HomeMy WebLinkAboutZBA-01/19/2000 SPEC HEARINGPage 1 - January 19, 2000
Board of Appeals Hearing
TRANSCRIPT OF HEARING
January 19, 2000
SOUTHOLD TOWN BOARD OF APPEALS
(Prepared by Lucy Farrell)
7:07 P. M. - Appl. No. 4777 - SUSAN & STEVEN BLOOM (Continuation)
CHAIRMAN GOEHRINGER: I want to thank Ed Forrester for coming. Are you
here, is Gary coming or are you representing him?
MR. FORRESTER: I'm representing him.
CHAIRMAN GOEHRINGER: I just want to say philosophically that we do
appreciate your coming in and I do want to say to you, that the purposes of
these situations are basically to garner more information in an attempt to
possibly assist us in either crafting a law or assisting us in the Code Committee
of crafting a law so that these situations may or may not happen in the future.
MR. FORRESTER: i understand. I'm pleased to be here.
CHAIRMAN GOEHRINGER: I just want to ask counsel. Do you have any
opening arguments or any statements that you want to make?
MRS. MOORE: Just very briefly. Mr. Bloom apologized for not being here.
Obviously it's big trip for them and he was here last time. I also want to thank
Ed for being here. To begin with I want to say, that my client and I assured him,
that the purposes here was not to jeopardize his application, his application
speaks pretty clearly as to 1, it's either an interpretation to help him and future
clients. He happens to be an attorney so I was able to explain to him the ( ) of
having this come as an interpretation. However, the application was also
submitted as a variance in the event that you felt this case didn't merit an
interpretation or you didn't feel comfortable giving an interpretation. We wanted
to be prepared to have a variance and proceed with the plan that's been
submitted to the Board. So to begin with, I don't want to rehash all of the
standards that are included in a Variance Application because that is written out
and all the standards are established. We don't have an expansion of the
structure. It's purely structural issues that are at stake. The use remains the
same. So, there's no change to the use or degree of the use, and the benefit
sought by the applicant cannot be achieved by some method other than to
pursue this avenue. I did get from the Assessor's office for your own records, ~
went to the Assessor's office and in on Peconic Bay Boulevard, I know Mr.
Goehringer you're quite familiar since you live in that area, but-for the benefit of
the other Board Members, I wrote down based on the Assessor's Records all the
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Board of Appeals Hearing
homes that show two homes on one property and it's almost every other home
along Peconic Bay Boulevard in that segment where Mr. Bloom's house is. So
I'll put this into your file as an Exhibit and what ! did is, please excuse my
handwritten outline and I also included the Tax Map. I looked within the district
that this Tax Map includes and I highlighted the parcels that from the Assessor's
office without having to requisition all the files obviously appear to be two family.
Some are very clear and others look that way from the records.
CHAIRMAN GOEHRINGER: When you say two family, you're talking about one -
MRS. MOORE: Two homes, I'm sorry.
CHAIRMAN GOEHRINGER: Two dwelling units?
MRS. MOORE: Two dwelling units on one piece of property.
CHAIRMAN GOEHRINGER: Regardless if they are conforming or
nonconforming?
MRS. MOORE: I didn't gO into pre-exist, they would all have to be pre-existing,
but the degree that they've been improved.
CHAIRMAN GOEHRINGER: Right.
MRS. MOORE: Some were clearly in the nineties may have had a major
improvements -
CHAIRMAN GOEHRINGER: Right.
MRS. MOORE: Others pretty much the way there were. So without, like I said
without pulling each of the permit files, I think for our purposes it establishes the
character of the community.
CHAIRMAN GOEHRINGER: Sure.
MRS. MOORE: We do and you recall from the record, that the Pre-C.O. was
issued in 98. Judge Farley did provide to the Building Department and to, a
copy went to the Zoning Board of an affidavit explaining his, you know, the
history of that use and the Building Department in 98 actually issued a Pre-C.O.
without the need of that affidavit. That was just part of our paper work in trying
to avoid coming to the Zoning Board.
CHAIRMAN GOEHRINGER: When did Mr. Bloom take title?
MRS. MOORE: Pardon me? ~-'
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Board of Appeals Hearing
CHAIRMAN GOEHRINGER: When did he take title to the property?
MRS. MOORE: Last year.
CHAIRMAN GOEHRINGER: Last year?
MRS. MOORE: Hm, hm. That's really all I need to discuss I think with regard to
the Variance Application. I'd be happy to entertain any questions. I think again,
it speaks for itself. It's a relatively simple, in my opinion, based on what we've
been basing in the past, relatively straight forward Variance Application. But I
did do some research on the New York State Fire Prevention and Building Code
and I don't know if you want me to go into it now, or do you want to talk to Ed
first?
CHAIRMAN GOEHRINGER: Let's let Jim talk to Ed and then we'll go back on
that. Jim, you had specific questions?
MEMBER DINIZIO: Yes, I had some questions. Ed, this is not a grilling. I
spoke to you on the phone. I want you to know I appreciate it but what I can't
get from a hearing without you being there, is a reasons why these decisions'are
made? I've been kind of eye thorn in the last meeting. It's supposed you know,
how this decision was made and I'm not in any way all that versed in how the
Building Codes come to be and you know, what degree of rebuilding a piece ,of
property becomes a structural change and we discussed ! guess quite openly,
the fact that not only did a Ms. Moore mention it, but Bill Goggins also, another
attorney said he ran into this problem with balloon construction and putting
headers over windows when they tear out the walls as whether or not that
constitUtes a structural change? I was wondering if you had any thoughts on
that, in that this appears to be what, in other words, you issued a permit for the
foundation, which fundamentally to me is part of the building, the structure of the
building. If anything a non-conforming use would be, they don't have a
foundation, you don't have a building. But then, the next step all of a sudden got
a little cloudy, you know, I was just wondering if you could clear that up?
.MR. FORRESTER: Yeah, I hope I can without launching into a real long
narrative. From New York State Building Code and Fire Prevention Code, staff
point, structural members, even the headers and the plates around the window
replacement of or the installation of them, is a project that would require perrnit.
A simple installation or extension of electrical service is a project alone that
would require permit. Extension or installation of plumbing. The Plumbing
Section of the Code is quite specific in the performance, that one of the few
performance section of the Code. Plumbing work alone with the required permit,
the installation of or replacement of a heating system alone or/and together.with
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Board of Appeals Hearing
other things as a project, would require a Building Permit as per New York State
Code.
CHAIRMAN GOEHRINGER: Hm, interesting.
MR. FORRESTER: As you had mentioned, I did issue prior to this disapproval I
did issue a Permit for the replacement of the posts that hold up the house, the
foundation as we say. I issued pursuant, I think it's 100-245, I issued a
pursuant to that. I printed it out but -
MEMBER COLLINS: That's the one that says, that with a permit you can do
structural alterations to one of these buildings.
MEMBER TORTORA: Normal maintenance.
MEMBER COLLINS: No, its the second part of normal maintenance.
MR. FORRESTER: Notwithstanding any of the foregoing regulations, nothing in
this Article shall be deemed to prevent normal maintenance and repair of any
building or carrying' out upon the issuance of a Building Permit, a major
structural alterations that demolishes necessary interest of public safety. These
were termite, -
CHAIRMAN GOEHRINGER: Ridden locust.
MR. FORRESTER: Ridden Members that needed to be replaced to keep the
structure from falling down. Certainly it goes toWards the public safety issue. It
represents much less than 50% of the entire structure which other sections of
the non-conforming part of this Article deal with. And a, it wasn't quite a straight
forward permit in my opinion. That permit and a course of events from another
permit, was applied for to amend that permit to include other construction
projects within that structure.
CHAIRMAN GOEHRINGER: That's what put the red flag up?
MR. FORRESTER: Yes.
MEMBER TOTORA: Why? In other words -
MEMBER COLLINS: Yes, excuse me cause I think we're at the point where that
we were unclear about.
MR. FORRESTER: OK.
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Board of Appeals Hearing
MEMBER COLLINS: My notes say, indeed they got the permit for the foundation
work and after that work was underway, one of the Building Inspectors visited
the scene and stopped the work because the cottage had been guttered and this
was in violation of Section 243 and the folks then came in applied to amend the
permit to cover the additional work and you denied that application to amend.
MR. FORRESTER: After review, yes.
MEMBER COLLINS: So it was the decision to stop the work and the decision
that that work couldn't be allowed in a Building Permit that was in violation'of the
code. We wanted some lighten on it as to what the criteria are for deciding
when you can and when you can't. Did I say-that right?
CHAIRMAN GOEHRINGER: Could I just hold that thought one second?
MR. FORRESTER: I think I understand the question.
CHAIRMAN GOEHRINGER: Question to either the builder or the architec[.
Was this building insulated? it was, OK. Was it insulated on the ceiling or the
side wall? It was, OK, the non issue on the permit?
BOARD SECRETARY KOWALSKI: Before or after the work?
MR. PALESTINA: Yes, yes it was.
BOARD SECRETARY KOWALSKI: What period of time do you mean?
CHAIRMAN GOEHRINGER: When they started guttering it.
BOARD SECRETARY KOWALSKI: When they started guttering it. It was there
before you got it you mean? OK, thank you.
CHAIRMAN GOEHRINGER: Thankyou.
MR. FORRESTER: A pre-existing condition.
MEMBER TORTORA: That's what I'd like. The question that she has.
words, what in the work that was being done, very specifically, trigger this as to
fall under 100-2437
MR. FORRESTER: OK. Just to back u.p, that the other Inspector on that visit to
the site, stopped the work not under 100-243 but basically because work was
being performed without a permit.
MEMBER COLLINS~ Oh, OK, this interior work?
In other
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Board of Appeals Hearing
MS. MOORE: No, no, no.
MR. PALISTINA: The piers.
MEMBER COLLINS: Oh, that's the first though. That's when you started the
work without a Building Permit. Well we're past that. We've gotten the Building
Permit for the piers.
MR. FORRESTER: And in the course of the inspection it appears that he did
observe other work beyond the scope of the permit that was issued. The permit
that was issued was strictly fo~' the piers and he saw work beyond the scope of
that that would also require permits and we touched on each and everyone of
those.
CHAIRMAN GOEHRINGER: So the job was started without the permit, you then
issued the permit and they went out -
MRS. MOORE: For the piers.
CHAIRMAN GOEHRINGER: The permit for the foundation. Then you went out,
then Gary went out and saw that there was additional work being done.
MR. FORRESTER: Yes,'that's my understanding.
MRS. MOORE: Yeah, I was just going to say, that he was the contractor on the
job so he can clarify a little bit of the timing because in all fairness to Ed. Gary
was out there without necessarily involving you right from the beginning.
MR. FORRESTER: Right, from the beginning. In fact, he was out. He wasn't
out there on an inspection. He had noticed activity in the course of his travel
and stuff and learned that work-
(Too many people speaking at one time).
MR. FORRESTER: Gary had noticed work being done there. He believed the
Board required .Permit. Permit Was applied for to replace the piers. That was
the extent of the permit application and that's what the permit was written for. I
wrote the permit. ! reviewed the plans and wrote the permit. Gary had asked me
to visit the site after that permit was issued and I was there and we met on site
and we reviewed the scope of the project. The building had been guttered at
that point in time and we discussed verbly what was intended to be done and I
think we adVised her of which issues needed to be dealt with are as a building
permit issue. We Would need to see plans and review the scope of the work.
That came in as an amendment. It came to me as an amendment to the
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Board of Appeals Hearing
foundation permit. That amendment is what disapproved under 243. My
disapproval reads that it was determined to be a renovation rather than a normal
repair. The extend of the work or the scope of the work was not, there was a
window broken and we needed to fix the window. Three of the five windows
were going to be replaced with larger windows. The plumbing was going to be
replaced. The fixtures were going to be replaced. I think the appliances were;
going to remain. The heating system was out in the dumpster. That was going
to be replaced. The electrical service was going to be replaced. All new
insulation up to, you know an R15 was being planned and of course new wall
boards and finish work within the structure. The scope of that project that all of
that included it was determined that did not constitute, that constituted a
renovation under and would not be permitted under 243. Whereas, the simple
repair appears was i thought was permitted under 245.
CHAIRMAN GOEHRINGER: There was at no time, the opinion to try and raise
the roof in any way. We were going with those original ceiling heightS as they
existed, right?
MR. FORRESTER: Correct.
MEMBER TORTORA: Ed, I'm going to be pretty candid on this one.
MR. FORRESTER: Go ahead.
MEMBER TORTORA: The Notice of Disapproval which gives us our jurisdiction
says, to amend a permit for repair the foundation to include a substantial
renovation of a structure. Substantial renovation of a structure is not prohibited
under 100-243A. That's a fact. I mean the statute says that. The statute says,
proposed additions not pursuant to Article bla, bla, bla, 100-243 which states, a
non-conforming building containing a non-conforming use shall be enlarged,
shall not be enlarged reconstructed, or' structurally altered or moved, unless,
bla, and goes on. So the very terminology that you, in my mind, that you-denied .
this under, is not prohibited in the Statute - -
MR. FORRESTER: That's renovation rather than reconstruction.
MEMBER TORTORA: Yes, but I'm sorry and unfortunately when we get into fine
lines like this, definition is the laW in my mind and we have to look at that and I
honestly, I grilled these guys. I gave them a tough time last week and they will
tell you any different. I honestly went through and said, what are you doing?
And the fact that these things need building permits that is this issue here.
MR. FORESTER: H'm, h'm.
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Board of Appeals Hearing
MEMBER TORTORA: That is not the issue of in my mind of 100-243. There's
nothing in 100-243, that says, if you need a building permit you automatically fall
under the classification of a substantial renovation. In fact, the terminology
which is used under 100-243 specifically identifies a structural alteration as any
change in the supporting members of a beam, columns, footings foundation or a
bearing walls and as Lora and I both saw last week, you gave them a permit for
the foundation which would be the only section that that could possibly fall
under.
MR. FORRESTER: There was no change in that foundation. That's why I
issued a permit. It was beam for beam.
MEMBER COLLINS: But they have to interpret it ().
MR. FORRESTER: Yeah.
CHAIRMAN GOEHRINGER: But the architect has indicated to us, that they put
collar beams in.
MR. FORRESTER: Collar ties are planned in the second part of this project.
MR. FAIRWEATHER: There were.collar ties in the structure originally.
CHAIRMAN GOEHRINGER: There were?
BOARD SECRETARY KOWALSKi: Can I have your name again please. I'm
sorry.
MR. FAIRWEATHER: lan Fairweather.
BOARD SECRETARY KOWALSKI: Thank you very much.
MR. FAIRWEATHER: But they were about 4 feet on the center and we wanted
to put collar ties on every rafter and that just seemed like the expedient thing to
do.
CHAIRMAN GOEHRINGER: I'm just saying that that's what was stated.
MEMBER COLLINS: May I make a comment to a Mr. Forrester? I think the
reason we asked you to come Ed, is as Lydia just said, that what's forbidden for
a non-conforming building is enlargement structural alteration which is defined in
the code, or reconstruction and I guess our question was, we knew you were
allowing the foundation work to be done for the purposes of keeping the building
safe and why exactly was the rest of the work being denied and as Lydia just
pointed out, the denial used the word, substantial renovation and renovation isn't
Page 9 -January 19, 2000
Board of Appeals Hearing
the word in the code. It's reconstruction that's forbidden and we wanted to get
you to come and you know, kind of help us and I realize every case has its own
facts and it's very, very hard to draw the bright lines and say, this is, this isn't,
but you know, when is a renovation reconstruction?
MR. FORRESTER: I consistently interchange those two words. (), that is, I
mean it's clearly -
MEMBER TORTORA: See you go down the process Ed. I'm really happy that
you're here and it was at Jim's invitation and I think it's great.
CHAIRMAN GOEHRINGER: Well Jim, may have more questions. We kind of
like jumped on him.
MEMBER TORTORA: But when you go down that part, is it being enlarged?
No, it isn't being enlarged. Is it being reconstructed? No, it isn't being
reconstructed.
MEMBER COLLINS: See, that's the question.
MR. FORRESTER: ! would say it's being reconstructed.
renovate rather than reconstructed.
used the word
MEMBER DINIZIO: Can I ask a question?
MRS. MOORE: Can I just interject? There's two definitions.
MEMBER DINIZIO: No, can we just finish with Mr. Forrester.
MRS. MOORE: Well, just two definitions that could help you with.
MEMBER DINIZIO: No, ! want to finish with Mr. Forrester. I perceive this. If
you're saying that they're enlarging windows, then they're structurally changing
the strength of that building.
MR. FAIRWEATHER: We're changing one window.
MEMBER DINIZIO: Are you, is that a structural change or not?
MR. FAIRWEATHER: It's not a structural change., no.
MEMBER DINIZlO: You don't have to resupport the building in any way?
MR. FAIRWEATHER: No, resupport the building. I mean where are you going
to put a header above that window which you didn't have previously?
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Board of Appeals Hearing
MEMBER DINIZIO: Right.
MEMBER TORTORA: We're enlarging.
MEMBER DINIZIO: You're not enlarging to span the hole?
MR. FAIRWEATHER: No.
MR. FORRESTER: It supports the opening that was what we had originally.
CHAIRMAN GOEHRINGER: But now, Ed says that changing of a window
constitutes -
MR. FORRESTER: Right, triggers a Building Permit.
MEMBER COLLINS: Building Permit. But that's a whole different subject.
MR. FORRESTER: Yeah, under State Code.
CHAIRMAN GOEHRINGER: But Ed, we have been toiling with this for years
upon years upon years.
MR. FORRESTER: I understand.
CHAIRMAN GOEHRINGER: And that's the reason where the problem, this is
where the problem is.
MEMBER COLLINS: Jim sought of lost his question.
MR. FORRESTER: Yeah,
MEMBER DINIZlO: Well no, I just think that to my mind, if you pull out a window
and then add a header and do things that will strengthen that up, that
somewhere along the line you're structurally altering that building.
MR. FORRESTER: Yes.
MRS. MOORE: Not according to the State Code.
MR. FORRESTER: The plans that ! was reviewing with regard to, I don't .know, I
saw three windows of the -
MR. FAIRWEATHER: I think it's only one, Ed.
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Board of Appeals Hearing
MR. FORRESTER: OK, but in any case, one would require a permit, three
would require a permit.
CHAIRMAN GOEHRINGER: But how does it effect that section though?
MR. FORRESTER: It would structurally altering the building. You've got largest
windows. From a public safety point of view, you want larger windows. You
want the firemen to be able to get in and you want the habitants to get out. That
was not what raised the red flag in my department.
MR. FAIRWEATHER: Ed, could I just interject? I think the reason that we
changed that one window was to make it into an egress window.
CHAIRMAN GOEHRINGER: Out of the bedroom?
MR. FAIRWEATHER: To become more closer to the plan.
MEMBEI~ COLLINS: Let me put two cents in. Structural alteration which is
thing You can't do to one of these buildings, is defined in our code and it's a
change in the supporting members such as, beams, collars, girders, footings
foundations, or bearing walls and.you haven't said that -
MR. FORRESTER: A header is not -
MEMBER COLLINS: But that's not why you didn't stop, oh, I have double
negatives here.
MR. FORRESTER: Correct. A header above a window is not a beam -
MEMBER COLLINS: You didn't stop them for that.
MEMBER DINIZIO: That's what I want to know.
MEMBER COLLINS: You stopped them because you concluded they were
reconstructing the building and they couldn't do that. So our problem is, we
don't know what reconstruction means.
MR. FORRESTER: The building didn't come with an assessment. You have an
assessed value of the structure. You have an assessed value of building
working. You never got to the 50% related. He didn't go any further and I got
there and that's basically where we rested with this.
MEMBER COLLINS: I'm sorry. Could you just repeat that about the 50% rule
that you raised?
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Board of Appeals Hearing
MR. FORRESTER: Here, I'd just like to give you the section.
MRS. MOORE: I don't know. You said we didn't get to them.
MEMBER COLLINS: You said, you didn't get, what they're doing is -
MR. FORRESTER: There was no assessment of the structure in our ( ) cottage.
There was no assessment of 500 something sq. ft. We don't know the value of
it was.
CHAIRMAN GOEHRINGER: When you said assessment. There was no
evaluation done by. your department prior to?
MR. FORRESTER: Right, we don't do them. Typically, you've got a square
footage you can generally tell and the valuation of the work, the sculpt of the
work in value was not called into us. I did not -
MEMBER COLLINS: You don't feel that it reached the 50% threshold? That's
what you're saying.
MR. FORRESTER: Based on the information that was given.
MEMBER COLLINS: Based upon the information. That's fine, that's a fact. We
need that. SO why is it a reconstruction that's forbidden?
CHAIRMAN GOEHRINGER: You know what's interesting here. Here we have
an architect. I mean we know the dollar figure that's mentioned in the permit
which is like some $46,000. But here we have an architectural firm that has
worked with us all the way through. Wouldn't it make sense in general before
there's any attempt to alter any of the stuff that you have two certified architects
that could give you an evaluation of the structure in their opinion? I don't mean
a dollar figure now: I have trouble dealing with dollar figures as opposed to
percentage figures and I think the difference between bananas and apples or
oranges and pears. If you asked him, and I'm pointing to Ed FOrrester and I'm
mentioning it to Mr. Fairweather to give you an evaluation of what you think,
what he thinks, the actual percentage of this alteration is going to be. At least
we would have something concrete in the file, OK, from that point. Now, after
you reviewed his opinion and you made a determination that no you don't agree
with him or yes you do concur with, I don't mean you in general I'm talking about
everybody in your organization, then We would have a concrete basis to start out
with, at that point. That's just my opinion.
MEMBER COLLINS: Mr. Chairman, he did not deny this permit on the grounds
that it exceeded 50% of -
Page 13 - January 19, 2000
Board of Appeals Hearing
CHAIRMAN GOEHRINGER: I understand that. I understand that 100%.
MEMBER COLLINS: We don't need it.
MEMBER TORTORA: We don't even have jurisdiction there unless we want to
reverse and make another-
CHAIRMAN GOEHRINGER: Right, I understand that.
MEMBER TORTORA: But going further here, let's go to the -
CHAIRMAN GOEHRINGER: We're not just talking here. We're talking
generically in general.
MEMBER COLLINS: Yes.
MEMBER TORTORA: Let's go to 100-245 -
CHAIRMAN GOEHRINGER: OK.
MEMBER TORTORA: And talk about because we've had this a long time.
There's a lot of old structures in this old town. There are a lot of non-
conforming buildings in this town that were built prior to zoning and the heart of
the matter is we all know this section of the code can be very interpretive. But to
me 100-245 says, the common sense interpretation of the code. You have
buildings. These buildings have been there for 50 years. They have to be
repaired to be made safe. It isn't a question of whether they need a Building
Permit.
MR. FORRESTER: I'm not disagreeing with you.
MEMBER TORTORA: It's not a question whether they need a Building Permit.
That's a separate issue that we have to separate out somewhere. It's a question
that they have to be maintained. You're going to have to replace the heating
system. You're going to have to do all of those things and to me in my mind,
that's normal.
MR. FORRESTER: That's normal and I agree when taken singularly, everyone
of those things that were being planned for this structure. They've been done
when it was needed or when you know, at a different point in time which would
constitute a normal repair. Taken in and tying it all together they would
constitute, I use the word renovation or reconstruction.
MEMBER TORTORA:. But even that section of the code .says any build shall not
be deemed to prevent normal maintenance or repair of any building or the
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Board of Appeals Hearing
tearing out upon the issuance of a Building Permit of major structural alterations
or demolition necessary in the interest of public safety. I mean it's kind of
common practice in the town that if somebody buys a house, an old house, they
go in there and they see the lines 180, they change to 220, change the heating
system, maybe the next year they'll come in and change the plumbing, but.
MR: FORRESTER: From a historic and staff (), I may be opening a can of
worms here, but what the beck, historically and consistently we have denied
applications of this types and were on this basis and they've been dealt with by
this Board as a case by case basis as variances should be denied, granted, or
granted with conditions. I have dealt to the best of my knowledge there has
been no interpretation and there has been no code change regarding the way
we have handled it to this point. Now I agree that 245 seems to negate
everything in this section that goes before it. That's not how my department has
historically interpreted it. If our interpretation is incorrect ~ welcome your
interpretation.
MEMBER TORTORA: We're just trying to open dialogue in that's all.
MEMBER COLLINS: Indeed that's why we asked you here tonight because the
whole question came up in the hearing. Exactly you know, why did the Building
Department deny it and we needed enlightenment and the town needs
enlightenment and what you have just said is extremely helpful and I don't' mean
it solves the problems but it's very, very helpful in airing what the thinking is.
CHAIRMAN GOEHRINGER: A quick question. Notwithstanding the fact that
what provision this Notice of Disapproval was denied under. If they just took the
bedroom area and guttered that and not the rest of the structure, do you think we
would be a -
MR. FORRESTER: In the application -
CHAIRMAN GOEHRINGER: I don't mean to put you on the spot.
MR. FORRESTER: In the interest of conforming of what I would consider and
my Building Department considers a normal repair. Those window frames were
rotten. I got to go out and get a new Anderson window for the bedroom. The
insulation is not up there, I'm going to reinsulate it to put some new sheetrock
up. That's normal when I take I do it to:the kitchen, bedroom, living room and
bathroom and those are the only four rooms in the house i've got a
reconstruction.
CHAIRMAN GOEHRINGER: Well you might not of had that if you just had a -
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Board of Appeals Hearing
MR. FORRESTER: Yes, had these been performed as they applied and not to
the current owner, maybe the prior owner, had allowed it to get into this
condition. I'm not putting, I don't know how we got into this point in time. But I
do, because it wasn't proper. It was these normal repairs were not performed
and getting back to my former point, I was historically and consistently we have
gotten, we started at 240, 100-240, which sets up the purpose and ( ) is non-
conforming. The section of the code is~ it is to, you know to a, the word I always
use in other words, I know that got me in trouble here, was to reduce I think is
the word they use -
CHAIRMAN GOEHRINGER: The degree of nonconforming.
MR. FORRESTER: Reduce or minimize the impacts of use ( ) which do not
conform. So that's the intent. So following with that intent, we go down until we
got non-COnforming uses after that and we've got non-conforming buildings with
non-conforming use, stop there at this point and to address this issue.
MEMBER TORTORA: Can I say something on when you talk about the New
York Fire Code.
MR: FORRESTER: Yes.
MEMBER TORTORA: Several years ago I went to oh, one of the (), the New
York State Association of Towns and they were discussing the issue of non-
COnforming and I'll throw in opinion number 3. One of the things that was
presented was that when you are upgrading a building, you're upgrading the
electrical, you're upgrading the plumbing, you're upgrading putting in handicap
access. In other words you're bringing it up to standards. You are bringing it
into conformity. You are decreasing the degree.
MR. FORRESTER: YOu're bringing it in to conformity with the State Code, not
necessarily (more than one person speaking at one time).
MEMBER COLLINS: Code, yeah, but not, that's not what non-conformity means
here. This is use.
MEMBER DINIZIO: This is use. We're talking about use of this property.
'MRS. MOORE: No, but, could I just, it's my turn to speak. It's not, that's not
inconsistent because the' language that the code uses is coming right out of the
New York State Building Prevention of Fire Code. I wanted to let the Board
know, that there are two sections of the Building Code. Alteration, which says,
any change, rearrangement or addition to building other than repairs. And the
State Code goes into great length as far as what a repair is defined as. And
repair says, replacement or renewal excluding additions, Which we all agree
Page 16 - January 19, 2000
Board of Appeals Hearing
additions are something else, of any part of the building, structure, device or
equipment with life or similar materials or parts for the purpose of maintenance,
preservation or restoration of such building, structure, device or equipment. So
the State Code uses those two terms specifically to say, you can repair and
that's why issues of whether a Building Permit is required or not. Sometimes is
conflict. Architects in the Building Department may disagree because a repair
may not necessarily need a Building Permit. The Building Department may
disagree and we say, OK, fine, we'll come in and get a Building Permit. But
that's where looking through the Code in this section, the terms are not pulled
out of the air out of the blue. They're taken from New York State Fire Prevention
of Building Code and those two definitions are specific and I pulled out from
the State Code for your benefit, I highlighted alteration so you can see how it's
defined and repair and there's a separate section on alterations and repairs and
what can be done and always consistent with the State Code is, that when
you're taking an existing building in the functional parts of that building and
you're repairing them, that's not considered an alteration that triggers upgrading
if you were in a commercial structure or even a residential changing the use and
it's an alteration. You have to upgrade the entire building. That's not the case
for a repair. They are treated completely differently and that's why you know, I
was pulling my hair out because I know that you guys use the terms -
MR. FORRESTER: Well when, again, it's similar to our Zoning Code. When
these repairs .constitute substantial improvement in valuation, the entire
structure has to be brought up to New York State Fire Code and repairs of single
items or single assemblies within a structure. When they have passed the
threshold of 15%, the entire structure must meet the current New York State
Building Code.
MRS. MOORE: Right so now you have to upgrade the entire building.
MR. FORRESTER: The entire thing and so it is similar to our code in that
sense.
CHAIRMAN GOEHRINGER: Not what happened in Seaton Hall University?
MR. FORRESTER: No.
MEMBER DINIZIO: No, but again, -
MR. FORRESTER: And from a public safety stand point, strictly public safety, ~
would agree with Member Tortora had said, that I mean, this is becoming, these
things are making it more conforming from a public safety stand point. Egress
( ) rather than the old (inaudible) that most of us get into or out of but in fact the
point that I've made, was historically done and I would welcome an interpretation
Page 17 - January 19, 2000
Board of Appeals Hearing
of the code that would help me though this.
these as variance issues.
In the past you have dealt with
CHAIRMAN GOEHRINGER: We may do the same then.
MR. FORRESTER: And I agree with Member Tortora. Again, on that one word
in the language I used in a haste, was not my intent.
MEMBER COLLINS: He intended to use the word that's in the Code.
CHAIRMAN GOEHRINGER: Reconstruct.
MEMBER COLLINS: Reconstruct. He just didn't use it. That was his intent and
I think what we have identified here is, is the bedrock which I have sought of,
I've only been on the Board for two years and i've been sensing it increasingly.
The bedrock is this Chapter of the Code opens with purpose language which Ed
recited. That it's intended to reduce uses and buildings which do not conform to
the use requirements. And a cottage in which people sleep, a second dwelling
unit on a property doesn't conform to the use requirements of our code and the
purpose cause here seems to say, that public policy in the town is to reduce
those uses.
MEMBER DINIZIO: Which is the -
MEMBER COLLINS: Or ( ) the impacts of them which is a -
MEMBER DINIZIO: Which is the question that triggered, you know, when you
said that Pat, you know about this is their pre-conceive notions, going in and if
they see a second house that on the property, they want to reduce that, you
know, I heard from Mr. Forrester tonight, that this is his intention and in that
context and in the context of how you made this decision I can certainly see how
you can't, you have to draw a line somewhere.
MR. FORRESTER: H'm, h'm.
MEMBER D. INIZIO: And certainly i think the line has, you didn't exceed that
line?
MR. FORRESTER: That Code line of that section certainly doesn't help me.
MRS. MOORE: Keep in mind though that the policies of the town, I mean that
language is typical zoning language of non-conforming uses.
MEMBER COLLINS: Of course it is.
Page 18 - January 19, 2000
Board of Appeals Hearing
MRS. MOORE: It comes from the model language of the Code. But keep in
mind for example, you know, the zoning on 58. The pre-existing uses, the
people that have what they have, don't want to see a change.
MEMBER COLLINS: Right.
MRS. MOORE: They don't want it to effect them. And that's the way Residential
Zoning has been created. Nobody wants -
MR. FORRESTER: But that's protected in there~
MRS. MOORE: Exactly, a Pre-C.O. protects it and that's-
MEMBER DINIZIO: Well yeah, but this, yeah, I agree with you to that point.
But if we're asking for an interpretation of a variance and we have in our code,
that over 50% then that use is no longer allowed on that piece of property. I
don't believe that. Number 1, he wants the responsibility of determining that and
number 2, I think that a Board such as ours, should allow for the opportunity of
an applicant to come in and plead his case for that and ! think that that's where
this came from in that you know, Gary went out there and said, well, wait come
on, you know this don't look right to me and he just made a decision, that you
went beyond what we would accept, OK, not necessarily that you can't do it, but
that this is going beyond what we accept and they brought it to our Board. ~
mean is that pretty much -
MR. FORRESTER: That's it.
MEMBER DINIZIO: OK, so-
MR. FORRESTER: And the only correction I would like to make is, you said it
was my intent to reduce it. I believe it's the Code's intent.
MEMBER DINIZIO: The Code's intent, right.
MEMBER COLLINS: Can i finish the thought I was making before. Having said,
this is what you're working from A statement of public policy in the Town of
Southold and yet, my experience on this Board is, that we are extremely
sympathetic basically to the fact, that buildings that are non-conforming use
typically because it's a second dwelling unit or, sometimes something else, have
to be maintained. They have to be kept up and we have found ways to do it
which means that we're, dare I say it, thwarting public policy or editing it.
MEMBER DINIZIO: Well I think we're reviewing it on a case by case basis.
Page 19 - January 19, 2000
Board of Appeals Hearing
MEMBER COLLINS: OK, yes, we are, we review it on a case by case basis and
we're finding ways to adjust to the reality of life. Reality of life is the building
exist and we're not out to be a juggernaut tearing, letting -
MEMBER DINIZIO: No, no, we don't have -
MEMBER COLLINS:
MEMBER DINIZIO:
happen.
Buildings go to rack and ruin. We don't want that.
We've had had cases where obvious, that just can't
MEMBER COLLINS: Yes, sure.
MEMBER DINIZIO: There's one in East Marion that we, you know it can't
happen because what they suggest is just too far over.
MEMBER COLLINS: Yeah, yeah.
MEMBER DINIZIO: But again, I don't want and I don't think the Building
Inspector would want the responsibility of ( ) drawing that one.
MEMBER COLLINS: We certainly don't want to be rewriting the law that's for
sure. In the first place we can't.
MEMBER DINIZIO: Yeah, right, right. We're dealing with a variance.
MEMBER COLLINS: It isn't a variance.
MEMBER TORTORA: It is not a variance. What area is relief requested from if
this is not an area variance?
MEMBER DINIZIO: Then what are you dealing with?
MEMBER COLLINS: I will say that I'm -
MEMBER DINIZIO: You cant' say you're going to interpret it.
MEMBER COLLINS: Oh, no, no, no. I think we would act. I'm sorry, I think I
am very sympathetic to the Blooms. I think the structure is not being changed in
its appearance or-its use. They are fixing it up and making it safe and I
personally am in favor of letting, them do it and the way we would do it I think, is
the same way we let the two gentlemen in Orient with the bathrooms and the -
MEMBER DINIZlO: Right.
Page 20 -January 19, 2000
Board of Appeals Hearing
MEMBER COLLINS: Renovated barn do it. We said, under our, pursuant to our
authority under section whatever it is of the Town Law of New York State to
reverse, adjust Building Department decisions. - (Lydia speaking .at the same
time)
MEMBER TORTORA: Reverse the decision of the Building Department, (), bla,
bla, bla'. - (Lora still speaking)
MEMBER COLLINS: We hereby say, you can do it.
MEMBER TORTORA: Well, I would a -
MEMBER COLLINS: Some people would call that an interpretation but I don't
think it is, It's just a -
MEMBER DINIZIO: Well then we should include the plan in the decision.
MEMBER TORTORA: Of course but my recommendation would simply be to
reverse the decision of the Building Department. That this falls into 100-243 and
that we after reviewing it, bla, bla, bla, we feel that it falls under 100-245 for the
reasons that the plans, etcetera.
MEMBER COLLINS: Yes, that's a better way of stating what i was saying.
MEMBER TORTORA: It is not an area variance.
CHAIRMAN GOEHRINGER: No, it's not.
MEMBER DINIZIO: Thank you very much Ed for coming.
MEMBER COLLINS: It can't be. If it were a variance it would have to be a use
variance, God help us.
(Everyone speaking at one time.)
MR. FAIRWEATHER: Isn't there any way that he could see a little more
daylight from you people where he can maybe go a little further instead of
always having to defer?
MEMBER DINIZIO: He doesn't always defer.
MEMBER TORTORA: Personally I would love that. The Chairman made a very
good and believe me, I was in favor of making an outright interpretation on this
when the Chairman made a very good point to me, that he said, it is very difficult
to define each line. When we heard testimony last week about exactly what the
Page 21 - January 19, 2000
Board of Appeals Hearing
applicant was doing, that's what allowed us to make a decision in the new
tonight. But to ti-y and say, if you put a header in this, or -
MEMBER COLLINS: No, you cant' do it.
MR. FAIRWEATHER: But if you were to say, that it is not more than 50% of the
cost of the renovation, and you're not changing the footprints and you're not
raising the house. Then, really then, we should just be able to apply for a
Building Permit.
CHAIRMAN GOEHRINGER: That's correct.
MR. FAIRWEATHER: And not go to the Zoning Board.
MEMBER DINIZIO: If that's his opinion.
CHAIRMAN GOEHRINGER: Yes, if he denies us or was going to deny us under
that other section, OK, not this section, and number 2, you did what I said, OK,
you gave us your opinion, he can make the decision. Either he concurs with it or
he doesn't concur with it, based upon the renovations as they proceed. But at
least you're licenSed to do that. That is something that is within your purview to
do so. We dealt with it as you know, with your partner on Dorosso, last year1 I
mean we were all freezing at this time last year standing in Dorosso's restaurant.
I mean it was the same situation and although that was a commercial building
there was an opinion rendered from your firm and I think that would clearly help
us understand the situation.
MR. FORRESTER: That would be a help. I agree with you.
MEMBER DINIZIO: Yeah, but I don't think that we want to require that.
MEMBER COLLINS: No.
CHAIRMAN GOEHRINGER: No, we're not requiring it. No, -
MR. FORRESTER: I think I got some direction from all of your comments
tonight. It was very helpful.
MEMBER COLLINS: Oh, it was very helpful to us.
MEMBER DINIZIO: Yeah, no, it's always so much clearer when we can hear.
MEMBER TORTORA: I think it is good that we communicate.
MR. FAIRWEATHER: Maybe if there's a better way -
Page 22 - January 19, 2000
Board of Appeals Hearing
MR. FORRESTER: There's a better way..
MR. FAIRWEATHER: That you can put it.
MR. FORRESTER: Thank you very much.
MEMBER TORTORA: Thank you very much for coming in Ed.
MRS. MOORE: Can i report back to Mr. Bloom that he'll get his relief, I guess?
MR. CHAIRMAN: Well you have two Members.
MRS. MOORE: I got two. I think I counted three that are in support. How you
do it, is your decision but.
MEMBER DINIZIO: I didn't mean to cut you off before, but.
MRS. MOORE: No, no, no.
MEMBER DINIZIO: No, I didn't mean to do it. But I had to concentrate on what
he says. I didn't mean to do it. ! didn't want to insult you. Ali I wanted was to
listen to what he says, you guys are jus[ going to drive me crazy.
MR. CHAIRMAN: We're still on the record.
BOARD SECRETARY KOWALSKI: We still have a hearing going on.
MEMBER COLLINS: Second.
MEMBER TORTORA: What the crazy part, or the motion to do something?
BOARD SECRETARY KOWALSKI: Are we going to close the hearing first?
MEMBER COLLINS: .Close the hearing.
BOARD SECRETARY KOWALSKI: Whose making the motion?
MEMBER DINIZIO: I shall make that motion.
MEMBER TORTORA: Second.
See the Minutes for Resolution.
End of hearing.
By Lucy Farrell
f
Page 22 - January 19, 2000
Board of Appeals Hearing
MR. FORRESTER: There's a better way.
MR. FAIRWEATHER: That you can put it.
MR. FORRESTER: Thank you very much.
MEMBER TORTORA: Thank you very much for coming in Ed.
MRS. MOORE: Can I report back to Mr. Bloom that he'll get his relief, I guess?
MR. CHAIRMAN: Well you have two Members.
MRS. MOORE: I got two. I think I counted three that are in support. How you
do it, is your decision but.
MEMBER DINIZIO: I didn't mean to cut you off before, but.
MRS. MOORE: No, no, no.
MEMBER DINIZIO: No, I didn't mean to do it. But I had to concentrate on what
he says. I didn't mean to do it. I didn't want to insult you. All I wanted was to
listen to what he says, you guys are jus[ going to drive me crazy.
MR. CHAIRMAN: We're still on the record.
BOARD SECRETARY KOWALSKI: We still have a hearing going on.
MEMBER COLLINS: Second.
MEMBER TORTORA: What the crazy part, or the motion to do something?
BOARD SECRETARY KOWALSKI: Are we going to close the hearing first?
MEMBER COLLINS: Close the hearing.
BOARD SECRETARY KOWALSKI: Whose making the motion?
MEMBER DINIZIO: I shall make that motion.
MEMBER TORTORA: Second.
See the Minutes for Resolution.
End of hearing.
TI-iE SOU'T}iOLD TOWN CLERK
DATE ~/-/~/-~" HOUR ~'.
Town Clerk, Town o: "~,-,-~.~-