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HomeMy WebLinkAboutIonnou, Constantine FJ.IZABETH 21. NEVILLE TOWN CLERK REGISTRAR OF VITAL STATISTICS MARRIAGE OFFICER RECORDS MANAGEMENT OFFICER FREEDOM OF INFORMATION OFFICER Town Holl, 53095 Moin Road P.O. Box 1179 Southold, New York 11971 Fax (631) 765-6145 Telephone (631) 765-1800 southoldtown.nor thfork.net OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD THIS IS TO CERTIFY THAT TIlE ]FOLLOWLNG WAS ADOPTED AT THE REGULAR MEETING OF THE ON FEBRUARY 24, 2004: WHEREAS an application bas been made by provisians of Local Law #3 of 2002 {and extensions thereof) entitled on the Processing, Review of, and making Decisions on applications Minor Subdivisions and Special Exception Use Permits and 5 U~flt(s) in the Town o£ Southold" pursuant IO PlanningBoard to consider an application for a minor subdivision for lmown as SCTM# 1000-23-1-14.7; and WHEREAS the application involves the subdivision of a 6.8 acre WHEREAS the Town Board has reviewed the file, conducted a all pertitient documents; and WHEREAS the criteria that the applicant must meet is set forth in Procedure) of Local Law #3-2002 and the extensions of said Local Section 6. APPEAL PROCEDURES a. The Town Board vary or waive the application of any provision of this Local Law. in i discretion, upon its determination, that such variance or waive? is extraordinary hardship affecting a parcel of property. To grant such r Board must find that a variance or waiver will not adversely affect the pu local law, the health, safety or welfare of the Town of Southold or any cc plain'ting being undertaken in the Town. The Town Board shall take into existin~ land use in the immediate vicidity of the property and the irapacl ? 2004~ athe propemf and consid~ 'ed ,eal the ~ose of~h tprehen~i :collnI t~l~ ~fthe va [BCe or waiver on the water supply, agricultural lands, open and recreational space, rural character, natural resources, and transportation infrastructure of the Town. The application must comply ~ilth all other appliciile plovisi0ns o£ the Southold Town (~ode- ~elREs a~A ~ thatleo T r n°~ sn rw~mio'nh~e~ dv ead ~ e°[ oat;er id alalaU~' ~ro°mUpPr eCh°enm~s iiSvtien g °Im~ ienn[ eh°n~Sa~onan Sd ~ a~tesigdy'e' oft he Comprehensive Plan of the Toxvn of Southold, and certain comprehensive plaunkng currently ~eing unctertakeh includes, but ~s not limited to, 80% prese~afion of qpen sgace ~ougko~.l the oWn and a 60% reduction in densky, clear establishment of the Hamle/Cen~ers~ and a pqs, ~ible Transfer of Develt)pment Rights component (a full descnptton of the actton ~s set forth SEQRA Resolatton dated. January 7, 2003 for tke Sou.th01d~Comprehens~ve ,/fnp~efnentatid~ Stra;egy which Ls incorporated by reference into this decision); and WHEREAS, planning work is proceeding during the moratorium, which was ex;~nded Jagu ry 6, 2004 for an additional 180 days.. The issues facing the Town of S0uthold and possible Solutions to those issues are complex. Legislative solutions have not yet been a~reed upo~I, and the Town continues to face significant development pressure; and WHEREAS the Town Board fmds that the applicant has demonstrated an extra¢rdinarym hardship, in that he has expended large sums of money to date on the project and has sp ive years in litigation regarding his ability to subdivide the property; and '~VHEREAS the Town Board finds that the application is not in contrast with th6 sxtensive planning irr[tiatives being undertaken by the Town,. or the Comprehensive Plan o~'the Town of Southold; and WHEREAS the Town Board finds that this application will not adversely affect~the purpos of the Local Law # 3 of 2002 and the extensions thereof; and WHEREAS the Town Board of the Town of Southold finds that the application lwill not adversely affect the health, safety, or welfare of the Town of Southold; and WHEREAS the Town Board of the Town of Southold finds that the minor s~abdJvision application is consistent with the existing land use in the surrounding area arid has a minim; ~mpact on water supply, fatal character, natural resources and transportation 5nfrhstructure [the Town; and WHEREAS the Town Board of the Town of Southold finds that the applicationlhas no eft ct on agricultural lands and open and recreational space; and WltEREAS based on the application, all relevant documentation, the comment~ set forth the ...... ~e~aken by th pubhc heanng on th~s matter, the comprehensive plarmang currently bemg un Town. the above referenced facts, and the criteria set forth in Local Law No. ~ ot:2002 arm the extensions thereof, Section 6. Appeals Procedures~ the applicant has met its burden pursuan the criteria: and Be it RESOLVED by tlxe Town Board of the Town of Southold that th application Is he' approved. EliZabeth A. Neville Southold Town Clerk 5eloy E~ETH A. NEVILLE TOWN CLERK REGISTRAR OF VITAL STATISTICS MARRIAGE OFFICER ~?ECORDS MANAGEMEI~T OFFICER Fi%EEDO1Vi oF 1TCFOR1VL~TION OFFICER Town Hall, 53095 Main Road P.O. Box 1179 Southold, New ~ork 11971 Fax (631) 765-6145 :Telephone (6$'tt~ 765-1800 Zou~fi~dt ow~nol~t hfo r k.net OFFICE OF THE TOWI~ CLE~ TOWN OF SOUTHOI~D March 8, 2004 Patricia C. Moore Attorney At Law 51020 Main Road Southold, NY 11971 Re: Constantine Ionnou Waiver Request Dear Mrs. Moore: It is my pleasure to inform you that the Southold To' Tuesday, February 24, 2004, adopted resolution No. waiver of the subdivision moratorium for the proper 23-1-14.7. A certified copy of the resolution is encl, Very Elizabe Southol, Eric. cc: Irene StuIsky rn Board, at its meeting held 171 granting the reqUest[ for a y identified as SCT~ #1000- ,sed. dy yours, h A. Neville 1 Town Clerk SOUTHOLD TOWNBOARD PUBLIC HEAR1NG February 24, 2004 8:10 P.M. HF, ARING ON THE WAIVER APPLICATION OF COI~STANTINE IONNOU, SCTM #1000- 23-1-14.7 AND 1000-23-2-5.6 Present: Supervisor Joshua Y. Herren Justice Louisa P. Evans Councilman John M. gomanelli Councilman Thomas H. Wickham Councilman Daniel C. Councilman William [ Town Clerk Elizabeth Town Attorney Patrici Ross ; Edwards ~_. Neville a A. Finnegan COUNCILMAN WICKH.AM: NOTICE IS HEREBY G1VI ,N, that the Town Board of the Town of Southold hereby sets 8:10 p.m., February 24, 2004 at Southuld Town Hall, 53095 Main Road, Southold, New York, as the time and place for a pubhc retiring on the application reqneshng a waiver from the provisions of the Local Law entitled '"Tempo Review of, and making Decisions on the applications for Maj( Use permits and Site Plans containing dwelling nnk(s) in the ~i subdivision of Constantine Ionnou for the parcel identified a 5.6 located on the north side of State Route 25 in East Marion. This has been published in the Suffolk Times, it has appearet board and I should have a correspondence here from the Plan the request of the family for a waiver the June 9th letter of Patricia Moore on behalf of her client, Board is asked to waive the moratorium restriction does not provide the context within which her client's Board. The Planning Board's position and recoumtendafion this context. Accordingly, a brief synopsis is provided here. subdivision plat by the name of Brionngloid-by-the-sea. In ~vished to create seven lots. Since several of the propose& subject of this request were further subdividable, the Plann made for save access of all potential lots to Route 25. The sul~ of Route 25, just west of Truman's Beach, on a narrow suet public or private roads accessing this property. The owne~ waiver of the requirement to construct a road. The Plarmh agreed to waive the 50 foot road requirement for this major n'y Moratorium · and Minor Subd own of Southold' ; SCTM# 1000-2 · out there on the Town Clerk?s aing Board. Thi, is .dated July "The P1antn ng Board has ~ tanfine Iorm m, In which Itl g this applicatim. I~lrs. Mo+{ came to be c teated by th~ understootl without· n the Processi g, ivi~ions, and ~eciai ' for the minor ~-1-14.7, 1000. }3-2- ~77, the ts including the [ Board r ject property is :h of refused to [g Board and st bdivision on the bulletin g, 2003, :viewed :e Town 's letter ~larming mowing was the f~ens of a malor st~thvmton tat is cu~¢ntly the i that prr, v/sion be on the horth side be February 24, 2004 Public Hearing-Ionnou Waiver no further subdivision of specific lots within the subdivision, one of which #7, ils the lot that is the subject of Ms. Moore's request. Correspondence and minutes and resolmion's of the Board r/otc that a resolution was to be filed which noted that lots 1,2,3,6 and 7' ~ro these lots was to be by way of shared two retaining its own driveway. The PLanning Board approved noted restrictions were covenants and and his attorney filed qbe map but did not file the Access lot #7 above plat was filed in 1978 wilhour the C&R's. It appears that th.is ( Board and secJ:etary at this point. Mr& Moore, the attorney for the a~plieant, has been pursuing th.e, right to subdivide the property sinc~ 1999. made to this office begimTfing in 1999, an act~aI appfication to mbdivlde was ~axot,made t of 2001. The Plarmmg Board adp ted'aresohitm~onA~ril lt~ 200] a com-o~wli~i P r ~'~f~ ' I . Ich ,s .(.. ,m~, resol.u~on re-stated the orig'mat ~ of the original prop. er~ owner ~(, th.2 I'lllll.' in[! I'~om'¢i [I, 19-5. as r~o~ed m the offie/ai minutes of the plamii!!g Board. Tl~e harsh dcntmck:i[o~ ;till porlra~;tl ~fi' the. Planning Board. by Mrs. I Special the Planning ~alid and constitutional, not ~ failure to file the C&R's with. the owner. The a 2003. #7, but a review of tile file, thc ~.qon~ as it April 200t does not meet the exemption [m)x isk)ns be preserved. Further, to th~ begt ~f oar knowledge, no initiate discussions witht* flae[ TqWn regarding land environmentally sensitive due ttJ its,~lose proximity to both of Route 25. The prOperty ,is .no~ s. erved,by public water. heavily traveled than i~ Was in [978. The applieafi0n town, which include the prese, rvafio~ rural, cultural, commcrcLal and historical character of the preservation of the natural moratorium was intended, to in this that of any other property %w!~,er v¢ith a sub~,~idg, ble parcel. Altach~c[ a~ subdivision. Therefore,, the Planning!Board recommendation Is that the Waiver have no other, i do hgve a letter '~m 'the attome3~ Of the applicant; w~ho i~ probably speak more effectively than~t could on that. PATRICIA MOORE, ATTORNEY FOR THE APPLICANT: This is just threatening to read everything that is in this file. We could be here for days. position, I think, they have their position certainly, my clifnt, that we and different position. For the record, my name is Patricia Moore,[ Main Road, Son for the applicant. By the way, n~y client nor I received notice df this hearing t0r I looked at a copy of an agenda yesterday when I was in the Planning Board a was here tonight. I made this application more than six, seven months ago. Iw( the future, you give, I don't know about the gentlemen before, they probal31~ notice I got, which is none. An/[ I think anybody who has made an application' of is south the of the and the that the fi:om I acre toni~glzt an example, am not Board's I the have a hold. I am the ight and just ~b', chance ~d saw that thi s matter ~u.ldljust sug~e: t that in · go~ the same type of ;hould have th~ bcmefit :February 24, 2004 Public Headng-Ionnou Waiver © of a notice because, just by luck, I read that and I am here. I would have been extremely upset and probably rrm into the courthouse had you made a decision without my ability to be here So, just as a, fortunately, [ am here. I do have a memorandum that I ask that you submit for the [ have for everyone. The reason that I brought ~ give some side of the picture is concerned. Because he bought a 23 years ago. The property was zoned 1 acre at the time, it is parcel anywkere in the vicinity of this area because this ~ another subdivision that the Brionngloid~by-the-sea that the of that subdivision map. Now when he bought the property, further subdim'ding the properly, he bought this over-size who are ready m build create the two lots for the fani~:'Iy. He were dare when we, approache~ the~Planahrg Board, the application to subdivide. V~e.~ and reviewing the law, which is the theory, which is: be a recorded covenant, at the rain',matra! one of those properties on noficx of t~e property. My client came It is buried in the file, we went to part of the subdivision approval but it-was no Where at the filed map. At that point, we st!bm~'tted ~ apphcaion ,~ were delayed and delayed and finally we,saSd, please go next? We have no recourse; absolutely agreed with us. One: thai it wasn't recorded. The court even v~enr so on be imposed on subdivision regulatiims is essential/3 Ioard's i-{~.lc h.1 tll'}/Oll~li.L2. 'fhc.~ i!i-~' imposing regulations on an application or on a So if the map says it is two acre zonmg,, or Board can't deviate from that. And that is wha ~ still doing it today, even applications that I see before the further subdivision condition on it. The lower court said, absolutely TOwn appealed that decision. We went to the appel/ate division, thank you. The only ones who win are the warn to see somebody's rights be affected. This: amomat of money and the aggravation facto~Lobv, i0us!y. We went toI the Apl m. Tl~e division was polite but they, again, Said come on, Town, Mr Igler~;.~ c'..~,2b t ~g ~tis a condition that is not on record. You are t~lling us that you buried in the ftc on this property owner? Get,our of here. e came back now, to start the process because, and years now have to the Planning Board and the Planning Board says, we can't decide Well, what is our recourse now? Our recourse is come to of the moratorium be applicable, given the fgct tha~ ~ we go back to the court and say, court, had this application been we would have been s~ far through the process we would be lookint [ be no moratorium. It wouldn t have affected us one bit. Not even! even can go February 24, 2004 O 4 Pnbhc Hearing-Ionnou Waiver through the process in less than three or four years. We are My client, it is not an environmentally significant apphcati Well, there is an existing sound front home that is set back p~ lot is equally as large and could be developed the same way any variances whatsoever. The o~y sensitive propculy is the on Route 25. Nobody has proposed to subdivide that ax application is pure!y for the lot, the upland parcels. And rerulnd you what this lot, this subd$vision would look like, it or you. ,The sub;divismn map so ~at you could see again th Other lots arthe time in the ~970'gWhen this .lot exceeds the oneTafre zoning c~eria. So; as far as reasons why this condition was i~osed; I dM t think it is bar two of the properties have rom[, frontage. They all, and: don't disagree with that, tha~ tlm~ have common access. There is an existing driveway now, we Could use it. is, agmn, a common access fo~ ~e cx~sting kousc and the' s~gnificant change to flxe ch~raete3 or a~y cha~ge to, or environmental features, this p, roperty is nox one of Communixy Preservation acq~si~ li~t, obviously farming, it is, this Board has/n th~past expressed as the reasons to not grant a wa~.~ ~of the morato~ in as a matter of jusfi~, The l~/~tioa that We have had ~o in,m: fundamental, it was insulting be~n ~awyers tO' to ' that clearly should not have helen elfforced I am here to have. I feel very strongly abo~ut~ this application because again, members, or you as Board member~ paid out of your pocket make some of the decisions tha~ ha~b been made or the decisions that they mal~e bec.ans? i/you and I were sitting across from e and you looked at the fairness ~d,the equities and you say, i~I lose because the law is so clear ~at I am just go/ng to lose, taxpayers underwrite the de~sio~.~that the Planning this instance was so fundamen~l~ flawed that if cost my a hardship; that is the reason that ~ are here. Beeanse don't want to have a third court ~ision, tell us I thank you and I thank you for y~ur courtesy. SUPERVISOR HORTON: Thank you, Mrs. Moore. Iapp public hearing? COUNCILMAN WICKHAM: I would like to ask a qnestio why the land should be subdividable and the fact that some has been vindicated, apparently, by the courts. And so that S what we are here for torfight. We are here to judge a request f arguments that I heard why we should grant that waiver, is application had proceeded at the pace that it should have proc~ here tonight to ask for this Bom )n. The planner refers to sens5 obably 300 feet from the Sound set back from t~he bluff. We beachfrunt that/s across the re ~a, that is open space, therel:j I attached fo~ yom- informati~ s the last sheet ~)n the lot in comparison to the acra ['s relief rive land. the other an't need id, across ~ no, the ., to help supplied o£the and give aCCeSS. that er on 011 the I~ is not limned or .-rfiu:blc for So as far One should,re~v a,subdivision ~ :ciate it. Are there commem I think I understand your '&R's never' got recorded at the tould go forward. But that real )r the waiver fi:om the moratorfi that the key argument was t~ ~eded, without all of the interru ~: kind of world going lo made in is the We on this ,mlnems County ~y is not ;n. The tt if the tions of February 24, 2004 Public Hearing-Immou Waiver the court mad all of that. we would have been well into it before the moratorium was in place of that, all of that momentum, that is the logic for granting the waiver. MS. MOORE: That is one of the reasons. COUNCILMAN WICKHAM: But there were a lot of other cases of people who were cm various stages of application who have also been caught Ul~ and who have also, most of ti denied. That argument by itself doesn't seem to me, is sufficient to justify a waiver. The ti mn interested in is the waiver. What are the other reasons why the Board should consider the MS. MOORE: I have listed, I have them all identified and listed as item 10. And I went thr{ criteria for why a moratorium was adopted and one of the mai~ reasons would~be taking wh~tt a parcel would be changed m ~ts development, post moratorium, rather than being allowed to Because em, been ing that I Vaiver? COUNCILMAN WlCKHAM: What is the preservation perce MS. MOORE: You can't preserve at this point, you have 6.,( the preservation is the existing open space that was already p~ that is designated across the, let me see, I have the tax map r see, how much acreage. You have 1.2 acres across the State this subdivision, 1.21 acres as going to continue to be prescrv, The waiver is, if people could come in for preservation, th respectfully disagree with your analysis that you have to pro~ precisely why people come here. If they had preservation components, they wouldn't need to COUNCILMAN WICKHAM: If they had it high enough. er or not oceed. ~tage? acres, you have three lots. Th~ :e is no, eserved, it is the separate tax lo number umber. You have about, you rye, let's Route, that is shown as part of lot #7 of id. That is not proposed for sub aivision. Dy wouldn't need a waiver, so I would te preservation to get a waiver That is b: here. MS. MOORE: There is no requirement, 75% preservation, with 60% preservation, 40%, whatever. You also have si litigation that wrongfully was imposed on a client. Wrongfull told you, pardon me, you the Overall town you, that the Pla wrong. SUPERVISOR HORTON: Mrs. Moore? MS; MOORE: Yes? SUPERVISOR HORTON: I think actually, your points have been that clearly. ure. If you are dealing with sc tuations where you have got because you have two courts t ming Board~ Planning Board COUNCILMAN ROSS: I have three questions. made and re-made. I mac MS. MOORE: Sure. COUNCILMAN ROSS: Who was the applicant in 19787 mebody ~ears of mt have )u were ~rstand February 24, 2004 Public Hearing-Ionnou Waiver 6 MS. MOORE: Helliman, I believe. The applicant; are you, talking about the subdivision ,~ My maderstanding is that there were two property owners that got together. One was Hell/mt other one Rand. COUNCILMAN ROSS: Were they represented? MS. MOORE: Yes, they had an attorney. I don't know who if was. COUNCILMAN ROSS: Local? MS. MOORE: I don't know. COUNCILMAN ROSS: Just out of curiosity. arms-length transaction? Okay. your client got the property MS. MOOPd5: Oh, absolutely, yes. SUPERVISOR HORTON: Are there other comments from this hearing. Xe Board? (No response) We Elizabeth iA. Neville Southold Town Clerk Pplicant? and the was an ill close MEMORANDUM Waltzer 6 f Mo~aXorium Owner: Constantirre Ionnou Heating: February 24, 2004 Constantine Ioanuou is the owner of real property lo Marion, ~,the Town of Southold, Suffolk County N Tax Map fi/Umbers 1000-23~t-14.7 and 1000-23-2-5 The property is approximately 6.8 acres in size and district designated "R-80". :ated on State Route 25, East ~w York bearing the Suffolk Cc 5. iocated in the residential zoning Mr. Ioannous's property is depicted as Lo~,7 onthe: led map entitled "Subdivision ~ of Briongloid-By-The-Sea at East Marion which whs filed in the office of the Suffo County Clerk on August 22, 1978. This map contai' ted 7 lots, the zoning required o' cre lot size requirements, all the "sensitive land" across the road en space. (See At~ached copy 981 at which time the property one acre lots, ali the lots exceed the minimUm one were designed w~th common driveways, and all the along Orieht Harbor was sterilized and made into filed Map)' He acquired the 6.8 acre property on December 15, zoned "A residential" which required 40,000 square foot parcels, i.e. one acre. On or aboat February 26, 2001 the petitioner submitted an application to the Plannit Board for approval to subdivide two lots from his hbuse parcel (i.e. 3 lot subdivisic his 6.8 acr& property). The two proposed lots and h~s improved parcel were in conformity with the zoning requirements, each lot v~as at least 2 acres in size, one lo already developed with Mr. Ionnou's house and all t~e lots would share a common driveway, i When the planning Board objected to this subdivision because they had buried a condition m their file that this lot could not be further subdiwded, my chent rewewe title report'xvhich identified no such condition and h~e reviewed the filed map which ] no notation of this condition. I submitted a memorandUm to the Town Attorney discussing the legal issues which the Planning Boar/l was rinsing to refuse my client application. The law was clear that a restriction ox the use of land must be in wri~ and filed a~ a Covenant which appears in an owner's chain of title. At a minimUm, major restriction on the use of a property should be toted on a filed map. The law requiring a Restrictive Covenant to be recorded to be enforceable is a fundamental legal principal which is known by bott/lawyers and non-lawyers, the Planning Board should have processed my client's application in 2001 to subdivide property in accordance with the zoning ordinance. l m~y lap k lots md ~f ~as g a of was his tad S lis 8. [ requested their rejection of our application be placed in wrifing. On or about April 16, 2001 the l~lanning Board adopted a resolution to deny Mr. Ioarmou's subdivision applicatiofi and my client's ordy recoUrse was to spend thousands of dollars in legal fees and Court~ees. 9. After prevailing in both the New York State Suprern~ Court and the New York Supr~ me Court, Appellate Division he is prevented from procbeding with his minor subdivisic n by the Moratorium. He is once again faced with the de~ision to contiaue to seek redress, tn the Court,}or to seek a Waiver of the moratorium from the Town Board. Ortor ab'ou June 9, 2003 h~:~equested relief from the moratorium. i0. This subd'/vision should be permitted to proceed for the following reasons: The property is zoned~R-80, one lot is developed and only two additional vacant lot~ tre being created. The lots conform to all the zoning regulations. The lot was purchased twenty years ago with the intentions to divide the property fo~ his two children and the children are ready for their own homes The surrounding properties are all improved properties on 1 acre and 1 ½ acre lots This lot is not farmed or suitable for farming This parcel is not on the 2 % community preservation acquisition list This board has expressed no intention of up-zoning a properly such as this lot This property is not environmentally sensitive and e~.ch lot exceeds the zoning requirements: Proposed Lot 1 is 92,332 sq.ft., Lot 2 is 114,288 sq.fi., and Lot 3 is 88 269 sq.R. The property owner has been financially harmed by the Planning Board's unwarrant{ refusal to p~rocess an application. The owner would have long ago completed a three lot subdivision had the Plarming Board acted on the application when submitted Based on the above the owner respectfully requests that the Town Board alleviate the extraordinary hardship affecting this parcel and grant the waiver. ~!~NOTICE IS HEREBY GI~ d,,e Towa Board of ~e Tow~ ~outhotd lxereby sets - 8:10 ~eb~ry 2~, 2004.at Son. old 53095 ~n Road, S0~tt ~6~ ~rl;. a~fho .,~','~'~ ~: ~, . ..... STATE OF NEW YQ~ COUN_XY OF SUFFOLK) ~.,M/~,~a~'-'~-- of Matti county, being duly sworn, says that he/si clerk of THE SUFFOLK TIMES, a weekly nE lished at .Mattituck, in the Town of South~ Suffolk And State of New York, and that the the annexed is a printed copy, has been lished in said Newspaper once for / _weeks successiVely on the .of f~ 20~F¢~ Sworn to before me this day of. CHRISTINA VOLINSKI 20~ uck, in said ,e is Principal wspaper, pub- )id, County of ~otice of which regu!ady pub- each. week commencing .day Clerk NOTARY PUBLIC-STATE OF NEW YORK No. 01-V06105050 Qualified In Suffolk County Com,.,mi~lon Expires February 28, 2008 LEGAL NOTICE NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN, that the TownBoard of the Town of Southold sets 8:10 p.m. February 24~ 2004 at Southold Town Hall, 53095 Main Road Southold, New York, as the time and place for a public hearin~ on the appli requesting a waiver from the provisions of the Local Law entitled "Temporary Moratorium on thc Proees~ng; Review of, mod making EfecZsions~on the app ,l~cal Major and Mi~or Sabd~visions~ and Special Us~enuits an~d Si~e Plans. con~ dwelling lmit(s) ~ the. Town of gouthold" for the.minor subdivision~ of£0nsta i~ott for the p~cel klen 'tffied as SCT1VI~ 1000-23-1-14.7, 1000-23-2-5,6 loeat ~ side of State Route 25 i~:East Marion. Dated: February}, 2004 BY ORDER OF THE TOWN BOARD OFTHE TOWN OF SOUTHOLD Elizabeth Neville Town Clerk PLEASE PUBLISH ON FEBRUARY 12, 2004, AND FORWARD ONE (1) AFFIDAVIT OF PUBLICATION TO ELIZABETH NEVILLE, TOWN CLERK TOWN HALL, PO BOX 1179, SOUTHOLD, NY 11971. Copies to the following: ~Fra~,Z,~ W~c~n-nan Plann'mg Town Clerk's Bulletin Board Town Board Members Town Attorney xereby ;ation ~ns for g~ Ltine ~ on the STATE OF NEW YORK) SS: COUNTY OF SUFFOLK') ELIZABETH A. NEVILLE, Town Clerk of~e Town of Southold; New Yorl duly sworn, says that on the (e · day of ~r" ,2004, she affixed of which the annexed printed notice is a tree copy, in a proper and substantial rru a most public place in the Town of Southo!d, Suffolk County, New York, to wit~ Clerk's Bulletin Board, 53095 Main Road,: ~uthold, New York. NOTICE OF pUBLIC HEARING TO BE HELD ON: l~ebrnary. 24, 2004, 8:11 ~iiZabe~ X. ~evill~' Sottthold Town Clerk Sworn before me this (, day of v~7~ ~-- ,2004. N°hry ?ub ic LYNDA M. BOHI',[ NOTARY PUBLIC, State of ~,le~ Yarl~ No. 01BO6020932 Qualified in Suffolk COunt~ Term Expires March 8, ~eing i notice nner, in Town ELIZABETH A. NEVILLE TOWN CI.F, RK REGISTRAR OF VITAL STATISTICS 1VtARRIAGE OFFICER ~ECORDS MANAGEMENT OFFICEH FREEDOI~ OF INFORMATIOI~I OFFICER OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD Town Hall, 53095 Main Road P.O. Box 1179 Southold, New ~ vrk 11971 Fax (631) 76~ ;-6145 Telephone (631) 765-1800 southoldtowr~no~ thfork~aet ~ms IS TO CERTI ~Fy~ TItAT THE FOLLOWING RE~OLUTION NO. 103 OF 2004 WAS ~OPTED AT ~m*. ~ REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON FEBruARY 3, 2004. . I ~ RESOLVED, that the Town Board of thc Town of Southo]d hereby sets 8:10 p.m., Feb?a~y 24, 2004 at Southold Town Hall, 53095 Main Road, Sout~old, New York, for a public hearing on the application requesting a waiver from the ~rovisions of the Local Law enti~ led "T~waporary Moratorium ou the Processing, Review of, and making Decisions on the applications for Major and Miaor Subdivisions, and Special/Use. Permits ?.d Site Plans containing: dwelling unit(s) in the Town of Southold" for th~ minor subdivision of Consta ttine Ionnou for the parcel identified as SCTM# 1000-23-1-14.7~ 1000-23-2-5.6 located on the n< rth side of Sta~e Route 25 in East Marion. Elizabeth A. Nevill~ Southold Town Clerk PATRICiA C. MOO,RE Attorney at Law 51020 Main Road Southold, New York 11971 Tel: (631) 765-4330 Fax: (631) 765-4643 August 4, 2003 Supervisor Josh Horton and S~uth01d Town Board c/o Town Clerk, Elizabeth Neville Main Road SouthoId, NY 11971 ~e: Waiver of subdivision Mcratorium Minor Subdivision of Constantine Ionnou Margaret Rutk~ Sec R~CEIVED AUG ' 4 ~, So,ti, old Tow,, Dear Mr. Borton and Town Board: On June 9, 2003 we requested a waiver of the moratorium. The Planning Board has submitted their comments, therefore, we would respectfully requesm a hearing and an opportunity mo be heard. Thank you in advance cc: Mr. Ioannou for your consideration. Ve ~,~y~.~ ~j~you r s, t---~[ri~ia~ Moor~ v~ld eta~y PLANNING BOARD MEMBERS BENNETT ORLOWSKI. JR. Chairman RICI-IARD CAGGIANO WILLIAM ~. CRE1VLEi~S t~]]NNETH L. EDWARDS MARTIN SIDOR P.O. Box 1 Tdwn Hail, 53095 Si Sou~hold, New Yor~ Telephone (631) Fax (631) 76~ Memorandum PLANNING BOARD OFFICE TOWN OF SOUTYIOLD To: Elizabeth A. Neville Town Cterk From: Valerie Scopaz. AICP, Town Planner ~' -- Date: July 8, 2003 Re: Request of Constantine Ionnou for Waiver of Moratorium Requirements in order to proceed with a Minor Subdivision Application The Planning Board has reviewed the June 9, 2003 letter of Patricia C. Moore on beha of her client, Constantine Ionnou. in which the Town Board is asked to waive the moratorium restriction against the processing of minor subdivision applications unless they meet with specified land preservation criteria. Ms. Moore's letter does not provide the context within which her client's property came to be created by the Planning Board. The Planning Board's position, and recommendation, cannot be understood without knowing this context. Accordingly, a bdef synopsis is provided here The subject property was the focus of a subdivision plat by the name of Brionngloid-by- the-sea. In 1977 the owner of this major subdivision wished to create seven lots. Sino several of the proposed lots including the lot that is currently the subject of Ms. Moore',' request, were further subdividable, the Planning Board recommended that provision be made for safe access of all potential lots to State Route 25. The subject property is located on the north side of SR 25 just west of Truman Beach on a narrow stretch of th Causeway. There are no other public or private roads accessing this property. The owner refused to reconsider, and asked for a waiver of the requirement to constru, a road. The Planning Board and the Highway Committee agreed to waive -.he 50 foot road requirement for this major subdivision on the condition that there be no further subdivision of specific lots within this subdivision one of which, #7, the lot that is the subject of Ms. Moore's request. Correspondence and minutes and resolutions of the Board note that a resolution was to be filed which noted that Lots 1,2,3,6 and 7 were not to be further subdivided. Access to these lots was to be by wa) of shared two drive-ways over two designated right-of-ways with Lot # 7 retaining its o~ driveway access to SR 25. The Planning Board approved the filing of the plat provided the above-noted Covenants and Restrictions were filed as well. Unfortunately, the prior owner and his attorney filed the map but did not file the C&Rs; the County Clerk's office. The plat was filed in 1978 without the C&Rs, It appears tha' this omission was not noticed by the Planning Board and secretary, at that point in time 179 a~;e Route 25 11971-0959 765-1938 -3136 Ms. Moore noted in her letter that her client has been pursuing the right to subdivide hi property since 1999. While preliminary queries were made to this office beginning in 1999, an actual application to subdivide was not made until April of 2001. The Plannin Board adopted a resolution on April 16, 2001, a copy of which is attached. This resolution restated the odginal intent of the original property owner and the Planning Board in 1978 as noted in the official minutes of the Plann'ing Board. The harsh denunciation and portrayal of the Planning Board by Ms. Moore in her letter not appropriate, Special Counsel, Frank Isler, informed the Planning Board that the conditions underwhich the Board granted approval in 1977 were valid and constitution, particularly given the owner and his attorney's statements (on the record) of not wantin to comply With a mandatory road requirement, The appeals cour~ found that the.ownel fa~'iu~e to rile the C;&R's with the County Clerk's Office could not be held against the current prooerty owner, The appeals court handed down [ts decision in April 2003. Ms. Moore's ~etter pertains to a request that the Planning Board proceed with a three lc subdivision of her client's property (¢7 of Brionngloid-by-the-sea). Upon review of the file, the. proposed subdivision as it was presented to the Planning Board in April 2001, does not meet ~he exemption provisions of the moratorium whereby 75% of the land must 3e preserved. Further, te the best of our knowledge, no effort has been made by the applicant to initiate discussions with the Town regarding land preservation. The subject property is environmentally sensitive due To its close proximity to both Lon Island Sound and the wetlands south of SR 25 within Orient Harbor, The property is served by public water. SR 25 in this vicinity is even more heavily traveled than it was ii 1978. The application does not support the planning objectives of the Town of Southol which include the preservation of open space and recreational space; the preservation ( the rural, cultural, commercial and historical character of the hamlets and surrounding areas; and the preservation of the natural environment. The subject property is precise [he type of property that the moratorium was intended to capture4 The applicant's position in this moratorium is no differem from that of any other property owner with a subdividabie parcel. Attached are maps of the approved and eroposed subdivision plats. Therefore, the Planning Board's recommendation is that a waiver not be granted. ELIZABETH A. NEVILLE TOWN CLERK REGISTRAR OF VITAL STATISTICS MARRIAGE OFFICER RECORDS MANAGEMENT OFFICER FREEDOM OF INFORMATION OFFICER Town Hall, 5309 P.O. Box Soul,hold, New~ Fax (631) 7~ Telephone (631 so,tho}drown,TM OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD To: From: Re: Date: Valerie Scopaz, Town Planner Gregory F. Yakaboski, Town Attorney Elizabeth A. Neville, Southold Town Clerk Moratorium Request of Constantine Ionnou June~, 2003 Please review the above and send me your recommendations in writing, on the Thank you. JUN 1 0 2003 Southold, Town Planning Board ; Main Road [179 ~ork 11971 5-6145 } 765-t800 rthfork.net bove PLANNING BOARD ME '~I~S BENiNETT ORLOWSKI, JR. Chairraan V~iLLIAIv[ J. CREI~RS KE]NNETH L. EDWARDS GEORGE RITCHIE LATHAI~, JR. R/C I-LA RD CAGGIANO © Town Hall, P.O,~ Southold, New Telephone Fax (63 PLANNING BOARD OFFICE TOWN OF SOUTHOLD April t7, 2001 · Patricia Moore, Esq. 51020 Main Road Southold, NY 11971 RE: Proposed Minor Subdivision of Constantine Ioannou SCTM # 1000-23-1-14.7, 1000-23-2-5.6 Dear Ms. Moore: The following resolution was adopted at a meeting of the Southold Town Plannin Board on Monday, April 16, 2001: WHEREAS, this application is for a minor subdivision of 3 10ts on 6.8 acres on M Road (State Route 25), between Orient Harbor and Long Island Sound in East M and WHEREAS, this proper~y is Lot Number 7 of the Brionngloid-by-the-Sea Subdivi., Which was filed in the Office of the County Clerk on August 22, 1978; and WHEREAS, at public meetings on June 6, 1977, and July 18, 1977, the Planning passed resolutions specifying that Covenants and Restrictions should be prepar~ forbidding the resubdiVision of any lot; and WHEREAS, at a public hearing on the subdivision on June 27, 1977, the Plannin Board Chairman stated that: "We will tie down this property, the heirs and so fortl cannot be resubdivided at some future time. This is our intent and we want to be clear about it and include Lot Number 7. We have said this but I want it to come the hearing;" and WHEREAS, the applicant replied, "Didn't we do that? We agreed to thai before," the attorney later replied, "if the Board wishes, I will have the owner of Lot 7 sign Covenants and; Restrictions and have them filed with the Board;" be it therefore !5 State Route 25 Dx 1179, ~ork 11971-0959 i31) 765-1938 i 765-3136 tin ~rion; ion, Board ,d so it ,ery )ut in and PATRICIA C. MOORE Attoraey at Law 51020 Main Road Southold, New York 11971 Tel: (6311 765-4330 Fax: (631) 765-4643 RECEIVED dUN Southold To n C Margaret R June 9, 2003 Supervisor Josh Herren and Southold Town Board c/o Town Clerk, Elizabeth Neville Main Road Southold, NY 11971 Re: Waiver of subdivision Moratorium Minor Subdivision of Constantine Ionnou Dear Mr. Herren and Town Board: We respectfully request a waiver of the moratorium. My client is facing extreme financial hardship after almost five years of litiganlon in which he has defeated the town's legal position mn each and every court proceeding. Special clrcumsEances exist with regard no this property, justmce can only be obtained from the Town Board which we believe will apply fair and reasonable 5reanmenn to this properny owner. We do nee anticipate that the Planning Board will cooperate with the applicant without the Town Board's direction~ Your granE o~ the wamver will send a message to the Planning Board that this property owner's properny rights should not be further violated. Mr. Ioannou submitted an applicatmon no subdivide into three parcels his 6.8 acre properEy in East Marion beginning in 1999. My client wishes co subdivide his properny with his house on 114,288 sq. ft. (2.87 acres one lot with 92,332 sq. ft. (2.3 acres and the third lot with 88,269 sq.ft. 2.2 acres). The surrounding parcels are less than 2 acres mn smze. The Planning Board refused co accepn his application claiming that the property was encumbered by restrictive covenanns which prevented further tlkowski ',ecretary O O subdivision of his property. We submitted to the Town the owner's title policy which disclosed no such restrmctions mn his title. I also submitted the attached memorandum no the Town Attorney in supporn of our application. The Planning Board refused to comply with the law and they refused to accept Mr. Ioannou's application, consequently my client was forced to defend his legal rights with an Article 78 proceeding against the Southold Town Planning Board. ~y client won the case. The Planning Board was dissatisfied with the Court's decision, they chose Eo appeal. While they could have accepted our application pending the appeal, they refused to consmder my client's application. Finally, the Appellate Divismon ruled that the Uno further subdivisionH condition was non binding on Mr. Ioannou because it was non recorded mn the Suffolk County Clerk's office. Mr. Ioannou has been prevented from subdividing his properny since 1999, Ewo Courts have ruled in his favor, the Town does not intend mo appeal this case any further, he wishes Eo proceed. Both the Town and the applicant have wasted thousands of dollars to reach a conclusion which is a fundamental princmpal in Real Property Law. I am sure than both the Town Attorney and Special Counsel advised the Planning Board that covenants muse be recorded mo be enforceable, the Planning Board disregarded legal advice and used the litigation Eo delay the applicant and ultimately prevenn the developmenE. Thank you mn advance for your consideration, enelcsed ms my client's fee of s250.00. Very 7r?~!; yours, ~ ....... %fatricia C. Moore cc: Mr. Ioannou PATRICIA C. MOORE Attorney ar Law 51020 Main Road Southold, New York 11971 Tel: (516) 765-4330 Fax: (516) 765-4643 Margaret Rutk Sec~ June 22, 1999 Greg Yakaboski Southold Town Attorney Southold Town Hall Main Road, Southold NY BY FAX RE: Briormgloid-By-the-sea subdivision SCTM# 1000-23-1-14.7 Dear Greg: In accordance with our conversation the following legal points are submitted to you fc consideration: As you know, my client purchased his 6.7 acre parcel in December 198I with no rec restrictions. The Planning Board wishes to enforce unrecorded, covenants made by the develc the property which promised no further subdivision of the subject property. My client wis subdivide his parcel in accordance with the Town Zon/ng. Point I: When parties seek to impose restrictions on the use of real property, the3 establish the existence of the restrictive covenant by clear and convincing evi, (Buffalo Academy of Sacred Heart v. Boehm Brothers, 267 N.Y. 242, 196 Given .the law's preference for free and unencumbered use of real proI restrictive covenants are to be strictly construed against those seeking to them. (Buffalo Academy of Satired Heart v. Boehm Brothers, supra.) The of proof is on the party seeking to enforce the covenant and must be met by cie convincing proof. > (Huggins v. Castle Estates, 36 N.Y.2d 427, 430, 369 N.5 80, 330 N.E.2d 48.) Newman v. McLaugh!in 660 N.Y.S.2d 298, 172 Misc,5 (N.Y.Sup. 1997) Excerpt fi:om page 660 N.Y.S.2d 300 Ystd etary r your orded per of les to must [ence. i. 42.) )erty~ force urden ~r and '.S.2d 474, Point II Point III A purchaser of property is charged only with notice of those marrers which in the purchased land% direct chain of title. [Witter v. Taggart, 78 N.Y.2d 23~ 573 N.Y,S.2d 146,577 N.E.2d 338.)Newman v. McLaughlin, 660N.Y.S.2d2¢ Misc.2d 474, (N.¥.Sup. 1997) Excerpt from page 660 N.Y.S.2d 301 The gnirling principle for determining fige ultimate binding effecI of a res~ covenant is that "[i]n the absence of actual notice before or at the time of purchase orof other exceptional c/reumstances, an owner of land is only bm mstriclions if they appear in some deed of record in the conveyance ro [that r or [that owner's] direct predecesso_,r~ in rifle." (Buffalo Academy of SacredH Bo~hm Bros., 2~7N.¥., supra, at ~50, 196 N.E. 42; see, 4A Wa~ren~s Weeck c Recording, § 5.06.; Restrictive Covenards, § 3,05, at 32-33; 5A Warren's We, cit., rifle Examination, § 5.18, at 67; 5 Powell, Real Property ~ 673 60-80-60-82.) Courts have consist,~nfly recognized and applied this pill which provides reiiabit/ty and aertaimy in land ownership and use { > see, Dc Lazan-o, 33: A.D,2d 142, 144, 376 N.Y.S~2d 268, affd without otto. > 33 N.Y.2 353 N.Y.S.gd 740, 309 N.E.2d ~38; >see als0, Andy Assocs. v. Bankers Tm 49 N.Y.2d 13, 24, 424 N.Y.S.2d 139, 39~) N.E.2d' 1160; > Oak Lane Realty v. Trinity, Evangelical Luthera¢ Church, 7 I,~.Y.2d 984, 199 N.Y.S.2d 49: N.E.2d 50t, affg > 7 A.D.2d 1007, i85 N.¥.S~2d 228; cf., Ammimt~ v Forms, 76 N.Y.S.gd 379, rev'd 273 App;Div. 1010, 78 N.Y.S.2d 844, affd ~x opn. > 298 N.Y. 697, 82 N.E.2d 789, supra; > Marrav. Simidian, 79 A.D.2d 435 N,Y.S.2d 182; As to a development condition or covenant, the record must be establis sufficient clarity and definiteness that a general plan uf development existed a prospective purchaser of a residential lot in the original tract woul~ reasonably inferred the existence of a covenant. A party seeking to enf restriction on land use must prove, by clear and convincing evidence, the sc( well as the existence, of the restriction (see, > Willow Tex, Inc. v, Dimacopoul N.Y.2d 963, 5:10 N.Y.S.2d 543, 503 N.E.2d 99; >Huggins v. Castle Estal N.Y.2d 427~ 369 N~Y.S.2d 80, 330 N.E.2d 48; > Premium Point Park)issrk v Bar, 306 N.Y. 507, 119 N.E.2d 360). The subject subdivision was developed in compliance with the Town's zonin~ restriction on Lot 7, that the parcel shall not be further subdivided, exceed Planning Board authority; the condition was imposed without any rec~ deliberations or rationale for the condition, and in order to adopt such a conditi record requires a nexus between the condition and the property ( US Supreme Zoning cases). ppear 238, 8, 172 ictive ndby wner1 ~art v. 3. cJt.~ ;ok op. 2], at Lciple, ~y!e v. ~981, ;t Co., 166 Wire ithout 1046, ~with Jr that have )roe a pe, as os, 68 ~s, 36 Polar · The :d the ~rd of *n the Court Generally, a phnuing board is within its power in imposing conditions roi; fences, safety devices, landscaping, access roads, and other factors incide comfort, peace, enjoyment, health, or safety of the surrounding area ~ Anderson, New York Zoning Law and Practice § § 21.04, 21,09-21.18 [3 d ed. However, in East Hampton the town planrfing board exceeded its authorky x imposed height restrictions on buildings m proposed subcF~vision beyond established i~ taw~t S,~on~ordinance a~ condufioi~ of subdivision appr In Macomo v. Planning B& of East Hampton the parcel was located A-Residence Zon¢, and section 153-11-10 of the East Hampma Code (the T: Dimensi0n al ~K9 gu~tions) corr~ains speeiSc height restrictions for residences zone. The residences can be 2 1/2 stories, a maximum height of 25 feet, gabled roof; 32 feet. Here, the Planrdng Board~ [n order to protect ~he "vi: permittingon~y22~£eetoron~story. ThePlarmingBoardhasno authotitytoi such a condi~/on (see, 2 Anderson, New York Zouing Law and Practice,, § 21. Ed..]. It would be analogon~ ta requiting a lot coverage max/mu of 1 t2/o in: where the zoning 0rdinmxce permitted, a maximum of 15%. Macckio v. Planni of Town 0£1~Easr lrlampto!x 57.8 N.Y.S~2d 355, 152 Misc.2d 622,, (N.Y.Sup. Excerpt from pages 5~/g N.Y $ 2d 357-578 N,Y.8.2d 358 ,Koncelik v Planni of~fown of~ast Hamp*on, 590 N.Y.S.2d 90(3, 188 A.D.2d 469, [N.Y.A.D. 2 1992) ExcerpI from page 590 N.Y.S.2d 902. I hope that this research assists you in coming ro the conclusion, as I have, unrecorded covenant would be unenforceable against the owner. :ed to ~tal to see, 2 t984]. ~hen it limits lc of ~nthat and a la', is npose t ~ [~d ~gBd. 1991) ~g Bd. Dept. at the Very truly yours, Patr/cia C. Moore cc: Mr. Ioarmou Town of SouthOld P:O Box 1179 South01d, NY 11971 * * * RECEIPT * * * Date: 06/09103 Transaction(s}: 1 Moratorium Waiver Receipt#: Check#: 03-068518 Total Paid: Name: Clerk ID: Moore, Patricia 51020 Main Rd Southold, NY 11971 LINDAC 306 Subt~ $25( $25~ Intemat ID: 7E ;¸19 ~tal :00 .00 57 BENNETT ORLOWSKI, fiR. Chairman RICHARD CAGGIANO WILLIAM j, CREMERS KENNETH L~ EDWARDS 1VIARTIN SrDOR, P.O. Box 1~ Town Hall, 53095 Southold. New York Telephone (631) ' Fax (631j 765. Memorandum PLANNING BOARD OFFICE TOWN OF SOUTYIOLD To: Elizabeth A. Neville, Town Clerk From: Valerie Scopaz, AICP, Town Planner ~¢/~,¢~¢~/~ Date: July 8, 2003 Re: Request of Constantine lonnou for Waiver of Moratorium Requirements in order to proceed -with a Minor Subdivision Applicatior~, The Planning Board has reviewed the June 9. 2003 letter of Patricia C. Moore on beha of her client Constantine Ionnou, in which the Town ,Board is asked to waive the moratorium restriction against the processing of minor subdivision applications unless they meet with spedfied land preservation criteria Ms. Moore's letter does not provide the context within which her client's property came to be created by the Planning Board. The Planning Board's position, and recommendation, cannot, be understood without knowing this context. Accordingly, a brief synopsis is provided here The subject property was the focus of a subdivision plat bY the name of Brionngioid-by- the-sea, in 1977 the owner of this major subdivision wished to create seven lots. Since several of the proposed lots including the lot that is currently the subject of Ms. Moore',' request, were further subdividable, the Planning Board recommended that provision bE made for safe access of all potential lots to State Route 25. The subject property is located on the north side of SR 25 just west of Truman Beach on a narrow stretch of, fi' Causeway. There are no other public or private roads accessing this property. The owner refused to reconsider, and asked for a waiver of the requirement to constru a road. The Planning Board and the Highway Committee agreed to waive the 50 foot road requirement for this major subdivision on the condition that there be no further subdivision of specific lots within this subdivision, one of which, #7, the lot that is the subject of Ms. Moore's rec uest. Correspondence and minutes and resolutions of the Board note that a resolution was to be filed which noted that Lots 1,2,3.6 and Twere not to be further subdivided. Access to these lets was to be by wa~ of shared two drive-ways over two designated right-of-ways with Lot # 7 retaining its o~ driveway access to SR 25. The Planning Board approved the filing of the plat provided [he above-noted Covenants and Restrictions were filed as well. Unfortunately, the prior owner and his attorney filed the map but did not file the C&Rs [he County Clerk's~office. The plat was filed in 1978 without the C&Rs. it appears th~ this omission was not neticed by the Planning Board and secretary, at that point in time '9 £e Route 25 [1971-0959 65-1938 3136 lQ Ms. Moore noted in her letter that her client has been pursuing the dght to subdivide hi,' property since 1999. While 3reliminary queries were made to this office beginning in 1999, an actual application to subdivide was not made until April of 2001. The Plannit Board adopted a resolution on A~)dl 16, 2001, a copy of which is attached. This resolution restated the original in'~ent of the original property owner and the Planning Board in 1'978 as noted in the official minutes of the Planning Board, The harsh denunciation and portrayal of the Planning Board by Ms. Moore in her letter not appropriate. Special Counsel, Frank Isler, intormed the Ptanning Board that the conditions under which the Board granted approval in 1977 were valid and constitutiona particularly given the owner and his attorney's statem;ents (on the record) of not wantin(, ;~o comply with a ma~datory road requirement, The ,appea!s cou~ found that the owner' faifure'to file'the C&R!S with the County Clerk's Offi~ce coCd;~ot be held against the current properly oW'der, The appeals court handed d0wn its decision ir~ April 2003. Ms. Moore's letter pertains to a request that the Planning Board proceed with a three Io subdivision of her client's property (#7 of Brionngtoid-by-the~sea). Upon review of the file, the proposed SUbdivision, as it was presented to the Planning Board in April 2001 does not me;et the exemption provisions of the mora4odum Whereby 75% of the land must be preserved. Further, to the best of our knowledge, no effort has been made by the applicant to initiate discussions with the Town regarding land preservation. The subject property is environmentally sensitive due to its close proximity to both Lor island Sound and the wetlands south of SR 25 within Odent Harbor. The property is nc served by public water. SR 25 in this vicinity is even more heavily traveled than it was ir 1978. The application does not support the planning objectives of the Town of Southol which include the preservation of open space and recreational space; the preservation ¢ the rural, cultural, commercial and historical character of the hamlets and surrounding areas; and the preservation of the natural environment. The subject property is precisel the type of property that the moratorium was intended to capture. The applicant's position in this moratorium ~s no different from that of any other property owner with a subdividable parcel. Attached are maps of the approved and proposed subdivision plats. Therefore the Planning Board's recommendation is that a waiver not be granted. BENNET~ O]?~50,, ,~=-,,~, Ch~rman WILLIAM J: CREMERS KENNETH L~ EDWARDS GEORGE RITCHIE LATHAM, RICIffARD C~GGIANO PLANNING~ BOARD OFFICE TOWN OF SOUTHOLD Town Hall, 53 P,O; ] ' south01d, Ne~ Telephone Fax (63 95 State Route 25 ~dx1179 York 1!971-0959 631) 7¢5.1938 ~) 765-3136 April 17, 2001 Patricia Moore. Esq, 51020 Main Road Southold. NY 11971 RE: Proposed Minor Subdivision of Constantine loannou SCTM # 1000-23-1-14.7, 1000-23-2-5.6 Dear Ms. Moore: The following resolution was adopted at a meeting of the Southold Town Planni~ Board on Monday, April 16, 2001: WHEREAS, this application is for a minor subdivision of 3 lots on 6.8 acres on N Road (State Route 25), between Orient Harbor and Long Island Sound in East r~ and WHEREAS, this property is Lot Number 7 of the Brionngloid-by-theoSea Subdivi which was filed in the Office of the County Clerk on August 22, 1978; and WHEREAS, at public meetings on June 6, 1977, and July 18, 1977, the Planning passed resolutions specifying that Covenants and Restrictions should be prepare forbidding the resubdivision of any lot: and WHEREAS at a public hearing on the subdivision on June 27, 1977, the Plannit Board Chairman stated that: "We will tie down this property, the heirs and so fort cannot be resubdivided at some future time. This is our intent and we want to be clear about ~t and include Lot Number 7. We have said this but I want it to come the hearing;" and WHEREAS. the applicant replied, "Didn't we do that? We agreed to that before the attorney later replied. "If the Board wishes, I will have the owner of Lot 7 si Covenants and Restrictions and have them filed with the Board;" be it therefore ain arion; lion, Board ~d so it fery out in and Constantine Ioannou - Pa.~e Two- 4i¥~)01 RESOLVED that the Sou~b, old Town ~iainn ng Board deny the subdivision appliCation of Constantine oannou, on tl~e basis,that~the',parcel cannot be further subdivided. Please contact this office if you have any questions regarding the above. Very truly yours, , ~ Bennett Orlowski, Jr. Chairman ELIZABETH A. NEVIT~LE TOWN CLERK REGISTRAR OF VITAL STATISTICS MARRIAGE OFFICER RECORDS MANAGEMENT OFFICEtC FREEDOM OF I~FOtLMATION OFFICER Town Hall, 53095 P.O. Box ] Southold, New Y Fax (631) 76! Telephone (631) southoldtow~nm OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD To: ~rom: Re: Date: Valerie Scopaz, Town Planner Gregory F. Yakaboski, Town Attorney Elizabeth A. Neville, Southold Town Clerk Moratorium Request of Constantine Ionnou June/~ 2003 Main Read ~rk 11~7I ;-6145 765-1800 thfork.net Please review the above and send me your recommendations in writing, on the bove Thank you. PATRICIA C. MOORE Attorney at Law 51020 Main Road Southold, New York 11971 Tel: .63 i3 7654330 Fax: (631) 765-4643 RECEIVEn JUN 9 Southold Town C M~g~e'~ ~ June 9, 2003 ~upervisor Josh Horton and Southold Town Board c/o Town Clerk, Elizabeth Neville Main Road Southold, NY 11971 Re: Waiver of subdivision Moratorium Minor subdivision of Constantine Ionnou Dear Mr. HorEon and Town Board: We respectfully request a waiver of the moratorium. My client is facing extreme financial hardship after almost five years of litigation in which he has defeated the town's legal position mn each and every cour5 proceeding. Special cmrcumssances exist with regard to this property, 3ustice can only be obtained from the Town Board which we believe will apply fair and reasonable treatment to this propersy owner. We do not anticipate that the Planning Board will cooperate with the applicant without the Town Board's direction. Your gran5 of the waiver wilt send a message to the Planning Board that this property owner's properny rights should not be further violated. Mr. Ioannou submitted an application ~o subdivide into three parcels his 6.8 acre property mn East Marion beginning in 1999. My client wishes no subdivide his propermy with his house on 114,288 sq. ft. (2.87 acres), one lot with 92,332 sq. ft. (2.3 acresland the third lot with 88,269 sq.ft. (2.2 acres The surrounding parcels are less than 2 acres in s~ze. The Planning Board refused ~o accept his application claiming that the property was enculnbered by restrictive covenanEs which prevented further [kowsld .~cretary subdivision of his property. We submitted to the Town the owner's title policy which disclosed no such restrictmons in his nitle. I also submitted Ehe ann&ched memorandum Lo the Town Attorney mn support of our application. The Planning Board refused to comply with the law and they refused 5o accepn ~ir. Ioannou's application, cons~ently my client was forced to defend his Ieg~l rights with an Article 78 proceeding against the Southold Town Planning Board. My client won the case. The Planning Board was dissatisfied with the Court's decision, they chose to appeal. While they could have accepted our application pending the appeal, they refused 5o consider my client's application. Finally, the Appellate Division ruled that the ~no further subdivision~ condition was not binding on Mr. Ioannou because it was non recorded mn the Suffolk County Clerk's office. Mr. Ioannou has been prevented from his properny since 1999, two Courts have favor, the Town does not intend 5o appeal any further, he wishes to proceed. Both the applicant have wasted thousands of dollars to reach a conclusion which is a fundamental principal Real Property Law. I am sure that both the Town Attorney and Special Counsel advised the Planning Board that covenants muss be recorded 5o be enforceable, the Planning Board disregarded legal advice and used the litigation 5o delay the and ultimately prevent the development. subdividing ruled in his this case the Town and mn applicant Thank you in advance for your consideration, enclosed is my client's fee of S250.00. /~'Very Z~r%~ly yours, k~---JQ~atr[cia C~ Moore cc: Mr. Ioannou © © PATRICIA C. MOORE Attorney at Law 51020 Main Road Southold, New York 11971 Tel: (516) 765-4330 Fax: (516) 765-4643 Margaret Rutkm Secre June 22, 1999 Greg Yakaboski Southold Town Attorney Southold Town Hall Main Road, Sonthold NY BY FAX Brionngloid-By-the-sea subdivision SCTM# 1000-23~1-14.7 Dear Greg: In accordance with our conversation the following legal points are submitted to you fo~ consideration: As you know, my client purchased Iris 6.7 acre parcel in December 1981 with no rec, restrictions. The Planning Board wishes to enforce unrecorded, covenants made by the develo1 the property which promised no further subdivision of the subject property. My client wist subdivide his parcel in. accordance with the Town Zoning. Point I: When parties seek to impose restrictions on the use of real property, they establish the existence of the restrictive covenant by clear and convincing evid (Buffalo Academy of Sacred Heart v. Boehm Brothers, 267 N.Y. 242, 196 N.I Given the law's preference for free and unencumbered use of real pro] restrictive covenants are to be strictly construed against those seeking to e~ them. (Buffalo Academy of Sacred Heart v. Boehm Brothers, supra.) The of proof is on the party seeking to enfome the covenant and mast bemet by cie conwncing proof. > (Hugg/ns v. Castle Estates, 36 N.Y.2d 427, 430, 369 80, 330 N.E.2d 48.'~ Newman v. McLaughlin 660 N.Y.S.2d 298, 172 Misc.2d (N.Y.Sup. 1997) Excerpt from page 660 N.Y.S.2d 300 -ski tary 'our ded ~er of es to must ,42.) force arden ir and '.S.2d 474,, Point II A purchaser of property is charged one with notice of those matters whiYn al in the purchased land's direct chain of title. (Witter v. Taggan, 78 N.Y.2d 234. 573 N.Y.S.2d 146,577N.E.2d 338.)Newmanv. McLaughlin, 660N.Y.S.2d29~ Misc.2d 474, (N.Y.Sup. 1997) ]Excerpt from page 660 N.Y.S.2d 301 ~ear 238, 172 The guiding principle for determin'mg the ultimate binding effect of arestr tire covenant is that "[i]n the absence of actual notice before or at the time of ~ * * purchase or of other exceptional circumstances, an owner of land is only bou xd by restrictions if they appe~ in some deed of record in tke conveyance to [that o ~ner] or [that owner's] direct predecessors in rifle." (Buffalo Academy of Sacred H~ :art v. BoekmBros., 267 N.Y., supra, at 250, 196N.E. 42; see, ,. cit., Recording, § 5.06; RestrictNe Covensnls, § 3.05, at 32-33; 5A warrert's cit, Tffie Exam/nation, { 5 18, at 6'7; 5 Powell, Real Property ~] { 60-80-60-820 Courts have consistently recognized and applied this which pkovides reliability and certa~n,W in land o,wnership and use ~ Lazarro, 33 A,D.2d 142~ i4z[, 306 N ~.D.2d 268, affd Witf~out opn. > 33 ~ 3.53 N~¥.~,2d 740, 309NiE.;2d138; >'see also, Anc~y Assocs. t Co., 49 N'Z.2d Z3, 24; ~2~ N.Y.8 2d 13P, 399 N.E.2d J~160; > Oak Lane l~ealty ~orp v. T~y ~E~ngelical L}ttheran; ctkfuroh, 7 N.Yi2d 9~4, 199 N.Y.S.2d45~, 166 N.E.2d 501, affg > 7 A~D.2~ 1007, t85 N.Xr.S:2d 2.2.8; cf., Ammirati v.]Wire Forms, 76 N.Y.S.2d 379, rewr1273 App.Div. ll)t0, 78~N.¥.S2d 844, opm > 298 N.Y. 697, 82 N.E.Zd 789, supra; > Matra v. Simidian, 435 N.Y.S.2d 182; Poim iii As to a developmem t with sufficient clarity and definiteness that a general plan of development existed c r thai a prospective purchaser of a residential lot in the original tract would have reasonably inferred the existence of a covenant. A party seeking a restriction on land use must prove, by clear and convincing evidence, the sco )e, as well as~the existence, of the restriction (see, > Willow Tex, Inc. v. Dimacopoull )s, 68 N.Y.2d 963, 510 N.Y.S.2d 543, 503 N.E.2d 99; > Huggins v. Castle Estat{ s, 36 N.Y.2d 427, 369 N.Y.S.2d 80, 330 N.E.2d 48; > Premium Point Park Assm w Polar Bar, 306 N.Y. 507, 119 N.E.2d 360). The subject subdivision was developed in compliance with the Town's zonin~ restriction on Lot 7, that the parcel shall not be further subdivided, exceed Planning Board authority; the condition was imposed without any rec( deliberations or rationale for the condition, and in order to adopt such a conditJ record requires a nexus between the condition and the property ( US Supreme Zoning cases). The the rd of 3n the Court Generally, a planning board is within~its power in knposing r To fences, safety devices, landscaping, access roads, and other factors to comfort, peace, enjoymeur, health, or safety of the surrounding area 2 Anderson. New York Zoning Law and ]?racfice §~ 2t.04, 21.09-21.18 [3d edA 184]. However, in East Hampton the town planning imposed height restrictions on buildings in proposed subdivision beyond ] established in towa's~zonin~ ordinance as ~q Macchio v. Planning. Bal. of East ltamptog the parcel was an A-P~esiden? Zone, ant[ sect/cra 153-1 l~10.i Dhnan~ion'al ?~egulations) c~0nta/ns:speNffi9 zone. The r, esidences c:~ be 2 1/2 stories, a maximum :height of 25 f~et, gabled r0ofi 32 feel Here, the Plamfing Board, in order to protect the 'Ms~a", is permitting 0nty 22 Cet or one story. Tl~iPlan~ing~Bmd tias no authority to ir~pose such a condition (s~e, 2 )m.derson,.New York ,~.n~gLaw ancllPracfic~, ~ 21A t, [3d Ed~t. It~muldbe analogo~ to reqixiring a l~)t co~e~gemaximmn ofl0~ ina~ ~rea ~ere t~mzon/ng ordi~perrni~ed, amaximu~m, ~f~15%. Mac.chio v. Plati~g. Bd. of Town of East Hampton,..578, N.Y.S.2d 355, t 52 ~sc.2d. 622,, (N.¥.Sup. ~ 991) Excerpt ~om pages 578 N:Y.S.2rI 357¢;78 N.Y.S~%358 ,Koncelik v. Pla~g Bd. of To~ of E~tst ~tampton, 590 N.Y 8.gg 90{), [88 j~D 2d 46~, (/'4 Y A D 2 Dept t992) l}xcerpI from pag~ 59a N.Y.S.2~i 902] .... [ hope that this research assists you in coming to the conclusion, as I have, th unrecorded covenant would be unenfomeable against the owner. Very truly yours, Patricia C. Moore cc: Mr. Ioannou the Town Of Southold P.O Box 1179 Southold, NY 11971 ... RECEIrPT *.. Date: 06/09/03 Transaction(s): I Moratorium Waiver Receipt~: Check#: 03-068518 Total Paid: Name: ilClerklD: :i Moore, Patricia 51020 Main Rd Southold, NY 11971 L[NDAC 30685 Subto $250: $250, Internal ID: 7( 19