Loading...
HomeMy WebLinkAboutZBA-01/24/2002 HEARSOUTHOLD TOWN BOARD OF APPEALS TRANSCRIPT OF HEARINGS HELD JANUARY 24, 21102 (Prepared by Paula Quintieri) Present were: Chairman Goehringer Member Dinizio Member Tortora Member Collins Member Homing- left 8:20 p.m PUBLIC HEARINGS: 6:40 p.m. (Carryover Hearing) - Appl. No. 5034 - _RUST FAMILY PARTNERSHIP. Interpretation and/or Relief for Addition with setback variances from front lot line and bulkhead, at 4680 Wunneweta Road, Cutchogue; 111-14-34. R. Lark, Esq. CHAIRMAN: Mr. Lark, how are you this evening s/r? RICHARD LARK, ESQ.: My name is Richard Lark, I live in Cutchogue, New York. I'd like to fbr a couple of minutes address the Board briefly, first procedurally. When l was before you on December 13,200l, at the close of the hearing at the request of the object ant Joseph Cella on behalf of his client, his wifk, Suzanne Godart De Cheney, they opposed the application. The Board granted a continuance until January. Originally I consented thinking it was going to be the next meeting in January, which was the early part of January, however, that was not to be and it was continued tonight. At the December 13th Hearing, I was totally aware that Mr. Cella and Mr. Thomas Uhl, on behalf of the applicant Flower Hill Building Corporation, has discussed this application extensively. I learned the next day on December 14th that they had talked back in early part of May 2001. Mr. Uhl had met Mr. Cella at the property and they discussed the proposed addition, which is before you in this hearing. At that time, apparently Mr. Cella had no objection, but requested that the work be done in the summertime. I realize people have a right to change their minds, which apparently has happened here, at the hearing Mr. Cella appeared and objected. Parenthetically I have a couple of things to hand up to the board, one of them which is that he had when this had to go before the Southold Town Board of Trustees this very same application which is before you, Mr. DeCheney did get a notice of the hearing which was part of the subject of the conversation that Mr,Uhl had had with him. That was back in end of April, April 25th and April 27th, so they had ample notice of it, and l was very surprised at the hearing that he objected on behalf of his wile. After I advised them, I advised Mr. Uhl of the objection I suggested, it was my suggestion in a neighborly Ihshion, to talk to Mr. Cella to see if the matter could be resolved amicably. Mr. Uhl did this and the result of the subsequent conversation was re-contained in his letter type af~idavit which I sent to the Board in December. I think you have a copy of that, and that pretty much speaks fbr Page 2, Jmlu nj' 24 21)02 ZBA PUl31 lC HEARING I RANSCRIP'IS itsell~ I also then, when Mr. Uhl told me the result of his conversation, I talked to Mr. Cella, and we told him that he was going to oppose it, hc didn't give any specific reason, he said that hc just didn't want it there and they have plenty other property to put it. So it was just a situation that he didn't like it. Then ycsterday, or today, I got a, I don't know if the Board has these letters, if not I would hand thcm up, but I got a letter fi'om Mr. Cella today actually a fi~xcd letter, but a letter is a letter, dated January 24th where hc's requesting an adjournment of this already adjourned hearing and on the same day January 24th [ got a copy of a letter that was sent to the Board of Appeals by Patricia Moore. Does the Board have both of those letters in its file? CHAIRMAN: Yes. RICHARD LARK, ESQ.: Okay; now on the eve of this hearing, these are sell'- explanatory and they are I don't know how to respond to them except they're just trying to delay this for no apparent reason. One interesting thing came out of my conversation with Mr. Uhl after the hearing is he said that the only objection back in the Spring of last year that Mr. Cella had was that he really didn't want the construction being done that summer, because of the apparent noise and so on and so forth, but there was no objection to placing the addition there. Subsequently, as I pointed out and as indicated on the application, and I think you know from what we talked about in the record the Iast time, although I do have to hand up to you also a deed of from Mr. Cheney. Thcy own the property basically to the north here, which includes tax lots 32 and 33 on the tax map, in the Town of Southold, and on the map of Nassau Point they own lots 223 to 226 and it does contain description. That description starts at the intersection of the westerly side of Wunneweta Road and the northerly side of the lane. Now that lane, when you tbllow the meets and bounds around, it is the same language we talked about, which is the second part the application which the Building Inspector determined to be a street and I made the alternative relief under 280A.3 of the Town Law. ] requested of the Board not to declare that a street, because the Title Search of that 15' strip, actually no one owns it, it's not even on the tax rolls and it just sits there. However, it has been, there's no question, there has been a lawn put in and it has been maintained quite nicely by Mr. Cella and his wife, there's no question about that and there's no objection. But you have to understand if there is any confusion, the Rust Family is making absolutely no claim to this. They're sticking to their meets and bounds property line which there is no, I don't believe, any question of with the deeds which you also have in the record. Keeping that in mind even if they did own, tbr some reason, this that 15' strip. My retort to it is, so what, the application is still a 15' setback which is part of the other part of the application under the Town Law 267. So it doesn't make any diffk:rence and I know the Board has viewed the property and the residence itself would be then probably some 75' + fi'om where the existing Rust property line is anyway. The point is that they need to have an objection, I think that one should be put in that has some type of legal merit and 1 think I covered all of the requirements under the Zoning Ordinance because, as you know, under the Town Law and I fear this from what the cases say, even under 280A, they still use the variance test which is a balancing act which the Board is totally aware of with the five factors. I did cover all of the four main ones, so there is no pressure that this is a self-created hardship, but that is not determined that is just one of Page 3, Janualy 24, 2002 ZBA PUBLIC [IEARING TRANSCRIPIS five factors and xve support those, they have to considcr all tbur. So unless they're rcquired to, I would just bc making the record by covering them all. I think the application covers them and then orally I went through them with you the last time, and there was really no objection to all of those factors. I think the addition hasn't had disturbance, I do oppose this being stalled off any longer. At the hearing, they already knew about because Mr. Uhl quite specifically had all thc detailed plans and the dates of the plans are back in February and they had to be submitted to the Trustccs, to the D.E.C. and to everybody else. There was no objection at any of those hearings on any of those applications. So, at this late date, I think it's unfair to the applicant to stall any longer, I think it's gone on fhr enough. There are two things that you might not have, but you have all those other letters. I will hand up a certified copy of the deed so you have that for you in the record, and it matches all the surveys and I don't think they'll be any survey dispute. And as to the notice issue, I'll get a copy later from the clerk but I'll give you the original notices that were sent with the very same application and you have a copy of the hearing, but that's with the Southold Town Board of Trustees back in April when we met. 1 don't have anything else to add. MEMBER COLLINS: Mr. Lark, that's the deed from Helen Rust to the family partnership, is that what deed it is? CHAIRMAN: No, it's Cella's deed. MEMBER COLLINS: Oh this is the Cella deed. Fine l.just wanted to know what deed it was. RICHARD LARK, ESQ.: Because there was some commotion over this 15-foot strip. I don't think it makes any difference, because we're still 15 foot off of that. The 15-fbot, which it is, is in no man's land. I'm afraid to get away from this property. I don't think it affects the merits of the application. That was the point I was trying to make. MEMBER COLLINS: Thank you, I'm sorry. RICHARD LARK, ESQ.: I just keep repeating and repeating. CHAIRMAN: I just want to correct two or three things. Do we have a copy of the Trustee Permit? RICHARD LARK, ESQ.: Yes, with your application. MEMBER TORTORA: Do you have the Trustees Permit as they commonly support the described, the proposed? CHAIRMAN: The railroad. RICHARD LARK, ESQ.: I believe you have that also. ZBA PUBLIC IIFARING FRANS('RI[~ FS CHAIRMAN: We'll chcck thc file. RICHARD LARK, ESQ.: I think you have both. Both the signed and thc other yes. 1 thought it was in the original submission. Yes, there's the whole thing. BOARD SECRETARY KOWALSKI: We don't thc whole thing Mr. Lark. RICHARD LARK, ESQ.: Oh okay, I thought you had. BOARD SECRETARY KOWALSKI: No, just the Trustees sign. CHAIRMAN: Number one, Mr. Uhl, first Mr. Rust has passed away and Mr. Uhl is not only the builder but he is also an owner in the partnership, is that correct? RICHARD LARK, ESQ.: No. CHAIRMAN: Oh, he's not an owner in the partnership. RICHARD LARK, ESQ.: No, not at all. Adolph Rust passed away. CHAIRMAN: Oh Adolph Rust passed away, so Mr. Uhl would only then be the builder. RICHARD LARK, ESQ.: Strictly the builder. CHAIRMAN: In searching both, not to be redundant again, both the Rust Family Partnership and the Cella property which in, of course, Mrs. Cella's name. Again that 15 feet is excluded totally from both parcels, in your opinion. RICHARD LARK, ESQ.: Right. MEMBER COLLINS: It's certainly le~ out of the Rust deed, which l read very carefully. RICHARD LARK, ESQ.: It's also with the Building Inspector and the Tax Assessor and the Tax Map and everything else. MEMBER TORTORA: This is not the permit, this is the application for the permit and what you've given us is the notice. CHAIRMAN: You don't have to give it to us tonight Mr. Lark. We just want a copy of the plans. RICHARD LARK, ESQ.: Any other questions? CHAIRMAN: No, we'll give you that back, if you don't mind. l have no other questions. Any questions of the Board? ZBA PUBLIC' HEARIN(i TRANSCRIP FS MEMBER D1NIZIO: Just for clarify sake; the reason you're here is because they're considering a front yard. RICHARD LARK, ESQ.: That's correct. MEMBER DINIZIO: Even if it was considered just a side yard, you would not here. RICHARD LARK, ESQ.: That's correct. When Mr. Forrester, as I explained to you the last time, was in charge of the Building Department and Mr. Uhl went to him for site location, which a lot of builders do, they go to the Building Department and sit down and go over things. He and 1 gave you that handwritten notice that he had designated to be a side yard. However, when the change of administration they determined it to be a front yard, neither of them is correct. It has two front yards. MEMBER DINIZIO: I'm just looking for expediency sake of whether or not we could just make a decision tonight. CHAIRMAN: We can't because there's a request Jim to adjourn the hearing until Mrs. Moore has a chance to look at the application. RICHARD LARK, ESQ.: l say this should be disregarded, Nine months later to get that when they've had actual notice of it eight months prior to the hearing CHAIRMAN: [ certainly tend to agree with you, but it's up to the Board to make that decision. RICHARD LARK, ESQ.: 1 understand. MEMBER DIN1ZIO: I agree with you Jerry that, it's just part of the discussion. That's why I wanted to clear it up, The whole basic premises, right two different interpretations from the same building, from the same department in town, one being placement as a side yard and the other as a front yard. RICHARD LARK, ESQ.: That's right, that's why I bought ___application. MEMBER DINIZIO: Regardless of that the 15 feet is 15 feet, it doesn't make all that much difference. It's not going to vary only to your betterment if you ... RICHARD LARK, ESQ.: We don't own it. CHAIRMAN: It's referred to as an unknown owner, and it's so unknown it doesn't even have tax map number. RICHARD LARK, ESQ.: That's also correct. CHAIRMAN: We thank you sir. Do you have a question of Mr. Lark? Page 6, ,hmua~y 24, 2002 ZBAPUBLI¢ HEARING IRANS(RIPTS MEMBER TORTORA: Your requesting is 54-foot variance with a seventy-five tbot setback rule. Would you tell us why the proposed addition and porch could not be located in another arca on thc property that would not require a variance? RICHARD LARK, ESQ.: Maybe because of the topography and the way the house lays out. MEMBER TORTORA: The topography meaning that the proposed addition would be below the 1 O-foot side yard? RICHARD LARK, ESQ.: No where the driveway comes in there, and part of this addition is a garage and the way the driveway comes oft' Wunneweta Road when you go to the property, it comes off for about 10 feet down and then proceeds in a northerly direction which is rather level. It sliding laying down. If you looked to the other way and went to the south, you would be confronted with going straight down the hill because of the topography. This application doesn't, we don't have to do any bulldozing. MEMBER TORTORA: So why couldn't the porch be located adjacent to the new addition on the southeasterly, at the bottom of the property. CHAIRMAN: Wc need you to use the microphone sir, and state your name tbr the record. CHRIS UHL: Chris Uhl for the Partnership. There are limitations due to the setback off the street, the 50-foot setback off the front street. And the D.E.C. requirement of the elevation, so that we are just barely within those two requirements. You see the zone line at the bottom of the page. MEMBER TORTORA: Right. I'm talking about the area between the placed patio and the proposed new addition. RICHARD LARK, ESQ.: She has the survey, so you're talking on the same page. MEMBER TORTORA: In other words why can this proposed addition be placed here, so that the degree of variance that you require would not be up front? CHRIS UHL: This is the gable end of the building and in order to have access here, you've got a bathroom over here, part bathroom; part bedroom. You wouldn't have the same access, you wouldn't have the same view, you wouldn't have any of the same requirements that you have here. If you look at the elevation on the drawing, I think you can see what I mean. RICHARD LARK, ESQ.: What he's referring to in that survey that you have, they want everything beyond that ten foot contour, even the bulkhead. That's the way they viewed it, even the D.E.C. And that lined up quite nicely in the rear yard area because when you ZBA PUBIJC HE^RING FRANSCRIPTS went over and looked at the way the contour of the property it kind of matched what was going on with the property to the north too. CHAIRMAN: Thank you Mr. Lark. Mr. Cella would like to speak sir? JOSEPH CELLA, ESQ.: Yes. CHAIRMAN: Good evening, how are you? JOSEPH CELLA, ESQ.: III may? I think the Board is aware of the fact that my primary purpose here this evening, the purpose is to request an adjoununent. I was not prepared and I am not prepared, I never will be prepared quite frankly to discuss specifically, to argue specifically points raised by Mr. Lark. I represent the owner of the property. My wife will never be able to be here in person. She's a and on very fbw occasions, leaves the house. I am disturbed by Mr. Lark's phrase about this ingenuous. I resent it mightily. I also resent the fact that he accuses us of a stall. I'm also disturbed about his alleged interpretation of an alleged conversation that I had with Mr. Uhl and the contents of an affidavit, which I had never seen. I do know that I did have a conversation with Mr. Uhl because there is nothing at all as interpreted by Mr. Lark here this evening. It was some time ago I met with him to discuss some property and 1 received some sort ora note and I met with him. I said what's going on, he told me they were going to build something there. I said oh, okay. No way was I annoyed, I didn't know what he xvas talking about. There was a conversation of maybe three or four minutes. That's all it was, there was never a request on his part for permission. There was never implication on my part for consent. I couldn't, I didn't know what was going on. CHAIRMAN: 1 think the issue here Mr. Cella is if we're going to grant the adjournment. JOSEPH CELLA, ESQ.: Well, yes that's what I thought we were, but I just heard this extensive dissertation which the Board seemed very interested in on the part of Mr. Lark, and I think I'd like to say something close to what he's saying to sort of temper his remark. Because I find them annoying, distressing and, in some parts, absolutely inaccurate. CHAIRMAN: Well you certainly have the right to reduce your tbelings to writing sir and counter whatever is in our file concerning the Rust Family Partnerships. JOSEPH CELLA, ESQ.: So Mr. Lark is permitted to address the Board at length about all these queries, but I'm told ill have anything to say I have to put it in writing. CHAIRMAN: No, can [ just say something to you Mr. Cella. We gratuitously allowed this situation to go from December to January, and we are in now late January for the sole purpose of an issue of fifteen feet. That fifteen feet now has been taken care of; to our knowledge, to the best of our knowledge. Page 8, January 24. 2002 ZBA PUBIAC IIEARING TRANSCR[P~S JOSEPH CELLA, ESQ.: How could it have been taken care of when you have heard nothing i¥om our sidc? Anything about this you have heard from Mr. Lark. First it's a street, then it's not a street. Then it's a road, and then it's not a road. The t:act of the matter is when they madc their survey, shortly thereafter I met a member of the family at the property and we were there talking, and the stakcs were out as you look on their survcy. He said to mc, by the way Joe; it looks like wc're on your propcrty. I said, really, hc said look, look at the stakes. Thc stakes they had and the stakes thcy're using Ibr their measurement were on our property as was applied their wall and other things. I said, 1 have no objection to that because it's a park like setting. I certainly wouldn't make a scene about that. But that is the fact, if you want to be technical. I don't confer or agree with this ill'teen feet at all and fbr unilateral presentation after that point. CHAIRMAN: So I'm leaving it up to the Board. It is up to them to make that decision. JOSEPH CELLA, ESQ.: Well will the new counsel have an opportunity to present this matter, their position before the Board'? CHAIRMAN: As long as we can mark, maybe I spent too much time in District Court, in a summary proceeding, but as long as we can mark this thing final, HI make a suggestion that we go back to another Special Meeting, which is at the end of February, which is F btu ?.oth ~, . , · ' e ary~o . ~na marKing it final. JOSEPH CELLA, ESQ.: I have no objection to that, that's fine. I'm sure Ms. Moore will be great. I'm sorry she cannot be here tonight. BOARD SECRETARY KOWALSKI: By final he means there won't be any additional extension. JOSEPH CELLA, ESQ.: I understand that. That's February? BOARD SECRETARY KOWALSKI: 28th. JOSEPH CELLA, ESQ.: Thank you. RICHARD LARK, ESQ.: And I respectfully oppose that because I don't think the fifteen feet is an issue. I don't care who owns it. MEMBER TORTORA: Yes, but Mr. Lark he is entitled to set up legal counsel. We cut off the deadline. No more deadlines. CHAIRMAN: I offer that as a Resolution ladies and gentlemen· SEE MINUTES FOR RESOLUTION Page 9, January 24, 2002 ZBA PUBLIC ]IEARING I'RANSCRIPIS 7:05 p.m. (Carryover Hearing) - Appl. No. 4998 ELIZABETH SENTELL; This is a request for a Variance under Article XX1V, Section 100-242A, and Section 100~244, based on the Building Inspector's July 27, 2001 Notice of Disapproval. The applicant is proposing additions to existing dwelling with side yard setbacks at less than 10 feet on one side and less than 15 feet on the other side. Location of Property: 220 Lakeview Terrace, East Marion; Parcel 31-9-16. G. Strang, R.A. CHAIRMAN: Mr. Strang, how are you'? GARRETT STRANG: I'm fine and yourself? CHAIRMAN: Good thank you. GARRETT STRANG: Good to see everybody. CHAIRMAN: Good to see you, in this New Year. GARRETT STRANG: At the conclusion of the last hearing which was continued to this hearing, there were some questions the Board had I wanted to address. One specifically had to do with the square foot livable area of the upper level which would be approximately 350 square feet and I want to go on record with that. There was a request by the Board to consider that the donner area be placed in such a fashion that they would be northerly of the building line of the westerly building, the adjacent. Thank you. We have, in fact, done that, or we plan to do that. One of the things that was also asked, 1 guess we could give consideration to alternate options. I'm not sure that we have any available to us. What we're proposing is basically the minimum that we can do to yield a modest residence there in keeping with the surrounding community. You're talking about a seventeen foot wide addition by about thirty feet long to try and yield. The total building would be the original building plus the addition to have a three-bedroom house. That's pretty much in keeping with everything else in the area. And given the constraints that we have, 1 don't know that there's anything else we can do to make it any smaller. We do also have a proposed five foot extension of the waterside porch, which we might be able to cut back a little bit on, but 1 don't know if that's going to have any impact one way or the other. I know the Board also had asked about getting better views, some of the drawings with respect to better views of the exterior of the house. What I opted to do, because I felt it would be clearer, was to do a three-dimensional map study so that the Board could see, not only what we're proposing, but the neighboring structures plotted right on the survey and get that relationship. So that I would like to present to the Board. CHAIRMAN: Great. That's perfect. GARRETT STRANG: I think it may clarify better what we're proposing and the minimal impact it has in my opinion on the neighboring properties. This is the actual I>ngc II)~ Janum? 24. 2002 ZBA PUBI lC HI~ARING I RAN'SCRIPTS survcy. This is the actual placement and size of thc other structures next door and thcn what we're proposing, l don't want to get in thc habit of doing this. MEMBER TORTORA: Very nice. CHAIRMAN: In reading the minutes, Mr. Strang, of the prior hearing, 1 was questioning you on the actual square footage of the second story as it is proposed. Can you tell mc what that is, or can you furnish me with that sometime in the near future? GARRETT STRANG: Well that's what I opened with. I would like to clarify that. There really isn't, it's not a per say true second story because it's donner within the confines of' the main roof area. CHAIRMAN: Then it really should say living area. GARRETT STRANG: We're talking about 350 square feet up there. CHAIRMAN: So it's 528 down and 3 what up? GARRETT STRANG: 350 +-. That's encompassing up on the second floor is a master bedroom, a bathroom and closet. CHAIRMAN: Okay. GARRETT STRANG: So it's certainly not palatial by any stretch of the imagination. CHAIRMAN: Now in the construction of' this rendering you have actually placed the dormers fbrward of the house to the west. GARRETT STRANG: That's correct. CHAIRMAN: Not the roofline, but the dormers. GARRETT STRANG: That's correct. MEMBER TORTORA: The distance to the nearest neighboring structure on the west side would be eight feet, wall to wall? GARRETT STRANG: I think I have that shown on the site plan. MEMBER TORTORA: Well it's actually very good on here. It looks like about eight feet. CHAIRMAN: Yes, 5.1. Page 11, Janum~ 24, 2002 ZBAPUBIJ( HEARINGTRANSCRIPIS GARRETT STRANG: We had 5.6 basically on the addition to our property line and the neighbor to the west is offset, I guess about 4 feet, 1 don't know if it shows on the survey? 4.2 correct. So there is a bit of an offset and we're making it a little bit smaller yet, so there's probably about 10 feet between the two buildings. MEMBER TORTORA: How would you get a fire truck back there if there was a fire'? GARRETT STRANG: They can't now. MEMBER TORTORA: There's no access at all? GARRETT STRANG: It's the way the neighborhood is built out. There's many houses with similar situations like that. CHAIRMAN: What actually is in the front of that gable end that protrudes forward of the, or actually toward the rear of the house to the west? Is it storage area? GARRETT STRANG: In our proposal upstairs'? It will probably be the closet or possible a little sitting alcove off' the bedroom, because again it's going to be in the confines of a sloping roof. So you're not going to have that much, maybe a window seat or something like that. CHAIRMAN: Okay. Mr. Dinizio any questions of Mr. Strang? MEMBER DINIZIO: No. CHAIRMAN: Miss Collins? MEMBER COLLINS: No, thank you. CHAIRMAN: Mrs. Tortora, any further questions? MEMBER TORTORA: No. CHAIRMAN: Mr. Homing, you have to have a question. CHAIRMAN: No, really? Okay. I guess that will end the hearing. We'll see if there's anybody else in the audience that would like to speak. We thank you for the rendering. It certainly helps us understand the situation. GARRETT STRANG: I was hoping that that would be the case, and the only request we have is that the Board could expedite their decision, so that we can move along. I would appreciate that. I~agc 12, Jantlal) 24, 2002 ZBA I>UBI I( HEARING TRANSCRI[~IS CHAIRMAN: Thank you. ls there anybody else that would likc to speak tbr or against this application? Seeing no hands 1'1l make a motion closing the hearing, and rcscrving decision until later. End of hearing. SEE MINUTES FOR RESOLUTION 7:18 p.m. (Carryover Hearing) Appl. No. 4927 - KACE LI, INC. This is an Appeal requesting Reversal of the Building Inspector's Notice of Disapproval dated August 13, 2001, which disapproval denied an application for a building permit for two-fmnily dwellings under Article IV, Section 100-42A.2. The reason stated in the Notice of Disapproval is that the proposed project indicates several two-family dwellings on a single parcel, and that the Code allows only one such structure per lot as a permitted use. Zone District: Hamlet-Density (HD). Location of Property: South Side of North Road or C.R. 48, 500+- feet east of Chapel Lane, Greenport; Parcel 409-3-1, now or formerly referred to as "Northwind Village" site. CHAIRMAN: Mr. Pachman, is there anything that you would like to start out with'? MATTHEW PACHMAN, ESQ.: Mr. Chairman, Members of the Board, just briefly, last time we were here which 1 believe was November 15th, Mr. Tohill asked for additional time to make a presentation. We had the original, our presentation, on September 20, ifI can remember it correctly. I did have an opportunity to speak, briefly, with Mr. Tohill yesterday and he indicated that he was prepared to make a presentation, but yesterday was not yet at liberty to discuss what that was going to be with me, which is fine of course. 1I mentioned to the Board on November 15th meeting that I may very well have to as at the end of Mr. Tohill's presentation for additional time to consider and respond and I will just ask that the Board, if that occurs that we not be required to come back a third. When we were here originally I think you said September 20th and then November 15th, but simply to have a written submission in response to Mr. Tohill's presentation. So that would probably be my request at the end of the Interpretation tonight. CHAIRMAN: Okay just let me say this to you, if that's the case, we would then close the hearing as a matter of fact on February 28th, at that special meeting. Assuming that the paper trail went back and forth to that point, and if you so choose that you would rather say something at that time, I have no objections to your coming here on February 28th, and doing it verbally also; as long as we shorten it up a little, because we would really like to wrap this up. MATTHEW PACHMAN, ESQ.: And as would we, thank you so much. CHAIRMAN: Mr. Tohill? ANTHONY TOHILL, ESQ.: Good evening Mr. Chairman, Members of the Board. I told Matthew Pachman yesterday that whatever time he needed~ I consented to, and that's no Palzc 13, Jmm;uy 24, 2002 ZBA PI/BI lC HEARING TRANSC RJP] S problem. I would like to present our position this evening in two part; the last part would be mc, and I wi}l bc surprisingly and somewhat atypically and mercifully I think, very brief. CHAIRMAN: It's hard to believe. ANTHONY TOHILL, ESQ.: It is hard to believe, but that's why I was giving you that distant early warning, because I know I would ease you into that understanding. I've done what you suggested to another gentleman. I've put everything in writing, so we'll just hand it up later on and give Matthew a copy of everything, and so it will be an opportunity tbr people, if they wish to read what we have. So that will be the last part of it. The first part is, that I asked the person who is, by general reputation, largely responsible for the text of Chapter 100 Zoning Ordinance to be present here this evening, he seats to my left, his name is David Emilita. For those who've been here for a long time, he was practically living in this building prior to January I0, 1989, when Local Law #1 of 1989 was enacted. Some of the people who are here this evening, were here back then, and they don't know what happened during the years preceding January 10, 1989, and they don't know what happened on that day, or at least they won't know what, the way in which he as an actual participant in those proceedings would know. So I've asked btm to aggress the issue that has been presented by Mr. Pachman in this application to the Board, and I'm going to ask David to address it. When he finishes, if you have any questions, these have to be answered and he is then going to leave because like so many people, he does what he does for a living, be is a professional planner. He has another reason, and another Board, in another municipality this evening that he will be engulfed with. So with no further a due I present Mr. Emilita. MATHEW PACHMAN, ESQ.: Mr. Chairman, just before we go, I just state that l need to note my objection bel-bre we proceed. Local Law #1 of 1989, as we all know was adopted by the Town Board and says what it says, and I don't think that it's appropriate to have someone who, in fact was not even a member of that Town Board, giving a discussion about anything that led up to it. Indeed we know that the Town Board operates by an adoption of a resolution and that speaks for itself, so let me just note my objection. I'd ask the Board if it is going to permit the testimony of Mr. Emilita that you note the objection. CHAIRMAN: Thank you. So noted. Mr. Emilita, we have to swear you in. Would you kindly raise your right hand, do you solemnly swear the information you are about to give us is the truth to the best of your knowledge? DAVID EMIL1TA: (Raising right hand, responded) I do. Good evening ladies and gentlemen, my name is David Emilita. I have an opportunity to hand up and 1 also have a summary of what I'm going to say, so if for some reason you're unable to follow, or you want to refi'esh your memory tomorrow, this little table says it all. MATTHEW PACHMAN, ESQ.: Mr. Chairman, I ask if he has one Ibr me also. Pagc] 4, Janua~ 24, 20(12 ZBA PI~JBLIC HEARING TRANSC'RIPTS DAVID EMILITA: For those of you who don't know me, I'm a certified, practicing prot;essional planner, l have a Master's Degree in Planning. l'm a charter member of the American Institute of Cm2ified Planners, which is the national, professional accreditation organization lk~r my profession. I served as consulting Town Planner for the Town of Southold in the Spring of 1984 to thc end of 1989. [ authored the Generic Environmental hnpact Statement that was prepared prior to the adoption of Chapter 100 Local Law of 1989. As Mr. Tohill said, I prepared and wrote several sections of this Code, so I am quite familiar with the proceedings that took place in the development of the local law. I would like to state the chronology with reference to the appellant's site plan. In fact, relate to the zoning and the conditions that apply to that site plan. In I983 the Kace LI premises that existed in Zoning District M Light Residence, and in that District, multiple dwellings were a permitted use under Section 42A.2, Chapter 100-42A.2. Density was allowed at one unit per 6500 square feet of public water and sewer, and when none was present, the density was one unit per 9000 square feet; that ,,vas in 1983. CHAIRMAN: This was prior to the adoption of the Code in 19897 DAVID EMILITA: Correct. CHAIRMAN: Do you have an objection to that? MATTHEW PACHMAN, ESQ.: Mr. Chairman, I don't mean to keep interrupting but we had a very long colloquy, it seemed to me, on November 15th, and I thought the Board made very clear what the focus of this hearing was. And to agree that Mr. Emilita opining about site plans and things like that I just don't understand why that would be relevant to the issues before the Board here tonight. CHAIRMAN: That's one of the reasons why we ask counsel to come, ok. (Changed tape to side B) TOWN ATTORNEY GREG YAKABOSKI: Mr. Emilita, I believe that the issue is, under the current Code as written paragraph 100-42A and what Mr. Pachman applied for was a two-family dwelling, but more than one structure. I think what - ANTHONY TOHILL, ESQ.: One two-family dwelling on one lot. Not more than, not what you say, he garbled it. TOWN ATTORNEY GREG YAKABOSKI: And I'll try to ungarble it. The issue on a single lot in the Town, under Section 100-42A.2, can you put more than one structure on that lot, which is a two-fhmily dwelling? And I believe that it's up to the Board but it gets to tie into that issue. 1 think what Mr. Pachman was raising was that's not going to tie into that issue, is the concern. ANTHONY TOHILL, ESQ.: Can I just rephrase that, that's as a permitted use, under 100-42A.2, may one have more than one two-family residence on one lot as a permitted Pagc 15, Jmm n? 24. 2002 ZBA P[!I-}I lC HEARING TRANSCRIP [ S use, nothing more. Don't look at another Section of the Code. That's what you're asking him. That's what Matthew Pachman is saying, is the position, the only issue that is bei"bre thc Board. MATTHEW PACHMAN, ESQ.: With all due respect, Mr. Tohill, CHAIRMAN: Could you use the microphonc, please, Mr. Pachman, I apologize, Sir. MATTHEW PACHMAN, ESQ.: With all due respect, Mr. Tohill, that's not our position. We did say that not to look additional provisions of the Code. ANTHONY TOH1LL, ESQ.: Then why wouldn't the speaker be allowed to continue to speak? He's trying to address that. MEMBER TORTORA: Mr. Tohill. Can you take a moment? Board Members, I'm willing to listen to Mr. Emilita testimony if he can show relevance, that's my position. CHAIRMAN: Does anybody have any objection to that? MEMBER COLLINS: No. (No objections from the Board Members.) CHAIRMAN: Okay, we have four people that kind of a agree with you, so we're going to let you go. DAVID EMILITA: I'll try to be too historical; I will get to the point. If Mr. Pachman so wishes to examine. In 1985 the Town Board changed the density in the M Light District to multiple dwellings raising it to 10,000 square feet per dwelling unit where public water and service were provided, and 20,000 where it wasn't. Change the density on plans that didn't have vested rights. Something happened. January 10, 1989, the Town Board adopted Local Law #1, Chapter 100. As I said, 1 prepared the GElS for this. The density adopted in 1985 for the M-Light Residence District was carried over into the approval end district, Hamlet Density. His premises was now zoned Hamlet Density when it was changed then. By the way, the requirement for site plan approval from the Planning Board remained the same. It did not change. Additionally in 1989, the Town Board revised the site plan review section and among the revisions it made in Section 255 would provide for three-year duration for an approved site plan. In other words if site plan was approved prior to January 10, 1989, the adoption of Chapter 100, but had not expired and continued to be valid, they would allow vesting, in other words construction without some physical action in reliance on that approval, then the site plan approval remained valid for a period of three years ti'om the adoption of Chapter 100, or until January 10, 1992. Those dates should be important in your deliberations solnewhere. In no event was it the Town Board's first intention of 1989 to exempt prior site plans from the effect of the density reduction of 1985 law, which reduced the density in the M-Light District. If they lost their vesting, if they lost their approval, and they're not the same Page 16. Januluy 24, 2002 ZBA PUBLIC' HEARING TRANSCRIPTS density, then that's it; they were dead. In 1985, stepping back to that Local Law again, the Town Board did not add a duration period for plans approved prior to that period. In other words, if a site plan had been approved for example in 1983 and did not pursue vesting, it wasn't protected from the re-zoning. In 1989 or in a deliberation that l attcnded, did the Town Board ever express an intention to use Section 255 to resurrect any site plan that did not remain valid? If it didn't, it wasn't. Now Jet's look at Section 42A. Section 42A permits one one-family dwelling under permitted uses and one two-family dxvelling, as permitted uses; multiple dwellings are permitted by Special Exception with site plan approval. One cannot achieve more than one one-family dwelling or two-family dwellings without achieving a Special Exception or without achieving a site plan review. It cannot be done. If I hear arguments, we'll elaborate on this. One is required to read Section 42A.2 or any part of the zoning code for that matter in the context of the entire ordinance. If one were to argue that 42A.2 should actually be read to allow more than one two-family dwelling as a permitted use without site plan or Special Exception approval, in other words simply apply lbr a Building Permit and feel that one should be entitled to the issuance of a Building Permit then one would essentially throw away that exception, one would be entitled to a Building Permit without reference to minimum lot area, without reference to density, without reference to parking requirements, without reference to Section 250 which is extremely important in this case and I'll get back to that; without reference to any other considerations or site plan review under Section 252 for Special Exception standards and Section 263 or with the availability of Public Water and Sewer. The mere issuance of a Building Permit doesn't allow all that review. So clearly that can't happen. That's not intended by the Code. The argument that the letter "s" may be inserted so that Section 42A.2 reads two-family dwellings, as I said, we'll read the next Section out of the Code; one could never, if one took that interpretation, one could never get into the deliberations that would pertain to the development of more than one dwelling on a lot. The legislative intent has got to be obvious. A single one-family residence or single two-family dwelling or for that matter the other permitted use under Section 42A.3, a single continuing care facility, is not likely to present the land use consideration that a community or approving authority must make, that a multiple one-family residential development on a single lot or a multiple two-family residential development on a single lot would require. There's nothing ambiguous or uncertain or accidental about the limitation of 42A to the singular as a permitted use, in 42B requiring Special Exception review and site plan approval to multiple uses. This dual layer regulatory approach is standard in zoning construction and is used throughout State of New York and other states in minor zoning ordinances, and yours is considered one. Relying back on to Section 13A, tbr rule of construction that states the singular number and quotes the plural, it also states the reverse is true but I won't get into that, is a distortion, in my opinion, of the proper use of this section. Once you only use this board usage or construction section if a meaning is unclear or ambiguous or if' the legislative intent of a section is unclear to the reader, but clearly 42A 1 and 2 read the sin[,mlar, one family detached dwelling, two-family dwelling; that's a singular use. One cannot use Section 13, 42A or 42B to change the legislative intent by a Page I 7, Janualx 24, 20(12 ZBA PUBLIC HEARING TRANSCRIPTS mere contrived interpretation, again referring to the singular, including the plural. In referenccs to Section 31A. I or 31B. I each of which cnds with thc qualit~ying language not to exceed one dwelling on each lot isn't helpful in an effort to add plural to the uses in 42A.2. Here's a reason, a very subtle one, that gives thc real reason of the difference of the language. Section 31 was largely written by the Town Attorney Bob Tasker. He had a particular style of writing zoning text. MATTHEW PACHMAN, ESQ.: Mr. Chairman, I just have to note my objection about, once again with all due respect, the Town Board operates in passing a local law with a resolution, and I would respectfully say that any of this colloquy about what a Town Attorney might have said at that time is irrelevant and should be disregarded by this Board. CHAIRMAN: Just a minute, sir. We'll let Mr. Emilita continue. Go ahead. DAVID EMILITA: Thank you. Section 31, as ! said, was written by Town Attorney Bob Tasker with respect to building and zoning. Section 42 was written much later by Stuart Turner, a principal of the firm of Raymond, Parrish, Pine & Wiener, a planning consultant firm that developed the drafts of the Town of Southold Comprehensive Plan updates in the 1980% and also part of several sections of now Chapter 100, and he did, ill memory is correct, write Section 42. Suttle differences in zoning style, but the substance is clear, the consistency is clear, the meaning of the words are unambiguous. When you look at them, they mean the same from one section to the other, under permitted uses. Even though the words themselves are different, the meaning is clear, the meaning is the same, adding an's' is a contrived use of Section 13. Finally, Section 100-13 the term dwelling, two-family, is defined in the singular. On the same page of the Zoning Ordinance, the definitions for dwelling multiple and dwelling row or attached also appear. This is also defined in the singular. But as you set forth in 42B multiple dwellings require Special Exception and site plan approval. In summary one simply cannot add an "s" to the permitted uses in 42A because Chapter 100 is clear in stating that more than one two-family dwelling on a lot is governed by 42B and both Sections 100- 250 and 100-260. And if you will permit me, I will read the opening paragraph in Section 100-250, and this is Article 25 Site Plan Approval. "This Article, Site Plan Approval shall apply to every land use that is permitted in the Town of Southold except ibr single i'hmily home use on a single and separate lot as set forth in Article III, Section 100-31Al." A two-family dwelling or more than one two-family dwelling on a lot will need site plan approval by the Planning Board very simple it does, it applies. CHAIRMAN: Before you sit down - any questions of Mr. Emilita ladies and gentlemen, because he has to leave? (No questions.) We thank you, sir. Mr. Tohill, there was a question from a gentleman in the back. No? Okay. ANTHONY TOHILL, ESQ.: Mr. Chairman, Members of the Board the issue that is bel-bre you, at least as you limited it is one of upholding lawyer's language statutory construction even though a local law is not a statute, it's still called a statutory construction. And it's not uncommon, books are written about it, and in fact, those of you and you're all familiar with McKinneys, McKinneys has actually two books on it; one of them is Book I of about 115 books which is called Statutcs and I'm holding that up and displaying to you rigbt now in my right hand. And the second one is Book 21, which is called thc Gcncral Construction Law, and they somewhat overlap. So I'm going to use when 1 calculate things here this evening, the book Statutes, only because if you look at the two, that statute that is quite a bit thicker, it's quite a bit more accurate, there's a lot more case law in the Statutes than there is under General Construction Law but they overlap in large respect. I want to go through some of the rules of construction here. There are about five or six or seven of them. And then I want to apply them, and this doesn't take very long to do that. The first rule of construction is that one does not use either of these books or the rules of construction if the meaning of a statute or a local law is already clear. In other words, if it's not ambiguous, if it's clear, if it looks like it's readable and understandable in a common sense manner, then one never goes to the rules of construction. The second is if the legislative intent, it's a separate issue, you heard Mr. Emilita just talk about it. lfthe legislative intent is clear, and I'm going to come back to that at the end of my presentation, if the legislative intent is clear, one does not go to rules of construction at all because the legislative intent, as Matthew Pachman has been saying up and down this evening, is the limit of the reach of your analysis. Hc said it over and over again. Don't look outside the Code. The third rule of construction is, you have to read the whole book as a whole; you can't cheat, you can't just read one Section or one Article if there's more than that, you have to read the whole chapter when you analyze and interpret a Code. This is universal rule; you're not allowed to avoid the rule here in Southold, or in Buffalo or in Poughkeepsie or any place else. The fourth rule you may have heard of, or you may have read about it in the Zoning text that come across your desk. It's called the rule or the concept of, and it's expressed in Latin, in Pari Materia. What it means is that when you read the Code you have to read the Sections even if they seem to be going in different directions together and consistently. It conjunctive rule together so that Section 42 may have to be read together and consistently with another section and you can't separate them out. It's not permitted under the rules that we apply. The next rule of construction is that you're not allowed to use the rules of construction to achieve a mischievous result. That's not my term. [ didn't invent that word. [ didn't create the decision. That's the language out of the books that I displayed to you before, mischievous result. So don't allow somebody to say you reached a comer, which is mischievous relative to the intention of the legislature, if the intention of the legislature, the Town Board, Bob Tasker, Stu Turner, whoever, is already clear. The next point or the next rule of construction, when may not ready for analysis that is absurd. Now the word absurd by the year 2002 whether listening to our children or our P;ige 19, Jantmly 24, 2002 ZBA PUBLIC HEARING FRANS('RII'FS peers has lost all of its meaning m the English language. It doesn't mean absurd the way a sixteen ycar old will say, one of our constructiou tbr them, as a child is absurd. What it means is the interpretation has to be sensible, it has to make sense in the text of the zoniug ordinance. There's another one, very important. This Section 252 of the Book Statutes; the use of a singular tbnn of a word. For example, the word two-lhmily dwelling under Section 252 of the Book 1 of McKinneys Statutes means what, it means the singular. The use of the plural fom~ of the word compares Sub-Section A, of Section 42 single-family dwelling, two-family dwelling, care thcility all in singular with Sub-Section B all in the plural, all in the plural. And so, under Section 252 the use of the plural form of a word, example, multiple dwellings townhouses, row or attached houses mean more than one. So that's right there in the book. The next is that rule is one of little application and construction and interpretation, little. In other words, one doesn't imagine, one doesn't change it, one doesn't graph to it, one doesn't play footloose or fancy free, it's one of literal construction. That's the law. So when a Code says that the singular means the plural and the plural means the singular, and our Code in Section 100-13A says exactly that, the first question is, do you simply use it when you want to? Can I on my lot, in the Town of Southold, where I live and have lived tbr many years build three or four or five single-/Xamily residences? A single family residence 100-242A, 100-31, single-family residence, I can say singular means plural. Why can't I say that, and the answer is there's nothing unclear about either 3lA single-family dwelling or 42A single-f~amily dwelling or 42A.2 two-family dwelling, and no "s" on the end of my language, lt's absolutely clear. So you never get to the rule of construction. Under 100-13A you don't need it, and so you don't get to anything except to read when it says in the Code if it's clear and it was clear. One cannot ignore all the rules of construction if one wants to elect to use 100-32A as if it were the only rule of construction. I said to you that was the Section 252 that means that there are some Sections before it, in the 100's. So one would not pick just 252 and run with that. Two more rules, if the law that you're talking about is remedial, tbr exmnple, enacted to correct or address imperfections in a prior law, then that law has to be applied literally. In other words, you can't trap it, comer it or cage it and not allow it to speak or breath or huve its way. You must give it its way, that's what that means. And if a law is ambigmous then it must be interpreted in that manner if it's not allowed objectionable result. I'm going to stand here and say to you that there's nothing unclear about the meaning of 42A. There is nothing unclear about the legislative intent of 42A. There is nothing ambiguous about 42A. There is nothing that is different about 42A fi.om what we see in any Town Zoning Code that addresses this type of issue. It said if you're in the HD District it is pemtitted. And there's no Special Exception, no Variance, nothing just permitted, if you want one single-family dwelling or if you want one two-family dwelling on a lot you go to the Building Inspector and you get your use, unless there's Page 20, Janualy 24, 2002 ZBA PUBLIC I IEARING [RANSCRIPTS another Section of the Code that doesn't allow that to happen. And son of a gun, thcre is another Section of the Code and you can't make it go away. That section of the Code is 250, and it says that this Article, meaning Article 25 under Section 250 shall apply to every land use. I didn't write that language, that was thc Town Board's languagc, every land use. So, so far that would include a single family dwclling and that would include a two family dwelling. But listen, it keeps going, and it says that its permitted in the Town of Southold, that's a pretty broad statement, cxcept the single-family home use on a single and separate lot. That's not except a two-thmily dwelling. So, therefore, one is required to go through site plan approval fbr two-family dwelling whether one wishes to do that or not. So, if one then ties together what I've read to you 32A plus 250, you can look at 260 and 262 and 263.2, because they're your business, that's Special Exception territory. And then if one looks to the density schedule and the bulk schedule you will see that at all times, since before 1985, but really starting with local law l 1 in 1985, the existence of water and sewer and site plan was integrally related to the notion of having more than one of anything on a lot, including more than one two-family residence. In fact, if you look carefully at the bulk schedule and density schedule, you will see that the square tbotage numbers jump all over the place depending on those factors. If you look at the I994 Hamlet Density Study prepared by our Building Depamnent, it says that the legislative intent was to connect that type of application in the HD District to a process that included an evaluation of public water and public sewer. Thc Building Inspector, 1 assure you, does not do that, not with any discretion, and the water authority is there; and there's no sewer district. And so the bottom line that this one is not complicated at. If somebody wants more than one two-family dwelling on a lot in the Town of Southold they have to go two different places in addition to the Building Inspector. One of them is that to obtain site plan approval, and the other one is to get Special Exception approval right here. Here are my words in writing, and I have a copy fbr each of you. The official one is the one that's marked fbr Goehringer, but that's the one that I want to go into the record, and let the record reflect that I'm handing a copy of everything right now to Mr. Pachman. Everybody's copy is exactly the same, excepting that two of them are diff;erent. The one that went to the Chairman to go into the file maintained by the Board contained the prior to 1989 Zoning Ordinance, which is an inch thick. The one that went to Mr. Pachman also contains that. The rest of them I did not knock down the cherry tree or the birch tree, I didn't Xerox that. 1 figured you had enough. I'm happy to answer anybody questions about any aspect of my presentation. CHAIRMAN: Mr. Homing? MEMBER HORNING: No questions. CHAIRMAN: Mrs. Tortora? MEMBER TORTORA: None. CHAIRMAN: Miss Collins? MEMBER COLLINS: No, not now. Page 2 l, Jmluar~ 24, ZI3A PUBLIC HEARING 'l RANSCRIPTS CHAIRMAN: Mr. Dinizio? MEMBER DINIZIO: Jerry I have some reading to do now. ANTHONY TOHILL, ESQ.: I also supplied in Mr. Dinizio's copy, a packagc of No- Doze from the 7-Eleven in Greenport which l expect he'll need. CHAIRMAN: Well the way it looks to me I shouldn't say this on the record; I may have the weekend off} iii don't make it to the Town Hall. ANTHONY TOHILL, ESQ.: I think you actually get three credits of continuing legal education and each of you are now, need to finish the first semester of law school if you can read all that. CHAIRMAN: Mr. Tohill, I would say that, in all due respects, it probably would make sense for us to have a short hearing on the 28th in case we have any questions regarding this. Mr. Pachman, and you certainly can reduce you so chose to, to writing. Or anything again, you want to say either orally, just in case we may have some questions. We'll keep it to fifteen minutes; we'll wrap it up at that point and then, if that's all right, We will have gotten your submission by that time also and we may have questions of you, Mr. Pachman. MATTHEW PACHMAN, ESQ.: Yes, Mr. Chairman ill mayjust ask when will the draft /hr this hearing be available? CHAIRMAN: I have no idea. BOARD SECRETARY KOWALSKI: Are you talking about the draft transcript of the statements, because that's different from Minutes. It will be available on tape tomorrow, you're welcome to have anyone come down and do a duplicate of the recording, otherwise it will take a couple of weeks. MATTHEW PACHMAN, ESQ.: Thank you. BOARD SECRETARY KOWALSKI: You're welcome. CHAIRMAN: Is there anybody else that would like to speak? State your name tbr the record please, Sir. HOWARD ME1NEKE, NFEC: I'm Howard Meineke, North Fork Environmental Council. I was just delivering this to the desk. CHAIRMAN: Hearing no further comment, 1'11 recess the hearing until February 28, 2002. Page 22, Jm~um~ 24, 20/)2 ZBA PUItl lC ItEARING 1 RANSCRIPTS MATTHEW PACHMAN, ESQ.: Mr. Chairman, the submission that was just received by the Board, I wonder if I may ask tbr a copy to take back to my office? CHAIRMAN: Surely. BOARD SECRETARY KOWALSKI: Do you want to take a look at it now? MATTHEW PACHMAN~ ESQ.: Yes, maybe ifI could just glance at it now. CHAIRMAN: I offer that as a Resolutiom ladies and gentlemen. End of Hearing held this evening. SEE MINUTES FOR RESOLUTION