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HomeMy WebLinkAboutZBA-03/15/2001 HEARING SOUTHOLD TOWN BOARD OF APPEALS TRANSCRIPT OF HEARINGS HELD MARCH 15, 2001 Prepared by: Paula Quintieri Present were: Member Dinizio Member Tortora Member Collins Member Homing Secretary Kowalski Chairman Goehringer (absent until 9: 1 0 p.m.) PUBLIC HEARINGS: MEMBER TORTORA OPENED PUBLIC HEARINGS IN CHAIRMAN GOEHRINGER'S ABSENCE. 7:40 p.m. Appl. No. 4844 as Amended - DONALD BUSKARD. MEMBER TORTORA: I would like to begin the first hearing which is Donald Buskard, which is continued rrom a prior hearing. Would anyone like to speak on behalf of this application? Anyone here. AMY MARTIN: My name is Amy Martin. I'm here rrom Fairweather-Brown, Architects. I'm representing Adrienne and Donald Buskard. From hearing part of the work session, I realize that something you're asking for is already been questioned. We have applied for, changed our application and apparently our letter of disapproval didn't carry everything that you're asking for. We asked for to add an additional porch on the rront of the house, a side yard den addition and a in ground pool and due to the fact that these lots are severely undersized, we need to appeal for a variance. MEMBER TORTORA: Well at the last hearing, when we last left off and there have been a lot of changes to the existing map, at the last hearing we had requested that the lot coverage be reduced from 23 %. The next revised map we got increase the lot coverage 26% and the latest revision, which is March lih, the lot coverage has now jumped up to 28%. AMY MARTIN: It's actually 25.8% that's a typo. MEMBER TORTORA: Let me just continue a second. Did you prepared a drainage plan and indicate the pump location? AMY MARTIN: The last meeting was re-scheduled while I was away and apparently I didn't get the information that you just relayed. I only heard that there was a problem Page 2 - March 15,2001 ZBA Hearings with the setbacks on the pool rrom the side yard line. I did not get the information that there was a problem, that you had a problem with that much area variance and to ask for both placements of the cooling filter. MEMBER TORTORA: That was one of the main issues that we were concerned with at the initial hearing in January was the degree of the area variance that had been requested and the Board Members specifically asked that to go back and devise a plan that would not require as much of a variance. The other problem really that we have is that because you've revised this plan after the public notice has been sent out and you revised it to also include a rront yard variance. AMY MARTIN: Actually that's the same as we applied for the first time because its going back to our first plans. MEMBER TORTORA: Yes, but it was not reviewed by this Board, and that has not been reviewed by the Building Department. So we have no jurisdiction, at this point, to even consider it until you receive a Notice of Disapproval for that. So theoretically you could go back to the Building Department and get a Notice of Disapproval you can corne back to the Board or AMY MARTIN: Can you give me some guidelines about what you will approve and MEMBER TORTORA: Yes, I could and that's why you might not want to corne back. One of the things that we have tried to do, particularly in this area on these lots, is we've tried to maintain the 35 foot setback. And, as you mayor may not know, this particular lot has already received a variance on the rront yard setback. AMY MARTIN: That was when it was a 50-foot setback. Now it adheres to the current setback. MEMBER TORTORA: Correct, but it's not, while you could go back to the Building Department, get the Notice of Disapproval and corne back to this Board, the Board is not inclined to look at that area favorably for a variance. AMY MARTIN: I think that my client is really, at this point, when I carne in I heard part of the work session about the 35-foot setback and they are actually at this point more concerned with the availability of having a pool. MEMBER TORTORA: One of the things that we're still looking at is the pool raised in the same location as the last map? AMY MARTIN: It's ten feet rrom each line on the first map that was brought to you. MEMBER TORTORA: And we had wondered why you could not get that closer to the house. Why the pool could not be closer to the house? Page 3 - March 15,2001 ZBA Hearings AMY MARTIN: Well according to the setback rules for non-conforming lots, this is the setback for an accessory structure which is the pool existed in the Code book is only three foot on this size lot. We tried to push it back as far without being in the house. MEMBER TORTORA: But it's the location, its in a side yard. And in a side yard there is no, when you're asking for it to be in a location other than what's required, then the Board usually looks at locations of principal setbacks. But the bottom line is you do have a neighbor that's very much concerned about the pool virtually being in his backyard, about the excavation and the real question here is why can't the pool be moved closer to the house. That's really what we're looking at. AMY MARTIN: The only other thing I do know about the neighbor who has the objections is the fact that he also has, his house is closer to the rear yard than it should be. I definitely wouldn't go back to the Zoning Board and try to get the pool further rrom the side yard but, it is his backyard not his side yard. MEMBER TORTORA: Any comments? MEMBER COLLINS: I think it's helpful to Ms. Martin and the clients to get some feedback rrom us at this point. You're starting out with a house, with its excess re- buildings covers slightly more than 20% of the lot. And these are small lots as we all know. And I think their desire to have a swimming pool is a very understandable desire. And this Board is certainly open to hearing people say we need some more lot coverage because we want a swimming pool. My perception in my 3 12 years here is that, our feet start to dig in rather finnly once we get around 22 1/2 , 23 % lot coverage. The flags go up because its not just a little niggling, its starting to become significant. And I personally feel in this neighborhood that crowdedness is to be kept down. Where I corne out is I'm probably inclined to say let's figure out a way to have their pool. I feel very strongly they've got to keep the 35-foot rront yard setback and the addition of the porch and the den that increased the lot coverage strike me as just reaching for more than I think is advisable in the neighborhood and I'd just like to get that out so that you know that's where I'm corning from. And I know you or one of the members of the firm told us at an earlier hearing, well they want the pool where it is because they want to paved area for their chairs between the pool and the house and I understand that but I think maybe the compromise here. You know you're right about the accessory building setback requirements, but as Mrs. Tortora pointed out this accessory wants to be in a place where an accessory isn't supposed to be, and therefore, we're going push it. That's where I corne out. Is that fair enough, Lydia? MEMBER TORTORA: Yes. George? MEMBER HORNING: No, I concur with the comments. MEMBER TORTORA: So have we given you sufficient guidance to. Page 4 - March 15,2001 ZBA Hearings AMY MARTIN: They made the trip in here rrom Nassau County tonight because I was told we wanted them here in case there were concessions that might be made. Obviously, you have a lot of changes to make. We'll concentrate on that end. MEMBER COLLINS: You have to realize that without a Notice of Disapproval for the current plan we really couldn't do much with it. AMY MARTIN: I understand that. Actually the first plan I guess should've had this approval on the road frontage where its setback because it was the same plan. MEMBER COLLINS: That was long ago. AMY MARTIN: I understand that. Thank you very much. The interesting thing I carne up with when I was working on preparing for this, the only house that can be built on these lots is 18 feet by 90 feet. Thank you very much, I'll corne back when we've found a place for the pool. I probably, at this point, because we are taking a large deck off the existing house to put the pool in, perhaps a smaller deck and the pool closer to the house might be a possible solution? MEMBER TORTORA: Yes it might be. AMY MARTIN: Okay. MEMBER TORTORA: We get pretty good guidelines. Is there anyone that would like to speak against this application? No response. Seeing no hands I'll make a motion to adjourn this hearing to, do we do this without a date? BOARD SECRETARY KOWALSKI: Is she going to amend the application? MEMBER COLLINS: That's going to depend on what the clients say. MEMBER TORTORA: Okay to adjourn without a date. SEE MINUTES FOR RESOLUTION * * * 8:48 p.m. Appl. No. 4913 - LEONARD TIRADO. MEMBER TORTORA: This also is a continuation. Is there someone here who would like to speak on behalf of that application? MEMBER COLLINS: We had recessed it so that he could give us some detail on where, MEMBER TORTORA: He did give us Page 5 - March 15,2001 ZBA Hearings MEMBER COLLINS: He did give us on where he supposed to put his pool equipment. BOARD SECRET ARY KOWALSKI: He had planned to be here. He may be out in the hallway. MEMBER TORTORA: Is Mr. Tirado here? He may be on his way, so I won't open the hearing at this time and we will perhaps corne back to it later. The next hearing is on behalf of Anne MacKay. 7:51 p.m. Appl. No. 4920-ANNE MACKAY. MEMBER TORTORA: Is there anyone here who would like to speak on behalf of that application? Hello, good evening how are you this evening? ANNE MACKAY: I'm Anne Mackay and my house was moved into Browns Hills in 1968. It's a small, it's a very small saltbox house, and my bedroom is up on the upstairs part with a very steep staircase and I'm getting much older. So we planned a bedroom on the main floor which connects with the bathroom. When Browns Hills was laid out in 1947 I think they just did it on a piece of paper where the roads would be. By the time I got there the roads, of course, had been well built and they were not where it said on the piece of paper. In fact it sort of increased my property by about 6 feet. When the house was moved from the Main Road it fit the setback rrom the, not from the road that's there but rrom the was on the map and the monuments. With the new addition, and the new addition does need to be on the side because the land slopes very strongly to the south and there's a porch there. It projects, the building now projects 3 feet into the area, into where the projected road was. There's plenty of room if you go by the rear road which is there. But it would be a variance of about 3 feet sticking into it. The whole area is covered by bushes, it wouldn't be seen rrom the road. MEMBER TORTORA: The existing setback of the existing house is at 36.1 and the new addition would be 33 feet, but it would be parallel. ANNE MACKAY: Except that the road curves a little bit, which is why it sticks out into that. MEMBER TORTORA: But you would be following the line of the existing house and for practical purposes the appearance would appear to be all the same house. I have no questions. Mr. Dinizio? MEMBER DINIZIO: No. MEMBER TORTORA: Miss Collins? Page 6 - March 15,2001 ZBA Hearings MEMBER COLLINS: No, we have visited Southview Drive about six months ago for the property where Mr. Ryles was planning to be build, so we know your road. I have no questions. MEMBER TORTORA: Mr. Homing? MEMBER HORNING: No questions. MEMBER TORTORA: Okay, let's see if there's anyone from the audience that has any questions. Is there anyone from the audience who would like to speak in favor or against this application? No response. Seeing no hands I'll make a motion to close the hearing and reserve decision until later. SEE MINUTES FOR RESOLUTION * * * 7:58 p.m. Appl. No. 4909 - JAMES AND PATRICIA MCNAMARA. (Owners 101-4-1 ). Appelants request a Reversal of Building Permit No. 26821-Z issued concerning new construction of 3705 Alvah's Lane, Cutchogue, property owned by Paulette Satur Mueller and Eberhard Mueller: Parcel 101-2-24.5 and 24.6 (combined as one lot). Dan Ross, Esq. for appellants. Eric Bressler, Esq. for owners. MEMBER TORTORA: We will go on to James and Patricia McNamara, which is also a continuation hearing. I think what we're going to do with this, at our last hearing we requested someone rrom the Building Department be present, and Mr. Forrester I see that you are here this evening. Would you like to corne up and talk to the Board? The application is a request to reverse the Building Department's determination that a greenhouse does not require site plan approval. Perhaps you could give us your thinking and the department's thinking on, why you believe this to be the case, a little history or whatever you'd like to say about it. ED FORRESTER: I guess you could make the inference, which the Building Department did is we issued building permit. In any application for any development, we do a zoning analysis; what is being proposed, where is it being proposed what's the zone, what's the use. With this application we had proposals in agricultural greenhouse on a piece of property and an agricultural conservation zone. Through the zoning analysis, is it a conforming lot or non-conforming lot. Had it been a non-conforming lot, we would have done a single and separate merger exercise. It didn't apply, so we go right into the zoning for that type of use. In the AC zone, then you have the purpose, then you have the permitted uses in the zone. We go through the exercise, find the agricultural operations and accessory uses, are permitted use; more family dwellings, agriculture, buildings owned by the town and wineries. For the wineries, it specifically sends you to the Planning Board for site plan approval. It used to be an agricultural operation that was a permitted use in the zone. I continued in my zoning analysis, through the chapter, to agricultural process, then we go through the Farmland Bill of Rights and see what the Page 7 - March 15,2001 ZBA Hearings Farmland Bill of Rights were 102, 220, 221 and the entire Article 22 permits to do and protects them rrom. Everything checked out to that point and we're moving on in our analysis. We get to 102-50 in that article regarding site plan approval and it says,'This Article shall apply to every land use permitted in town, except single-family home use, as single separate lot, we go back 1 00-31A and agricultural accessory is there too. This is not the use that is exempted here. It goes on to instruct me that any change in use, or change in the intensity of the use will trigger the need for site plan approval. We had an agricultural piece of property that was in an agricultural operation. What was proposed there was a continuance of an agricultural operation, there was no change in use. We looked at the structures. They are customarily used in agricultural operation, they were somewhat temporary in nature. We didn't deem it to be, there were no parking area, it wasn't going to be used for retail. There were no additional farm workers involved there. There was no intensity of use deemed by my department, and a building permit was issued at that time. MEMBER TORTORA: A couple of question, in the permitted uses, under agriculture residential 100-31. I went through this list myself. Of the four uses that are permitted; 1. family dwellings, 2. accessory uses, 3. buildings structures and uses by the town only the fourth specifically states that site plan approval is required. Under two, under the accessory uses, 2C, it discusses barns, storage buildings, greenhouses including plastic covered and other related structures. Do the Building Department require site plan approval, or has it in the past required site plan approval for any of the accessory uses? ED FORRESTER: Not unless it pulled one of the site plan triggers where it represented a change in the use of the property or change in the intensity use of the property. To give an example, if you were to become a retail greenhouse, where things would be sold rrom the greenhouse. That would immediately pull a trigger, a site plan. You've got a traffic issue, we've got a parking issue, and we have drainage issues. That would be the type of thing. MEMBER TORTORA: Retail greenhouses, would require site plan approval. ED FORRESTER: Retail, yes. MEMBER TORTORA: Another question, it may not be directly related. ED FORRESTER: I guess your question, was no, we don't generally send just a greenhouse to. MEMBER TORTORA: Unless it's for retail purposes? ED FORRESTER: For retail purposes it would, a greenhouse for the farmers use, no. A barn for the farmers use, no. Page 8 - March 15,2001 ZBA Hearings MEMBER TORTORA: Ed, about a year ago, and I did not follow that closely, but I was curious as to the outcome. There was a lot of discussion, in the Code Committee, about greenhouses. Was the question of site plan discussed at that time? ED FORRESTER: Yes, it was an issue with some of the types of greenhouses. It's funny you should ask. In here are my notes on those committee meetings. During those committee meetings, they were going to define different types of greenhouse uses. There was the home garden, there was a retail, there was a commercial greenhouse, there was a strictly, hobby greenhouse. They were attempting to define them, and in defining them, which ones, and in which zones, would they require site plan approval. An agricultural greenhouse in an R-40 zone, it went around, and around, and around. Those talks and that committee never reached a resolution, to my knowledge at this point, because a legislation still doesn't exist. MEMBER TORTORA: But was the assumption, that's what I'm really asking, because I did not attend the meetings. Was the assumption, that greenhouses for the, strictly for the purpose of growing agricultural crops, did not require a site plan approval? ED FORRESTER: Yes, there was a ( ? ) in favor of that. I don't think there was an opposition, however, other types of greenhouses. There was nurseries, growing everything, there was truck traffic, there was a parking area, we were talking about the necessity for planning too look at screening; setting them back maybe further to reduce the impact on the horizon. All types of things they were discussing. There were proponents pro and con, both rrom town agencies and from the agricultural industry. Again, there was no resolution to those discussion MEMBER TORTORA: Okay, I don't have any further questions. Mr. Dinizio? MEMBER DINIZIO: Were you aware of a stipulation from some county agency that stipulated that these should have been built not in the location that they're in? ED FORRESTER: I'd been made aware of it. The Suffolk County Farmland, I guess it's our version of development rights. That's a deeded issue, it's an agreement that the property owner made with another agency. It is not a legislative thing, it's basically deeded thing. I did note it was property that had rights sold, and I advised them to contact the agency and get their approval. The Town Code doesn't directly enforce deeded covenants and restrictions between two parties. MEMBER DINIZIO: Were you aware ofthat at the time that you issued the permit. ED FORRESTER: Yes, I wasn't aware of a specific location? MEMBER DINIZIO: Are you aware now? Page 9 - March 15,2001 ZBA Hearings ED FORRESTER: Yes, I am. MEMBER DINIZIO: If you aware ofthat, wouldn't you have issued that permit? ED FORRESTER: If the Code directs me to grant the permit, ABC, I've got to give the date. One of the things I have to look is an agreement you may have with another party that's not what I need to look at. I would've strongly suggested it. MEMBER COLLINS: You're putting that kind of in a category of, when people want to build on a plot that might be in Trustee territory, you've told them that they've got to talk to the Trustees. ED FORRESTER: I enforce all the Town Ordinances. This is not one of them. MEMBER COLLINS: I'm sorry. So this is not the same. ED FORRESTER: If there was a current restriction placed by the Planning Board, I would enforce it. MEMBER COLLINS: Okay, I was being too casual, and you're right. Thanks (UNKNOWN GENTLEMAN): In a previous testimony there was some discussion, I believe the owner said, that these were temporary structures. How do we determine how temporary, is temporary, and when does it become permanent? ED FORRESTER: Temporary doesn't exist in the Building Department's vocabulary. It's a structure or it isn't. There are some structures that are easily moved about, dismantled, removed. These structures would appear to be that type of structure. Everything that is erected, we determine is a structure, and needs a permit. Temporary, permanent it's not relevant to a building permit. (UNKNOWN GENTLEMAN): So, in other words these could be there for fifty to one hundred years, that would meet the building permit. ED FORRESTER: If they were planning to take them down next month, I'd still make them get a permit. MEMBER TORTORA: Are there any other questions of this witness? Thank you very much Mr. Forrester. Thank you for corning in. Is there anyone here that would like to speak on behalf of the application? DAN ROSS: Good evening. Dan Ross, for the applicants, Pat and Jim McNamara, who are seeking a reversal of a building permit. I understand that this is a continued hearing of a limited issue of past practice, I guess you would call it, of the Building Department. I don't know if the Board has had an opportunity to review the submission I made this Page 10 - March 15,2001 ZBA Hearings afternoon. Basically, it's a case that was recently handed down from Judge Dunn, arising out of the development going on at Route 58, in Riverhead, it's Miller vs. Casacavitch. The issue there was, what had been the general practice, regarding certain zoning practices in Riverhead. The applicant had argued that the Code had not been followed. Riverhead advanced the argument, well the Code had not been followed, but we never did it that way. We never filed the Code, in effect. What Judge Dunn said was, and I quote, "The practical construction of the statute by those charged with this enforcement is not relevant for the statute is neither ambiguous nor doubtful in meaning." You have the case there, the sections are marked off that deals with the issue, the Judge deals with this more extensively and I embark you to take a look at that. Basically, what the Judge says is, if the Code says it should be done this way, the people who are charged with carrying out the dictates of the Town Board, should not be permitted to avoid those dictates. Which is the case here. There is a scheme to things, and, if the Planning Board does not want to review the site plan; or if a building inspector does not want to send the applicant for site plan and review, then let them tell the Town Board to change the Code. It's not their place to say, this isn't how we do it. Which gets us to the issue. What does the Code say. The Building Inspector indicated that there is an analysis, a zoning analysis. You start with what it is, and put zones in, and he pointed out that he first looks to whether it is a permitted us; and, in this case, it was. But, we see it, right off the bat, in the applicable section, that site plan review is not limited to non-permitted uses. This article shall apply to every land use that is permitted. So, whether it is permitted or not permitted, is not relevant for purposes of site plan review. I am reading, again, rrom 100- 250, this article shall apply to land use that is permitted in the town of Southold, except the single-family home use on a single or separate lot, as set forth in article 100-31 in customary non-agricultural uses to single family residential use, non-agricultural uses. 31, then makes it very clear that a greenhouse is not a non-agricultural use. It lists it as an agricultural use. There is no way to define yourself out of these two statutory sections that can say site plan approval is not required. That the Building Department has not done it in the past may be the case that the Planning Board, and I understand we are waiting an advisory (end oftape) It's this bill's duty (inaudible) when presented with the opportunity to do so. Had the Code been properly applied, the applicant's here would have had a chance to come before the Planning Board and say, the greenhouse should not be in rront of my rront window. It should be in the northwest location, where the Farmland Committee told them they could put it. This is your opportunity to do what you're charged to do. MEMBER TORTORA: Would anyone here like to speak against the applicant? MEMBER COLLINS: I'd like to ask Mr. Ross a question. Dan could you return, I'm sorry. DAN ROSS: Sure. MEMBER COLLINS: I just want to pin down what I believe you were telling us. You started to tell us what Section 250 says, and you stopped after the first sentence about the Page 11 - March 15,2001 ZBA Hearings uses to which it applies. I think, what we're talking about here is the next sentence; which says when site plan approval has to kick in, and it is any change in use or intensity of use, which will effect the characteristics of the site, in terms of parking, loading and that requires site plan approval. What I believe we heard Mr. Forrester say was that the Building Department has, in it's administrative responsibilities, taken the view that if there is an agricultural use and you put a greenhouse on the agricultural property and it's not going to be a retail operation, it's not going to have retail parking and so forth, that's not the kind of change of use in intensity that would kick the site plan. I think, what you're telling us, and I'd like to know, is that we should interpret the Code as giving a different message to the Building Department; that, they're being too loose in their interpretation of those words. Is that what you're asking us to do? DAN ROSS: Yes, I don't think it's the Building Department's position to interpret the Code. I think it's their charge to apply it. If the question of intensity of use is an issue, I'm not the person you want here. You want the neighbors to suggest that you have an open field, and you put 100 x 30 foot greenhouse on it, tubing, and that the intensity of the use does not change, it's just not correct. There is a greater intensity, there are farm workers there, I heard them mention that he didn't think there are any farm workers there. Let's hear rrom the neighbors. Let them tell you about the farm workers, I believe there's a port-a-potty on the premises now. So, to suggest that there's not going to be a change in intensity is just incorrect. MEMBER COLLINS: That's what I wanted you to tell us. I wanted to get that on the record, as to what really you're asking us to do. I think, it seems to me that if we were to entertain your request, that we reverse the building pennit, it would have to be that we think the Building Department misread or misapplied that sentence and was wrong for not sending it for site plan approval. And you're telling us that is, indeed, what you're asking us to do. DAN ROSS: I think on the first sentence, site plan approval should have been required. But, if that's how this Board would read that, I think, clearly, two large greenhouses built on vacant farmland is going to be a greater intensity of use. MEMBER TORTORA: The two issues that I think we're talking about here are, one you believe the wording of the Code is planned, because it says, in essence, that every use except single-family houses and accessory uses thereto require site plan approval, and two, your contingent is that there has been an increase in the intensity of the use of the land by the by the very virtue that the land was once vacant, now contains two greenhouses. Is that accurate? DAN ROSS: Yes. MEMBER TORTORA: Mr. Dinizio, do you have any questions? MEMBER DINIZIO: No. Page 12 - March 15,2001 ZBA Hearings MEMBER TORTORA: Mr. Homing? MEMBER HORNING: Not at this time. MEMBER TORTORA: Thank you. Would anybody like to speak against this application? ABIGAIL WICKHAM: Hello, my name is Gail Wickham, I'm here on behalf of the owners of the property in question. I know the last hearing was quite long, and I'll try to be brief and address Mr. Ross's remarks. The case that he referred to, fortunately we're not talking here about Horne Depot, and his past practice argument, is really not applicable; because, Mr. Forrester stated he did not make a decision based on past practice of the town, he based it on the reading of the Code, whether it applied to this situation or not. I would like to first, if I could, just give the Board a bit of a backdrop in which they might want to view this particular matter, referring to specifically to Code Section 100-220, which is the farmland right to farm. That was enacted by the Southold Town Board in 1997, eight years after the site plan code that we're talking about, and, so it is a more recent expression of the Town Board's intention that in a site plan code we are looking at. That code enunciated a policy of the Town of Southold, that farmers have the right to fann in Southold, without undue interference with adjacent landowners or users. The Town Board went on to make actual findings of fact in that statute, including the fact that agricultural activities properly conducted are presumed not to adversely effect the public health safety and welfare. Whatever nuisance is caused by others to such uses, is more than offset by the benefits from farming to the community. The benefits are enunciated as fresh food, clear air, economic diversity, esthetic open spaces and less demand for services funded by tax factors. These are the factors the Board can consider in making it's deliberations, that farming and agricultural production, per say, should be waived heavily in making a decision and reflecting on the case at hand. While there is a reference in there for open space, I will address this in further detail in a minute, but it obviously doesn't mean that every portion of every acre has to be open. Barns and other structures, are recognized in farming practice on this farm and any other one. The code goes on to say that farmers have the right to undertake protected farm practices in the active pursuit of agricultural operations, including, utilizing farm protection devices, which this could be, designing and constructing and using farm structures including greenhouses. So, weighing your decision, I would hope that would keep those policies, findings and farmers' rights in mind. Going on, specifically, to the site plan section 100- 250, which is really what we're talking about here; the first thing it says, is that it applies to every land use. It doesn't say buildings, it says land and the land use of farming has not changed. Moving on to the second sentence, site plans we heard before is required two instances. A changing use, the farming use is not changed, or a change in intensity of use, which we maintain very strongly has not changed either. Farming of field crops and seed crops has existed on this field for years, many, many years. The hoop houses that are there are covering crops on the field, and they are not intensifYing the use of that property. Intensification is something where you may be adding uses, making major Page 13 - March 15,2001 ZBA Hearings extensions in existing buildings on business properties. Planting denser crops or putting a covering over a crop can hardly be classified as intensification, it's better agricultural production is what it is. Even if the Board should decide that there has been a change, either in use or intensity of use, I would ask you to go on to the next sentence, which lists the criteria for when a site plan is required and if there has been a change. The change must affect parking; we don't have that here; or loading, we don't have that here. Or access, that's not here, or drainage, that's not a problem it's sandy soil the surrounding cover crop keep the drainage rrom being any kind of a problem, even in these extensive rainstorms that we've had over the past several months and during the winter. Utilities, no, there's no internal water or electric. Open space, well now that's an interesting point that's brought up, no, that I would submit doesn't apply either. Because, open space, as I mentioned before, doesn't mean that your acreage is going to be completely devoid of any structure or any obstruction to visibility. It doesn't mean you can't build anything or have to provide an unobstructed view. First, if they put a row of sunflowers or com along Alvah's Lane, you wouldn't see those structures. That's certainly no prohibited. A row of evergreens, that some of the neighbors have, that obstructs the view; but, it does not qualifY it as being disqualified as open space. Even the Town's own definition of open space in 100-13 says, it means it's property which is, "essential unimproved" which contemplates some improvements. In that very definition of open space, they talk about buildings being permitted. Further, Development Rights Property, permits buildings. Flat, open land is not the result of open space or sale of development rights, it's a means to preserve agriculture. Which means, by nature, entails large straps of open land, but not necessarily all of them. Mr. Ross said you can't define your way out of that section. I'd say that's not true, 250 doesn't apply. There's no change, and even if you think there is, it doesn't apply to those categories. I just want to address Mr. Ross's letter which he submitted today, naming four categories of sighting case law. It doesn't apply in any of those four categories, I would submit, because it presumes that the site plan approval was required and we're submitting that it was not. On his paragraph one, the permit was not issued based on past practices, I mentioned before. As to his paragraph two, it was not issued based on a Suffolk County Farmland determination. As to his paragraph three, I think what he's saying is that he doesn't think the Board may consider equitable principles of law, and I find that hard to believe. In any event, I'm merely asking you to read the statute and apply it to this situation, as it is written. As to paragraph four, in the Hurst case, if there is an important question of statutory construction that is likely to occur, that this issue wouldn't apply. But, I submit that it does apply. We're not asking for a statutory construction, nor is he. The statute says what it says, nobody's arguing about what it says. It's a question of how the facts of this case apply within it. Finally, there's, as I mentioned before, there's no showing of standing, there's no showing of an entitlement to view, no showing of hardship and no showing that the site plan code provision applies to this case. We don't believe the Building Department earned granting a permit, and we would appreciate a prompt decision. If you have any further questions, Ms. Satur is here, and she'd be happy to help you. MEMBER HORNING: I have one. Is it true the greenhouses were originally erected without a building permit? Page 14 - March 15,2001 ZBA Hearings ABIGAIL WICKHAM: I believe that, having gone to the Farmland Committee, she understood that they had approved them, and she put them up when the complaint was filed. She went in immediately to see Mr. Forrester. He advised that they had to be moved back. She actually moved them back further from the road than she originally placed them. MEMBER HORNING: How much further? ABIGAIL WICKHAM: At least 20 feet. I believe she had them at 40, and they were moved back to 60 or so feet. I hope that answers your question. MEMBER HORNING: Yes, thank you. ABIGAIL WICKHAM: That was a mistake, but it was immediately corrected when she realized the error. MEMBER TORTORA: One thing we had asked for at the last hearing, and I don't see it in the file, is the survey with the location of the greenhouses on the survey. ABIGAIL WICKHAM: I don't recall you requesting that, I'm sorry. I know that was talked about, but we don't have one. In fact, that's another issue I raised at the hearing, that if you're going to require an agricultural greenhouse to have a survey, that's an expensive thing. MEMBER TORTORA: No, but the property would have a survey, by virtue of the fact that it has the development rights. ABIGAIL WICKHAM: I can give you a survey ofthe property. MEMBER TORTORA: Yes, if you could just draw them in. If you could submit that, I would appreciate it. ABIGAIL WICKHAM: It will be a photocopy. MEMBER TORTORA: That's fine. I have no other questions. Miss Collins. MEMBER COLLINS: All that we had, as I recall, was rrom the Building Department file, we had a survey of the house lot. You could see, very faintly, because I think they'd been penciled in and then it was photocopied, what appeared to be the two greenhouses in a spot not on the house lot. I think our concern was where are they. We were not asking for a surveyor. Obviously, a survey of the property exists and to put them where they actually are. Just for our record. ABIGAIL WICKHAM: You want the whole farm. We will try to estimate that. Page 15 - March 15,2001 ZBA Hearings MEMBER TORTORA: Jim? MEMBER DINIZIO: I agree with you about no one is entitled to a view. Certainly, if someone has a piece of property they are entitled to do what they like. I would also rely on people's word. I'm just kind of a little upset about the fact that these people agreed to put these buildings back in a different location and signed a piece of paper, I'm assuming, that said that they would do that in order to sell the development rights or however that went with the County, that that document exists. That someone could read that document and someone could interpret or stand across the street and say, well I don't have to worry about these hoops because they're required to be built in a location that's acceptable to me. ABIGAIL WICKHAM: Acceptable to the neighbor? MEMBER DINIZIO: Well, they have agreed to put those buildings in a location other than where they are now. I'm assuming that they signed, whatever they signed. I never read it, but my understanding is a Farmland Committee somewhere, asked these people not to build the buildings in that location. That they preferred to have it in a different location. Was I right? ABIGAIL WICKHAM: Not exactly. First, of all the development lights were sold years ago. This particular application to the Fannland Committee was made a couple of years ago. When the Committee makes a decision you don't sign that, they send you a letter. Miss Satur's understanding was that that was a general discussion of some of the area's where she could put the building. She did not realize, and it's still not clear to me, that it was specifically mapped on the property. There was a discussion about putting the building down, the hoop house rather, in the very northwest corner of the property at one point, because at that point, she thought it would be out of the wind. However, that floats. It's a very low spot. It's very heavy soil and I'll let her address that more carefully, if you would like me to. She put it there, and she talked about various locations at that same meeting. There were several other applications the way the Committee was approaching it. One application carne in, I think they were asking for some number of acres of greenhouses. They were asking, on another application, two barns anywhere of several different locations on the property. MEMBER DINIZIO: I'm not concerned with that. My concern is just this in particular. ABIGAIL WICKHAM: In this particular case, I don't think she felt that they had zeroed in on a particular location other than the northern end of the property. Yes, there is a designation that says northwest. I don't think she realized that she was limited that. That's a Farmland Committee issue, which we certainly will take up with them. I don't think the Board of Appeals really has to do anything on this. MEMBER DINIZIO: I agree, we don't have to enforce it. Page 16-March 15,2001 ZBA Hearings MISS SUTUR: They didn't make recommendations as to where I should put the houses. When I went before the Committee, it was just to allow hoop houses to be put on land where the development rights had been sold. And they say, where were you thinking? I had just bought the land, maybe here, maybe there. Okay, we are allowing you to put hoop houses on land where the development rights had been sold. This is not a problem, this is an agricultural practice, stamped and signed. They didn't request it to be put there. ABIGAIL WICKHAM: She's talking about at the meeting. She sent the letter, she suggested a couple of locations when the meeting occurred. It was a very informal discussion about a various number of areas, and that's what she understood. I think when the resolution carne back they just parroted what she said in her letter. But, she really didn't understand. MEMBER DINIZIO: And the resolution says.... ABIGAIL WICKHAM: It's a general description. It doesn't, there's nothing on a map that says. And we would clarifY that with them. We intend to go to the Committee and clarifY the agricultural reasons why those greenhouses shouldn't be where they're seen. (inaudible) as opposed to this northern area. Do you want to hear it? If you'd like, tell me, I don't know if it's appropriate. MEMBER DINIZIO: Say a person that is here objecting this right now, went to that meeting. I'm assuming, ABIGAIL WICKHAM: If they'd gone to the meeting they would have heard that there was a very, very big discussion about various places, here or there. Really, those are a group of farmers that are concerned about where agriculturally it should b situated; not caring about where the neighbors think about. MEMBER DINIZIO: Like I said, I think that someone reading this would say, oh well, it should be on the northwestern part. Well, I'm not going to worry about that. ABIGAIL WICKHAM: Yes it does say that, and that's why we want to clarifY that. MEMBER DINIZIO: Well, you can't change something that's already been done. MEMBER TORTORA: Well, as you pointed out, we're all curious about this, but I'm not sure how it relates to the issue of whether or not a site plan is required. Do you have any further comments? ABIGAIL WICKHAM: No. DAN ROSS: Yes, may I address Mr. Dinizio's question? The letter that was written to the Farmland Committee states, and I quote rrom the letter, "Our desire is to set the greenhouse at either the northwest or southeast end of our property. Even though it will incur more expense to bring water and utilities to either of these ends, it will not be Page 17 - March 15,2001 ZBA Hearings obtrusive at either of these sites." That's what the landowner said to the Farmland Committee. The Farmland Committee, after consideration said, a request was made for a greenhouse, as proposed in a letter dated April 21, 1998, the letter I just read. A motion was made to approve northwestern location for a temporary greenhouse, subject to local requirements. It wasn't too general. It was specific, and the reason was, put it in those comers so it would not be obtrusive. ABIGAIL WICKHAM: That's not correct. I'll let him finish. MEMBER DINIZIO: This Committee, I'm totally unfamiliar with it, but is this the Committee that would have to publish their meetings. DAN ROSS: Yes, the minutes are published, the minutes are before you. The minutes of the Farmland Committee is part of the application. MEMBER DINIZIO: So it's something we can rely on for information. MEMBER TORTORA: It consists of farmers throughout Suffolk County who meet and review applications for structures on lands where the development rights have been sold because the County has an interest in those lands by nature of the fact that they have been paid for by the taxpayers. It's as simple as that. DAN ROSS: It's under the auspices ofthe Suffolk County Planning Department. MEMBER TORTORA: Correct MEMBER DINIZIO: That's what I was trying to get at Lydia. I wanted to know how important this Committee is. Obviously, MEMBER TORTORA: They carry some weight. MEMBER HORNING: If this material is part of their testimony, what bearing has it on the case? MEMBER TORTORA: In my opinion, it has no bearing on this. I think you'll agree, that the issue before us, our realm of review is whether or not Building Department erroredin his decision not to require site plan approval. We have no jurisdiction to enforce any other agencies approvals, disapprovals or anything else. I think we recognize that Mr. Ross. DAN ROSS: I understand there are some neighbors who would like to comment on the intensity of use issue. MEMBER TORTORA: That's fine. Thank you. Please state your name for the record. Page 18 - March 15,2001 ZBA Hearings PAT MCNAMARA: Hi, I'm Pat McNamara. I just want to let you know that the house has been in our family for thirty years. There's always been farming there, always. This is a different kind of farming. The intensity is so much greater. They have trucks corning and going constantly. There are always workers in and out of the greenhouses, constantly, constantly. I mean, it's not just like no one is there. I mean, they have so many workers corning and going. It's just ruined our quality of life, as we know it. We have nothing against greenhouses, nothing. We love to see the farming, that's why we were so happy there. Why do they have to be put where they are? They have so much property going all the way down to the vineyards. Why are they putting them right on top of the hill. They're obnoxious to look at for anybody who drives down Alvah's Lane. Not just myself and my neighbors. The intensity is there, let me tell you. Like I say, it's been thirty years since we've been in this house, and when they say the intensity hasn't changed, that's not true. MEMBER TORTORA: Thank you very much. Would anyone else like to speak? JIM MCNAMARA: I'm Jim McNamara. I would just like to say that they have arrogance about them. I went over to talk to them when I first saw the greenhouse material, and he just turned his back, he wouldn't even talk to me. You would think that they could move them. If they wanted them next to the road, they only had to move them another hundred feet, and right across the street is grapes. No one is going to be bothered that way. Everything they do, they seem to don't follow the law to the tee. Just wanted to bring that up. Thank you. MEMBER TORTORA: Thank you very much. Anyone else? Okay, I think what we'd like to do is close the hearing to oral testimony. ABIGAIL WICKHAM: Mrs. Tortora, may I just address that intensity of use question. MEMBER TORTORA: Very briefly, wrap it up here. ABIGAIL WICKHAM: The trucks are in and out of the barns. They have nothing to do with the greenhouses, so they don't effect the intensity of use there, as well as the workers, there have always been farm workers there. Mr. McNamara's remarks, first of all, were irrelevant and the location was agriculturally motivated, not by his view consideration. MEMBER TORTORA: I think what we're going to do is we're going to close the hearing to oral testimony and allow you, Mr. Ross, ten days to make any written presentation that you would like. Allow you five days after that to rebut and leave the written portion of the hearing open for a total of fifteen days for public comment by any agency or person. * SEE MINUTES FOR RESOLUTION * * Page 19 - March 15,2001 ZBA Hearings 9:08 p.m. Appl. No. 4837 - Application for H. CASHY and M. MISTHOS. This is a request for a Variance under Article XXIV, Section 100-239.4A to locate an accessory swimming pool and hot tub construction at less than 100 feet rrom the bluff of the Long Island Sound, at 1900 Hyatt Road, Southold; 1000-50-1-3. CHAIRMAN GERARD P. GOEHRINGER: Mr. Cuddy, it's a pleasure seemg you tonight. (Thank you for closing that door.) Weare ready for you, sir. CHARLES R. CUDDY, ESQ: Good evening, Charles Cuddy for the applicants, Harry Cashy and Maria Misthos. As you know, we have been here before and I'm sure I can get a sense that you would not be disappointed if we did not corne back. But unfortunately we had to every though my clients had made a significant effort to resolve the questions that the Board has asked us to do. I earlier sent you a map or a survey that showed that the pool, which is the subject of this application, the pool and the bluff area, had been moved in so that now the pool was shortened but it was also more feet away from the westerly side. So that it was 48 feet rrom the boundary line of the property and the property inside going to the neighbor's house on the west is another 10 feet, so as it stands now the pool will be 58 feet away from their house. In addition, the applicants had retained a landscaped architect who had added additional landscaping. I will go through that with you in a few minutes, and present to you a copy of his work so that we thought by moving the hot tub, which we moved rrom one end to the other, moving over the pool and adding significant additional landscaping so that we would satisfY those people on the west that had objected. I thought that had resulted in some sort of resolution. It did not, so we've asked to be heard again. We have tried very much as I've indicated, to be sensitive to their concerns. I don't know why we have not succeeded - that I have not heard. But I do have several witnesses that I would like to continue the hearing with. The first one is George Penesis. He's an engineer who is an acoustical engineer. There was some testimony at the last hearing on sound. I believe he's a sound expert and that he can testifY about the sound from the pool. I would like him to corne up and in the mean time I'd like to give you his C.D. or resume so that you can look at it while he's talking. CHAIRMAN: thank you very much. (Handed up copy of resume for Mr. Penesis.) GEORGE PENESIS, P.E. raised his right hand and was sworn in by the Chairman. CHAIRMAN: It's a pleasure to meet you, sir. MR. PENES IS: I guess in my introduction I'll saying I have 10 years of experience as an engineer, several of those years I have done doing school work mostly for the N.Y.S. D.O.T. I have a P.E. and actually a Master's Degree in engineering rrom Cooper Union. I guess the first thing I wanted to cover is the testimony that was given by John Paciulli at Page 20 - March 15, 2001 ZBA Hearings the last hearing. I was not present for that but I read the transcripts and had some comments on some aspects of the testimony. Probably the most - I'll just go in order. The first except said, "if you can understand that all sides of the property are enclosed two by semi-absorptive sides the natural bluffs to the northward and east of the property." I visited the site and it's not really enclosed in any kind of significant way from the standpoints of acoustics. It sounds that there's a vertical wall or something that's going to reflect the sound. The second point was about water. It said "you're going to be installing one surface that's not going to be of use to sound absorption at all but which will be the water." It says, "Ok, sound moves across water extraordinarily quickly. It actually tends to accelerate sound pressure due to the nature of the phenomenon of water." To that I responded, that sound does not move across water quickly, it moves through water faster than it does through air. And according to a handbook on environmental acoustics, I quoted the sound rrom each median. I don't want to bore you with some technical details. Water does not accelerate sound pressure. I'm addressing this because it makes it sound like water somehow amplifies the sound. I think it's important to get that out. That's not the case. So I wrote "water does not accelerate sound pressure. If the intended meaning was intensify pressure, no medium which is passive i.e. does not supply energy to the sound that is passing through it, can intensifY the pressure of the sound passing through it. The most the medium can do is allow the sound to pass through it untenanted. Similarly, no passive surface, water, wood, metal, can intensity sound by reflecting it. The most it can do is reflect the sound without attenuating it." So with regard to the water, I'll say a few more things. The water is reflected. It's more reflective than the grass is, so one could say by putting water there when there was grass, I guess, that will serve the gist of what he was trying to say. That applies to still water. There's a phenomenon where sound is reflected over lakes on cold nights and you can hear somebody across the other side of the lake. This does not apply here because this is a small patch of water and there's significant grass that intervenes between the receptive, the adjacent house, and the people in the pool. In addition it is not still water. People in the pool, it's going to be a rippled surface which won't reflect the sound in that way. Ok, and the third thing was you're creating a bowl, more or less of collection, of sound collection, and the only place it really has to go is the place of least resistance which is the lowest elevation. I just said, "the implication that the sound will be collected in a bowl and in quotes "spill" down to the lowest elevation in the way that water might, is wrong. Sound waves are not influenced by gravity in this way. I think I'll leave it at that about Mr. Paciulli's testimony. Upon visiting the site, I was able to heard some of the ambient sounds, the waves crashing and natural sounds, there are not leaves there at the moment but in the summer there will be, when the wind blows it will rustle. Compare the amplitude of those sounds to what one might hear on the adjacent property and the levels should be comparable. Page 21 - March 15,2001 ZBA Hearings Perhaps even the sounds rrom the pool will be lower. And I guess in closing I would say that the use of the pool is really no different than using that area to host a dinner party or Mr. PENESIS, continued: to play ball, or any kind of crowd. It's an issue of behavior; it's basically one person being considerate of the other person and not screaming at the top of their lungs. You know, there's nothing magical about the pool or the water which is going to make this a noisier use than if it's just a regular yard. CHAIRMAN GOEHRINGER: The only question I have is that you did raise the issue which is rather unique regarding the issue of lapping of water because uniquely both of these pieces of property are on the water. One a little bit closer to the water than the other one is. And one having more trees before the water, which is the nature of the applicant's property that is before us here. But what's your opinion regarding the lapping of water within the pool itself during the period of time that the pool is being used, in reference to that type of activity. MR. PENESIS: I think that is equally insignificant and the sound of water hitting the side of the pool, do you mean? CHAIRMAN (nodded yes): Or lapping in a vertical position by someone swimming or by someone jumping into the pool or whatever the case might be. MR. PENESIS: My opinion is that that's no different than in terms ofthe amplitude of that sound than the sound of voices, or the sound of any other activity that might go on in the yard. CHAIRMAN: When somebody does that, what happens to that sound in your particular opinion? Does the sound go up, does the sound vertically elongate? What happens? MR. PENES IS: What happens when somebody does what, slap? CHAIRMAN: Either slap, jump, physically you know jump into the pool, or swim in the pool. Something that is out of the ordinary than the normal setting of the pool, of water in the pool itself. MR. PENESIS: Well, there would be that point, wherever the person jumped into the pool would be a point source for the sound and it would spread in all directions. It would be attenuated just by geometrical spreading at the rate of six decibels per double the distance. So, by the time it was forty feet away it would be a lot quieter than it was than say, five feet away. Just off the top of my head I would say maybe 16 decibels at 5 feet. So at 10 feet, 57, 54 and so on. I guess I forgot to mention that there are also some trees that are already there on the western edge of the property, and they are being extended to Page 22 - March 15,2001 ZBA Hearings provide visual shielding, and some significant landscaping which will do something to attenuate the noise. I can't say without analyzing it in detail. I also can't say why exactly the ambient sounds are that we're comparing to. But having been there, I feel confident that the ambient sounds are at least as loud as what you would get rrom the pool. If you are two feet away rrom the pool, maybe not. But this is a significant distance. Is there any kind of test that you could create in an artificial state at that site that we could understand these sounds either standing on this applicant's property line, or over the property line if we have permission rrom the neighbors to the west? MR. PENES IS: The best thing to do is to take some readings of the ambient sound levels at the beach and adjacent property which is closest and then simulate the activity that would take place in the pool. Have a person stand where your pool is going to be and shout, make some noise, and do that several times and see what the increase in the noise is after the second location as a result of that. CHAIRMAN: I think what's most interesting about these sounds is that we don't - I don't nonnally understand them in an acoustical manner. I understand them in a very trite glaring matter of when you see these properties and you are yelling to your next door neighbor 50 or 60 feet away, "Hi, how are you today." I think the issues that are raised at this particular hearing would be more significant if a test could occur. I would like to see one but that's just an opinion on my part. I wanted to see another plan and the Board kind of shot me down on it some hearings ago regarding this application, but that's just an opinion at this point. MR. PENES IS: You're saying that if you could quantify these assertions, I think that's really the only way to prove it. CHAIRMAN: I can't see any other way, to be honest with you. And if it takes an objective test to see that, then I mean I would like to be a part of that and view that test. I find this extremely interesting and extremely - I guess you would say it just brings my entire enthusiasm about this case out. Only from the point of view we've taken testimony on tennis courts, with the bouncing of balls back and forth and even the balls hitting the fences, the steel fences that are around the tennis courts. And here we have a case which is somewhat significant in reference to the size of the properties that those particular applications were part of. And here's a real chance to view a test at this point rrom an objective level. But that's just my opinion. MR. PENESIS: When using a barrier view, one standard would apply. This is done through measurement of levels as a prelude to decisions like where do go with noise barrier, is a routine thing. In that case you have the Federal Highway Administration standard for when you put a barrier and when you don't. In this case I'm not certain if there's an ordinance here. CHAIRMAN: No (no noise ordinance). Page 23 - March 15,2001 ZBA Hearings MR. PENESIS: There's no noise ordinance here, there are in other towns. Those relate to sound level in db. I think a point to bring up is the issue of intrusiveness of the noise. When people get their backs up is when they can hear their neighbor doing something. They know that that person is hitting the tennis ball. And you can perceive that even if its level is very low. So if that's the issue, I don't think there could be anybody to satisfy somebody who says I can hear you doing that and it bugs me. CHAIRMAN: What interesting is here is that we have two pieces of property, and this particular piece we will refer to as the applicant's property, and that particular piece sits here and then the neighbor's property sits below like this, ok. And that's what intrigues me that much more am the height elevation factor. MR. PENESIS: I don't think so. I visited the site; I don't think that the height is that much of an issue. CHAIRMAN: No. But we haven't now put the structures on the property, ok. Because my the nature of this being the next door neighbor's property to the west, it is the ability of their structure, their dwelling, as is a 2-1/2 story house, and that particular line of that dwelling as it pertains to this particular piece of property - and that's the reason why the testing is somewhat intriguing to me. MR. PENESIS: You're saying there's sort of a shorter path between the two things because of there's a difference in elevation. CHAIRMAN: Because the difference in elevation and the fact that the second floor of their house is actually closer and almost a direct line across the lot to the construction of this accessory structure that this applicant is requesting us grant, truly on an area variance aspect, ok. And that very simply is something that goes back to my childhood and that is the setting off of a firecracker in a woodpile, which was high enough to have the acoustics zero in on one of my ears when the firecracker went off. And very simply made me deaf for about two weeks. MR. PENESIS: You're saying there was some concentration of the sound. CHAIRMAN: Yes. MR. PENESIS: In this case, the elevation distance is small compared to the distance between the two properties. What you effectively have is like a high ( ) and so long which the sound is traveling is close to a direct distance, and the difference in the path lengths is not that great but I am willing to entertain what you are saying and that certainly can be incorporated as part of an effort to quantifY the sound. But to date we had these claims and my response. CHAIRMAN: I can't see any other way of doing it except through a test, the objectivity of which has to be dealt with on the basis of a professional person as yourself, as you are. Page 24 - March 15,2001 ZBA Hearings MR. PENESIS: I think you would have to agree on the terms of how do you interpret the data, how to take the data, it's not just take the data. There's going to be second guessing with that as well. But I would be happy to submit a protocol for doing it and so forth. CHAIRMAN: I'll discuss that with the Board. Would the Board like to discuss anything with this gentleman? Ladies and Gentlemen (on the Board)? No? (None). MR. CUDDY: There also was concern expressed at the prior hearings about the drainage. We had testimony, Mr. Tohill representing the objectants at that point, and had Mr. Paciulli, an engineer testifies. I just want Mr. Schwartz, who is an architect and engineer and a member of Cronin and Congdon to further confirm to you that the site will be taken care of rrom the beginning of construction to the end of construction as far as drainage goes. I think that was an important element. I want to make sure that is on the record so that there's no question about it. CHAIRMAN: before you leave that issue, I just want to mention, I believe the drainage calculations that Mr. Cronin or his partner gave us. MR. CUDDY: His partner. CHAIRMAN: Yes, didn't we have those reviewed by our Town Engineer? MR. CUDDY: Yes. BOARD SECRETARY: Yes, there are letters in the file. MR. CUDDY: I think they were and he is going to comment on it too. CHAIRMAN: Ok. Again, you are still under oath rrom the last time, how are you? MARK SCHWARTZ, ARCH.: Yes, good, thank you. CHAIRMAN: What would you like to tell us? MR. SCHWARTZ: As you know we have completed the work, entire site runoff calculations and designed a drainage system to accommodate that volume of water. The Town Engineer's office has reviewed that plan. They agree with the plan and say that it conforms to the current standards. The new pool and patio and drainage system in my opinion will not cause any additional problems at all. Last Tuesday I was on the site when it rained most of the day of Monday, all night Monday and it was raining Tuesday, and visually I saw no current, no problem with that water runoff just to the existing pools they have there now. We're proposing to, after doing all the calculations, we're proposing to add triple the volume of what's there now. When the construction is started, we will be Page 25 - March 15,2001 ZBA Hearings on site to observe the construction and when it is completed, we will certifY that it was done as per plans. And that's all I have to say. CHAIRMAN: Any questions of this gentleman, ladies and gentlemen? (None) Thank you. MR. CUDDY: Based on the request of the Board in the last hearing which was quite awhile ago, we made an effort, through myself and Mr. Tohill, to come up with a plan that might be acceptable as far as landscaping, and obtained landscape people to do that, and I would like Derek Bossen to testifY concerning the plan - that I'll hand you - which extends the existing foliage and adds a fair amount to it at the comer, which is closer to the objectants' house. CHAIRMAN: thank you. Mr. Bossen, would you raise your right hand? Do you solemnly swear that the information you are about to give us is the truth to the best of your knowledge? MR. DEREK BOSSEN: (Raised right hand and responded yes.) CHAIRMAN: what would you like to tell us? MR. BOSSEN: As per the request of the Cashys and Mr.Cuddy, I just designed an extension of the existing plantings that were already on the property. There's, as you see on the plan, there's an existing Leyland screen up to about where the end of the proposed retaining wall would be. The darker area just behind, just below that as you are looking at the plan, there's a new screen of Leyland Cypress down to about almost to the Sound edge of the nearest property, and then I wrapped it around to further thicken up that hedge and to block any visual contacts or if he had thick evergreen screen of the neighbors property - especially of that first floor. The first floor. Behind that initial screen I put another barrier of evergreen shrubs which were the Inkberries. And then in front it was more decorative ornamental plantings that would benefit the Homeowners and also provide screening to the neighbor's property. There's also, you see the dark line above it, that's the existing tree line. That's where the canopy is, as you stand at the 30 feet rrom the deck, as you look up there's the canopy of the existing tree line. Now the trunks of those trees are back about another 20 feet, 15 feet depending on the tree. There's a lot of shrub, underbrush in there that's existing. And you know, that's about all I have. Any questions? CHAIRMAN: What is the total maximum height of the shrubs that you are proposing? MR. BOSSEN: Maximum height installed? CHAIRMAN: Installed. MR. BOSSEN: Six to eight feet. Page 26 - March 15,2001 ZBA Hemings CHAIRMAN: And what is their maximum growth potential? MR. BOSSEN: Their maximum growth potential is, on Long Island, would be about 50 to 60 feet at their oldest. They can even be sheared to be maintained at a lower level. CHAIRMAN: So they could get as high as a poplar tree. MR. BOSSEN: Yes. They can get as high as any normal tree that is allowed to grow unchecked. CHAIRMAN: Any questions of this gentleman, ladies and gentlemen? (None) Thank you. MR. BOSSEN: Excuse me, I have an Associate's in Applied Science and Ornamental Horticulture rrom SUNY Farmingdale, and a Bachelor's in Landscape Architecture rrom the University of Georgia. CHAIRMAN: Can I just ask you a quick question regarding it now that you did corne back? How successful is this foliage in reference to the deadening of sound noise? In your opinion? MR. BOSSEN: I find it's pretty - especially in the area that I thickened up. I mean the area that I planted is about 15 to 20 feet long and then when these plants are planted, staggered, it's really - you can't see through it and I, without having the test you wanted to propose, I couldn't tell you exactly what the deadened quality would be. But I consider it a good screen as any vegetative screen would be to deaden sound, especially since this is an evergreen screen. You have it year-round, it's a visual block and it also would be an acoustical block. There's nothing that is going to stop sound completely. CHAIRMAN: I think the interesting thing here, again, is that we have some large trees in the rear of the property, which we refer to as the waterrront, so I think the elongation of sound is the issue in question, as you are addressing in your particular proposal. But again I don't know how that significantly impacts the dwelling of the neighbors in question, and how long that would take for those trees to get to that particular maximum height to create that sound barrier that you are referring to. Mr. BOSSEN: Well, the height of the trees installed, I'd say seven feet, width would be about 4 to 5 feet wide, depending on the tree. But the growth rate of these trees can be upwards of three feet a year in ideal positions. Around here I would say they grow about a foot and a half a year, and so in five years you have approximately six feet of growth on the tree, or more. So you would have at least a 12-15 ft. barrier in five years. There's already an existing barrier of the trees that are there and they have grown at least 15 inches, 18 inches, 20 inches this year. Page 27 - March 15,2001 ZBA Hearings CHAIRMAN: Thank you. MR. BOSSEN: Thank you. Mr. CUDDY: I would like to hand up an Affidavit from Robert Scalia who is a licensed real estate broker in Southold. He is out of the state and I had him do this earlier anticipating another hearing at an earlier date, with reference to the valuation of the property based on having the swimming pool next door. And it would anticipate rrom the Affidavit he does not find that it has an adverse effect, so I'd like to make that part of the record. CHAIRMAN: You are referring to the neighbor's swimming pool - I mean, to the neighbor's property? MR. CUDDY: I am talking about the fact that a swimming pool that is on this property, the Cashy property, and that it would not have an adverse effect upon the property to the west. CHAIRMAN: Thank you. (Mr. Cuddy handed up additional information to the Chairman. ) MR. CUDDY: Mr. Cashyand Mrs. Misthos are very anxious to conclude the hearings. They would have liked to be hear tonight but could not be hear tonight. They have nevertheless asked that we go ahead with the hearing, and I asked Mr. Cashy to supply us with an Affidavit regarding his use of the pool and also hand that up, and at the same time so I don't glare to you with trips, I will hand up a short memorandum that I have prepared really in response to the questions that were raised in the earlier memorandum, having to do with practical difficulties, the balancing test and so on. So I'll give you both of those, if I may. And then we'll conclude. (Mr. Cuddy handed up additional information with enough copies for all Members.) CHAIRMAN: Mr. Cuddy, the question is, have you discussed anything with present counsel on the other side? MR. CUDDY: No, I have not had an opportunity to do that. I was hoping that the communications with the prior counsel would have carried over - I had given him so the Board is aware, the plans that you had before you for landscaping, had given him the new revised survey, had discussed with him on a couple of occasions what we were doing, what we proposed to do, where we were putting the hot tub, how the pool was moved over, and I thought we were going in a different direction, but I have not discussed it further as you asked. CHAIRMAN: I guess the question is between now and the next hearings that we intend to schedule this for, do you intent to discuss this with counsel? Page 28 - March 15,2001 ZBA Hearings MR. CUDDY: I would be pleased to discuss it with them. I believe they have the file. I have no problem discussing it with them whatsoever. Hopefully we were all on the same track and I would hope that we would get there again. Thank you. CHAIRMAN: Ok, in an attempt to wrap up this evening, I certainly don't want not to return to the opposite side, and I just ask those persons who would like to speak that they - that counsel has just taken 35 minutes, but there will be a final hearing because in all true fairness here of new counsel, so anybody that would like to speak in opposition, we will accept anything at this point. JOHN CIARELLI, ESQ: Mr. Chairman, I would like to introduce myself, my name is John Ciarelli, a member with the Firm of Ciarelli and Dempsey, we are the new counsel. Are you saying that this is going to be adjourned to a new hearing and we will have an opportunity to respond at that time? CHAIRMAN: No, a continued hearing. MR. CIARELLI: A continued hearing. CHAIRMAN: Yes. MR. CIARELLI: Ok, then I'll reserve comments to a better time to digest the file and the testimony that has been introduced tonight. CHAIRMAN: Ok. Sir, I am going to have to ask you to raise your hand - Do you solemnly swear the information you are about to give us is the best to your knowledge? MR. WILLIAM TOEDTER: Yes. Bill Toedter. We seem to be the forgotten easterly neighbor of this development. I appreciate all of the information that was shared with you today. Obviously, I think this affects us even greater than it did before the understanding of a 48 ft. difference between this and the westerly property is great, but now we are looking at about 15 ft. difference between the hot tub, the pool, and our property right under the main functioning areas of our living spaces. At this point the natural lapping of water is not as great a concern as the mechanical sound of the jets and the pumps and the filtration systems, especially now that it is located on our side of the property. Also on our side of the property we also do not have a buffer of vegetation. Those were pretty much stripped away. If you look rrom our property directly down onto the pool, we do have noise issues now. There have been times we had to close every single window in our house just to hear the TV because of the noise corning from there. So, given how sound does seem to travel especially without the buffer of vegetation, we, my mother and I are very concerned about this new set up. And are disappointed in the neighbor's approach to this, have not discussed or taken into consideration our position. Page 29 - March 15,2001 ZBA Hearings MEMBER COLLINS: May I ask just a point in fact. Your mother did appear and testifY at an earlier hearing. Is your mother not here tonight? MR. TOEDTER: Yes, she is here. MEMBER COLLINS: Ok. I just want to get that straight. Thank you. CHAIRMAN: Is there anybody else that would like to speak? Seeing no hands, we'll recess the hearing, are we going to recess this to April 19th, is that correct? BOARD SECRETARY: Do you want to make it for approximately 6:30 p.m.? CHAIRMAN: 7 :00 P.M. April 19th is another special meeting for us, so we will have, we would conclude this public hearing at that time, and that's all I can say at this point. I thank you very much for your courtesy and safe home. Motion seconded by Member Tortora, and duly carried. See Minutes. * * * End of Public Hearings Prepared by Paula Quintieri