bench and hand in exhibits at this time?
CHAIRMAN GOEHRINGER: Surely.
Page 41 Hearing Transcripts
March 25, 1999 - Board of Appeals
MR. VOLKMAN: Some photographs and these various exhibits which
I will refer to interpretation and a new survey.
CHAIRMAN GOEHRINGER: Oh, great.
BOARD SECRETARY KOWALSKI:
Thank you.
I'll mark that as an exhibit.
MR. VOLKMAN: The applicant proposes to renovate and enlarge the
existing structure. And, the plans requires two variances. First,
to exceed the percentage of occupancy or, from the land 20% to
21% the survey which I've handed in this evening. It shows
that being proposed at 22%. It is now 12% as the dwelling exists.
The second is to permit a front yard setback or the road of 23
feet. The required setback is 35 and existing setback where the
house is there is 4 foot one. As part of this project the elevation
of the floor walls will be raised to 9 feet on regulations and the
National Flood Insurance Program Regulations. This will raise the
overall height of this one story dwelling somewhat 6 or 7 feet above
where it is now. But, certainly within the 34 feet which is the
maximum allowed by the Zoning Code. The applicant's plan is to
modernize the of destruction. To provide for year round living
and he and his wife intend to live there in retirement. Since the
preparation for this hearing Mr. Chairman, I've had several
discussions with the applicant and I would like to advise the Board
at this time, that he's willing to amend the application before the
Board in such a manner so that he will not exceed 20% of the lot
area and also that he will not exceed 4.1 feet in the front yard
which is the setback Which at present the owner occupies 4.1. feet.
So, the part where the variance is less but~ we still don't need the
variance to extend the house in the manner which is proposed. I
don't know if a motion is appropriate in that circumstance or if the
Board can take that into consideration.
CHAIRMAN GOEHRINGER: Why don't you just send us a letter.
MR. :VOLMAN: Certainly. The existing house is located on a 1927
filed map, designated map of Gardiner's Bay Estate. On the south
side of the lot is Orient Bay, the beach is directly accessible from
the house. The west side abuts Old Orchard Street, and beyond
that there is a beach and canal. To the east there is a lot of
houses which extends off to the east and face the beach. The new
survey which we have provided shows that as an addition the canal
which exists on the other side of Orchard Street and if you have
some interest in having that information (changed tape). Well most of
the houses in the neighborhood with a few exceptions seem to have
been built in the 1930s or 1940s. The lots and roads are
substandard under the existing code and appears to that most of the
houses are nonconforming or at least bY nonconforming plots of
land. Although Mr. & Mrs. Fischer submitted some photos with their
letter to the Board, I have some of my, own which I handed up this
evening and this is for the purpose of demonstrating the residential
character of the neighborhood and the placement and size of the
subject house with respect to its neighbors. At this time we should
Page 42 Hearing Transcripts
March 25, 1999 - Board of Appeals
also make part of the record, exhibits which I've handed up to the
Board. A, and they're marked this way, A, is our title company
abstract of the Certificates of Occupancy issued for the existing
structure. They're all in place and they all cover what's there. B,
a copy of the Tax Map indicating the size and configuration of the
approved lots in the neighborhood. C, copy of the covenants
accepting this lot and the Deed from the Garden Bay, Gardens
Bay Estate, the maximum date is August 16, 1932. This covenant
essentially is substance to zoning and does not impose directly in
the architectural view or placement to preserve the views of
neighbors as was raised in one of the letters. In addition there is
no right of reversion or reentry or forfeiture from this covenant and
therefore our title insured is willing to insure our title against
that possibility. D, is a copy of the barrier line agreement
with the neighbor Ralph Martin, dated August 24, 1995 and filed in
the Office of the Suffolk County Clerk. The easement area which is
referred to in that document is shaded in blue for easier
identification. And finally E, determination non jurisdiction letter
from the President of the Southold Board of Trustees, dated March
19, 1999. Mr. Chairman, I'm sure as the Board is well aware, New
York Town Law, Section 267B 3B, sets forth the standards of
consideration. The Board should follow in considering this
application. And for clarity I wish to address these issues one at a
time. The statute requires the weighing of the benefit to the
applicant on one side and detriment if any, to the health, safety
welfare of the neighborhood on the other. Specifically, the statute
says, the Board must consider these issues. Number 1, whether
undesirable change in the character of the neighborhood or
detriments to nearby properties will be produced if the variance
relief is granted. Clearly, all surrounding properties are and will
continue to be residential and this will not change if this
application is granted. The only conceivable detriment that I can
see, was that the easterly and westerly view of a few neighbors will
be very slightly obscured by extending and elevating the house.
But, I feel that in the balance this detriment is not something that
should prevent this applicant having the house which is sized
appropriately to the other houses in the neighborhood. The
topography of the land will be served very little. This type of
project does not in and of itself create erosion that some people
might think. Any erosion that has come occurred on this property
has come from the adjacent town, not from the bay. And, finally no
beach property will be reduced. I suggest, that (coughing), the
beach area of the Association extends approximately 300 feet or more
to the west from the end of Old Orchard and is difficult to
understand how 40 feet from this property is significant to the
residents, especially since they do have a right to traverse a course
that is part of their legal rights. There is a dune locate somewhat
to the front and to the west of the property and that is proposed to
be disturbed to some degree. So whether the applicant, excuse me,
the applicant is determined that that dune is created basically by
the clearing of the adjacent land, to make the road wide open and is
not a, it's a man made dune. The applicant is agreeable to
removing that dune to the side, further to the west and planting
grass in the area in any situation where it might be disturbed.
Page 43 Hearing Transcripts
March 25, 1999 - Board of Appeals
Number 2, is when the benefit can be achieved by some other
method. Due to the very irregular shape and small size of the lot,
the only practical approach to achieve the objective is an extension
to the south which this application proposes. The applicant is
rejecting plans to build a second story as in consideration for
unduly necessarily obscuring the neighbors view. So this is an
issue that has been taken into consideration. Number 3, is whether
the requested area variances is substantial. The applicant proposes
under the original proposal, to exceed the lot area by a percentage
of 2%. To reduce the front yard by 1.8 feet less than what is
there. There is an unapproved road to the west upon which a boat
and trailer are to be stored and beyond that a canal. So, there not
interfering with any other houses. The neighbor, Mr. Martin
suggests that the owner of the subject property is not owned, that
triangular strip over which he has a right of way. That this is a
recorded barrier lot agreement submitted as an exhibit and this
seems to refute this argument. It is equally clear that the
upbringing owner has a property interest in the pre? in front of the
property and it is of course also subject to the rights of the public
to traverse that area up to the knee high water mark. 4. Is
whether adverse detriment impact on physical environmental
conditions would be affected. I think we covered that and finally
the difficulty was self-created. I don't believe that this is
argument of self-created hardship. The pluses in granting this
application are as follows. The house will be modernized and proper
plumbing, electrical and heating, thereby proving the health, safety
and welfare inhabitance. Second, the square footage of the
habitable space will be increased from about 600 square feet to about
1400, making it to four more sides of the neighborhood
if possibly the Town Code and finally increasing the elevation to
bring the structure and complies with regulations which will
reduce or eliminate the flood damage and will tend to promote the
town's compliance with this program. I'm sorry this presentation
took so long but, I think you can understand my desire to
make and to apprise the Board of the developments relating
to this application from the start. I note there are people here
this evening who want to speak in opposition to the application and I
and my clients are here and will be agreeable to try to answer any
questions which might be raised as a result of that. Thank you
very much.
CHAIRMAN GOEHRINGER: OK, what we're going to do first is copy
this map and we'll let everybody look at it before we continue.
MR. VOLKMAN: That's OK.
CHAIRMAN GOEHRINGER: The other issue that I want you to think
about is, that this Board has never granted a house at less than a
foot. You know, from a property line. So, regardless that it exists
now, it's not going to exist later, I assure you. So, that's one
issue that you're going to have to deal with. Secondly, we have an
unwritten precedence that exists within our code that any houses
that are on the water must have at least an eighth foot side yard for
the purposes of fire access to the beach area and I don't see that,
Page 44 Hearing Transcripts
March 25, 1999 - Board of Appeals
certainly I don't see it on the north east side and I don't see it on
the south. We'll refer to it as the south west. And, that's an
issue that you know, we're deeply concerned about. Thirdly, this
house, do you have any copies of plans of this house?
MR. VOLKMAN: No, I don't.
CHAIRMAN GOEHRINGER: No, OK. We would like to see the
plans. We would also like to see, I would also like to see, is this
going to be built by pilings?
MR. VOLKMAN: Yes. Joe?
MR. TAVANO: Foundation.
CHAIRMAN GOEHRINGER: Foundation, OK, breakaway foundation?
MR. TAVANO: Breakaway.
CHAIRMAN GOEHRINGER: Breakaway, breakaway, good.
so, do you have any specific statements ?
Alright,
MEMBER TORTORA: Are these the plans that were submitted?Are
these the plans that were submitted?
CHAIRMAN GOEHRINGER: That's a footprint, that's not plans.
MEMBER TORTORA: Footprint.
CHAIRMAN GOEHRINGER: Yes. Alright, so we'll take a shore
recess. We'll copy this map and lay it down here for everybody to
look at, so on and so forth.
MR. VOLKMAN: I'd like the Board to take into consideration that on
the westerly side, even though the front yard is rather small, that
there's adequate access directly to this house al~ong Old Orchard and
immediately to the west of Old Orchard is a canal which firefighters
could probably pump the water up from the canal to deal with the
fire in that area or the place next door.
CHAIRMAN GOEHRINGER: I'm aware of what you're saying, but,
I'm saying that any reconstruction,, any new dwelling, that's what
we request. We request at least eight feet. We actually want ten
feet. But, we'll take eight if we can get it. The purpose of that,
is not only for fire access, it's for access to the front yard area
which in this case is the rear yard area of the house, alright?
And, it's an issue that we've been very staunch about. I have to
tell you, that there was an area and there is an area in this town
called, Carol Road, which some people were unable to do that in
preexisting houses. They now have two garage doors. One on the
front and one on the back and guess what? If there is an
emergency, the Fire Department drags the car out of the garage. It
fights the fire through the garage, OK.
Page 45 Hearing Transcripts
March 25, 1999 - Board of Appeals
MR. VOLKMAN: Thank you very much.
CHAIRMAN GOEHRINGER: Oh, wait a minute. We have questions of
you so hold on. Mrs. Tortora?
MEMBER TORTORA: Well I agree with the Chairman and I think
that the setbacks are way too close, the proposed setbacks.
MR. VOLKMAN: Are you talking about the a, -
MEMBER TORTORA: The side yards.
MR. VOLKMAN: The side yards. Well I think in view of the offer I
made to reduce the percentage of our occupancy~ and also to
increase that is going to result in a rehab, a redesign of this house
and I think it's going to have to be redesigned in a manner that it's
going to be somewhat smaller than what we have here and then the
question is going to be, whether that meets the requirements with
respect to go ahead with this, so.
MEMBER TORTORA: It's a very small lot. It's an extremely small
lot and you're proposing a very large house on a very small lot.
CHAIRMAN GOEHRINGER:
Ms. Collins?
Thank you.
Oh wait, we have more.
MEMBER COLLINS: Actually the size of the lot had me confused and
I don't think that oral testimony is probably the way to tackle it.
There's a statement on the survey, survey of property done
January, this is a current one, January. 1999.
MR. VOLKMAN: Yes.
MEMBER COLLINS: It says, this is 7,316 sq. ft. to the tide line.
Now, the tide line is located at what is marked as mean high water.
MR. "VOLKMAN: Oh, no, that's a, the tide line is just above the
word that says, Orient Bay.
MEMBER COLLINS: Yes, right. You mean, high waters is marked
along that tide line. But, then you go back 75 feet or so, and
there's mean high water as per filed map. I presume that means the
map that was filed in 19277
MR. VOLKMAN: Correct.
MEMBER COLLINS: Does that suggest that the beach has been
filling over the last 75 years?
MR. VOLMAN; Yes it does.
MEMBER COLLINS: OK. So, you do claim that in measuring the
square footage of the lot~ you're measuring out to the current tide
line, the current mean high water mark.
Page 46 Hearing Transcripts
March 25, 1999 - Board of Appeals
MR. VOLKMAN: Correct.
MEMBER COLLINS: OK. Now, this easement that is as I
understand, I saw it on the survey you put in tonight. You can
see the easement on the easterly side of that part of the land that
sticks out towards the bay.
MR. VOLKMAN: That's correct.
MEMBER COLLINS: You have I presume included the easement in
your square footage because it's simply an easement they've given to
the neighbors. Is that right?
MR. VOLKMAN: Correct, yes.
MEMBER COLLINS: So the easement land is in the square footage?
MR. VOLKMAN: Yes, it is.
MEMBER COLLINS: OK. I agree, it should be there.
wanted a, I really felt quite confused about the survey.
I just
MR. VOLKMAN: I want to also point out to you, that the 1932 deed
grants all the right, title and interest that the original developer
had to any predeeded land, south of the property. So, there's a
legal basis for to claim ownership as well.
MEMBER COLLINS: OK. I also had the impression when I was
looking at the property, that a part of the land within that ever
narrowing point at the north end of the property, that part of that
in fact, is being used as the road and that's OK, except that, you
know, these rules about lot coverage are really esthetic rules. They
have to do with what the town looks like and I would be concern if
the house could literally meet the 20% rule. But, by including land
that nobody really thinks of as being part of the house, which I
think is some of Old, what people treat as Old Orchard Lane and
some of that land out of sought of over the edge of the bluff and
down towards the beach, I'm just telling you, that I feel skeptical
about whether it's really 20% as one looks at the property. But, I
agree with Mrs. Tortora, it's a big house on a little lot, a very
little lot and I think it's a very different proposition to build a
new one verses living with an old one. That's all I have to say Mr,
Chairman.
CHAIRMAN GOEHRINGER: Mr. Dinizio?
MEMBER DINIZIO: Well, I agree with the Chairman's eight foot. I
think you're going to have that somewhere on this property so you
can get whatever back there. The back. hole or you know.
MR. VOLKMAN: Right, you're talking, you're talking about the
eight foot. Are you referring to the eight foot along the easterly
property line?
Page 47 Hearing Transcripts
March 25, 1999 - Board of Appeals
CHAIRMAN GOEHRINGER: Westerly.
MEMBER DINIZIO: Anything along the easterly property line, it
really wouldn't make a difference so long as it's (inaudible).
CHAIRMAN GOEHRINGER: South, south westerly, along Old
Orchard which quite honest is not really a road as you know. It's a
sand dune and stops basically at the
MR. VOLKMAN: It stops just a little before the house.
CHAIRMAN GOEHRINGER: The house, right. I mean I actually
parked. I didn't know if I was on the property or off the property
when I looked at it to be honest with you. Again, there was snow
on the ground.
MR.'iVOLKMAN: True. I was out there to look at it on Saturday
and it was pretty clear there was public water. Apparently it just
been stored there and the, that the road, the road, a paved portion
of the road terminates somewhere around where the beginning of the
house is. And then going out there, is the way, it leads out to the
park because of the association beach.
CHAIRMAN GOEHRINGER: OK, a -
MEMBER COLLINS:
Chairman.
A, just one other question, I'm sorry Mr.
CHAIRMAN GOEHRINGER: Sure.
MEMBER COLLINS: I think that the Building Department disapproval
referred to the intent to demolish and rebuild.
MR. VOLKMAN; Yes.
MEMBER COLLINS: I think I've been hearing you say, not really
demolish it. What ex, I realize the plans obviously haven't been
finalized but, what is the intent?
MR. VOLKMAN: What the proposal of the applicant is, is to maintain
that area which is marked on the "approved survey" as one story
framed house.
MEMBER COLLINS: OK.
MR. VOLKMAN: And to expand from that.
MEMBER COLLINS:
from that.
Right Take out the existing deck. Expand
MR. VOLKMAN: He would take out the existing deck and hook up
to what's there and renovate and improve inside, insulate it and
modernize the electrical, plumbing and the hearing systems and the
lighting in the house.
Page 48 Hearing Transcripts
March 25, 1999 - Board of Appeals
MEMBER COLLINS: Thank you.
CHAIRMAN GOEHRINGER: Thank you. We'll see what develops.
Anybody else like to speak in favor? Anybody like to speak
against? Oh, pardon me, in favor or against?
Mrs. KIRBY LUSTGARTEN: In favor.
CHAIRMAN GOEHRINGER: In favor. Excuse me over here.
ma'am would you state your name for the record please.
Yes,
MRS. KIRBY LUSTGARTEN: My name is Josephine Kirby Lustgarten
and I'm the owner of this cottage that we're talking about. If I
could just very briefly talk about this cottage. When my husband
and I first bought the cottage, we met our next door neighbors, the
Martins and at that time we were discussing the size of this cottage
and they were telling us the history of it. The history being it was
a fishing shack and it was moved there at one time. It was kind of
a over and not really in tune with all of the other houses
around there. And, we were talking about the size of this cottage
which is very small. I think if you have a map you can see it. So
it was kind of shocking to me when my next door neighbor said, you
know, don't ever consider doing anything with that cottage because
I'll fight you and what was almost imbedded in my mind, never to do
anything with it. That we weren't allowed. So we did have some
things done to it because it was almoSt not livable and we enjoyed
going out to the water so low, that my husband had to bend his
head and that the bedrooms were so small that we had to have
special beds made and use the second bedroom as a dressing room.
It's really not a livable house in terms of a year round. It was
purely a weekend get away thing. Shortly after we moved there,
the Martins had told us they sold the house, their house and we
were upset because we liked them as neighbors and we wondered
who the new neighbors would be and immediately after that, Ralph
Martin came over and told us, that the perspective buyers of this
house had had a survey done and that the survey showed that
possibly some of the footage on the water really belong to Lustgarten
and not Martin and s° at that time he had told us, that he had to
sue us and that was understandable. He had to because we didn't
know who owned that property at that point. We were in litigation
for five years during which time my husband died and then .we
finally had to go to trial and the title company won the case and we
won against our neighbors. So you know that's kind of a little bit
of what went on and I'm wondering you know whether there is a
little bit of bias because of that legal case. I don't know. It's
just a wonder that I have and I'm really very puzzled that there
seems to be, you know, I'm looking over there and I have a sense
that they're all oppOsed to this variance. And the reason why I'm
puzzled is because I'm sure that anyone who lives in Garden's Bay
Estates will have to agree that the cottage is really an ugly
duckling. It really is not part of the community. Most of the homes
there are year round homes. They're quite substantial and so it
seems a bit unfair, you know there seems to be a, I feel restricted
in my ability to sell this house because of not granting a varianee
Page 49 Hearing Transcripts
March 25, 1999 - Board of Appeals
to make it a larger and also to make it a year round home. And it
seems that any addition to that place would add an enhance property
values for the estates to the total area. And so I just hope that
the Board will examine the issue and consider the variance as a
positive addition and we hear tonight Mr. Travano is willing to
compromise. He's willing to do something that is going to be
agreeable to the community and to the Board. Thank
you.
CHAIRMAN GOEHRINGER: Thank you. Anybody else?
hands to the negative. Mrs. Bressler, how are you.
See no
MS. BRESSLER: Fine, thank you. Good evening. I am here
representing the Garden's Bay Estate, Home Owners Association of
whom there are literally just a few people here. They are very
concerned and have asked me to oppose this application because of
the .huge expansion that is proposed beyond both the permitted size
and the permitted setback on a very fragile exposed area. It's
literally on the beach. And Mr. Chairman,if you were there during
or recently following the snow storm I would urge you to go back to
see the property when it is exposed because it is basically -
CHAIRMAN GOEHRINGER: Actually I'd seen it before that.
MS. BRESSLER: I see.
CHAIRMAN GOEHRINGER:
storm.
And then I had seen it during the snow
MS. BRESSLER: It's a very dramatic visual presentation. We're
opposed to this application on several bases. First of all under
100-242 governing nonconforming buildings, the code provides that
there should be no enlargement of a nonconforming building which
creates any new nonconformance or increases the degree of
nonconformance. The Building Inspector's Notice of Disapproval did
not refer to this code section. But, I think the plan clearly
violates it and I would ask the Board to consider that in terms of
their overall deliberation on this case because both the setback and
the lot coverage ore significantly increased in terms of the degree
of nonconformance. Secondly, we object to the proposed lot
coverage. Even with the reductions that were discussed, we think
that the area in which the lot coverage is based on this application
is improperly calculated and also this is just not the right kind of
lot because of its very small character and it's very fragile beach
like condition to be asking for any variance on a lot coverage. As
to the area computation, 100-239 says, that you can't include land
under water and there are two areas of this property that should be
excluded in this computation. First of all, the beach area that's
shown to the south of the property. Regular tides often come well
above the mean high water. Mean is only an average and so I think
the Board has to look at the actual limit of a normal high tide and
perhaps ask for a contour map or something else to show where the
water would normally be. It wouldn't just be as low as mean high
tide. It would also be above it on a regular basis. Also because of
Page 50 Hearing Transcripts
March 25, 1999 - Board of Appeals
the strong wind and current on Gardiner's Bay, on this very
exposed shore line, there are frequent storm tides throughout the
year and there are few people in the community that are going to
speak to you tonight about their actual knoWledge of that occurring
on a very regular basis that would limit the amount of area on that
beach that is not underwater on a regular basis. The other problem
with the computation of the beach area is that shore lines do not
only a creek but they also erode in cycles and the regulations that
have been developed over the years to protect the shore line against
development, are designed to protect against the movement in
and out as well as protect the environmental sensitivity of the
beach. So, I think we have to be sensitive that that might change
in time and may not only go out on an basis but come back
on an erosion basis further cutting down the size of this lot. The
second problem of computation of the lot coverage is the area by the
lagoon and along Old Orchard Road. There has been and people
here will tell you tonight in their own knowledge, been recurrent
flooding of the property immediately to the north west of the house,
not only on a regular storm but also just on the spring tide and a
full moon without a wind storm there has been water in a significant
portion of the property from south of the garage all the way north
up to the point of the triangle. I have here highlighted a map that
I have drawn with yellow highlighting showing those areas where
there is land underwater on a regular basis and they can establish
that for you. If I can present that to the Board tonight and ask
you to include it in the record.
CHAIRMAN GOEHRINGER: Thank you.
MS. BRESSLER: The further substantiation of land under water, we
have some pictures that Mr. Martin took during a 1992 north east of
October. This is illustrated of what happens during a regular storm
in that area. The first and Mr. Martin will authenticate these
pictures for the record. The first is of the garage which shows Ul~
to a height of two or three feet, the water lines with water in front
of it. The second is a photograph of the lagoon area looking down.
It is completely flooded. You can't see the bulkheading. And also
goip. g up into that garage area. The third picture shows a breach
in the barrier beach to the west of this property that is subject to
flooding if there is a big storm and the concern here on the building
on a dune which protects that area being further eroded by
development could really detrimentally effect that whole barrier
beach there because there have been breaches during the storm. We
have the fourth picture I'm going to submit is a picture of the waves
coming in up over that dune and into the beach. Not only into the
beach area but up into the dune. So I can submit these pictures
for you. I'm going to label them if I may, A, B, C and D to
coordinate with my description on the record.
CHAIRMAN GOEHRINGER: Thank you.
MS. BRESSLER: A couple of other points on the lot coverage
concern. Because the house is so big the proposal doesn't appear to
provide for off site parking as is required by 100-235A-2 and I
Page 51 Hearing Transcripts
March 25, 1999 - Board of Appeals
think that the slope of the property where the triangle is, and the
flooded area along the road prevent parking in those locations and I
think the Board may want to inquire as to that point. The further
problem with the lot coverage is the extension well into the dune
area, well beyond the existing deck. It also extends well beyond
any other home or that is in the Gardiner"s Bay EStates. Those
other homes have upland lawns with trees. They have a stable yard
on an elevated bank and the elevation of those homes as you can see
from the pictures are well, well above the elevation of this
property. The other interesting point on lot coverage and the
computation is that if you look at the Assessor's card they show a
.098 acreage. They seem to be including in the Tax Assessed
portion of this property only that triangular portion out to the
original filed map line and I compute that out as an assessed lot
size of 4,279 feet as opposed to 7300. So, I think that's another
question we have to look at as to just how big this lot really is and
whether that point should be included in.
CHAIRMAN GOEHRINGER: Where are you taking that line to?
MS. BRESSLER:
your record -
If you look at the tax map which I believe is in
CHAIRMAN GOEHRINGER: Right.
MS. BRESSLER: And the Assessor's' card, which is also in your
record, the tax card shows a dotted line along the beach area. !
assume that corresponds to the file map. The tax card shows a .098
acre size and if I multiply that times 43560, if I did it correctly,
it comes out with under 4300 sq. feet.
CHAIRMAN GOEHRINGER: OK.
MS. BRESSLER: I did it by hand so I better check it with my
calculator. Our next objection to the application concerns the
setback and what the application is doing, is reducing a very, very
small setback to less than half of what it is only two feet and then
extending that reduction almost all the way throughout the length of
the building. So, for instance on the west side you now have 4.1
feet at your closest point. The existing building setback, front
yard setback tapers back to about 15 feet if you go to the end of
the wood deck. The total distance of the house or the length of the
house along the front yard is 36 feet. So your average setback is
about 9-1/2 feet in the front yard if I do my computations
correctly. They're proposing to bring that down to two feet in one
point and only up to 5 feet I think along, I'm sorry, 8-1/2 feet at
the widest point. So, that's less than the average setback for the
whole length of the building. It's also interesting to see that the
proposed length of the building, 65 feet is almost twice as long as
the width of the whole lot. So, as you say, the house is totally out
of proportion to the size of the lot. I don't think it's appropriate
if you have a very small setback in one part of your building to use
that as the basis for getting the setback the whole way along that,
that yard. You're doing the same thing on the west side. They
Page 52 Hearing Transcripts
March 25, 1999 - Board of Appeals
have .7 at one point. It comes on the deck area out go, I'm sorry
to the east side to 5 feet.
CHAIRMAN GOEHRINGER: I have 5.5. 5 feet, 5 inches.
MS.BRESSLER: On the east side the existing building goes from .7
feet to 7 feet as I measured the deck off the east side up by the
beach. They want to reduce that down to 5 feet for the whole 65
length that's the west beach.
MEMBER TORTORA: That's the change on the amended survey.
CHAIRMAN GOEHRINGER: We're going to give you a copy of this so
we would of hoped that by this point the a, the copy machine would
have been warmed up.
MEMBER TORTORA: It's a five five on this one.
CHAIRMAN GOEHRINGER: We have a very slow copy machine.
MS. BRESSLER: Whether it's five or five five, it's the same point.
You shouldn't be able to ask the Board on this kind of a property to
reduce your side yard or your front yard down just because one
corner of the building is that low. That's my point. The other
thing I'd like to ask the Board, if you look at this map with Old
Orchard here and the front yard, where is the rear yard? I would
submit that this is the rear yard because it is most directly
opposite the front yard. That would mean that they should have 35
feet setback here, not 10 feet. So you're asking for an even bigger
variance if you look at the map that way. The next point I'd like to
make is to respond to the comments that were made by the applicant
as to the reasons for the variance. Give me a moment. The Board
has to consider certain factors and you know in deciding whether to
request a variance. The first is whether there will be an
undesirable change in the character of the neighborhood or a
detriment to the properties. As I mentioned, this property is way
out in front on the beach of any other property. The views will be
affected. Obviously (change of tape) regardless of whether it
affects your neighbor's view. If you go beyond what is legally
permitted to be done, if they get the Board to grant this variance
or some form of it, then, those property values of the neighbors are
going to be reduced by the reduction in their view because these
people exceeded the code and I don't think that's appropriate and I
don't think that was intended. The benefits sought by the applicant
cannot be achieved by some other method. That's true. The
benefits sought by the applicant is purely personal. All they want
is a bigger house on a small lot. The amount of relief requested is
definitely substantial. I think that nobody can disagree with that
given the figures here and the variance will have an adverse affect
on the physical and environmental conditions in the neighborhood.
I've mentioned the physical conditions. The dune that is there does
protect the community . It protects the lagoon. It protects
from the wash over on a storm tide and building out there could
have a very detrimental affect. I think probably the most important
Page 53 Hearing Transcripts
March 25, 1999 - Board of Appeals
point on this sheet is that the alleged difficulty is self created.
It was totally self created. Someone wants to buy this property and
build a big house and the current owners have been there a long
time. It's not been a problem. It is a beach front community. It
is a beach front cottage. It's appropriate to the area. These
people just want a big house out on the water and it's a definitely a
self created problem and it's certainly more than the minimum that's
necessary and adequate. So in closing, I would like to say that we
ask that you reject the variance because the density computations
are false and the land area is not accurately reflected. There's a
new nonconformity that's created in violation of 100-242. The
increase in the degree of nonconformity will be augmented and it
should not be allowed to be rebuitt if it exceeds the existing
setback at any point. It should not be allowed to be extended into
what: is not, not even a setback area. Basically there is no reason
for the variance. They have a house now. If they want a big
houSe they should find a compatible parcel. I think that this
property was developed probably in the twenties as a beach front
community. This is probably one of the smallest lots in the whole
community. It was obviously designed for a summer home. If they
want to winterize it, that's fine. But, to go ahead and expand this
into a mega house is just not appropriate and I don't think it was
intended by the dimension of the property or the character to the
community and I've asked you to reject the application on those
basis. Thank you.
CHAIRMAN GOEHRINGER:
have to speak tonight?
Thank you.
How many people do you
MS. BRESSLER: I know there are two or three that would like to
speak. Probably most of the rest of the people. I'm not sure. Two
or three that I know of.
CHAIRMAN GOEHRINGER: Mr. Martin, how are you tonight Sir?
MR. MARTIN: How am I? Surviving. A couple of notes here
reference to the dune. The dune is growing over a number of
years. I've lived there for thirty some odd years. When I first
moved out there, there were fairly small dune with the continued
easterly winds. That dune, including my own front beach, has
grown. The roads. Yes the roads at this particular point in time
are in very bad shape because the Suffolk County Water Department
has come in there and has given us county water. The roads have
not been repaired by the County Water Authority as of yet. They
will be repaired. The landscaping will be redone. The road, I
believe the road stops at the fence down there that's as far as
traffic is allowed. People bring their cars down there to take the
boats to small sail fish, sunfish off the beach. I did not sell
obviously my home. The deal fell through. It was also mentioned
where the Contract Vendee is going to compromise. I haven't heard
a work of compromization. As far as the photographs go. I took
photographs and they are true. In the spring, tides do come up
into the road. They just back right up .either out of a storm drains
that are there or out of the launching just coming right over
Page 54 Hearing Transcripts
March 25, 1999 - Board of Appeals
the bulkhead. At the present time when these neat tides come or
medium storm tides, the entire existing cellar fills up with water.
It runs along the road to a slight rise. There have been times often
enough that I've had to move my vehicle out of my own driveway so
it would not become inundated. The one set of pictures there, were
shown from the storm of 1992 I believe it was. The storm did break
over the beach. Run down the side of the house and into the
lagoon as we call it to the back, to the waterway. Those dunes and
beach grass were not there. That whole part of the beach would
have washed down into that canal, it would have been exceptionally
expensive to even dredge it if were able to get the application. The
dunes, the beach, must not be touched under any conditions. It is
exceptionally important to keep those dunes and beaches as they are
and let nature build them up which it has been doing. I have not
seen in my term of living there for thirty two years any spoils out
of that road ever put or dumped up on the wetland on the property
in front of the house for dune preservation. In conclusion, I feel
that these requests for variation shows individuals who are
attempting to achieve their own ends regardless of the overall costs
to their neighbors and to the appearance of the community. I thank
you for your time.
MS. BRESSLER: Mr. Martin before you sit down, would you be, If
I may address the Board, the map that I submitted with the yellow
highlighting, does that accurately reflect the portion of the
property -
MR. MARTIN: Yes, it absolutely does.
MS. BRESSLER: That is on the water?
MR. MARTIN: Including the entire road up to my driveway and
past. The water does come in there in the spring tides which I can
state and swear and attest to.
MS. BRESSLER: And, and it comes in several times?
MR. MARTIN: Yes, more than once a year. You get a good stiff
north eastern, two or three days, water does come up to that road
and I must move my car, my truck, so that it doesn't become
inundated. One time I was unfortunate, I was away on business,
the truck had to be taken to Mullen motors, the transmission
drained, and both axles drain to get the water out of it. I believe
that's all I have to say at this point. Thank you.
CHAIRMAN GOEHRINGER: Thank you. Who else would like?
MR. THORP: Good evening, I'm Frank Thorp. I live at 180 South
Lane to the east end. You received one of my letter from me.
CHAIRMAN GOEHRINGER: How do you do?
MR. THORP: This is my 60th consecutive summer so I'm kind of
familiar with the area. My grandfather was one of the developers of
Page 55 Hearing Transcripts ~'
March 25, 1999 - Board of Appeals
Page 57 Hearing Transcripts
March 25, 1999 - Board of Appeals
both Boards, it would not want to create such a large degree of
relief. So, that's what I say. I take issue of some of the
statements that were made but I understand that a, that these are
relatively insignificant as a result of what we still have to do
before us. I think I'd rather focus my attention on positive, the
positive way. I just want to try and see if this can be developed
into something which is acceptable. CHAIRMAN GOEHRINGER: OK,
so you'll let us know when you're ready.
MR. VOLKMAN: Yes, Sir I will.
CHAIRMAN GOEHRINGER: Very good. Thank you.
MR. VOLKMAN: Thank you very much. I appreciate your attention
you've given and I want to thank Mrs. Kowalski for sending me
copies of the literature because it helped me make my presentation.
Thank you very much.
BOARD SECRETARY KOWALSKI: You're very welcome.
MEMBER COLLINS: Sir, Mr. Volkman. Just for the record there is
a provision in our code that says, that for purposes of calculating
lot coverage, you can't use "land under water". Obviously in many
cases people fight whether the land is in fact under water.
Sometimes it's obvious under water although one owns it and that is
the issue here.
MR. VOLKMAN: It seems to me that this is land under water. I
mean if we apply that criteria, the whole property at some point in
time was under water. Maybe the whole east end of Long Island was
at one time under water.
MEMBER COLLINS: Well, yes, and will be again. It's Section 239.
MR. VOLKMAN: OK, I'll check that out. Thank you very much.
CHAIRMAN GOEHRINGER: Ms. Bressler?
MS. BRESSLER: The point that I'd like to clarify for Mr. Volkman
is that the land under water section I believe, is significant
portion of this property because so much of it is frequently under
water if not every single minute of the day. There is I mentioned
by the high tide line and the beach and the areas in the back as the
neighbors testified are frequently under water and you certainly
have the property subject to flooding but significant portion of it
is under water often and the rest of it I believe (inaudible).
CHAIRMAN GOEHRINGER: This is Mrs. Tortora.
MEMBER TORTORA: We have seen a number of applications like this
and in all instances where the survey indicates the mean high water
mark. That is the accepted standard for measuring for surveys.
That's accented bv the Town of Trustees. That's accented bv the
Page 56 Hearing Transcripts
March 25, ]999 - Board of Appeals
here and all I understand nonconformity to which Ms. Bressler
referred as far as extending a nonconforming. I understand that is
a standard division in most municipality with respect to
nonconforming uses and nonconforming sizes. But, the
recommendation that was made was to try to reduce I
understand from what I heard tonight that we're going to have do
some further work in that area and let's see if we can come back. I
don't know frankly whether that can be done or not, but we'll give
it a try. I've not heard this evening anybody saying denying that
this applicant owns the land between the filed map and the water
and I've hardly heard anybody say, except express some general
dissatisfaction in dismay that this really shouldn't be kept in the
lot area, but nobody has told me why.
CHAIRMAN GOEHRINGER: Because it's subject to flooding.
MR.VOLKMAN: Pardon me?
CHAIRMAN GOEHRINGER: Because it's subject to 'flooding.
MR. VOLKMAN: Oh, yeah, we know that, but we can, we can still
calculate. That is still part of the person's property. I mean the
fact that it's subject to flooding doesn't necessarily mean that it
shouldn't be able to be calculated. I don't, although I've asked
around I'm not as familiar with the code of Town of Southold as I am
with the Town Brookhaven but, in this situation, Brookhaven would
count that area. I guess everybody has their own local general
practices but, I think that I would ]ike to be shown for example,
something in the code to indicate that' we couldn't do that because
that does have a very, very, important effect on the parts of the
variance which is going to be sought here. It's a question about
whether or not the belief that you're being asked to grant is
substantial or minimal and -
CHAIRMAN GOEHRINGER: On the issue of 20%?
MR. VOLKMAN: On the issue of 20%.
CHAIRMAN GOEHRINGER: Only.
MR. VOLKMAN: Yes.
CHAIRMAN GOEHRINGER: Only.
MR. VOLKMAN: Yes, yes, only. So that's an issue, so I think
that we're going to go back and work on this and see if we can
develop a plan that tends to meet the requirements which the Board
has indicated it would like to see here but in the meantime in
developing that I think we're going to have to stick to using that
percentage because otherwise we're going to be asking you for like
50% instead of 20% and that's going to be the known in this
application, so a I just feel that that should be clarified to some
great extent, not only for your benefit but for mine as well, because
if that's the interpretation of the Board, I know that this was like
Page 57 Hearing Transcripts
March 25, 1999 - Board of Appeals
both Boards, it would not want to create such a large degree of
relief. So, that's what I say. I take issue of some of the
statements that were made but I understand that a, that these are
relatively insignificant as a result of what we still have to do
before us. I think I'd rather focus my attention on positive, the
positive way. I just want to try and see if this can be developed
into something which is acceptable. CHAIRMAN GOEHRINGER: OK,
so you'll let us know when you're ready.
MR. VOLKMAN: Yes, Sir I will.
CHAIRMAN GOEHRINGER: Very good. Thank you.
MR. VOLKMAN: Thank you very much. I appreciate your attention
you've given and I want to thank Mrs. Kowalski for sending me
copies of the literature because it helped me make my presentation.
Thank you very much.
BOARD SECRETARY KOWALSKI: You're very welcome.
MEMBER COLLINS: Sir, Mr. Volkman. Just for the record there is
a provision in our code that says, that for purposes of calculating
lot coverage, you can't use "land under water". Obviously in many
cases people fight whether the land is in fact under water.
Sometimes it's obvious under water although one owns it and that is
the issue here.
MR. VOLKMAN: It seems to me that this is land under water. I
mean if we apply that criteria, the whole property at some point in
time was under water. Maybe the whole east end of Long Island was
at one time under water.
MEMBER COLLINS: Well, yes, and will be again. It's Section 239.
MR. VOLKMAN: OK, I'll check that out. Thank you very much.
CHAIRMAN GOEHRINGER: Ms. Bressler?
MS. BRESSLER: The point that I'd like to clarify for Mr. Volkman
is that the land under water section I believe, is significant
portion of this property because so much of it is frequently under
water if not every single minute of the day. There is I mentioned
by the high tide line and the beach and the areas in the back as the
neighbors testified are frequently under water and you certainly
have the property subject to flooding but significant portion of it
is under water often and the rest of it I believe (inaudible).
CHAIRMAN GOEHRINGER: This is Mrs. Tortora.
MEMBER TORTORA: We have seen a number of applications like this
and in all instances where the survey indicates the mean high water
mark. That is the accepted standard for measuring for surveys.
That's accepted by the Town of Trustees. That's accepted by the
Department of State and that's been accepted by the Board as long
Page 58 Hearing Transcripts
March 25, 1999 - Board of Appeals
as I can remember. I mean just for a point of clarification I went
through the same kind of confusion over this mean high water mark
in the accrete of land in another application in Mattituck a couple
of years ago where we saw a half acre parcel accrete another half
acre, but after checking with the Department of State the Town
Trustees and Town policy for I don't know for how many years.
That is the policy because essentially yes, all lands on water can
experience a flood tide. That is the purpose of the, we thought of
mean of high water mark.
MS. BRESSLER: The problem here is that it's not just a big storm
that can create this type of water. It's even a spring tide with a
full moon. It's not just a storm tide-
MEMBER TORTORA:
how -
No, I'm not disputing that.
I'm just telling
MS. BRESSLER: And when you're looking at a 7300 sq. ft. lot
you've got to be very careful about every square foot of it. So it
does require I think a little bit more careful scrutiny than maybe an
acre lot where the mean high water mark is going to be acceptable
and I've asked you to look at that very closely because of the very,
very small size of this lot and the very strong environmental
sensitivity of it.
CHAIRMAN GOEHRINGER: Again, that was Ms. Bressler. Thank
you. Hearing no further comment I'll make a motion recessing the
hearing without a date.
MEMBER TORTORA: Second.
CHAIRMAN GOEHRINGER: All in favor?
Motion carried. See Minutes for Resolution.
Page 59 Hearing Transcripts
March 25, 1999 - Board of Appeals
9:42 P.M. Appl. No. 4666 ROBERT & JOYCE BARRY
This is a request for a Variance under Article III-A, Section
100-30A.4, based upon a Notice of Disapproval dated January 22,
1999 to construct a new detached two-car garage with second floor
attic, located in a yard other than the required rear yard. This
parcel is a corner lot known as 875 West Cove Road (at West Loop),
Nassau Point, Cutchogue, N.Y.; County Tax Map 1000-111-3-18; also
referred to as Lot 20 on the Subdivision Map of Alonzo Jersey.
CHAIRMAN GOEHRINGER: Because of the situation of time I'd like to
waive the reading of the Legal Notice for Robert and Joyce Barry
and open up the hearing indicating a proposed garage of 22 feet
from I believe that's West Cove Road and I have a copy of the
Suffolk County Tax Map indicating this and surrounding properties
in the area. Mr. Barry, how do you do Sir?
MR. BARRY:
Barry.
Good Sir.
I'm Robert Barry, this is my wife, Joyce
CHAIRMAN GOEHRINGER: What would you like to tell us about your~
garage? We did receive one letter from a neighbor which said, she
had no objection. What is the approximate height of this garage to
the ridge, do you know?
MRS. BARRY: I believe you have the -
MR. BARRY: You might have the plans.
CHAIRMAN GOEHRINGER: Yes, I'm reading them.
MRS. BARRY: You have all my plans actually, and I took my
information. I know the problem was the setback, and the reason
why we wanted to move it up was to allow us to have more family
recreation area. We are on an incline. We are building our house
currently.
BOARD SECRETARY KOWALSKI:
speak a little more -
I'm not hearing you, you've got to
CHAIRMAN GOEHRINGER: Yes, you have to speak a little louder.
BOARD SECRETARY KOWALSKI:
you.
Pull that up if you can closer to
CHAIRMAN GOEHRINGER: I don't even know if it's on.
MRS. BARRY: Is it? I'll speak louder. We're currently building
our home now and because of the way the property goes, we're on
that bend but there's a really sharp incline so we had to move the
house back
CHAIRMAN GOEHRINGER: Right.
Page 60 Hearing Transcripts
March 25, 1999 - Board of Appeals
MRS. BARRY: Which limited our family recreation area even more,
and by setting the, you know being that we have the side yard as
our front yard also, setting back the garage to 35 feet is more than
half way in the back yard. So, we're just asking to move it up a
little bit so possibly you know, allowing more play area for the kids.
CHAIRMAN GOEHRINGER: So at the placement that you have it
presently on the survey is where you want to place it?
MRS. BARRY: That's correct.
CHAIRMAN GOEHRINGER: Which is approximately 10 feet from your
property, your next door neighbors and approximately 22 feet is its
closest point from the road, OK. I'm looking at a height that your
first story appears to be 8 feet. I don't know how high the second
story is. We might have to scale that or we can do so. Are you
considering any utility in the garage other than electricity?
MR. BARRY: Just water.
CHAIRMAN GOEHRINGER: Why?
MR. BARRY: To wash ears.
CHAIRMAN GOEHRINGER:
for storage?
Wash cars, OK, and it will only be used
MRS. BARRY: Yeah, for fishing, boat fishing and coolers
and all that.
CHAIRMAN GOEHRINGER: No heat?
MRS. BARRY: No.
CHAIRMAN GOEHRINGER:
people?
Mrs. Tortora, any questions of these
MEMBER TORTORA: No, but I went through the application sheet
very carefully and I will say that I would hope that you would be
able to a, not be as close to the road. Originally you did propose
to have the garage setback 35 feet because it is a front yard and if
we grant you permission to place it in the front yard, we usually
try to like you know, have you adhere as close as possible to the
principal setback which would be 35 feet. You do have room, and I
know, you know, it's a matter of convenience, but I guess what I'm
asking you, is a, you know, would you consider going back further
so that your setback is not 22 feet from the road, because that is,
it's very prominent, it's very close. I know that some of your
neighbors have their garages in the front yard, but there also water
front lots and their permitted to designate the a -
Page 61 Hearing Transcripts
March 25, 1999 - Board of Appeals
MRS. BARRY: To the answer to your question, also, I just want to
make a note, that where the house is located on that survey, we had
to move the house back.
MR. BARRY.' The house is in where it is there now.
MRS. BARRY: Because of the incline of the front of the property.
So, the house has now been moved back. It's further to the
property line.
MEMBER COLLINS: By back, you mean further east?
MRS. BARRY: See where that fence is?
MR. BARRY: Yes east.
MRS. BARRY: We had to move it towards the fence.
MEMBER COLLINS: Well, I, I, -
MEMBER TORTORA: Are you further north?
MEMBER COLLINS: No, further east.
MRS. BARRY: I can show you.
MEMBER TORTORA: So you no longer have a 50 foot setback?
MR. BARRY: No.
MRS. BARRY: No, it's setback 100, 90 to 100.
MEMBER DINIZIO: Wow.
MRS. BARRY: Which took back a lot of my back yard because it
goes straight up on a hill.
CHAIRMAN GOEHRINGER: Well I guess they had to move it back
here. How close to the pool is it?
MRS. BARRY: I don't have a pool.
MR. BARRY: There probably wouldn't be a pool.
CHAIRMAN GOEHRINGER: There probably won't be a pool.
MRS. BARRY: That's why we need the garage variance.
MEMBER TORTORA: It's hard to tell because 'I can't tell what you
want to do. I know I've done about four different surveys here
where it started from. Where did you end up from here?
CHAIRMAN GOEHRINGER: Yes, mark up her survey.
Page 62 Hearing Transcripts
March 25, 1999 - Board of Appeals
MR. BARRY: This is still -
MEMBER TORTORA: You can mark it up.
MR. BARRY: It's still 22 feet from here. But this 50 is more, how,
how far from thai 50 corner now? It's more like -
MRS. BARRY: No, we're about 90 setback.
CHAIRMAN GOEHRINGER: This is Mr. Barry speaking.
MR. BARRY: Sorry.
MEMBER COLLINS: He's referring to the setback from the east -
MRS. BARRY: From the east side. Actually here's the foundation
location which gives you the actual -
MEMBER COLLINS: It's 77 feet from the road?
MEMBER TORTORA: Wow, that's a -
CHAIRMAN GOEHRINGER: We can have .that right?
MRS. BARRY: Yes.
MR. BARRY: That's where it is now, right?
MRS. BARRY: Yeah, that's the foundation location.
MEMBER COLLINS: OK, so, your point is, the house is
considerably closer to your east property line than this drawing that
we were forming our, I mean, I went and looked at it, but, I didn't
measure it.
CHAIRMAN GOEHRINGER: What causes that Mrs. Barry?
MRS. BARRY: Because of the incline of the front of the property
goes straight up. So, we would of really had a really big first step.
CHAIRMAN GOEHRINGER: Oh, I see. So you had to place it, oh,
it's almost directly in the middle of the lot except for the rear
yard, which actually is a side yard.
MR. BARRY: Oh, well, I guess you saw it, not that it reallY
matters, but, the road only starts this dotted line. The whole
property starts there, so it's still, like trees and stuff.
CHAIRMAN GOEHRINGER: OK, Ms. Collins? Questions?
MEMBER COLLINS: Well, yeah, just to pursue this further. I had
the same reaction that Mrs. Tortora did. You know, frequently we
have applicants who have a road on two sides of their property and
gives them two front yards and they have the setback problems.
Page 63 Hearing Transcripts
March 25, 1999 - Board of Appeals
But, most of the time one of those front roads is really a
right-of-way. It doesn't go anywhere. Nobody travels on it. I
think as Mrs. Tortora said, that yours is different. Your road
there is a real road and people really go along it and we're
concerned about the visual clutter of garages being too close to the
road and I think it's a legitimate concern under our code. So !
think probably we're going to ask you, I guess we have the survey
foundation now, right?
CHAIRMAN GOEHRINGER: Right.
MEMBER COLLINS: I think we need to'ask for a little more accurate
picture of where things are.
MEMBER TORTORA: It's hard, exactly because a -
MEMBER COLLINS: Because we're going to ask you the usual
question that we ask of people and that is, are you willing to accept
an alternative from us, or do you want us to say, no, you can't do
it.
MRS. BARRY: Because it's obvious we need to have the garage.
MEMBER COLLINS: Right.
MRS. BARRY: So, whatever you can do or allow us to get closer to
the 22 feet we would surely appreciate.
MEMBER COLLINS: But, I think we need to have a more accurate.
MRS. BARRY: I could get another survey.
MEMBER TORTORA: Could you first, well we could make copies of
this. So, that's not a problem. And the garage was originally -
CHAIRMAN GOEHRINGER: 10 and 22.
MEMBER TORTORA: It was a 22 x 22 foot garage -
MEMBER DINIZIO: 27 x -
MEMBER TORTORA: Now it's 27 x 24.
MEMBER COLLINS: No, the -
MEMBER DINIZIO: Right by 24, right.
MEMBER TORTORA: So, I guess what we're saying is, could we,
because we're looking for the minimum relief possible and the least
detriment to the community and that kind of thing. If we did move
it a little bit to the north, you know, tell us, tell us what would
be acceptable.
MEMBER COLLINS: You don't have to tell us right now.
Page 64 Hearing Transcripts
March 25, 1999 - Board of Appeals
MRS. BARRY: I mean whatever.
garage. We need to -
Like I said, we need to have a
CHAIRMAN GOEHRINGER: They're open for us.
MRS. BARRY: To start, whatever, whatever you suggest.
MEMBER COLLINS: OK. so, we'll discuss it.
MRS. B.ARRY: We have to accept what you do for us. We need the
garage and I'd like to have a pool, and a yard for the kids to play
in and the dog.
CHAIRMAN GOEHRINGER: I hate to say this. You may be back for
a variance for the pool.
MRS. BARRY: Oh, no, don't do that.
Make it so I can have my pool.
I'm going to rephrase it.
CHAIRMAN GOEHRINGER: Oh, in other words, you want to stick
the pool in the back corner there then sought of speak.
MRS. BARRY: I don't care where it is.
BOARD SECRETARY KOWALSKI: Well, that's rear yard.
MRS. BARRY: Whatever, we're open, it's just we need the garage,
so whatever you suggest we'll try to work around it. If we have to
make the garage a little smaller, whatever it be.
MEMBER TORTORA: That's fine. I think it's durable. I can -
MEMBER COLLINS: I just want to ask her a question just to sought
of find out how we got to where we're at. We have in our file two
of these surveys by Destin Graf and one of them which is obviously
not what was built has sought of a generic house on it, 60 feet by
30 feet, and that shows the garage 35 feet back from the road. Is
that what was used to get the Building Permit? Do you know?
MRS. BARRY: We submitted -
MEMBER COLLINS: What I'm interested in is -
MR. BARRY: We submitted everything all at the same time.
MRS. BARRY: And they rejected the garage. What the problem was
that we had to move the house back and that's what started the
problems because now we couldn't, you know, and now we have less
back yard and -
MEMBER COLLINS: But the rejection of the garage happened early
on for the reason stated, -
MRS. BARRY: It was altogether.
Page 65 Hearing Transcripts
March 25, 1999 - Board of Appeals
MEMBER COLLINS: Which is, that's in a front yard.
BOARD SECRETARY KOWALSKI: That's right.
MEMBER COLLINS: OK.
MEMBER TORTORA: And then they went to the Health Department
and the Health Department had them put in this and -
MEMBER COLLINS: Yeah, the Health Department doesn't care where
the garage is. No, I just was trying to get at a sense of how we
came to be where we are.
MRS. BARRY: To the answer the question, all submitted originally
with the house that we're going to build altogether.
MEMBER COLLINS: OK.
CHAIRMAN GOEHRINGER: Thank you, we hope to get back to you
shortly. Anybody else like to speak in favor? Anybody against?
Oh, you have a green card for us?
MRS. BARRY: One more. This is the last one.
CHAIRMAN GOEHRINGER: Thanks so much.
MEMBER DINIZIO: I'd like to ask a question?
CHAIRMAN GOEHRINGER: Oh, I'm sorry Jim.
MEMBER DINIZIO: How about attaching the garage to the house?
MR. BARRY: The house is also up already.
MRS. BARRY: The house is built. We got the permit.
MEMBER DINIZIO: Would you feel better if we went that way, west
with the garage? Even though it would be in the side yard?
MRS. Barry: I'll show you the plans to the house, if you'd like.
We have kind of like a sun ray room on the deck.
MEMBER DINIZIO: I'm just asking you know.
change it a little bit. I'm just wondering if -
You may have to
MEMBER COLLINS: The house is 'already built.
MEMBER DINIZIO: I agree. I agree. But if you went say, you
know, 30 feet to the west, you know' you'd have a lot more back
yard and you know maybe your 30 feet from the road because it
would give you, it kind of looks like it comes out a little bit more.
MR. BARRY: I don't think it would fit up there.
Page 66 Hearing Transcripts
March 25, 1999 - Board of Appeals
MRS. BARRY: I don't know if I'm following you.
BOARD SECRETARY KOWALSKI: You could make it a little smaller.
MEMBER COLLINS: Make a smaller garage. Just put a little bit wood
deck there. You won't put the garage there.
MRS. BARRY: Make the garage smaller. I think the garage is
MEMBER DINIZIO: You know people are real funny about a garage 20
feet away from the road. People just a, I personally don't object to
it, but there, -
MRS. BARRY: Well there are other pictures of ones that was
not on waterfront lot. So, you know I just tried to get areas and
took pictures of the garage and like I said, whatever works.
MEMBER DINIZIO: Alright, well, we don't, I can't, we can't
guaranty what we say will work. What we agree to. We're not
builders. We're just, you know -
CHAIRMAN GOEHRINGER: We're placers.
BOARD SECRETARY KOWALSKI: We're placers, you design it.
MEMBER DINIZIO: You know, you have to know what you want.
CHAIRMAN GOEHRINGER:
MRS. BARRY: Thank you.
CHAIRMAN GOEHRINGER:
Thank you.
Anybody else for or against? Seeing no
hands I'll make a motion closing the hearing reserving decision until
later.
MEMBER COLLINS: Second.
CHAIRMAN GOEHRINGER; all in favor?
Motion carried. See Minutes for Resolution.
Page 67 Hearing Transcripts
March 25, 1999 - Board of Appeals
CHAIRMAN GOEHRINGER: On GERALDINE FEREND, WHICH IS
Appeal No. 4669-
BOARD SECRETARY KOWALSKI: Excuse me I need to interrupt a
minute. They did not do the mailings. You have to totally cancel
that hearing and they have to redo it.
CHAIRMAN GOEHRINGER: OK, so I'm not going to open the hearing.
BOARD SECRETARY KOWALSKI: No.
CHAIRMAN GOEHRINGER: Alright.
Page 68 Hearing Transcripts
March 25, 1999 - Board of Appeals
9:53 P.M. Appl. No. 4671 - HENRY L. FERGUSON MUSEUM
Variances are requested under Article XXIV, Section 100-241-A and
Article III, Section 100-32, based upon two Notice of Disapproval
issued February 2, 1999, for permission to construct addition with
insufficient front yard setback(s) and alterations to an existing
nonconforming (Museum) use in this R-80 Residential Zone District.
Location of Property: N/W side of Equestrian Avenue (Bell Hill
Avenue and West Street), Fishers Island, N.Y.; County tax Map No.
1000-009-04-11.1.
CHAIRMAN GOEHRINGER: I waive the reading of the minutes. Is
there anybody here? Ah, Mr. Ham, you're representing, wonderful,
OK.
MR. HAM: I'm Stephen Ham, 45 Hampton Road, Southampton, N.Y.
(Giving Affidavit of Posting, etc.) First I'd just like to mention
that Henry L. Ferguson Museum is a Not-For-Profit Corporation
which runs the museum on Fishers Island. Attached to that
Memorandum I just handed you are a letter from Charles Ferguson
and an affidavit from Jacob Albert. Jacob Albert is the architect
and he sets forth or I set forth for him for his signature what
they're doing, why they're doing it and Mr. Ferguson's letter gives
a little history of the museum and also goes into why they need,
they need to expand. I just want to cover three points very briefly
and then try to answer any questions you have. One concerns the
neighborhood. Well this is in an R-80 Residential District. It is
right on the border of an HB Commercial District and while we would
have a setback only of 29 feet from the street line, it is somewhat
of a transition zone being next to a business district and I've
attached an affidavit to that Memorandum, I'm sorry, a survey of the
adjoining property, the property that adjoins an HB District~ which
shows a zero setback. So, the impact on the neighborhood is not
perhaps as great as it might seem and a variance not as great as it
might seem. Secondly, on the issue on expansion. The reason
they're doing this the way they are is to preserve as much as
possible some trees. Also, the property behind is fairly steeply
sloped and to get the same footprint or an equal area for expansion
it would require an unsightly structure in the back. And also,
you*re building towards wetlands. If you go more in that direction
and you lose some mature trees. In terms of the use of this lot,
it's about 3.21 acres and they are planning to expand the 2100
square foot building which uses 1.5% of that lot area to 3,420 square
foot building which uses 2.4 square feet which is well below the
20%. That would be applicable if this were a house in an R-80
District, that house could be about 28,000 square feet if we applied
the full or the coverage could be quite, quite grade. I think that
highlights the areas that I'd like to highlight. Of course these
affidavits and the letter that are attached can give you some further
details as to why~ why they plan the expansion but I'd be happy to
answer any questions you may have.
Page 69 Hearing Transcripts
March 25, 1999 - Board of Appeals
CHAIRMAN GOEHRINGER: Mr. Homing mentioned to us that this is
strictly a one story expansion to a one story building.
MR. HAM: Yes.
CHAIRMAN GOEHRINGER: And he said that there are problems in
dealing with a second story and that was the reason why they
widened it out to a one story.
MR. HAM: According to the architects they really didn't even
consider because of the expense of possibly having to put in an
elevator accessible. And, the museum is based on contributions. I
know I've represented them on land acquisitions. One of the other
functions that they engage in as a depository for land that people
want to contribute on the island to keep it as open space and then
they filed covenants prohibiting its development.
CHAIRMAN GOEHRINGER: It sounds like a really super institution.
Mr. Dinizio, any questions.
MEMBER DINIZIO: No.
CHAIRMAN GOEHRINGER: Ms. Collins?
MEMBER COLLINS: Mr. Ham, obviously we don't have the advantage
of having seen it, but, I've read the file carefully and the facts
and the argument about the setbacks I think are very convincing
that the setback issue is just not a barrier to do what they want to
do. But, we have the other problem in the Building Inspector's
denial that he states that it's a nonconforming use being expanded
which is certainly true. I quickly flipped through your Memo to see
how you had handled that and I think you did what I think I would
do in the situation which is bunt. Just simply saying, well that may
very well be true, but, it's OK. I think what you perhaps are,
are, correct me if I'm wrong, you're making an argument really that
a museum like some unlike many nonconforming uses like junk yards
and gasoline stations, that a museum is a good thing and serves a
public purpose and that we shouldn't be too harsh on it's being a
nonconforming use.
Is that a -
MR. HAM: Well, a, I think that is something that should be
considered whether that is, if I were to take an Article 78 on that
and I don't think that I would succeed.
MEMBER COLLINS: Right.
MR. HAM: I think, you should take just weighing all the factors
here, I guess would be my argument and that certainly would be one
of them. The fact that it is on the border between a commercial
district and I think were I to go to the Town Board for a Rezoning,
I think I could persuade them that it would be a good idea since it's
not really, well because it is right adjoining them.
Page 70 Hearing Transcripts
March 25, 1999 - Board of Appeals
MEMBER COLLINS: Well those are helpful arguments and I just
wanted to have them in the record. Although I gather there is no
opposition to this project.
MR. HAM: As far as I know no and according to Mr. Ferguson it
has become quite a popular and important institution on the island.
MEMBER COLLINS: Do you know off hand how the building I gather
was put up in 72 more or less. It doesn't not by any means predate
zoning. Do you know anything about its -
MR. HAM: No, I tried to, I know that the Building Department is
much more strict now in its interpretation of the code even since
I've been doing this work in this area.
MEMBER COLLINS: So, it's lost in the mist of time?
MR. HAM: I would say so.
MEMBER COLLINS: Thank you.
CHAIRMAN GOEHRINGER: Mrs. Tortora?
MEMBER TORTORA: No, I don't have any questions.
CHAIRMAN GOEHRINGER: OK, anybody else in the audience would
like to speak for or against? Seeing no hands I'll make a motion
closing the hearing reserving decision until later.
MEMBER TORTORA: Second.
CHAIRMAN GOEHRINGER: All in favor?
Motion carried. See Minutes for Resolution.
Page 71 Hearing Transcripts
March 25, 1999 - Board of Appeals
10:02 P.M. Appl. No. 4668 - SOUTHAMPTON LUMBER CORP.
This is a request for a Variance under Article XXIV, Section
100-241-G, for permission to reinstate (re-establish) use as a
lumberyard and related activities, which use is nonconforming in this
Hamlet-Business Zone District. Location of Property: 13650 Main
Road, Mattituck, NY; County Parcel No. 1000-114-11-24.3
CHAIRMAN GOEHRINGER: I have a survey dated November 30,
1998, indicating at least two rather extensive buildings on the
property and some concrete bins in the rear. This is a lumber yard
which was a lumber yard until Southampton Lumber closed the store
some years ago and most people are aware of its existence and its
placement and as it exists in the community and I have a copy of the
Suffolk County Tax Map indicating this and surrounding properties
in the area. Mr. Ham, I guess we're ready.
MR. HAM: Stephen Ham, 45 Hampton Road, Southampton, NY.
have affidavits of mailing and posting, Memoranda, Mr. Homing.
CHAIRMAN GOEHRINGER: Thank you.
MR. HAM: I would like to talk about the history just a little bit
because I think that's sought of important to let you know why we're
here and starting in 1925 and I'll be brief, I hope. Southampton
Lumber was incorporated in 1925 and was actively engaged for more
than 65 years in the retail and wholesale to some extent, the sale of
building materials. At one point, we had several yards on the South
Fork, one in Moriches and then recently in 1983 acquired the
Mattituck yard from Reeve Lumber. The company is owned by about
200 share holders, most of whom are residents of the East End. In
the early 1990s, the effects of the recession and some competitive
disadvantages, forced management to make a decision as to whether
to continue it as a going business or to preserve shareholder values
by essentially going out of business and selling the assets in
connection with liquidating the company for the shareholders, and of
course that's a lengthy process. We found a buyer for the principal
yards in Southampton and East Hampton in 1993 and then that was
Riverhead Building Supply which took over those yards. The
Moriches yard was very difficult to sell but, we finally closed on
that sale. In addition, other assets owned by the company over the
years, mortgages and even some other real estate, which were taken
in connection with credit, collections and so forth and Mattituck
proved to be a very difficult sell and although the a, we were told
that at one point that the a, we should ask in the seven hundred
thousands and I think we have the President of the company is here
and to go over the listing history which I'm not quite as familiar
with but, and in the end, we had an appraisal in 1995, which is
indicated on a letter from Andrew Stype Which is attached to my
Memorandum at $525,000. Again, there was very little interest was
shown until finally this past summer and fall. A firm offer was made
and accepted by Speonk Lumber Corp. and we enter into a contract
with Speonk for a sales price of $430,000. Speonk's lawyer who is
here tonight, Mr. Saxstein, a very astutely required us to deliver
Page 72 Hearing Transcripts
March 25, 1999 - Board of Appeals
an updated Certificate of Occupancy. Our Certificate of Occupancy
is attached to my Memorandum. It was issued in 1983, for a
Preexisting Nonconforming Woodworking and Lumber Business. I
applied for the updated Certificate of Occupancy and the Building
Inspector called me to say, that he thought we had been an
abandoned use under Section 100-241 G. I mentioned to him that
although we had not actively engaged in the sale of lumber since
going out of business in 1983, we did have a woodworker on
premises continuously since prior to 93. 1989 I believe and to the
present day and I produced an affidavit from John Rose which a
copy of which is attached to your affidavit that was filed with the
Building Department. Nevertheless, Mr. Forrester denied my
application for the updated Certificate of Occupancy and we are now
here for that reason. I have H. Merrill Becket, Jr., whose the
President of the company and Denis Smith who is the President of
Speonk Lumber Fork as well as his attorney, Mr. Saxstein. I want
to briefly tell you what's in that Memorandum. It's about ten pages
long. The first five or so pages are devoted to a legal argument
that we should not be required to be here for the reason that the
use under New York State Law, Case Law, was - should not be
deemed to be discontinued because of the Southold statute does not
state that "there's anything short of an entire discontinuance" is
one of the words that argues in the cases. It has to be entirely
discontinued a nonconforming use. Unless you have a statute that
says something less than have full discontinuance, is sufficient for
that purpose and I've made that argument to Mr. Forrester and he
said, that's why we have Zoning Boards. So I hope you'll look at
that argument and if you need the cases that are referred to in
there, let Mrs. Kowalski know and I'd be happy to fax copies of
them. Of course, I could not leave it at that, so the second part of
the Memorandum does address issues that I think you should
consider primarily that this property is based on listing history
which Mr. Becket can go into a little bit. You can see who is
interested in this property? A lumberyard. And that's basically the
only serious offer we've had and even that is well below the asking
price which we had, but I'd like to point out further as I do in a
footnote, that the town by implication is telling us, that this
property is worth $655,000 because it's assessed at 19,000 and the
equalization rate is 2.9%, which would leave one to believe that it
has that value. I asked for an opinion from an expert Andrew
Stype. His letter is attached and he's somewhat familiar with the
listing history but he also suggests in his letter that we are really
suited for a big lumber yard type use, not for the permitted uses in
the HB Zone District. We could almost argue that we would qualify
as a retail store because as Mr. Smith will tell you, he intends to
operate as Southampton Lumber and Reeve Lumber operated before.
It will be more of a retail operation. However, Mr. Forrester in
the Building Department suggested that because there is a use in
the B-Zone called, I think it's called "building material and
storage,'' that by implication that's excluded from the HB District.
But, well, I think I've said enough for now and if you have any
questions of me, you can ask them or I might introduce (changed to
tape 3-A).
Page 73 Hearing Transcripts
March 25, 1999 - Board of Appeals
CHAIRMAN GOEHRINGER: Mr. Ham.
MEMBER DINIZIO: I definitely would like to see how you advertised
it and if you could have those cases you know -
CHAIRMAN GOEHRINGER: Yes, I was going to ask you for that
too. Can you fax them over to us.
MR. HAM: Absolutely.
MEMBER DINIZIO: That would be very helpful.
MR. HAM: And how it was advertised, well that,
Becl~er might be able to answer that.
MEMBER DINIZIO: Yes.
MR. HAM: But I certainly will give you the other cases.
I think Mr.
CHAIRMAN GOEHRINGER: Are you done, Mr. Dinizio?
MEMBER DINIZIO: Yes.
CHAIRMAN GOEHRINGER: Ms. Collins?
MEMBER COLLINS: As to part one of your case, that you shouldn't
have to be here because it wasn't discontinued. I, of course, read
Mr. Rose's affidavit, but it didn't give any sense of the relative
scale of his operation versus the operation when it was going full
scale yard.
MR. HAM: I think if you look at those cases, the minimum activity
is sufficient and in one of the cases, there was a marina and I
believe it was the Town of Islip that was closed for two years.
They had a one year statute, but it wasn't completely closed. They
rented one of the docks or something. That was held to be
sufficient. Another case, a house, there were two homes on a lot
that was later upzoned to allow only one. Of those two homes, one
had been vacant for 15 years and the Court allowed it. There is a,
the most recent Court of Appeals, the highest court in the State,
the most recent decision interprets a New York City Ordinance where
they did say that they had lost the use but the New York City
Statute had a lower standard. In other words, they had to continue
- to preserve your use, you had to have an active operation of
substantially all the uses and in that case, the court clearly
distinguished the types of ordinance like Southold's which just say,
discontinuance - which is then interpreted to mean the entire
discontinuance.
CHAIRMAN GOEHRINGER: Thank you.
MEMBER COLLINS: Another quick question. I probably will find it
in your Memo. Assuming that we decided that we had to treat this
as a discontinuance and therefore address the variance that our
Page 74 Hearing Transcripts
March 25, 1999 - Board of Appeals
statute says that we can give to waive the -- Our statute says,
that if you discontinuance a nonconforming use for at least two
years, then you can't start it up again unless the Zoning Board of
Appeals grants you a variance.
MR. HAM: YeS.
MEMBER COLLINS: OK. I gather from what you're saying that you
think that there is a clear basis for granting that variance using
essentially the use variance standards. That there is no other way
to a use the land.
MR. HAM: Well, that's been the history. Is there no other use? I
can't, I can't say that. No. You could tear those buildings down
and put a mall in there, or, a theater or something with appropriate
site plan approval and so forth. The point, the main point is that
for all intensive purposes there is no other use for it. As our
history of our trying to sell it shows.
MEMBER COLLINS: No, that was why I was asking you that because
our statute, of course, doesn't tell us what kind of a variance we're
going to grant if we decide to do that. Fine. Thank you.
MR. HAM: That's a good point.
CHAIRMAN GOEHRINGER: Mrs. Tortora?
MEMBER TORTORA: I am familiar with two of the three cases, in
particular the Toys R Us case which you cite in here. This, the
original Certificate of Occupancy was for a 'Lumber and Woodworking
Business,' is that correct?
MR. HAM: Yes. It is attached to the Memo.
MEMBER TORTORA: The Woodworking Business by affidavit has not
been discontinued at any time? Is that correct?
MR. HAM: That's correct, and Mr. Becket who has dealt with that
more intimately than I can so attest, and if you need live testimony
we'd be happy to produce Mr. Rose.
MEMBER TORTORA: So actually what You're asking for us to do in
the first instance is to reverse the decision of the Building
Department that the use hasn't been abandoned.
MR. HAM: Yes.
MEMBEI~ TORTORA: In which case no variance is needed because
it's a continuation of a nonconforming use?
MR. HAM: Yes.
MEMBER TORTORA: And in the ~event the Board doesn't agree with
that, then you would present a case for a variance of the nature
Page 75 Hearing Transcripts
March 25, 1999 - Board of Appeals
applicable to that - which would probably be use variance. So, I
think probably the best thing for the Board to do would be to, you
know, to come to some kind of decision as to a (hesitatiOn).
MEMBER COLLINS: Step one.
MEMBER TORTORA: Step one because a -
CHAIRMAN GOEHRINGER: I don't know if we necessarily have -
MEMBER TORTORA: But step, step 2, is a horrendous process.
MR. HAM: Well we have, you know, I can, I can say in the
alternative, we have the presence of both companies here tonight.
So, in case you were to deny on the first count, I think it would be
helpful so they don't have to come back if you could take testimony
on the second count.
MEMBER TORTORA: You want to do all that tonight?
CHAIRMAN GOEHRINGER: Sure, we're here.
MR. HAM: Unless you're inclined to agree with me at this point.
CHAIRMAN GOEHRINGER: I suggest we take the testimony. I mean
that's the point. The gentlemen are here. That's what they came
for, you know, I mean that's it. We take it all, or we make a
determination one way or another.
MR. HAM: You might not have to reach the second if you can agree
with me on the first, but since they are here, and if you don't
agree with me on the first, then, I would have to bring them back
and they have waited a long time.
CHAIRMAN GOEHRINGER: Who are you going to give us first?
MR. :~ HAM: I'm going to give you Merrill Becket, who is the
President of Southampton Lumber Corporation.
CHAIRMAN GOEHRINGER: Mr. Becket, would you raise your right
hand please. Do you solemnly swear that the information you're
about to give us is the truth to the best of your ability?
MR. BECKER: Yes, I do.
CHAIRMAN GOEHRINGER: Thank you. What do you want to tell us?
MR. BECKER: OK, that I am the President of Southampton Lumber
Corporation. In 1983 I came over on the North Fork, talked with
Larry Reeve, went back to our shareholders, and Reeve Lumber
looked right for us and basically because it was the same type of
operation that we had on the South Fork. It stored building
materials, it had paint, builders' hardware, that kind of stuff.
Builders' hardware and lumber. In the back it had a millwork shop
Page 76 Hearing Transcripts
March 25, 1999 - Board of Appeals
and in the millwork shop at that particular time when I, we
purchased Reeve Lumber, Larry's son David was in the shop. He
manufactured doors, windows, custom windows and doors, and also
manufactured saw horses. But, what it was, it was all for a
millwork operation, and when we purchased the property in 83,
David stayed on and ran the shop and then eventually had left and
we engaged the services of John Rose, and John Rose continued on
in that same fashion. One of the reasons of, or the reasons for
using the shop is we were recycling lumber. And when I say
recycling lumber, we were manufacturing cedar pickets out of cedar
boards that had weathered and had no real value so we started to
make fences, saw horses and continued on doing that till we sold the
business. And then, Riverhead Building Supply - who bought the
other yards, we didn't have one out by, just to remind Mr. Ham, we
did have a lumberyard out in Montauk and we were able to sell that
to a lumber company, Watermill True Value out on the South Shore.
We engaged the services of Bob Celic. Also Andy Stype. We listed
it with Century 21, Bookmiller. They were the people who had the
listing on the property. We had the property for, I guess it was a
year that it was on the market and people were saying that maybe
we were too high. We had Andy, so we engaged the services of
Andy Stype. He did an appraisal for us and that was when we were
trying and the property at that time was all, it was listed at the
$525,000.
We've had offers for it. One offer when it was from a local
developer. One offer was $275,000 and his reasoning for it was, it
was going to take time $100,000 to demolish the buildings. We
entertained it but it wasn't the right offer for our shareholders.
It came back a year later and the price went to $325,000. All the
time during this time we were actively trying to sell the yard and it
was listed. I also had served as President of the Long Island
Lumber Association, and in 1993 also President of the North East
Retail Lumber Association. The reason that Mr. Smith is here, in
my, on my own, I was trying to get this property sold to other
lumberyards. Not to anybody big, but because it fits being a
"mom and pop" type of lumberyard and that's what Mr. Reeve
started it for, and we at Southampton Lumber when we were selling
lumber were basically that type of operation. I don't know, it's
like telling a story where do I go from here? Can I answer any of
your questions, if you have any questions?
CHAIRMAN GOEHRINGER: Anybody have any questions of this
gentlemen? I think not. Thank you, Sir.
MR. HAM: Mr. Smith, if you would like to know how he intends to
operate should the deal go through this year, and I think he has a
statement which might be helpful to you. Dennis Smith.
CHAIRMAN GOEHRINGER: Mr. Smith, the same situation. You
solemnly swear the information you're about to give us is the truth
to the best of your knowledge?
MR. SMITH: I do.
Page 77 Hearing Transcripts
March 25, 1999 - Board of Appeals
CHAIRMAN GOEHRINGER: Thank you.
MR. SMITH: Good evening, ladies and gentlemen and Members of
the Zoning Board Association. My name is Denis G. Smith and I am
the Contract Vendee of the premises which is the subject of this
application. My purpose for speaking to you tonight is to show you
that the type of business I hope to operate is basically the same as
the Reeve lumberyard was prior. For over 20 years I have owned
and operated a small building supply company: Speonk Lumber
Corp., located at Montauk Highway in Speonk. My present business
is bordered on the west by other businesses, and on the south and
east by residences. I therefore know the concerns of the
surrounding neighbors with the business such as this. My present
business is a family business and I hope to continue this business at
the-Mattituck location. My son who has worked for many years and
who is now attending college to obtain a Bachelor Degree from the
UnixTersity of Massachusetts, in building material and lumber science,
will be managing the operation. We intend to operate these premises
the same way Larry Reeve operated his business. It's going to be a
family business, focusing on retail lumber in the community. It is
not and I stress, it's not going to be a Home Depot. The business
that I propose will be selling lumber, building materials, tools,
hardware and millwork. The millwork shop currently on the
premises will continue in operation. I am not proposing any new
construction at the premises. I intend cosmetic work only to restore
the buildings and make them more presentable. I intend to paint the
buildings and to but new roo~s on them so they'll be an asset to the
community here.
CHAIRMAN GOEHRINGER: While you're standing there, anybody
have questions of Mr. Smith?
MEMBER DINIZIO: No.
CHAIRMAN GOEHRINGER: My only question to is, are you
antidipating outside storage for the lumber?
MR. SMITH: Yes.
CHAIRMAN GOEHRINGER: OK. Would all the lumber be outside or
would it be just CCA? Do you know?
MR. SMITH:
in the past.
It would be some dimensional and some CCA as it was
CHAIRMAN GOEHRINGER: OK, thank you Sir.
we go from here? Anything else?
Mr. Ham, we're do
MR. HAM: Well I hope that you'll, I have other arguments in the, I
don't want to take your time now, in the Memorandum -
CHAIRMAN GOEHRINGER:
that we want?
And you'll' fax over the other information
Page 78 Hearing Transcripts
March 25, 1999 Board of Appeals
MR. HAM: And I'll fax the cases and that.
CHAIRMAN GOEHRINGER: OK, thank you. Anybody else like to
speak in favor? Anybody like to speak against? Yes ma'am.
MRS. CARDINALE: My name is Donielle Cardinale. I own and
reside at the home on the corner of Wickham Avenue and Main
Road. The existing site has not been in use as a lumberyard for a
number of years. They have mentioned that it has been used as a
woodworking mill. I've lived in my home for two years and I've
failed to see it used that way. If it is, I would question how
actively or how much it's been continued. Either way I think
there's no question that a small woodworking shop and a lumberyard
is quite a difference in the amount of traffic which is my main
concern, or one of my two main concerns. It has been abandoned as
a lumberyard for a number of years and in their seeking this
variance, they've basically admitted that and the other thing is they
would be forced to prove is that it is not, that its use couldn't be,
couldn't be profitable for any other use, and I don't necessarily
think that's true judging from the fact that there are plenty of
other Hamlet Zone Businesses surrounding it that have been able to
be successful and many of them have been there for many years.
I'd like to also point out that the location on the Main Road and the
establishment of the lumberyard creates a track burden which is
apparently not contemplated by the Hamlet Business District. The
last time it was used as a lumberyard was several years ago when
our traffic conditions here were quite different. I don't think
anyone could argue the fact that we've seen a much greater influx of
traffic coming on to the North Fork with the birth of the vintage
and then everything else. I am in a tossed type business. I own a
restaurant and I definitely seen even the two years that we've been
in business that there is definitely a growth there and that affects
the traffic in the area. We a, while we were moving into the home
saw three accidents in a period of two months. It's a very tough
location there on the Main Road. I have difficulty pulling in and
out of my driveway as it is. With the exiting and entering of large
trucks delivering lumber and what not I think that would definitely
cause a burden that would have to be looked into and some
investigation done as to the impact on the community. Also, as I
stated earlier, they're trying to establish or would, would have the
burden of establishing that none of the business, the Hamlet
Business Zone businesses could affectively be run there. Some of
those include, retail stores, restaurant, personal service shops,
meeting shops, meeting halls, business professional and government
offices. I think it would be very hard to prove that any of those
couldn't work. They're saying that they have not had any
reasonable offers other than this one lumberyard. I think the
reason maybe being that the market doesn't really, many, may people
don't feel the market could bear the burden of another lumberyard
with four on the North Fork now and Home Depot going in. Value
basically calls the willingness of the buyer on what they feel the
value is and that reason probably being that they do foresee the
need to make a lot of changes in order to make that location work.
I believe the opening of the lumberyard with outside storage and
Page 79 Hearing Transcripts
March 25, 1999 - Board of Appeals
substantial truck traffic in Hamlet Business District would change
the character of the surrounding area and should not be permitted
and that's my statement.
CHAIRMAN GOEHRINGER: Thank you. Anybody else? Mr. Ham?
MR. HAM: May I come up? Just to reiterate even that minimal
activity we believe would preserve the use. But, just keep in mind,
that this is a corporation that has filed a Certificate of
Dissolution. This is not a piece of property that we are holding
looking for some use for it. We are trying to liquidate the company
trying to find a, protect the shareholders to the extent that we can
to find a reasonable offer and we've been trying for five years now
and the only, the only people that seem to be interested are another
lumberyard because and Mr. Stype points out in his letter and I'd
be happy to provide the opponent with a copy of his letter, that the
very high cost of conversion. Yes, we freely admit that if this
property were standing there without any of the improvements on it,
it would be, we could not carry an argument that the lumberyard
use would be appropriate even under that circumstance. But, we
have to look at the whole totality here. We're trying to liquidate
the company and we have existing buildings that are there. That
someone would not pay much money for that as, if they were going
to put something like a retail, or small retail store, or restaurant,
or another permitted use because they would incur the buildings are
useless to them. The real estate improvements are not well suited
for the HB Zone District. I just want to make those points. Thank
you.
CHAIRMAN GOEHRINGER: Thank you. Anybody else like to
speak? Seeing no hands I'll make a motion closing the hearing
reserving decision until later.
MEMBER COLLINS: Second.
MEMBER TORTORA: You're going to close it?
CHAIRMAN GOEHRINGER: Sure. Why you want to leave it open?
MEMBER TORTORA: No, I just wondered.
BOARD SECRETARY KOWALSKI: Go to the the Board? All in favor?
Motion carried. See Minutes for Resolution.
End of hearing.