HomeMy WebLinkAboutZoning comments Rev6 rev deis - FINAL - jkPage | Zoning and Building Code Issues - 1
ZONING AND BUIULDING CODE ISSUES
The DEIS correctly states that “[a]s excerpted from Section 280-54 of the Zoning Code, the intent of the
M-II zoning district is ‘…to provide a waterfront location for a wide range of water-dependent and water-
related uses, which are those uses which require or benefit from direct access to or location in marine or
tidal waters and which, in general, are located on major waterways, open bayfronts or the Long Island
Sound’” (p. xiv). However, the proposed Project location is not “waterfront”. Nor, given its elevation,
does it presently allow for “direct access” to marine or tidal waters.
The DEIS also states that “[a]dditionally, the proposed action requires the modification of land, soil,
topography, tree cover and soil material; however, the character of the subject property for maritime
use would be maintained. The existing pattern of maritime uses with residential uses landward of
Mattituck Creek and interspersed along the water’s edge would still be maintained” (p. xiv). This is
circular reasoning. The purpose of the “modifications” is not to maintain “the existing pattern of
maritime use,” but rather to transform the Project area, which in no way can currently characterized as
suitable for maritime use, given its elevation above Mattituck Creek, into an area that is compatible with
M-II zoning.
According to the DEIS, the “proposed action would occur primarily within the M-II zoning district of the
Town of Southold, with only a portion of the proposed project affecting the R-80 zoned portion”
(emphasis added) (p. xvi).1 This statement is contradicted in the next paragraph which states that the
“proposed development . . . would be entirely located on the M-II portion of the site” (emphasis added)
(pp. xiv, 163).
The DEIS also states that “[o]verall, the subject property is a privately owned parcel situated within the
M-II zoning district of the Town of Southold and the objective of the Applicant is to develop the property
in accordance with the prevailing zoning regulations (P.295)” This is not accurate. As the DEIS
acknowledges, contradicting other DEIS statements, a portion of the Project will be located within an R-
80 district. The proposed Project is not a permitted use within an R-80 zone.
The majority of the Project haul road will be located within the R-80-zoned portion of the Project parcel.
It is important to note that the haul is not a temporary feature, but will become a permanent part of the
Project as an emergency access road.
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The DEIS notes that the “proposed buildings would be situated on a 32.96±-acre parcel located on the
west side of Mattituck Creek, which is zoned Marine II (M-II) and Residential Low-Density A (R-80),
1 When the DEIS scope was prepared it is clear that the Planning Board was under impression that the Project would be located
entirely within the M-II portion of the Project parcel. Page 1 of the DEIS scope states that “[a]ll development is proposed to
occur on the portion of the site zoned M-Il.”
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located at 5780 West Mill Road in the hamlet of Mattituck (the ‘subject property’). The subject property
is designated Suffolk County Tax Map (SCTM) No. 1000-106-6-10 and 13.4.”
The Town of Southold’s on-line tax parcel map indicates that parcel 106.-6-13.4 consists of 32.00 acres,
and parcel 1000-106.-6-10 consists of 0.08 acres (COMMENT FIGURE Z-1). The 2021 Southold
Assessment roll indicates that parcel 106.-6-13.4 includes 32.60 acres. Parcel 1000-106.-6-10 does not
appear on the final 2021 Southold Assessment Roll. Suffolk County’s on-line Real Property Tax Map
Viewer indicates that parcel 106.-6-13.4 consists of 32.573 acres, and parcel 1000-106.-6-10 consists of
0.079 acres (COMMENT FIGURE Z-2). Although minor, these discrepancies need to be resolved because
they affect calculations used to determine whether or not the Project conforms to bulk and dimensional
requirements set forth in the Southold Town Code.
Parcel 1000-106.-6-10 is a rectangular parcel located adjacent to the SYC bulkhead fronting on Mattituck
Creek. It is part of an existing parking lot for SYC and contains several marked parking stalls. The
tax/ownership status of parcel 1000-106.-6-10, which the DEIS indicates is part of the Project property,
is unclear. As noted above, this parcel is not listed in the Southold assessment roll. The county tax map
indicates that the owner is “unknown.” Town of Southold records include at least one map that also
indicates the ownership as “unknown” (COMMENT FIGURE Z-3).2
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Under the heading “Project is Consistent with the 2020 Comprehensive Plan” (p.17), the DEIS states that
the Southold Town Comprehensive Plan adopted in September 2020 (2020 Comprehensive Plan) Land
Use Map (see Figure 4 in Appendix A) identifies the entirety of the subject property as commercial use;
however, as noted above, the subject property is split-zoned for M-II (16.46± acres) and R-80 (16.5±
acres).3 SYC operates entirely on the M-II zoned portion and the R-80-zoned portion of the subject
property is currently undeveloped.”
The DEIS correctly notes that the Project parcel is “split-zoned” (pp. 1, 2, 17, 142, 145, 147). The
Southold Town Comprehensive Plan notes that “[c]urrently, the Town Code provides little guidance on
how to apply the bulk schedule in the case of split-zones.” It also calls for clarification of “the Town
Code with respect to split-zoned parcels and how the bulk schedule is applied” (Comprehensive Plan
p.12). This is particularly relevant with respect to the Project.
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2 This raises the issue of who actually owns the parcel that the applicant identifies as part of the “subject property”, and who, if
anyone, has been paying the appropriate property taxes on the parcel.
3 The amount of acreage assigned to each zone has apparently been calculated by the developer. As noted above, there are
discrepancies regarding the actual size of the parcel. The Town of Southold’s on-line tax parcel map indicates that the Zacres
of the larger parcel (acreage within the secondary zone of parcel) is 16.76.
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DEIS Table 28 (Bulk and Dimensional Requirements of the M-II Zoning District) lists the Dimensional
Regulation Requirements for the M-II Zone. The maximum building height allowed in an M-II Zone is
given as 35 feet (Southold Town Code §280 Attachment 4). The proposed storage buildings will have a
height to eave of 39-ft 3-inches; a mean roof height of 42-ft 6-inches; and a top of ridge height of 45-ft
8-inches (DEIS Appendix D).
Section 280-4 of the Southold Town Code defines building height as the “vertical distance measured
from the average elevation of the existing natural grade adjacent to the building, before any alteration
or fill, to the highest point of the roof for flat and mansard roofs and to the mean height between eaves
and ridge for other type roofs.” This definition contains several ambiguities which the developer is
exploiting to support the position that the proposed structures conforms to the requirements of the M-
II zone.
First, it is unclear what “adjacent” means. The existing grade where the proposed storage buildings will
be constructed contains significant slopes and existing elevations vary by more than 30 feet. As a result,
the existing elevation of the area that could be considered “adjacent” varies considerably. The DEIS
does not indicate what elevation has been assumed to be the “average elevation of the existing grade.”
Second, and more significantly, the definition of building height calls for it to be measured “before any
alteration or fill.”4 The applicant proposes to erect the new structures after lowering the existing grade
by more than 35 feet. Using the Town Code definition of building height, this results in the proposed
structures actually having a negative height.
Of interest is the fact that the “Alternate Plan” (Alternate 4) site plan included in DEIS Appendix V
contains a note, with quantified data, describing how building height under that plan was calculated. No
comparable note appears on the corresponding site plan for the proposed Project. This information is
essential for confirming that building height was properly calculated and that the proposed Project
conforms to bulk requirements relating to building height.
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There is also a question concerning the present status of the zoning of the Project parcel. In 1983 the
eastern portion of what is now the M-II portion of the Project site was zoned “light industrial.” The
western portion was zoned “residential.” As shown on COMMENT FIGURES Z-4 and Z-5, the boundary
between the two zones, as shown, is well to the east of the present boundary between the M-II and R-
80 zones. Southold Local Law 1 of 1989 replaced what was formerly the “light industrial” designation
with the new M-II (Marine II) designation. The accompanying zoning map inexplicably relocated the
4 It would appear that the intent of this wording was to ensure that developers would have to include increases in land surface
height through the placement of fill when measuring the final height of proposed structures.
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boundary between the R-80 and M-II zones several hundred feet to the west of its original location. The
word “inexplicably” is appropriate because the original zone boundary roughly corresponds to the top of
the existing bluff that separates the water adjacent portions of the parcel from the upland portion.
There is no way that any part of the upland portion of the parcel could, or can, be considered “water
adjacent” or suitable for water-related uses. No explanation for the zone boundary change can be
identified in Southold Town records.
The Southold zoning map was modified again by Local Law 23 of 2004. The accompanying zoning map
shows the same relocated boundary shown on the 1989 map. However, it is our understanding that
after the passage of Local Law 1 in 1989 the Town of Southold was in discussions with the then property
owner that indicate that both parties were under the impression the western portion of the M-II zone
was still zoned R-80.
Section A14-14 of the Suffolk County Administrative Code (pursuant to Section 272-a of the New York
Town Law) requires “Each town and village in Suffolk County having jurisdiction to adopt or amend
zoning regulations shall, before taking final action, refer to the Planning Commission any zoning
regulation or any amendment thereof (hereinafter referred to as "municipal zoning action") which
would change the district classification of or the regulations applying to real property lying [within the
Commission’s jurisdiction].”5
Although the Town of Southold did submit to the County the 1989 changes to the Town code relating
to zoning, it did not submit the associated zoning map (COMMENT FIGURE Z-6). Likewise in 2004,
County Planning Commission records indicate that the revised zoning map (which may never have been
submitted to the County, although the County requested it) was intended to only include two minor
changes.6
It is our understanding that the Southold Town Board has been asked to review the potential improper
relocation of the zone boundary on the Project parcel.
This issue bears directly on the issue of whether or not the proposed Project conforms to, or can
conform to, the appropriate zoning requirements. This issue needs to be addressed as part of the
environmental review of the Project, and must be resolved before any SEQR findings statement can be
prepared by the Planning Board.
5 Maps delineating the boundaries of the Commission’s jurisdiction show the Project parcel is within the jurisdictional boundary
https://suffolkcountyny.gov/portals/0/formsdocs/planning/SCPlanningCommission/JurisdictionalMap/jurisdiction_map18of38
.pdf . We have been unable to locate any documentation that Southold ever submitted the relevant zoning changes to the
Commission for review.
6 According to a November 15, 2004 memo from the Southold Planning Board to the Town Board, the “proposed Zoning Map
reflects two changes from the existing map. They are: 1. The existing map does not indicate where R-80 and A-C zones meet
near the General Wayne Inn property. The proposed map shows a clear demarcation. 2. The existing map does not indicate
where MI and MII districts meet in New Suffolk at Schoolhouse Creek. The proposed map shows a clear demarcation.”
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COMMENT FIGURE Z-1
https://tos.maps.arcgis.com/apps/webappviewer/index.html?id=333262f008ba4a8998b2332498326b8d
https://tos.maps.arcgis.com/apps/webappviewer/index.html?id=333262f008ba4a8998b2332498326b8d
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COMMENT FIGURE Z-2
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COMMENT FIGURE Z-3
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COMMENT FIGURE Z-4
http://24.38.28.228:2040/WebLink/PDF/vpsnd1ewwtougfdh21niwkic/15/Section%20A%20Amended%2011151983.pdf
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COMMENT FIGURE Z-5
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COMMENT FIGURE Z-6
Portion of:
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COMMENT FIGURE Z-4