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HomeMy WebLinkAboutZBA-02/28/2002 HEARSOUTHOLD TOWN BOARD OF APPEALS TRANSCRIPT OF PUBLIC HEARINGS HELD FEBRUARY 28, 2002 (Prepared by Paula Quintieri) Present were: Chairman Goehringer Member Tortora Member Homing Member Oliva Member Orlando PUBLIC HEARINGS: 6:55 p.m. (Carryover from January 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; 1 l 1-14-34. R. Lark, Esq. for the applicant; P. Moore, Esq. (for J. Cella) CHAIRMAN: Good evening Ms. Moore. PAT MOORE, ESQ.: Good evening. Code talks about lots being 40,000 to 59,999 requiring a front yard setback of 50, side yard, both side yards 40, so it's 20 and 20 and rear yard 60. When I reviewed the transcript there was reference to 15 feet being what is requested and 15 feet, presuming no variance a front yard variance from the right-of-way, Mr. Lark mentioned and I don't know if that was an error but no variance would be required. I would disagree with that, that based on the schedule that regardless of which application you use, whether it's a front yard setback from the fight-of-way or it's a side yard, in either event you would need a variance. That's what I'm basing my argument on, as far as, what would be the legally required setbacks. There are new Members of the Board and I know you've studied what the standards are for a variance, and please bear with me it's for my own purposes of keeping organized I don't mean to insult you but I'm going to go through the standards and how I believe that the standards one, have not been met and secondly, I think are a significant impact on the neighbor which is always something when you're balancing the interests of both parties and you're going to do this all the time I want you to keep in mind Mr. Cella's interest as well. But the first point I want to make is that the argument being made by Mr. Lark is that there will be no undesirable change produced in the character of the neighborhood or detriment to nearby properties. Well, obviously we strongly disagree with that. The Rust Family residence has a side yard of about 46'. The Cella residence from, again talking about side yards leaving that 15 feet of no-man's land which nobody can really identify what that is, but going to the property line each parcel has approximately 46' of the side yard setback. I asked Mr. Cella and I remembered from my inspection of the property that most of the properties in the Nassau Point community are actually large parcels, estate parcels, with very large side yard setbacks, very large setbacks because in that area, privacy is really a Page 2, FcbmmT 28, 2002 ZBA Public Hearing hansc~ipt Town of Southold very important part of their development. So the community at large has developed with larger setbacks. So Mr. Cella had very kindly provided tbr mc, very nice photographs which are actually taken around the pond which are the most neighboring properties and we will see there are, as he makes his circle around thc pond of developed propertics, you will see absolute every parcel has a very large setback probably in line with 50 to 60 feet certainly not the 15 feet which is being proposed. So to being with I would like to make these photographs part of the record. We can make copies and give it to Mr. Lark, but unfortunately I only have the one set. So I do want to present that to the Board. CHAIRMAN: Mrs. Moore what did you say the setback was to the Cella house to that 15 feet? PATRICIA MOORE, ESQ.: From the survey, Mr. Cella's survey it looks to be about 46 feet. MEMBER TORTORA: To the fight-of-way? PATRICIA MOORE, ESQ.: To the right-of-way. CHAIRMAN: So it would be 46 and 15 which would be about 61, to the actual, to the Rust Family Trust. PATRICIA MOORE, ESQ.: Keep in mind that the Rust property has again, also 46 feet to the their survey, excluding addition. So both properties are developed very similarly. MEMBER OLIVA: That's from the garage to the PATRICIA MOORE, ESQ.: From the garage, yes, and the existing garage. So, again, the character of the neighborhood here is to maintain larger side yards. This would be a deviation from the character of the community. In addition I looked from the record, and again I'll stand corrected, because this was not real clear, whether this is a two-story addition. But it looks to be a two-story addition, being 31 feet in width and running 63 feet along the property line. Again that is a significant addition on the side of the Cella property which if you consider these kind of setbacks, 15 feet, in my neighborhood which has half and quarter acre parcels, in Captain Kidd and a lot of the neighborhoods in the area 15 f~et seems very reasonable and certainly with the extra 15, the DMZ zone, the no- man's land, again this area it is not reasonable and it's certainly not reasonable to Mr. Cella. While personal hardship I understand is never an issue tbr either side, we do want to put on the record that the reason Mr. Cella is so strongly opposed to this is that the view of this addition, not the waterfront, that's not an issue because the waterfront will be impacted because of waterfront house. It's the actual what he sees offthe window of his bedroom is going to be this entire 63 feet of expansion. And, with Mr. Cella's permission, I state to you that his wife, who hasn't been here, is very seriously ill. She is house bound, she is bound to her bedroom and the only activity that she sees, the only enjoyment she shares is out of her window. The beautiful setting which she sees out the Page 3, February 28, 2002 ZBA Public }leafing h'nnscrlpl window. I have a photograph of what she prescntly sees out her window, and you will see that it is really vcry nice, very pastoral and it is again, consistent with the Nassau. CHAIRMAN: Mrs. Moore can you tell us which, where her bedroom is'? PATRICIA MOORE, ESQ.: Yes it's right there on the side. CHAIRMAN: On this side? PATRIC1A MOORE, ESQ.: That photograph, I asked him to take a picture right from the window, so you see a little bit of shading which is actually from a closed window. That's the picture she sees. The second standard that this application must present is that the benefits sought by the applicant cannot be achieved by some method, some other method feasible ~br the applicant to pursue other than this area variance. Again, reviewing the file, the Rust Family has actually three residences that are in their control. It appears that this house is on a separate parcel from the other house, but all of them, there are encroachments going on, however, they are all under their control. The main house, again pictures are worth a thousand words, we have a photograph that shows the main house, which is being proposed. There is another substantial house, certainly bigger than my home, but it's small in comparison to the other homes, which is closer to the road. And then there seems to be a seasonal cottage, ~vhich is by the dock. So there is an abundance of residential space here on this property. There is also plenty of room on the other side; certainly not impacting the neighborhood, only impacting themselves would be an expansion on the easterly side of the property. So, again, the photographs show CHAIRMAN: You're referring to southeast aren't you? PATRICIA MOORE, ESQ.: Southeast. Southeast side of the property shows the three residences, the one photograph shows that. I also have individual photographs of the smaller house and then the cottage. MEMBER TORTORA: 1 know you submitted these up, but they're not identified. PATRICIA MOORE, ESQ.: Yes, I'll do that, some of them are new that he brought for me, so I will, if you like after the meeting 1'11. CHAIRMAN: Let me just get one thing straight here, so you are and you're client, are not in any way suggesting any cutting back of that side yard. You basically want the Rust Family Trust to build the addition on the opposite side? PATRICIA MOORE, ESQ.: We would certainly prefer, we implore the family to please build the addition on the other side. We think that there's adequate room, there certainly is no need for this variance, particularly again, referring to the character of the area, they're asking us to accept an addition encroaching on an area that has remained in its current status and certainly is unacceptable to Mr. Cella. So, yes, I would agree. We don't want any addition on that side. Depending on how you rule, there might be a Page 4, February' 28, 2002 ZBA Public Hearing 1 ranscnpt construction as of right. Now, whether when you tell them, well we'll not branch of the variance, whatevcr thc Code dictates you're allowed to build, if that's suitable for the Rust family well maybe it is, maybe it isn't. We don't have much say in it. Would we like it if they would've agreed to build it on the other side, of course? But there's also the fact that you're jurisdiction is only to the point that there's a variance. After that we hope that their reasonableness will prevail. We've already talking about whether or not this variance is substantial; again, I refer you to the development of the area and whether or not it's substantial in light of the community around the pond. Whether the Variance will have adverse affect or impact on the physical, environmental conditions in the neighborhood or district. Well, we know that the Trustees have approved this. However, the construction if it were on the east side, would be further away from the bulkhead, further away from the flood zone and possibly out of the jurisdiction of the Trustees altogether. So, certainly environmentally it's a more suitable place on the other side. We defer to a great extent to what the Trustees do when it comes wetland permits and the fact that they have to put in hay bales, but again its an issue that you have to address; whether the difficulty was sell-created, the way I interpret that is you haven't built and now they are asking in advance of building, ls this the minimum variance practical given the personal benefits anticipated by the applicant? Again, I don't opposition now is this reasonable, no; they're going to say the opposite. Those are my points, and again I thank you for the opportunity to be here and continuing this hearing for that purpose. CHAIRMAN: Thank you. Mr. Lark? RICHARD LARK, ESQ.: It is my understanding that the Zoning Board is 15 feet side yard. Is that correct? CHAIRMAN: Total of 35, 15 and 20. MEMBER TORTORA: Here's where the confusion comes in. The Building Department has determined that, that lane is, in fact, a front yard. RICHARD LARK, ESQ.: That's correct, that's why the _application. And I asked the Board under 280A, which is as an objector remark, to make that determination because there is no relevancy to the house that the front yard is Wunneweta Road and I pointed out in the second part of the application that that can't be in any shape or form constrained as a street as defined in the Town Law. And as I also pointed out to the Board ! gave, which is the basic application that the builder gave to the Building Department initially when he started this a year ago, a year ago this month, and that Building Inspector Mr. Forrester determined that was indeed just a side yard, that wasn't a street. And some six or seven months later that the Building Department reversed its position and decided that was a street, and we would be required to get a variance on that. And when I realized what was happening there, that's why I made the application. The standards are the same by the way, under 280A of the Town Law as well as 267; they are the same standards that the Board considers. The legislature made an amendment to the statute and I think, I handed that up, and that they recognize this and the key there is that the Board would have to make the determination under the Town Law that the house, the Page 5, Febt'aat~/2g, 2002 ZBA Public l tearing Transcdpt structure, the proposed addition, the neighborhood that this is not a strcct and the buildings have no relevance to it. Because 280A, if you read all of 280A was for acccss. I was teasing the builder, thc applicant, Flowcr Hill here, that this would'vc been a real issue if we decided to use the so-called no man's land for egress and digress for the driveway and eliminate the driveway which comes over, because one of the reasons that the whole application for the addition was that we put on this side of the house was because of thc way the topography of the land is in the existing garage area is where it comes out from Wunneweta Road and goes across the whole front of the house to get to this area because of the dip if you go over, as you come in off the road go to the left, it doesn't work out. So that's the reason why they sited it over on this side, because there was the existing garage, which has been converted into living space inside the house and in order to keep the roof lines and everything the same to keep the symmetry of the whole situation that's why it was done. But we would never come betbre the Board except for the rear yard portion of it which the Trustees had given approval except for the fact that the Building Department decided to call this a street, this 15 foot no man's land which we pretty much exhausted that in all those two hearings, and 1 gave you ail the historical background on that in your application. So, if the Board decides, I guess the Board will have to decide whether that no man's land is a street or not a street under the Code, and if it is not a street then we don't need a variance for the side yard because we conform to the 15-foot. That's what the Code says. And then we're just, then the other part of the application, of course, for the area variance would be for the rear yard which is the 75 feet and this is 64 which they got approval from both the non jurisdiction from the D.E.C., as you saw and also they got a Trustees permit which you saw. MEMBER TORTORA: Could I ask you a question? RICHARD LARK, ESQ,: Sure. MEMBER TORTORA: I know I asked you; I just want to understand this clearly. No one owns the right-of-way? There's no deed of record? RICHARD LARK, ESQ.: No ma'am. MEMBER TORTORA: There's nothing? CHAIRMAN: There's no tax map number? RICHARD LARK, ESQ.: No tax map number. It's on the map. MEMBER TORTORA: On what map? RICHARD LARK, ESQ.: The original map of Nassau Point filed back in 1922. MEMBER OLIVA: What was it filed as? CHAIRMAN: Access to Wunneweta Pond. Page 6, Februm~, 2g, 2002 ZBA Public Homing T~ansc~ipt RICHARD LARK, ESQ.: Yes. It just 15 feet. MEMBER OLIVA: In other words it's just that from the other roads in town that have been kind of put there as the road ends and then gradually filled in. RICHARD LARK, ESQ.: Yes. And this has been respected, as you can see, xvhere the dent to the property they've got sort of like a stone wall right on the Rust side of the property line and to Mr. Cella's credit and the predecessor before him Dr. Camew, they kept that land up they didn't let it go to weeds or anything, they let the trees grow, they pruned them they cut grass and so on, and so forth. But no one's ever used it in that sense of losing it as an ingress and egress to it. MEMBER TORTORA: We've had similar cases to this in the past and the Board has ruled on these cases in the past, not under 280A actually an Interpretation we did in the past. At this point, really the burden of proof is on you to prove sufficiently it isn't a right-of-way, a street excuse me, under the Town Code. In the event that it is a street under the Town Code, let's go to a couple of things tight of way. Let's go to, and we touched on this the last heating, alternate sites. Why can't this be put into a conforming area on the southeast side? RICHARD LARK, ESQ.: Well I submit it is in a conforming area on the side that it is, it's just this Interpretation of the Building Department. Now, in other words put the addition on the other side of the house. Well, I've got the builder right here, he can answer that question because he's been working directly with the owner and they've developed the plans last January or February, a year ago. Do you understand the question? Forget Zoning, why can't it be put on the other side? CHAIRMAN: Just state your name tbr the record? CHRIS UHL: Chris Uhl for the Trust. I believe you have the final, the sketch drawn by the Building Inspector. CHAIRMAN: Right. CHRIS UHL: The house is on the comer lot and the addition to the setbacks from Wurmeweta Road, there are setbacks from Bayberry Road and from the bulkhead in the back. In addition, there are also setbacks that would be required from the guesthouses currently there. There is no way an addition of this size could fit on the opposite side, given all those setbacks from four different places. CHAIRMAN: Mr. Uhl is it tree that the backside of the house houses the bedroom area of the house? CHRIS UHL: Which CHAIRMAN: Thc southeast side, the present house as it exists'? CHRIS UHL: Yes, the southeast side does have a bedroom. CHAIRMAN: Where the side that you're proposing this addition, is basically part of the living area of the house, is that correct? CHR1S UHL: Currently, there's a garage on the north side. There will be a master bedroom in the proposed addition. RICHARD LARK, ESQ.: He means in the existing house. CHAIRMAN: That's converted to living area. RICHARD LARK, ESQ.: That's converted to living area and then you have the kitchen, and the living room. CHRIS UHL: The kitchen is in the middle of, roughly the northeast side. MEMBER OLIVA: Mr. Uhl, do you have two lots here, 219 and 220 and what are the two structures on lot 2197 There's one story a far house? CHR1S UHL: There's a one story, that's the guesthouse. MEMBER OLIVA: And how about the other one to the southeast, a shed and a boathouse? CHRIS UHL: Right, correct that is not, there's no living space there. MEMBER OLIVA: That's one lot? CHRIS UHL: Yes. CHAIRMAN: Any other questions ladies and gentlemen? MEMBER ORLANDO: One tax lot. CHAIRMAN: Any other questions of Mr. Uhl, anybody? RICHARD LARK, ESQ.: Wait a minute, does that answer your question Ms. Tortora, as to why they did site it on the other side of the easterly side? Okay. CHAIRMAN: You're going to pose this question to us? PATRICIA MOORE, ESQ.: How would you like it? Pagc 8, Febtxmty 28, 2002 ZBA Public Hearing Tmnsc~qpt Town ol South~qd CHAIRMAN: Pose it to us. PATRICIA MOORE, ESQ.: Okay. CHAIRMAN: Wait a minute Mr. Uhl; I think this question may involve you. PATRICIA MOORE, ESQ.: Has the existing garage on the side of the Cella property, has that been enclosed into a living space or for perspective living space? CHRIS UHL: Yes. PATRICIA MOORE, ESQ.: Do you understand that? CHRIS UHL: Yes. PATR1CIA MOORE, ESQ.: So it's no longer a garage? CHRIS UHL: It is no longer an active garage. PATRICIA MOORE, ESQ.: And on the easterly side, you said the kitchen was in the center area, okay. Then on the easterly side of the property, the house, pardon me that also am the bedroom area, correct on what you've described? CHRIS UHL: Yes. PATRICIA MOORE, ESQ.: Okay, and what they've proposed as far as an addition is a garage first story, correct? CHRIS UHL: Correct. PATRICIA MOORE, ESQ.: And then the second story being bedroom/living area? CHRIS UHL: No the garage is a single story and off the garage is a single story addition built into the side of the hill. The first story containing a new master bedroom and the lower story is vacant space. PATRICIA MOORE, ESQ.: Okay. So it's a combination of bedroom and garage in that addition? CHRIS UHL: Yes. All one story tall. PATRICIA MOORE, ESQ.: Okay, so you're two stories is actually first floor into the basement and then a walkout? CHRIS UHL: Correct. Page 9, Fcbt'ualy 28. 2002 ZBA Public Hearing Tlansc~ipt PATRICIA MOORE, ESQ.: Okay, good. All right. This is not really a question, this is more of a statement, that the design that they've proposed would work equally well on the easterly side given that both sides now are living space. The easterly side is a bedroom area with the addition being bedroom area and garage so thc fact that the use has been, you've designed a certain use, you're still talking about the same garage bedroom combination as part of that 63 foot, 31 foot addition. CHRIS UHL: There is property lines setbacks on the opposite side. PATRICIA MOORE, ESQ.: But I thought it was one piece of property? CHRIS UHL: It's separate tax lots here. PATRICIA MOORE, ESQ.: So it's two lots? CHRIS UHL: As far as the Building Department is concerned, we would have to have a setback offthe property line that intersects the properties. The line labeled 81 degrees PATRICIA MOORE, ESQ.: Yes, CHRIS UHL: Right, we would need a setback off of that line, according to the Building Department. PATRICIA MOORE, ESQ.: Well, I don't have a ruler here but what would you have estimated from the survey looks to be pretty generous. It looks to be at least 60, 70 feet more or less as on the angle. CHR1S UHL: Yes, the addition is 30 some odd feet wide and it wouldn't fit in that. PATRICIA MOORE, ESQ.: Even if you have 31 feet following the length back, the same direction, just flip it, wouldn't you still have about 30 or 40 feet to the property line. So the Building Department shouldn't give you a problem with that side yard. CHR1S UHL: Well, you can examine for yourself the map that PATRICIA MOORE, ESQ.: I have the map, that's what I'm looking at. CHRIS UHL: No, not this map, the map that the Building Department gave us. CHAIRMAN: Marked up in the file. MEMBER OLIVA: Mr. Uhl, then that gnesthouse actually extends into both lots? CHRIS UHL: Yes it does and if they ever want to sell this piece of property, that has to be addressed. Page l I). Fcbmmy 28. 2002 ZBA Public Hearing Transcript MEMBER OLIVA: Did they build this house or was that pre'? CHRIS UHL: This house was built in the 1960's and thc Rust Family built it but, and they have a C.O. for it and they have all the paperwork tbr it. MEMBER OLIVA: On the guesthouse? CHRIS UHL: Yes. PATRICIA MOORE, ESQ.: It would see to me that the Building Department wouldn't, 1 mean aside from your title issues of encroachments, which could be worked out, you're attorney could advise you how it gets worked out. But that's not such an insurmountable problem. The setbacks that the Building Department should be considering, I think there's more room on that side than there is on the other side. So I don't know that, maybe the Building Department was in error and might be helpful to try to stop the surveyor so that you know for sure. Quite frankly it looks to me like there's plenty of room. CHRIS UHL: Well you can examine the map that the Board has that the Building Department gave to us. PATRICIA MOORE, ESQ.: I understand that, I sometimes, I many times do not agree with the Building Department. That's why we're here a lot of times. CHRIS UHL: We can only follow what the Building Inspector tells us. PATRICIA MOORE, ESQ.: l understand, but I think it would be helpful before you come to a conclusion it can't be done, to actually have a surveyor who has the proper dimensions to tell you that. I think that the Zoning Board should be asking for, I would ask the Zoning Board that they should ask that it be properly plotted so that we know whether or not it's a legitimate argument that it can't be done on the opposite side; where, again, it only impacts that family, not anyone else. And again, from what Mr. Uhl has already pointed out, the design quite frankly looks like it could even be used on the other side because you do have a stone gravel driveway that looks to run, could easily go into, since it ends at sort as the east, it could easily enter and go into the garage on the east side. So there is certainly flexibility here. This is a large piece of property and there's plenty of room to re-design or even use the same design on the opposite side. CHRIS UHL: The driveway is not the issue, the issue is the setbacks from the property line and as far as the Building Department is concerned you have two pieces of property and there are setbacks from both and from the from and from the rear, the zone line PATRICIA MOORE, ESQ.: I understand that. CHRIS UHL: And I do not believe according to their map that there's enough space to have this addition on the other side. Page i I, Fcbmm~' 28, 2002 ZBA Public Hem'ing T~',lnscxipt I own of Soulhold PATRIC1A MOORE, ESQ.: We are certainly not opposed to any application of a variance from a front yard, if you even need it, because I don't think you do. And from a side yard from the other side, which I don't think you do either. So, as to Mr. Uhl's arguments 1 don't believe that they're strong enough to change the character of the area. Let mc go back to the issue that as far as which setback applies. When you'rc dcaling with, if you were building, creating a lot out of a sub-division and you were in a R40 Zone, you'd look at that schedule. When you have lots even though they're in an R40 Zone than the other size criteria, I've always been under the impression, and I think that the Buikling Department would agree, you apply 102-44; which has differing setbacks depending on the size of the property. Because, even though you're in an R40 Zone, if you have two acres, you're not supposed to apply the one-acre setback. So I think that the Building Department again, I would disagree with their initial review of this application and that, at best, they must keep to 20 feet given their argument and depending on how you rule on the fight-of-way 50. CHAIRMAN: Mr. Uhl what is thewidth ofproposed addition? CHRIS UHL: Approximately 31 feet. CHAIRMAN: 31 feet wide? CHRIS UHL: Correct. MEMBER TORTORA: 31 by 63'? PATR1C1A MOORE, ESQ.: 63, that's what the survey shows. CHAIRMAN: Mrs. Moore is there anything else; we would like to move this along? PATRICIA MOORE, ESQ.: No, thank you. CHAIRMAN: Anybody else? Seeing no hands, I'll make a motion closing the hearing, reserving decision. Thank you all for coming in. SEE MINUTES FOR RESOLUTION 7:26 p.m. Appl. No. 4927 KACE LI, iNC. (Carryover from January 24, 2002.) 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- family 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 40-3-1, now or formerly referred to as "Northwind Village" site. M. Pachman, Esq.; A. Tohill, Esq. Page 12, FcbmaI3, 28. 2002 ZBA Public [leafing q ~m~sc~ipl CHAIRMAN: I would like to re-open Appeal ,04927. Mr. Pachman? 1 would like to just set some quick ground rules on this. What I would like to do is, after your presentation of course, we'll take any information from counsel, opposing counsel and I guess we'll give opposing counsel some time to react to what you say tonight, both of you actually. MATTHEW PACHMAN, ESQ.: I don't mean to interrupt you Mr. Chairman. Do you mean additional adjournment? CHAIRMAN: No. As I said this would be reduced to writing. That's basically it. So we will ask yon to proceed sir. MATTHEW PACHMAN, ESQ.: Thank you Mr. Chairman, Members of the Board. Good evening, it's nice to see you again. I know that the first time that the applicant appeared on this application was in September, so we're at about our half-year anniversary. I'm glad to hear Mr. Chairman that we are close to being able to give this to the Board tbr its decision. When we were here last time we heard a presentation by Mr. Emilita, those of the Board that were here. And a discussion of certain cannons of statutory construction by Mr. Tohill, and I was struck by two things listening to that presentation. The first is that most respectfully Mr. Emilita's presentation was, I would suggest replete with possibility inadvertent errors of both law and tact and that Mr. Tohill's discussion of statutory cannons were for the most part absolutely correct, but we would submit when applied to this case, (re-adjustment height of microphone) but that when those cannons are applied to this case, they inure to the benefit of the applicant and I would like to take a moment to explain why. First I wanted to insure that the Board was not overly taken with the fact more than a decade ago, for a period of time, Mr. Emilita was a consultant to the Town. So I asked, who ! think we can all agree is, possibly the pre-eminent expert on planning and land use matters in this county, Dr. Lee Koppelman to do an independent review of the application and of Mr. Emilita's analysis and come to his own conclusions for the Board's benefit. Now although Mr. Koppelman is teaching as his royalized professional political science and director of the center for regional policy studies at SUNY/Stonybrook tonight, he does have this affidavit that I would like to submit to the Board. And the record should reflect I've given a copy to Mr. Tohill. I know that you have some members sitting up on the dais who have not been part of this application before. I don't know if they are going to participate in the decision-making, I do know that Mr. Tohill's application and submissions have been filed for several weeks. So, Mr. Chairman, with the Board's permission I would just like to read a few sections of Mr. Koppelman's Affidavit for the edification of the Board. He lists or he goes through each and every paragraph of Mr. Emilita's analysis and he notes that Mr. Emilita, his objections pretty much can be put into six sections. The Thursday's that the mention of the site plan is no longer valid according to Mr. Emilita, well, again, Mr. Chairman and Members of the Board the Building Inspector has listed only one basis for a Disapproval and his Notice of Disapproval and that's the only issue that has been before this Board, The issue is limited, narrow and focused. Any other issue such as the validity of the 1983 site plan is beyond the scope of this application. Mr. Emilita's second claim is that more than one family or one two-family dwelling is considered a multiple dwelling under the Code. Now, Mr. Chairman and Members of the Board, this is very important because cmnuli and indisputably that's not correct. The (:'ode defines what a multiple dwelling is and a multiple dwelling is a building with three or more dwclling units which absolutely bas been said over and over again, is not what the applicant is looking to building. This is what Dr. Koppelman says about Mr. Emilita's analysis. He says, upon closer scrutiny the reason ilar Mr. Emilita's attempt at statutory Alco my as the affidavit says, becomes clear. Without this, under his theory the applicant can building only one two-t:amily house but may multiple dwelling units. Which, Mr. Chairman and Members of the Board are listed as a conditionally permitted use and we ali know that a conditionally permitted use actually constitutes a legislative finding that such dwellings are in harmony with the community's general zoning plan and are not adversely affcct the neighborhood. And this is exactly the position which the Building Inspector has taken in his ietter to the applicant dated August 9, 2001, a copy of which is attached and I believe is already in your file. In other words, the reason why Mr. Emilita tries to change the very clear reading of what a multiple dwelling is because he understands that otherwise the absurd result is the one that the objectors are bringing forth. You can actually have multiple dwelling units on that property as a legislative determination that it fits with the character of the zoning plan and will not adversely affect the neighborhood and under their interpretation you can only have one two-family dwelling. His next objection is that one must read the Code Section we're talking about, 100-42A in the context of the entire Code. Well we all dream of that and this again highlights the flaw in Mr. Emilita's analysis because as we've discussed, in every other residential zoning district in the Town of that's AC, R80, R120, R200 and R400 there limiting language which says one-family detached dwellings not to exceed one dwelling per each lot. The Code is clear, it's consistent and it is unambiguous when it wants to limit the dwellings to only one per lot. In stark contrast 100-42A does not have such limiting language. The next objection is that according to Mr. Emilita by a coronary reasoning process, they would be required on a near application for a Building Permit, one would be allowed to build more than one two-family dwelling without reference to the dimensionaI requirements of the Code, the site plan requirements of the Code, without consideration of the availability of public water or public sewer and would read Section 100-42B, that's the conditional permitted use section out of the Code. Mr. Chairman and Members of the Board that quite frankly and most respectfully is flat wrong. The application that the applicant has put forth complies with all of the bulk and dimensional requirements as contended in the Code. For example if the one half acre density of the 20,000 square feet density, the applicant could construct 44 structures and the site plan only shows 27 structures. It has never showed issuance of the Building Permit prior to the availability public water or sewer or without site plan approval and the proper interpretation of this Code Section would leave those requirements unaffected this argument is nothing more than a red herring. The next objection in Mr. Emilita's analysis is that the proper interpretation would read, Section 100-42B the conditional permitted use out of the Code again, that's simply not correct. Kace has never made such a claim and there was no such Interpretation before the Board. Multiple dwellings do and would still be required to get a Special Permit or Special Exception approval by this Board. Finally, he says the legislative intent supports the Building Inspector's Interpretation as contained in the Notice of Disapproval. As we have discussed there is no need to look to legislative intent if the Code as here is Page 14, Februm7 28, 2002 ZBA Public Fleming Ttanscripl unambiguous. But, you have to recall what I said before, that it is under Mr. Emilita's analysis which the absurd result would occur because you could comment in here, meet thc conditions of the Special Exception which has been determined legislatively to feed within the Zoning Board of Southold Town that you could finally build one two-fhmily house. Thus, Dr. Koppelman says that in his opinion, the relief requested by the applicant should be granted. With respect to the statutory construction analysis that Mr, Tohill discussed last time he referred to the case books on statutes and the general construction law and I would like to just re-emphasize some of the things that he said because, again, we respectfully submit that those very general, those very cannons, if they are necessary to be applied fully support the applicants position. (break in tape) First, one that Mr. Tohill did not or a rule that Mr. Tohill did not raise, is that its hornbook law, Members of the Board, zoning restrictions are in derogation of the common law property fights and must be strictly construed in any ambiguity, if there is one in the Code, must be resolved in favor of the property owner. Second, the legislative intent is to be ascertained from the words and the language used and that's McKinney's Statute Section 94, and the Code has to be read as a whole. All the parts have to be read and construed together; you must get the effect and meaning to the entire Code and to every part thereof. And that's why you must read the limiting language in Section 100- 31, the Section which talks about every other residential zoning district in the Code and compare it to the absence of such limiting language in 100-42. Second, pursuant to the General Construction Law Section 41, and the New York State Town Law Section 63 and Members of the Board this is very important because this addresses one of Mr. Emilita's arguments. A Town Board acts in each instance in one way and only one way to run affirmative vote of the majority of its members and it does not act by the opinions of its consultants or its attorneys and so this argmnent that the reason that Section 100-31 has limiting language and 100-42 doesn't is supposedly because a consultant wrote one section and an attorney wrote another section is absolutely irrelevant. The Town Board adopted the Code, it adopted the Code at the same time, and it adopted the Code as an integrated whole and each part of that Code must be read together and harmonized. The Sections were adopted simultaneously, and the distinction between the limiting language in the first Section 100-31 and the conspicuous absence of that same language in 100-42 was not inadvertent. Finally, when the law expressly describes a particular thing to which it should apply, like this limiting language, there is according to statute Section 240, an inference that what was admitted or it is not included was intended to be omitted or not included. That's the omission of the limiting language in 100-42, which was expressly put into 100-31. And there is an expression, it's a Latin expression, I'm going butcher it I'm sorry but I'm going to give it my best shot here, expressio unis es excusio auterios and the reason I say it is absolutely a very important rule of statutory construction and that says, when language such as a limiting language is expressly provided in the five other pertinent residential sections of the Code and not in Section Code 100-42 it was intentionally omitted and excluded from that Section. The inclusion of something in one part means that the exclusion of it in another part was intended. Also, just as Mr. Tohill said, statute Section 145 says it is presumed that the Town Board intended to map something which was reasonable and that no unreasonable or absurd result was intended from the Board and should be interpreted by this Board and that's exactly correct. It would be absurd to say that you could only build one two-family Page 15, Feb~ um~ 28. 2002 ZBA Public llcm'ing Tmnscdpt house on that lot, but you could build multiple dwellings, many multiple dwellings on that same lot pursuant to a conditionally permitted use which again, is actually a legislative determination that such is in harmony with the community's general zoning plan and will not adversely affect the neighborhood. Finally, a legislative body such as the Town Board has the right to define any word or phrase it chooses to in the statute, that Statute Section 75.B and that's what the Town Board did when it enacted Section 100-13A which reads word usage, the singular number includes the plural and the plural the singular. Not only that, Members of the Board but the General Construction Law says the same thing. It says in the General Construction Law Section 110, and you know what, the General Construction Law says that that is applicable to every statute. It says in Section 35, words in the singular number include the plural and the plural in the singular. Thus, Section 252 the section of the statute that Mr. Tohill refers to is superceded by both Code Section, Southold Code Section 100-13A and General Construction Law Section 35 and is inapplicable to this matter. Last, another phrase that Mr. Tohill used last time, he parried material. Well that's correct. When different terms are used in various parts of the statute like the Zoning Code you must assume the distinction between the terms is intended and you must read the entire Code together. Mr. Chairman and Members of the Board when you clear the smoke away we respectfully submit this application is clear and its relatively simple. The Interpretation of by the Building Inspector flies in the face of the unambiguous reading of the Code as a whole, it leads to an absurd result and it should be overturned. Thank you very much. CHAIRMAN: Any questions of Mr. Pachman before he sits down? Mr. Tohill how are you tonight? ANTHONY TOHILL, ESQ.: Good evening Mr. Chairman and Members of the Board. My first question has to do with housekeeping, and I would like to know whether Miss Oliva and Mr. Orlando have a copy of the package that I presented at the last meeting and if they don't, l did knock down a cherry tree this afternoon and I have two more packages that I'm ready to hand them up right now. MEMBER TORTORA: Its not necessary, the Board Members have familiarized themselves with the full record, have ready all the transcripts, have read all the record including the handups that you presented at the last hearing. ANTHONY TOHILL, ESQ.: I'm asking as a courtesy from me to the Members of the Board whether or not they have separate copies of all the packages that I handed up. Is the answer yes? CHAIRMAN: I do not Mr. Tohill. You did not give me one, you gave one for the record, and I was reading in the office on Saturday morning, so I would love one. ANTHONY TOHILL, ESQ.: Okay. CHAIRMAN: Thank you sir. MEMBER TORTORA: We were so conscious about this that we gave the Chairman's file to the members. ANTHONY TOHILL, ESQ.: Let me bring this back to a context that is as practical as 1 can make it practical. (microphone adjustment) that got us here to the Zoning Board of Appeals. Each of those tbur Building Permits recites the intended use of the property. Not my language, it's the applicants language, multi-family use as per approved site plan; two different concepts. We're here because the Building Inspector denied the application for Building Permits, not recipes for chili contests, Building Permits. That means that if the Building Permits am issued, bulldozers go there and they start building buildings. But buildings that they build, according to the applications that are the only records before the Town, four of them, are multi-family use as per approved site plan. So that's the first point. Second, how many two-family houses are you allowing that you draft the relief requested. Don't all answer at once because you may speak in lbur different tongues, and in thct, if Matt Pachman and I are given a chance to speak, we may raise it to six and if we give everybody in the audience a chance, we may raise it to a infinite number and the reason is, there is no number, there is no number at all. Nobody knows the number. However, if you deal with this on the level of abstraction that was offered to you as the path to redemption by the applicant's attorney here this evening, you have to appreciate that you are going to allow a Building Inspector, you are authorizing the Building Inspector to issue four Building Permits for an unknown number of multi-family use as per approved site plan. However, you do know that there is a site plan, the 1983 site plan, you do know that that site plan became invalid in 1985 under Local Law I 1 of 1985, it was enacted twice. You do know that that site plan became dead again, more dead than it was under Local Law 11 of 1985, under Local Law 1 of 1989 because the Town Board again changed the district to HD then light residential, multi residential and increased the density so that that as per approved site plan that was now sent to you four times because it says so four times in the site plan application, is no approved site plan. So, if that's the way it's going to be handled then the level of obstruction is no rule out of this, that means that everybody in this town who has a single-family residence in a single- family residential district, you just read one hell of a Code. In fact any place that there's a nmnber you read it out of the Code and the reason is none of us knows what the number is as a matter of fact. That's why this whole argument is what I told you the last time holding up meets the mischief that you have here is that you're going to encourage not to read all of Chapter 100. Never see that presentation with a straight face before any agency, I cannot imagine what it would be like in this Court of law to say to a judge, judge don't read all of the law, don't go to law school for three years, go to law school for one week. lts much more economical, you'll start earlier, you will make more money don't waste your time spending those additional three years or whatever it is in school. Here you are actually being encouraged to hang a premium, a premium on ignorance don't read Section 250 of Chapter 100 that says you can't have this land use without site plan approval, l want to ask you also; you solicited the opinion of your Planning Board in the document that I handed up, the booklet that looks like this. That document is Exhibit Z, the last letter in the alphabet. It's a September 22, 2001 memo from the Chairman of the Planning Board. He's either taken leave of his senses altogether, lost all track of any understanding of land use or he made an error, an absolutely terrible error. He said to you that this application, these applications, we're going with can't perceive. He said because there's no site plan approval. He said it needs SEQRA review, he said it needs Suftblk County Power Commission approval. He says it needs Suttblk County Health Department approval; he says it needs Suffolk County Department of Public Works approval; he says it's not for the use that was approved in 1983. He says it's i-bt a different project from the approved site plan, as per approved site plan. He has not taken leave of his senses. He's speaking in complete sense. This is an application l-hr four Building Peianits. Understand the implications of what you're being asked to do. You're being asked to direct the Building Inspector, to authorize the Building Inspector to approve those Building Permits. When Mr. Pachman argued to you, don't look at anything else, that encourages you to be embarrassed in front of many of us who have nothing but respect for this institution and for each of you. Because if you were ever to buy into that line, can you imagine what would happen in the weeks ahead at Mike Verity's desk. We don't know what was approved, we can't it; when he wrote the denial letter he had no obligation to act as a lawyer, he had no obligation to send to you a memorandum of law, which by the way was left with you this evening as if I were alone with the Chairman, chicken liver, he doesn't get a copy of anything and 1 don't even get a response to what I spent all that time writing. I assure you that when this case, if it ever does, get to a court of law, we will not be hearing the argument that you heard as the whole presentation seeking by the applicant. Don't read the entire book, you'll get confused, it has nothing to do with anything, just handle one section. Thank you. CHAIRMAN: Mr. Tohill you did get a copy of Mr. Pachman's response, did you not? ANTHONY TOHILL, ESQ.: I'm sorry? CHAIRMAN: You did get a copy of Mr. Pachman's response? ANTHONY TOHILL, ESQ.: You mean this copy of this Affidavit? CHAIRMAN: Yes. ANTHONY TOHILL, ESQ.: I just got it here this evening, 1 haven't read it and I am going to ask as you offered before to respond. MATI'HEW PACHMAN, ESQ.: Mr. Chairman, 1 apologize did I a copy of Memo of Law to Mr. Tohill I didn't, I apologize. ANTHONY TOHILL, ESQ.: l have nothing except the copies of handed in? · When was it CHAIRMAN: Just now. ANTHONY TOHILL, ESQ.: Oh, I didn't see you hand that in. Page 18, Feblxmly 28, 2002 ZBA Public Hcm-ing Tlansc~ipt MATTHEW PACHMAN, ESQ.: Did 1 get it up to the Board? MEMBER TORTORA: A Memorandum of Law from you? MATTHEW PACHMAN, ESQ.: Yes, the Memorandum of Law. MEMBER TORTORA: No, we have the Affidavit of Mr. Koppelman. MATTHEW PACHMAN, ESQ.: Mr. Chairman, I am handing up copies of the Memo of Law, I apologize. I thought I had and I'm giving a copy to Mr. Tohill. If I might briefly respond to Mr. Tohill's statements because I feel as if Mr. Tohill, fbr whom 1 have great respect, didn't hear the arguments that I was making; indeed it is the opposite of his claim. You must, in fhct, read the entire Code. Now, Mr. Chairman and Members of the Board, l continue to say what I said at the last meeting, and what I said at the meeting befbre, because it doesn't matter how many times the opposition makes the claim, there is only one issue and one issue alone bdbre this Board and that's the Interpretation, excuse me, the Notice of Denial it is the amended Notice of Denial of the Building Inspector dated August 13, which denied the application on one ground. The reason why I didn't comment on Mr. Tohill's Memorandmn of Law but I will now; because that Memorandum of Law whether its contents are right or not right, whether I would agree or would not agree, talk about issues which are absolutely irrelevant to this application because that entire memorandum of law deals with whether the 1983 site plan is still valid. And Mr. Chairman and Members of the Board, 1'11 say it for the third time tonight, maybe for the tenth time during this entire application, that's not the issue before the Board, that's not the issue that the Building Inspector denied the application on, this Board has a limited jurisdiction, it is to interpret and review the determination of the Building Inspector as contained in that August 13th Notice of Disapproval and that is the only issue and that is the only jurisdiction of the Board. MEMBER TORTORA: I have a question for you Mr. Pachman'? MATTHEW PACHMAN, ESQ.: Sure. MEMBER TORTORA: Mr. Tohill suggested that there are four Building Permit Applications. For the record, have you or have you not withdrawn all prior applications before this Board? MATTHEW PACHMAN, ESQ.: Yes, other than the one that led to the August 13th denial l?om the Building Inspector. MEMBER TORTORA: Have they all been formally withdrawn as a matter of record? MATTHEW PACHMAN, ESQ.: Well, I believe they have because I believe that in the file we have a MEMBER TORTORA: We have correspondence, yes. MATTHEW PACHMAN, ESQ.: correspondence. They absolutely have it, there is correspondence to the Building Inspector, and if there's any ambiguity, wc will continue to say it, we'll say it today, we'll say it later on if the Board wants; there is one Building Application which is before the Town at this point, it was the one that led to thc Notice of Disapproval in August 13th, it was the one that was the basis of the amended Notice of Disapproval and the one that we are before here today. MEMBER TORTORA: Okay, for the sake of time could we wrap this up so and we would like to close this hearing tonight. CHAIRMAN: No we're not closing it, we're closing it to verbatim only. MEMBER TORTORA: Exactly. CHAIRMAN: What we're requesting is from Mr. Tohill is approximately ten day response. MEMBER TORTORA: Ten days, both of thern. CHAIRMAN: Yes, and a ten-day response from Mr. Pachman. MEMBER TORTORA: Both of you, ten days. CHAIRMAN: That puts us at the 21s~ meeting. ANTHONY TOHILL, ESQ.: Let's do a quote, ten days from today and be done with it. CHAIRMAN: Well because ANTHONY TOH1LL, ESQ.: It'll go on and on and on and on. MEMBER TORTORA: No ten days for both of you, not ten days for you and ten days for him. ANTHONY TOHILL, ESQ.: That's exactly what I'm saying. MEMBER TORTORA: Ten days for both of you at the same time. MATTHEW PACHMAN, ESQ.: Then I may receive his on the tenth day, you know ANTHONY TOHILL, ESQ.: I'll hand deliver it. MEMBER TORTORA: In fact, we will all receive the same information on the same day. Page 20, February 28, 2002 ZBA Public llearing Tr*mscript Town ot~ Southold ANTHONY TOHILL, ESQ.: Exactly. MEMBER TORTORA: But we can't go back forth, with you responding to him and you to responding to. There's more than sufficient evidence on the record at this point, for this Board to make a determination. Make your closing statements; let's be done with it. ANTHONY TOHILL, ESQ.: I agree, goodnight Grace. CHAIRMAN: Trust me it's not going to happen. ANTHONY TOHILL, ESQ.: So ten days from today? MEMBER TORTORA: Correct. MATTHEW PACHMAN, ESQ.: As I understand it, if Mr. Tohill hand delivers this to me on the ninth day, then I have a day to respond? CHAIRMAN: No, that is not correct. MEMBER TORTORA: You both have ten days. ANTHONY TOHILL, ESQ.: Jerry, let's do a Monday; what's a Monday, not this coming week but the following week? Does anybody have a calendar? The 1 la'? March 11~', everybody submits on that day and that's it. MATTHEW PACHMAN, ESQ.: That's precisely what the Chairman is not saying; normally the applicant has the last word because it's the applicant's application. CHAIRMAN: We'll give everybody until the 15th. ANTHONY TOHILL, ESQ.: Okay, the 15th and that's it. CHAIRMAN: Right. If there's any problem Mr. Pachman, let us know. Please remember before you two gentlemen leave that we will be closing the hearing on the 21~t. MATTHEW PACHMAN, ESQ.: Thank youMr. Chairman and Members oftheBoard. (break at 8:05) CHAIRMAN: For the people who have not been before the Zoning Board of Appeals, we do have another member who is a Fishers Island Member who comes over religiously for every Regular Meeting, this is a Special Meeting, which we quite honestly don't have Public Hearings at. And I'll make a motion going back into Public Session. 8:10 p.m. Appl. No. 5051 - CLIFF AND PHIL'S LOBSTER HOUSE/RESTAURANT - Based on the Building Department's Notice of Disapproval issued November 13, 2001, Page 21, Febnlary 28, 2002 ZBA Public Hearing Transcript Town of Soutbold amended November 14, 2001, applicant is requesting: (a) an Interpretation under Article XXIV, Section 100-243 to Reverse the Building Department's determination which stated that the proposed addition/alteration to an existing restaurant establishment is not a permitted use in the residential R-40 District, o~r alternatively a Variance under Section 100-243A authorizing the proposed addition to the existing restaurant, a nonconforming use in a nonconforming building; and (b) a Variance under Section 100-244B to locate the proposed addition maintaining the same nonconforming setback at less than 35 feet from the property line; and (b) a Variance under Section 100-244B for a total lot coverage in excess of the code limitation of twenty (20) percent of the total lot area. Zone District: R-40 Residential. Location of property: Corner of the East side of Kenney's Road and the South side of North Sea Drive, Southold; County Tax Map Parcel 1000-54-5-22. George Tsunis, Esq. CHAIRMAN: I want to say Mr. Tsunis that we agreed to have this hearing be held tonight, however, as you know there are now three Notices of Disapproval. MEMBER TORTORA: Two. CHAIRMAN: Are there not three? Didn't we receive one today? We did not receive another one today? GEORGE TSUN1S, ESQ.: No, I have no notice, not that I'm aware ot~ CHAIRMAN: All right, well then let's go back on this then. We have two Notices of Disapproval. The Public Hearing is based upon the first Notice of Disapproval. And we may restrict you to a specific situation tonight because this is going to be a preliminary hearing, and we are going to complete this hearing on the 28th of March, at which time we will re-advertise the second, both the first and the second Notices of Disapproval. By law, we discussed this with counsel last night and we cannot complete this hearing tonight because we are only dealing with that Notice of Disapproval, which was first given to us when it was filed by the applicant prior to you being on Board. Just so you are aware of that situation. I would appreciate it tonight if you could get into some of the use variance aspects of this case, and we'll go from there. GEORGE TSUNIS, ESQ.: Mr. Chairman, just for my own edification, it was my understanding that before the public notice came out I mailed a letter to yourself, also to the attention of Linda and Paula in the Zoning Board Office dated February 13, it went by telecopy asking that the application be amended to include both the Code Interpretation, as well as, the Use Variance. It is my understanding that was received by the office before the public notice was made, and they would be able to put on both applications and try to provide you with both sets of proof. If that is not the case, Mr. Chairman, I am rd more than willing to come back on March 23 , at your indulgence, and provide whatever you need. MEMBER TORTORA: We do have the amended Notice of Disapproval. The problem probably isn't yours. What happened was the original Notice of Disapproval was issued Page 22, Fcbmmy 28, 2002 ZBA Public Hearing I mnsctipI MEMBER TORTORA: Yes, I'm sure. To make a long story short, what happened subsequent to that, was you then went back and had a survey donc, developed the blueprint elevations, revised the site plan three times, the calculations on the revised site plan the Building Department simply hasn't seen any of those. So, between Novcmber and all of the revisions and the plans that you developed have not been reviewcd by the Building Department. So, at this point, we can't sit in judge and jury of ourselves and our jurisdiction, as you well know, is appellate only. GEORGE TSUNIS, ESQ.: I don't blame you; I'm very sensitive to that. We'll be happy to finish it up on March 28th. It would be a privilege to appear before you again. Let me start by apologizing at the outset. The relief that I'm requesting from this Board is both under Town Law 267B.1 Code Interpretation, and 267B.2 Use Variances. There are some similarities in places; my comments are peppered, so if I'm a little redundant and I inadvertently get into matters that are published, please fbrgive lne. I'll try to keep my comments to on the Use Variance application. CHAIRMAN: Symmetrically what I said in the beginning, we would like you to take whatever has not gone to the Building Department and give it back to me, so in case we get a third interpretation, which I was misconstrued about tonight, we can incorporate one, two and three into a final public hearing notice which will then allow us to complete the process of this particular project. MEMBER TORTORA: So they can review it. In other words, they can review all the revisions you made and CHAIRMAN: And I honestly think you can do that in 30 days. GEORGE TSUNIS, ESQ.: Yes, I will be happy to come meet with the Building Department, with the Zoning Enforcement Officer and work everything out. CHAIRMAN: Right. GEORGE TSUNIS, ESQ.: Thank you. Good evening Mr. Chairman, Members of the Board. My narne is George Tsunis; I'm with the law firm of Ritkin and Radler, Uniondale, New York 11556. I am the attorney for the applicant, Cliff and Phil's Lobster House, Inc., more commonly known as the Elbow East Restaurant. The premises are located on 50 North Sea Drive, which is on the comer of Kenny's Road in the Hamlet of Southold. The parcel is approximately 22,000 square feet. The current use of the restaurant is pre-existing, non-conforming. 1 think it's fair to mention that the parcel was also the subject of an up zoning approximately ten years ago. The site has had an existing family restaurant of approximately 2800 square feet for as long as I'm told anyone could remember. It's been in that community for decades and decades, a fairly famous restaurant. And the community has grown in the short around this restaurant. It pre-existed the later residential uses. Our proposal and the issue before this Board is to seek relief to renovate the existing restaurant and to do an expansion of approximately [~age 23, February 28, 2002 ZBA Public Heating Tt'ansc~ipt Town of Southold 1400 square feet, which would provide fbr proper handicap access into the premises. A suitable foyer and proper bathrooms, which would be A.D.A. compliant. As this Board is very familiar, some years ago, congress passed the American Disabilities Act, and many premises quite frankly have been slow to recognize and to spend their dollars to provide a suitable and compliant facilities with the American Disabilities Act. The applicants are willing to spend those sums to better service their clientele and their community. There is a handicapped lifi that will be installed so patrons can access the upper portion of the restaurant. If you've ever been there, or if you've seen the site plan, it's literally on two levels and clearly someone in a wheelchair could not get up the stairs and we feel that this is very sensitive and very appropriate. There's also a smoking area, an enclosed smoking area. We want to enhance the lounge. Second-hand smoke has been one of the largest problems that we face, so much so that thc Suffolk County Legislature and I think legislatures all over this country have passed anti-smoking legislation. And what that does is it mandates that restaurants provide a smoke-f?ee environment to their diners. And if you're going to have a smoking area, you need to have an enclosed area, usually by the bar. And if you're going to have an enclosed area, usually by the bar, it makes some sense to provide some tables for those patrons that are smokers so we don't discriminate. So patrons who are non-smokers can have a smoke-free environment and enjoy their meal, and people who are smokers can also go into a small-enclosed area and enjoy their meal. My request, 1 had two requests before you. Town Law 267B.1 gives this Board tremendous latitude and powers to interpret the Code. My argument on March 28th is going to permeate that the Zoning Enforcement Officer did not factor in this Federal and County law. And within this discretion that is given to you I'm going to ask that those factors be taken into consideration. There will be a tremendous amount of case law that ! will quote for you, where in the Court of Appeals in the Appellate Division have done very similar things and I hope that's something that expositive in making more decisions. We see use variances, especially in this case. When the applicant has special circumstances the enabling acts provide more zoning powers, especially to this Board. The standards to grant such variances were designed to give the Board a maximum of discretion, a maximum discretion. Which means you have to consider the criteria which 1 will go into, you have a tremendous amount of discretion. If the application is proper and special circumstances, the case law says special circumstances, exist to grant the reliefi Any discussion of the Use Variance must start with unnecessary hardship. This is something that the legislature codified into statute from the of 1939. Simply put to achieve unnecessary hardship for it to exist, no reasonable return on an investment can take place. No reasonable return on investment. That doesn't mean that they have to be losing money. You have to determine that they can't make a reasonable return on their investments. As a matter of fact, that's quite clear in a Court of Appeals decision in Fayetville. You have to demonstrate factually by dollars and cents proof an inability to yield a reasonable return. Dollars and cents proof. CHAIRMAN: Mr. Tsunis, any case law that you intend to present to us, we would appreciate copies of, and I see you have copies possibly in front of you. GEORGE TSUNIS, ESQ.: I'll have that for the 28th sir. Page 24, Febl'ualy 28, 2002 ZBA Public Hearing Transcript CHAIRMAN: Okay, thank you. GEORGE TSUNIS, ESQ.: As I said, dollars and cents proof. 1 have, and I would like to submit as an exhibit fur this Board a letter from the applicant's accountants, which 1 would like to read into the record. The principal shareholdcrs are not receiving a return on their investment. In order to provide necessary working capital, they're accepting less enmneration than they could expect if they were employed by a business in the industry. However, Ms. Volinski states that their losses have been reduced and it is reasonable to expect that a positive rate on their investment could be achieved if we provide them with an increased amount of business. I have certified financial statements by the applicant's accountant, l provide two copies ['or you. If you would indulge me for a moment, page one is a letter from the accountant certifying these financial statements. Page two has a confirmation of the financial statements of the restaurant. If you notice for the year 2000, the restaurant had a net loss of $21,000. No matter what they paid for it and I can tell you they paid a pretty penny for it, a negative $21,000 is not a reasonable return on your investment. In 2001, they lost approximately $4500. Clearly, I think you all can be sensitive that these hard working taxpayers don't go into business, don't go into this very, very difficult service business, work long and hard hours to lose money. The standard is not even losing money. The standard is not achieving a reasonable return on our investment. I would go further because here we're met with two standards, not one. Because it's not an easy application, I'll grant you that. Each and every use permitted now, can't achieve a reasonable return. The only thing that could be permitted now, god forbid if the place was no longer there, is one single home. For the amount of money that they paid for this commercial propcrty, what were a commercial property and an existing business, mentioning knocking it down, clem'ting it up, cost, constructing one house. It is extremely difficult; it's impossible to make a reasonable return on the money. People do not buy existing commercial predecease operating for a couple of years, take losses, then knock them down to construct one home. I think we meet that burden criteria number one. As a matter of fact, I'm going to add it to another case, St. Albens Springfield Corp. precana. We're going to require bank financing and this is where this case speaks. We're going to require bank financing to do this. And I can tell you that the lending institution is no fools. Sec a building, and this is the current state and I'll hold it up and 1'11 show it to the audience. This is the current building. Quite frankly it leaves a little to be desired. It leaves a little to be desired. This is the building. It looks like a box. Quite frankly, it doesn't conform with the character and the nature of the community from an esthetic point of view. And if you can see the proposed construction area, I think that you'll see it rather modest. This is the current building, this is how it looks; its gray, its clapboard, it could be better, it should be better, it should be beautiful. We want to make it beautiful. We want to make it handicap accessible, We want to provide big, beautiful bathrooms. We want to provide a foyer and an entranceway, so people are not as you walk in, and you're allowed to take traditional notice on your own personal experiences, if you've gone to the restaurant, you're permitted to do that. If you go into the restaurant and you happen to have to wait Ibr a table on a Saturday evening in the summertime, the only areas to wait are outside or you're literally right on top of the patrons that are dining. It is very difficult to get into the bathroom because you literally have to walk through tables, there's really no space. And the bathrooms are inadequate. Page 25, Fcbmmy 28, 2002 ZBA Public Hearing Tlanscript Like I said, it pre-existed tbr many years. That was permissible back then. It might have been appropriate back then, but it's clearly not appropriate today. It's clearly not appropriate today. What would wc like to do'? This is the proposal, I would venture to say and this is the last criterion, more in keeping with the character and nature of the community. This is the new building, or the proposed building I should say. Look at it, it's stunning. It's beautiful, lt's obviously going to cost a lot of money. CHAIRMAN: Before we conclude this hearing, ladies and gentlemen tonight, we'll have these pictures up here and you'll be able to study them a little bit better. GEORGE TSUNIS, ESQ.: Certainly, Mr. Chairman. It's a beautiful building. It's more in keeping with the character and nature of the community. I think neighbors would be happy, happier to have this proposed building. They would be happier to have this beautiful building, one that's esthetically pleasing. One that is similar, closer to what exists today in terms of style, esthetics and architecture. There has been case law, and I quoted the St. Albins case, where banks when you have situations that render the uses in the ordinance unfeasible create an unnecessary hardship. We're going to need bank financing for this. So we've gone to banks and they said this is what you want to do, you want to spend a lot of money, you're business isn't making any money and you want us to believe in a dream and lend you money so you can renovate and make a more beautiful restaurant. Well, we're going to require that you have a rate of return and it's exhibited in the last two years through financial statements that you can't get a rate of return the way the building is situated. You can't accommodate those customers and make a rate of return. So to get the bank financing, they said you're going to have to make a business that has an opportunity to make a profit so you can pay us back. This exists today, if 1 can analogize that case, we need a little bit more space so we can enclose a smoking area so we could serve some more patrons, better, and so we can make a rate of return. The second criteria tbr use variances are __ circumstances. We don't have to be the only situation in the community. We have to be less than a majority. That's what the Douglaston case teaches us. We have to be less than a majority. What the courts were afraid of is that a Zoning Board would go ahead and once, it's a slippery slope, once they gave one applicant this relief, then everyone would come out of the woodwork and get similar relief. Well that's not the case here. There are no other restaurants in that community. This is the only one; I think we can take traditional notice that it's the only restaurant in this community, in this area, on that block. So if you grant the relief we're requesting, you can do so without any fear that tomorrow there'll be another restaurant that seeks to expand next door or across the street. Like I said, this restaurant has been the subject of an up zone back in the early 1990's. MEMBER TORTORA: Please don't comment while the speaker is commenting, let's show everyone respect. CHAIRMAN: Everybody will be sworn in, everybody will have the right to speak. GEORGE TSUNIS, ESQ.: There's no self-created hardship here. There was up zone, there was an up zone while it was a restaurant. There was an up zone while there was a Page 26, Fcbrums, 28, 2(}02 ZBA Public Hearing h'anscnpt restaurant. And it's equivalent to a take-in. The government took something that did not belong to them and did not provide proper compensation or consideration fur it. And if you look at the Muller's case when the courts upheld that, where moncy has been spent in good faith, on a permitted use, which is no longer permitted, it's proper fur the Board to consider the fact, notwithstanding that the hardship was self-created, lts proper tbr the Board to consider that and it is. And I think everyonc would say that up zones, when there's no compensation fur it, is fundamentally unfair. This has been a pre-existing restaurant and if it was not for that up zone, we would not be here today. We would literally go to the Building Department, stamp our approvals, provided that we meet all the other codes, and we would be able to have what I'm asking for. We wouldn't need the relief, but not for the up zone. The last criteria are no change in the character of the neighborhood. I call this a practical common sense test. This would bring these premises closer to the character and nature of the community. Like I showed you before, look at the contrast. This is what exists today, not very, doesn't look a lot like a house. This is what we're proposing to look at. Look at it, you would think it would be somewhere between a church and a house; with peaked roofs and donners and beautiful, traditional windows and clapboard. I think we've spent a lot of fune, and a lot of effort, and a lot of money to design something and seek to build something that is more in k¢cping with the character and nature of the community. We want to provide something that is esthetically pleasing, that is more beautiful. That looks more like what is there today, existing in the community. You will get a newly renovated restaurant. What does that mean? That means brand new compressors, which are quite and state of the art. We don't have to do that right now, but we'd like to, because we think its sensitive. And we are very cognizant that we live amongst residents. And 1 think most people would say, that they've been a good neighbor. In fact, I was told today, 1 was at the premises earlier, and I was told that in the thirteen years there hasn't been an altercation. You don't have thc police or code enforcement running down there every weekend. This is a quite, family restaurant. We want to enhance the service; we don't want to change what we are. Landscaping, very important because there's a complete lack of it quite frankly. It should be enhanced. There should be more. It should also be prevalent around where the most impacted neighbor would be. This is the parking lot of the restaurant. This is the one single tree. What we're proposing, if the Board allows us to, and we can work this out with the impacted neighbor; at our own costs and expense we would like to provide a landscaping plan where, if approved, we would provide mature landscaping, mature evergreen type trees around the entire parcel so as to limit the site visibility onto the neighboring parcels. This is the one existing tree that currently exists. And we would like to put these trees throughout the entire parking lot. This, l'm sure you would agree would provide a much needed and very appropriate buffer to the neighbors. There is another benefit. We're seeking to move the entryway to the side, where the parking lot is. Currently the entryway is literally fight at the street. So you have patrons lingering outside, or you have patrons lingering around in the dining room right on top of people. We would like to take that entryway and close it off; because that's what's visible and put it toward the side of the restaurant where the parking lot is creating nice landscaped area perhaps a park bench, traditional lighting and make a beautiful entryway but take it out of where it is now. So it doesn't impact any of the neighbors. We've prepared for you; this is the existing premises right here that's not colored in. The existing premises roughly Page 27, FebrumT 28, 2002 ZBA Public llcming Tmnscupt lown o] $outbold approximately 2200 square feet. What's colored in is thc proposed expansion. Wc create an entryway that's off' the parking lot, not over here where it currently exists, very, very close to the street. It's off the parking lot and it's away from the street. There is an entryway. What also happens is that you open up the door; I mean everyone gets a nice case of that wind that comes off the ocean. You have a nice entryway; you have adequate handicapped bathrooms right here. You have that lift that we were talking about you have that lift that we were talking about that allows access to the dining room tbr non- smoking customers, because right now we, its very difficult to accommodate them. You have the entranceway into the bar and you have some stools, as you will see, there's no dance floor or anything like that its just a bar with some stools. And then you have a smoking area off the bar used to accommodate smoking patrons. I'm not going to. Yes MEMBER TORTORA: The entryway, that's a new entryway? GEORGE TSUNIS, ESQ.: That's a new entryway. The entryway is right here currently. MEMBER TORTORA: Right, is that calculated in the? GEORGE TSUNIS, ESQ.: Yes it is. MEMBER TORTORA: Because I didn't see it on there. GEORGE TSUNIS, ESQ.: Yes. MEMBER TORTORA: The ramp entryway on your calculations. GEORGE TSUNIS, ESQ.: The ramp entryway is a portico. It's really CHAIRMAN: It's an outside portico. GEORGE TSUNIS, ESQ.: It's an outside plan. There was a mistake made, that wasn't figured into what. You can see this area here; this entryway, this foyer and the bathrooms are approximately 364 square feet. There's a utility area here, its about 116 square feet. There is a bar area which is about 480 square feet with access, you have the steps here. And then you have a casual dining area to accommodate the smokers, that's about 495 square feet. I'll leave this here for everyone to see. CHAIRMAN: Mr. Tsunis that again goes back to the discussion that we had in the beginning of this hearing and that is as long as you review every element of this plan with the Building Department, so that we have those ilk,rares concrete because the original site plan talks about 2600 existing building area, 2650 square feet, you say the existing building area is about 2200 square feet. All of these figures have to come in and they have to gel so that we have them. Because, as you know and as Mrs. Tortora had told you, that our jurisdiction is based upon this Notice of Disapproval. And it has to be complete, so that's why I don't mean to be redundant about this but Page 28, Febmm3, 28, 2002 ZBA Public Hem'ing '[ransc~ipt GEORGE TSUNIS, ESQ.: No Mr. Chairman you're absolutely right, frankly the Notice of Disapproval was achieved before I was retained. I hadn't had an opportunity to visit with the Building Department but I assure you that I will be doing so in the near future. CHAIRMAN: Along with the portico please? GEORGE TSUNIS, ESQ.: Along with? CHAIRMAN: Along with the portico. GEORGE TSUNIS, ESQ.: Along with the portico. CHAIRMAN: Make sure you show that to them also. GEORGE TSUNIS, ESQ.: I certainly will. In conclusion, I would like to say that courts have recognized the ZBA with important and special functions of granting these variances. Before the Manor Reform Church there has been confided to the Board by no less than Justice Benjamin Cardozo. There has been confided to the Board a delicate jurisdiction and one easily abused. I will submit to you that these should not be granted, cavalierly. There needs to exist special circumstances. Upon a showing of unnecessary hardship, general rules are suspended for the benefit of individual owners and special privileges established where the burden of a general restriction creates a special hardship, which I submit to you. Upon a particular owner and the grant of the special privilege to him can in truth, promote equal justice. Promote equal justice. Courts have said that it is encumbered by you with such special circumstances and unnecessary hardships exist, it is recumbent on this Board to promote equal justice. And when I tell you that this property was a subject of an up zone, without any compensation, I respectfully ask you to promote equal justice and grant us the relief requested. Mr. Chairman, Members of the Board, this concludes my presentation. I only ask that, I know that there are a lot of neighbors and, of course, and counsel here, myself and the engineer are here to answer any questions that this Board or the community may have and I would just like to submit to you 159 signatures that were collected by my client. A petition in support of the Elbow East restaurant for their expansion and their renovation. Of the 159 signatures, every single one of them is a resident of the Town of Southold. There are no employees of the restaurant that are signatories here, and approximately half of the 159 signatures are residents of the Hamlet of Southold. Clearly an overwhelming amount of these neighbors recognize that this is a good quality restaurant and would like to see this relief planted. Thank you. VINCENT ORLANDO: George one quick question? GEORGE TSUNIS, ESQ.: Certainly Mr. Orlando. Page 29, February' 28, 2002 ZBA Public Heariug Tmusctipl Towu of Southold VINCENT ORLANDO: In regards to the smoking section, does New York State require you to have a smoking section, or is that the option ora restaurant to be smoking or non- smoking? GEORGE TSUNIS, ESQ.: There's no requirement. I think Suffblk County is very aggressive in this, legislation was passed that, for fear of second-hand smoke and they've limited only in public areas such as restaurants that there should be a separate enclosed area tbr them so they can enjoy an evening out and diners who do not smoke can also enjoy the evening out without the burden of second-hand smoke. V1NCENT ORLANDO: But this could be a non-smoking restaurant, if the owner chose to? GEORGE TSUNIS, ESQ.: Well Mr. Orlando, I've discussed with you that this restaurant is already losing money by limiting this restaurant further to non-smoking people, I think it will further lose money and I think they'll be no restaurant. It will be a catastrophe for the applicant. CHAIRMAN: I am going to reserve my option of questioning anything of either you or Mr. Whelan regarding this plan at this time, only because of the perimeters that I've set in the beginning of this hearing. GEORGE TSUNIS, ESQ.: Certainly Mr. Chairman. CHAIRMAN: However, I do want to discuss on the 28th with Mr. Whelan, as well as yourself, the ceiling heights, I'm sorry the roof heights, the overall height of the restaurant itself, the proposed restaurant and so on, and so forth, l'm sorry Mrs. Tortora? MEMBER TORTORA: I just, all of the case law that you sited or you quoted from, if you could hand us up a copy of the entire decision? GEORGE TSUNIS, ESQ.: Certainly. CHAIRMAN: And before the 28th. GEORGE TSUNIS, ESQ.: Certainly. Thank you. CHAIRMAN: Ruth any questions? MEMBER OLIVA: No. CHAIRMAN: Vinny, any other questions? MEMBER ORLANDO: No. Page 30. Febmm~' 28, 2002 ZBA Public Hearing l~ansc~ipl CHAIRMAN: The question I have at this particular time is, does anyone in the public want to see these pictures prior to the objectors? CONSTANTINE GEORGOPOLOUS: My name is Constantine Georgeopolous. 1 would like to see the plan that provides the proposed parking space for thc new use of these premises. CHAIRMAN: Okay, what I think we'll do then is, we'll just, if Mr. Tsunis and whomever would place all of those on this table back here, so that there's no multiples that can stay there. And if Mr. Tsunis or Mr. Whelan would depict that fbr you sir, and then at that particular point we're willing to view the other aspects of it. Excuse me one second Mr. Tsunis. Go ahead sir. Could you state your name for the record please? (NAME INAUDIBLE): Quick question. MEMBER OLIVA: Please use the microphone so that the secretary can pick you up on the tape. CHAIRMAN: And if you're asking a question, I have to swear you in sir. (UNKNOWN NAME) Just a quick question. CHAIRMAN: Just one second, state your name again9 PAUL STETH: My name is Paul Steth and I own property at 270 North Sea Drive. CHAIRMAN: Would you raise your right hand? Do you solemnly swear that the infbrmation you are about to give us is the truth to the best of your knowledge? PAUL STETH: Yes, it is. CHAIRMAN: Thank you. PAUL STETH: A question about the smoking. Are there any laws in place from County of Southold, Town of Southold, and Suffolk County concerning public restaurants in smoking? CHAIRMAN: All that I know is that the County legislature voted that if you're going to have smoking you have to designate an area. MEMBER ORLANDO: With proper ventilation. CHAIRMAN: With proper ventilation. PAUL STETH: But there's no restriction? MEMBER ORLANDO: That was my question, it is not required. PAUL STETH: It's not required. So it is not a detriment to income? If its not required its not a detriment. MEMBER TORTORA: You're drawing a conclusion. PAUL STETH: No, I'm asking a question. They've made a point saying if we don't have smoking it's a detriment to our income. CHAIRMAN: That's a matter of opinion. GEORGE TSUNIS, ESQ.: There's a case study out there defining that. PAUL STETH: So it's a mute point. CHAIRMAN: Thank you. Alright, my colleagues seem to want Ms. Moore to have all those persons that are in favor of this application to come forward first. Okay. I guess the first question we normally ask are there any spokespersons, if there are not, we'll start with the center of the room. In other words, a spokesperson in favor or speaking for a group. Mr. Sullivan? Mr. Sullivan would you raise your right hand please? Do you solemnly swear the information that you are about to give us is the truth to the best of your knowledge? GEORGE SULLIVAN: I do. My name is George Sullivan and my wife Margaret and I have been a resident of the Town of Southold for approximately thirty years. The current law that the Town allows for a quasi-judicial body, the Zoning Board of Appeals, which provides its residents possible remedies and variances against hardships encroaching restrictions. I have previously served as the Receiver of Taxes and a Member of the Town Board, and have experience in legitimate areas, cases, whereby residents deserve relief and consideration from the current statutes. I believe the application before this Board deserves that consideration. I've known the families of the applicants, the Rutkowskis and Berliners for approximately twenty-five years, both on a business and social basis and have always found them to he hardworking and community minded. Their desire to improve the present restaurant facility will, in my opinion, esthetically enhance the existing location, facilitate the restaurant operation, for both patrons and employees and not encroach on or diminish the quality of life for the residents of the Kenny's Beach area. The improvements requested will only add to the beauty of the town, as they're not intended to greatly expand operations for improving with no burden to the surrounding community. The concerns of the voice in opposition of letters submitted are, I believe, not valid. The restaurant theme is that of a family one, not a bar or an establishment with loud music. In its many years of operations, there has not been one altercation involving the police. Not one complaint about noise, or any other legal activity occurring at the restaurant. In addition, I have never seen refuge or papers strewn in the parking lot or on the ground. I am somewhat familiar with the special needs of the physically disabled, as I am one. 1 am fortunate in my situation, that many of my fellow Page 32, Fcbrum-~' 28, 2002 ZBA Public Hearing Tmnscrip~ amputees and others suffering disabilities should have access and comfort if they chose to dinc out. Thc applicants wish to provide this and the new restaurant fhcilities and entrance dcsign will greatly assist the handicapped and the elderly. In making their decisions the Board must consider the good of the entire town, not the specific complaints of a few whose interest may not be that encompassing. I hope the Board will make that correct decision. In summary, I support the application submitted without reservation. Thank you for your consideration. CHAIRMAN: Thank you Mr. Sullivan. Again we're going with the center of the room. Is there anybody else that would like to speak in favor? Mr. Zimnoski you had your hand up before'? No. You're going to go with that? Sir, this is in fb. vor now. Kindly state your name? JOHN NICHOLS, JR.: John Nichols, Jr., Southold Business Alliance. CHAIRMAN: Would you 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? JOHN NICHOLS, JR.: Yes. CHAIRMAN: Thank you. JOHN NICHOLS, JR.: Good evening to the Members of the Zoning Bom'd of Appeals. The Southold Business Alliance would appreciate the Board's consideration of this matter. It appears to us that this may be another situation where a pre-existing business has been in operation fbr a very long time. Besides the obvious questions about setbacks and lot coverage, there is a bigger question, that is on the minds of business people, and others whose property is considered non-conforming, either by property size, the existing setbacks, or by its existing use. We recall a long, drawn out battle between neighbors in the vicinity of Cedar Beach and a pre-existing, non-conforming use of what used to be the General Wayne. That building still languishes unfinished because the neighbors in Town made it so difficult for the owner that he is out of business now. So I have to ask, because a business exists with non-conformities, use or otherwise, are we going to take the path that completely restricts these businesses from making improvements that they deem necessary for the survival of their business. Or, are we going to allow these businesses some of those entrepreneur freedoms, if not all of them, that other businesses in the town currently enjoy. Just about everything has some kind of non-contbrmity in my opinion. You may have another thought about that. We would like to think that the very limited amount of business in Southold Town, and I believe its something like 3% of all properties in this town, are business properties. That they will always be able to come before this Board with a fairly good chance of obtaining relief from a Code that often makes it very difficult to do business in this town or to make an improvement to that business. We from the Southold Business Alliance appreciate your careful consideration on this matter, and we ask you to grant the owners of the Elbow East restaurant the reasonable variances that they request. Thank you. Page 33, Fcbmm-/28, 2002 ZBA Public Heamlg Tmnscripl CHAIRMAN: Thank you sir. Again, anybody on the east side of this room, speaking in t~avor, we'll go over to the West side of the room, anybody over there that would like to speak in favor? Mr. Goldsmith how are you tonight sir? MR. GOLDSMITH: Fine thank you. CHAIRMAN: Would you raise your right hand and do you solemnly swear that the int:bnnation you are about to give us is the truth to the best of your knowledge? MR. GOLDSMITH: Yes sir. CHAIRMAN: Thank you. SKIP GOLDSMITH: My name is Skip Goldsmith and I am a lifelong resident of Southold and a local businessman, and I can tell you that the rules and regulations that are coming down the road of businesses today are very, as well intended as they may be, they're very burdensome, and very costly. I felt compelled to come to the Board tonight to express my wishes that this application of the Elbow East be granted. 1 happen to pick up the Suffolk Times today and I quote you from Gwendolyn Grucock's story that" between a Sports Bat', more traffic, parking, vandalism, speeding, drinking, drugs, late night hanging out, I thought the next thing would be the world coming to an end." And I couldn't believe a project like this could draw this kind of criticism. Most of these problems are not only town wide, but they are nationwide. And I don't see any compelling reason why this should have any effect on this project. My wife and I and family frequent the Elbow East regularly, at risk of an advertisement, I have to telI the food is good, the service is great, the people that run the place and own the place are quality individuals and their main concern is to see that their customers, their clients get the best service and have the best accommodations. That is why I feel very strongly that the Board should recommend this proposal and they be granted their application. Thank you. CHAIRMAN: Thank you sir. Mrs. Moore, 1 guess we're ready. PATR1CIA MOORE, ESQ.: I have memorandum, which I didn't give you copies of the cases, but I will after the fact. CHAIRMAN: We've received a lot of late night reading material this month. PATRICIA MOORE, ESQ.: I think you pointed out right from the beginning that there were inconsistencies in the paperwork that was submitted in the file. And so some of my memorandum is dealing with plans that may be superceded at this point, but I will address them to the extent that they are in the file presently and, if anything, they will be clarified. My first point is that what I saw/'rom the record is that the site plan consists of a plot area which is there's no dispute of us to that, 21932 square feet. There's an existing building, which, again seems to be consistent. Then there's a proposed extension with a cooler area with an entry and ramp. What I did is add up the extension, cooler area, entry Page 34, Fcbmm~J 28, 2002 ZBA Public Hcmlng Transcript and ramp and get a total square footage. I don't know if subsequent plans have done that, but what I see is an expansion from before and after being a size of 4,426 square feet. That is a sizeable expansion. In one notation in the file there's a, they say that its 48% increase in thc expansion of the use. My calculations show 59.6% ahnost 60% expansion of the use. We are dealing with a pre-existing, non-conforming use. That usc has, certainly nobody is arguing here that they have to shut down their door and that we are asking them to cease their use. What we are asking is that the expansion be denied. That is something that you're well within your rights to do. The law I site in point 1, which is the standards, which you have to follow, the fact that zoning intends to eliminate non- conforming, the goal of zoning is to eliminate, phase out non-conforming uses. And then some examples of where expansion was reviewed and non-conforming use was not permitted to expand; mobile home parks, a change fi'om a seasonal use to a year-round use required special review by the Zoning Board or applicable jurisdiction in that particular community. What we see when we look at these plans, particularly the layout, the internal layout of the structure is that the expansion is primarily in the bar. What we look at when we see this proposal is an effort to build out a restaurant and bar that is comparable and competitive with Legends, which is in an area that is a commercial area, and receives a lot of activity, is considered a meeting place and a place to have a couple of drinks. I can tell you from nay own personal experience that I have represented many a D.W.I. that have been stopped in the Legends area. That is a very lucrative area for most of the local practitioners that appear before the local justice court. That is not to say that this applicant or any restaurant should be penalized by the illegal acts of others. Whether it's littering or anything else. But the reality is that this restaurant is being developed and expanded into a bar, a significant bar in a very residential area. I'm going to skip a couple of points out of my memo, only because it, I think its more irrelevant. The character of the area, if you look back and some of you certainly have a lot more history than many of us that are neighbors and myself, the history here is that this restaurant started out relatively small, as a snack bar, in an area that was predominantly summer bungalows. And you can see that from the history of the Zoning Board of all the variances that have been granted to the residences in this area, which are little bungalows, then being improved into year-round residences. And now, based on the value of the properties in the area, you are seeing actually many more applications for very significant residences. And the neighborhood has turned into a very exclusive, very nice neighborhood with homes that, fi'om your own common knowledge and observations, range anywhere from $600,000 to over $1,000,000 depending on which house you look at. So, again, your own files show that the type of expansion, the type of improvements fbr the residences. So what started out as a quaint little restaurant has expanded over time? But now it's in the middle of a very nice, very, i want to say exclusive in the sense of being snobby, but certainly in a valuable residential area. So the character has significantly changed and it would make sense that the zoning whether it started out in a conforming use in a commercial area, the restaurant, is now consistent with the rest of the neighborhood, which is a residential zoning district. I point out some issues in my memorandum which are red flags and its actually, why fight this if there are substantial state issues, state code issues that are going to affect whether or not they can or will have aware of it all to make the improvements. The first issue, which I think they need to address with the D.E.C. and with the architect is that, well I'll back up, with the Building Page 35, February 28, 2002 Z[~A Public Heating TIanscrlpt Department and their architect is under New York State Fire Prevention of Building Code. When you have a substantial expansion of the structure it triggers the requirement that the entire structure be brought up to Code. This expansion is significant, it is substantial and t~?om very brief review by one of the Building Inspectors, it may in fact trigger the balance of the building to be brought up to Code. Whether or not that actually takes place, I think it's unthir fbr me to say that the Building Inspector will rule that way. I think it really depends on the plans, it depends on the improvements; and I raise that as an issue because, if in fact, and I have this for many clients that come in with a plan that I sit them down and I say look at this its not the zoning alone, look at how your construction is going to be affected and whether or not you can ai-tbrd to make the improvements under the State Code. So that is an issue which isn't clear from here, I raise it because why have this entire community get into a confi'ontation when the owner is going to find himself financially burdened by the renovation of the entire structure. So that's the first issue. The other issue is the F.E.M.A,, the Federal Emergency Management Act. The D.E.C. and the local Building Department reviews F.E.M.A. issues. I know this for a fact because l've represented homes that have been improved right along North Sea Drive; do I have the right street? Right alone the water, that if they are in the V Zone, and I could not find what Zone this particular property 12ails in, but certainly adjacent properties are on piles and other properties that I've been involved in have been required to comply with F.E.M.A. Now F.E.M.A. has a 50% window, which I dealt with on another application. Which you have to prove to them that 50% of the value of the existing structure that you're not exceeding 50% of the value of the existing structure. It is not fair market value, it is not construction costs, it is a amorphous value figure that's a little hard to finn up and what happens is, the F.E.M.A. will look at the existing structure, figure out what the value of it is and sometimes we use construction but its usually old structures so therefore you are not replacing it with $125 a square foot or $150 a square foot using some deviation from that. And F.E.M.A. then says well if you exceed that figure, you now have to bring the entire structure into compliance with F.E.M.A. regulations, which depending again on which develops, may require that the ground, the ground floor elevation be at eight feet or at fourteen feet, depending on which it falls in. I looked at the plans and the plans say, at least one of the set of plans, I don't know if it's a most recent one, it talks about that the existing finished floor elevation of the existing restaurant is five feet, the proposed bar is at eight feet, I'm not sure that that would even comply with the F.E.M.A. regulation. So that is an issue that I think they need to address for their own sake, as well as whether or not we should even be fighting because, again, if F.E.M.A. says, hey guys this is beautiful, there's no zoning issue here whatsoever, hypothetically there's no zoning issue. F.E.M.A. may say __.again that is a cost prohibitive renovation that they may not consider and words of wisdom think about it now, because you don't want to be at the end of the process when this comes about. I know this from personal experience, on behalf of the applicants, that you start out within the 50%, change orders have to be done throughout the construction process and, this is a public record because it was a previous application to this Board, this Von Zuben case, right there, same street. It started out we were well within the 50%. It was purely a renovation of the exterior, same fuotprint, windows, and things like that. Any time you do a renovation, you find things that you didn't think you had. All of a sudden that number goes very close to that 50% and you start having to decide whether or not to keep Page 36, FcbmalT 28, 2002 ZBA Public Hearing Transcript looking over your shoulder on whether or not you're going to comply or not, so that the bottom line is that you bring the whole structure up to the proper elevation so you can find the F.E.M.A. That is something that could easily happen in this situation, again, it depends on what flood zone, 1 don't want to give them the worse case scenario, but give them the neighborhood and the other homes in the area it looks like you'd probably have to be up on piles or at least have break-away walls or all kinds of special methods of construction under the F,E.M.A. regulations. Even if the construction itself is below 50%, presently on this application, F.E.M.A. does deal with cumulative expansions, or cumulative improvements. The regulations say, and it makes sense, you're not going to come in peace meal, just under the wire every couple of years to try to stay under the F.E.M.A. regulations of the 50%. I went back m~d I looked at the history of this property and the improvements that have been made on this property, tbllowed the Building Department, in 1983 Pastaldi and Vanderlask, they purchased the property. At that time, it was a one-story frame block building with a wood deck. It was relatively small, and I have as Exhibit A, the site plan or the drawing of the structure. You can see its pretty limited, pretty small. In 1984, the Zoning Board actually was asked for a variance. The variance that was requested was denied. Alternative relief was granted. Now I don't know what the zoning of that parcel at that time, because he said it was up zoned. presumed it was non-conforming but it could have been about the time when it was the change of zone occurred, because it says 164. When I go back tomorrow, I'm going to check and see if 164 what zoning district that was in. Was that residential or was that under the commercial. Either way, if it was commercial and you applied and you granted a variance, even at that time, if it was conforming, you believed that it was inappropriate to grant more relief than what was requested. At the time, they asked for a small 10 x 35, well they requested 12 x 35 seating area, they were granted 10 x 35 seating area and a small vestibule entrance on North Sea Drive. So they dealt with the entrance, they changed the entrance at that time. At that point, in 1984, the Zoning Board granted the minimum relief necessary. In 1989, Cliff and Phil's obtained permits fbr repairs, Now what I have, let me see what exhibit I have, I think its exhibit C, yes exhibit C. Without much fanfare it looks like, I don't know that they went through site plan, I don't know that they went through anything. It looks from the record that they may have had a kitchen fire, which anytime that an existing business has a casualty like that, a fire or an unexpected casualty there is relief, there is consideration. The Building Department took it upon themselves without further review from any other board to allow further repair of the root', replacing the framing members which no longer are structurally sound, so structural repairs, replacing all the windows, replacing the wood flooring, removing existing wall coverings, insulation, installing new insulation and wall coverings so its consistent with fire and the kitchen was brought to Code standards. This was all done, again, in 1989, so there was, the present building right now works. It has worked and it has been improved since 1989 and received quite a number of improvements. Again, going back to my F.E.M.A. argument, those improvements, if they were done at one time today, you do evaluation, you figure out how much whether its under the 50%. That, together with today's application, which is the current application, I think throws it so far over that 50% that I can't see how F.E.M.A. would look at this in any other way. So, again, I don't like to see whether its in opposition to an application or in favor of an application, an applicant going through an exercise in futility [~agc 37. Febtualy 28, 2002 ZBA Public Hearing Transcript if he cannot financially pursue this, don't make the adjacent property owners, because who I represent are the adjacent property owners, with all duc respect to the patrons and other residences, I know them all, they're all fine, upstanding citizens of the community, the people that are here and who hired me, are the adjacent property owners who are directly effected. Finally, certainly you're familiar with the Health Department regulations, sanitary systems would require review; that is certainly not within your jurisdiction, it's the County Health Department, however, this is an environmentally sensitive area and it is an issue that you should keep on your mind. CHAIRMAN: Mrs. Moore I just want to tell you, you know you have a second chance at this. PATRICIA MOORE, ESQ.: Yes, but now's the time. Because there will be more l'm sure later on. I'll try to wrap it up for you, so you can go home. Lot coverage obviously is an issue here; it was, from the documentation it looks like the 78 persons are presently permitted to occupy. It's not clear from the site plan, what the occupancy is going to be with this proposal. I think that that is something that we would all want to know. Issues that are inadequate at this point are parking requirements. They are proposing to put parking along North Sea Drive and Kenny's Road which would require backing out onto the street into a residential area in a public beach area. Also, the fact that they have used the Town Beach part of their numbers, or attempt to use part of their numbers for parking, the residents have told me that many times the beach is blocked off because of piping clover, nesting areas, so we can't count on that and it does create a problem down there. I haven't seen the proposed site plan with the landscaping and so on, certainly there is some natural gl'owth there, the proposal we have to review it. But there was nothing in the file that showed any landscaping and I will hold onto any comments until we review it. Also, another issue that is very significant to the neighborhood is the fact that you are, the intensity of the use, not only structurally in expansion, but also thc use, certainly they want to increase the business and we understand that. The hours have historically been lunchtime to 9:00 p.m. This is going to be significant expansion to the bar. Under the New York State regulations, bars are permitted to stay open, the time I had I believe its 4:00 in the morning, anywhere from 2:00 to 4:00 in the morning. They would supercede any attempts by the Town to limit those hours because the State overrides any conditions of that nature. The Use Variance criteria, have not been met. They bought this building within the last two years I believe. They knew what they were buying when they bought it. The fact that they want to make it handicap accessible, that's admirable. And that can certainly be accomplished with no expansion of the use or no expansion of the structure; it can be done with access ramps and the rest, which nobody, I think reasonably, would object to an access ramp. That is not something that, we have neighbors who are also handicapped and that is not a reason to expand the structure by 1400 square feet, almost doubling the size. Architecture improvements, well yes, we agree that this place could look a lot nicer, but again, that does not require an expansion. It's a lovely design, in my opinion personally, however, in a commercial zoning district this would be a lovely restaurant. In this, at this piece of property it should be what it is now in size, with architectural improvements. And that again, does not require any relief from this Board. It is not a taking to have an up zoning that, the Page 38, Fcbmm~ 28, 2002 ZBA Public Heming Transcript Board is well awarc of that and given the character of the neighborhood was appropriate at the time it was done in the 1980's. We will certainly continue you this in March, and wc will certainly be happy to answer any questions that you might have. I think that some of the issues I raised are very important ones that I think the applicant will probably check because I think that they're important for them, not just for us. Thank you. CHAIRMAN: On the east side is there anybody that would like to speak against this application? Yes sir. Please state your name for the record sir'? CHRISTOPHER POPPEI: My name is Christopher Poppei. CHAIRMAN: Do you solemnly swear the information you are about to give us is the truth to the best of your knowledge? CHRISTOPHER POPPEI: I do. First of all I want to say that I don't have any objections to the restaurant. I bought my house about a year and a half ago, and when we moved in we went and spoke to Mr. Forrester who was then at the Building Department, and we asked him, the restaurant was next to us, could he expand or could he do with anything with the restaurant. We were told by him, definitely not, don't worry about it; buy the house, there's no problem. I myself used to go over and have a beer and a burger in the restaurant. What disturbed me was I went in there about two months ago and the bartender was standing there with the plans out on the bar telling everybody about this gigantic bar they are going to put in there and how they're going to put in TV sets and they're going to have a bar on this side, a bar on this side. We're going to have the entire crowd; we're going to steel all the crowd from Legends. This is what got me really uptight. He's telling the whole crowd that was in there how we're going to have this big bar and and we're going to get all the locals to come in here and everything else, and I think the whole handicapped thing and everything else is great, but I think he's looking to put a big bar in this place. The third thing I wanted to say is my house, can I show you this picture, and this is my house right here. This is a large leeching field, okay. The prior owner of my house called me and said that she was tbrced to sue the owner; the old owner of the restaurant and the builder who was building this house also was involved in the suit. They were forced to sue him to have him move both their wells, because this leeching field contaminated both wells. They won the suit and they had to have these wells moved to both the other sides of the houses. Some of the other wells in this area are all contaminated because of this leeching field down here. She tells me and I can't swear to this that it was improperly installed by the old owners not by the new owners, which I think is a very important health thing fbr the whole area and the environment. The last point I want to make is, he wants to put an entrance on the side. He wants to put a side entrance in. The side entrance will face right here to this gentleman's house and this house right here, and there's another house over here that isn't in the picture. The side entrance, people will be coming right out into the lot, right next to this gentleman's house, Mr. Steth's house when he put the side entrance in over there. CHAIRMAN: Anybody else on the east side, yes ma'am? Could you kindly state your name for the record? Page 39, tcbrm~y 28, 20(12 ZBA Public Hem mg TnmsctJpl PATRICIA POPPEh Patricia Poppei, 282 North Sea Drive. CHAIRMAN: Do you solemnly swear the infbrmation you are about to give us is the truth to the best of your knowledge? PATR1CIA POPPEI: I do sir. Thank you. I have a couple of kind of rhetorical questions that may not be answered this evening. They may have to wait until the meeting of the 28th. As my husband just said, prior to the purchase of our home we checked with the Building Department here and spoke with Mr. Ed Forrester. He assured me that there could be no alterations, amendments, expansions, etc. to this particular restaurant because it was non-conforming in many different uses, the building, the lot, and the fhct that the restaurant was a non-conforming use or business in a residential area. I think when the new owners purchased the restaurant; I think they probably knew these things as well. 1 also apologize if I'm being a little redundant. When they purchased the restaurant, I knew the restaurant was making money. I've been coming to Southold since 1978 and the restaurant was always a busy place. However, it was only a seasonal restaurant, as many of you remember. It was open during the wanner months, the spring, the summer and the fall. Now, of course, with new owners, they're keeping it open all year round. I don't know if they checked to see if the restaurant was making any money before they bought it. I think when you buy a restaurant, or any business, you certainly don't buy if you know you are going to have negative backflow, you're not going to make money on it. So I really don't feel that it's my responsibility or the other residents in the North Sea, Leewood Drive, Kenny's Beach area, or the Kenny's Beach Association Membership to be worried about whether or not his purchase of the business is making money tbr him. Our concern is our quality of life. Rhetorically also, we should sacrifice our quality of lilb for smokers, I don't think so. Up zoning - up zoning allowed this particular business to remain in existence. Nobody said, we're wiping you out, you are allowed to stay, and I think that there are older residents here who remember when it was, as mentioned betbre, a little tiny snack bar, which has grown like topsy. I think it's grown to the size that it belongs. I am more than happy to see it remain that way. It is a comfbrtable, nice restaurant with a nice family atmosphere. However, l have noticed this winter, the noise has increased. I haven't called the police. Maybe 1 should so that it is on record. I have seen garage, I have seen people leave their dogs locked in the cars while they go into the restaurant and the dogs yap all evening long. In addition, the entrance is being moved, I might add to my husband's comments the entrance will now not be on North Sea Drive, where there seems to be a little bit ora buffer, but now they will face this large portico or whatever it is on my bedroom window, Mr. Steth's bedroom window amd our other neighbors offour right-of-way. I feel that this is not a proper thing as well. Reasonable return, I'm really sorry. Everybody goes into business, some people make it, and some people don't. I invested in my real estate; I don't want to lose value either. But it looks like there's a possibility. A restaurant losing money, their investment, once again, did they check into it before they purchased it as we checked and were assured by the Town that nothing could happen to change this restaurant and the way it existed? Esthetically pleasing, I don't think that's esthetically pleasing to me. I live there with all my other Page 40, Fcbin. m~y 28, 2002 ZBA Public Hcm'ing T~ansc~ipt neighbors, its very pretty, it belongs a suburbanized, more commercial area. It does not belong in thc Kenny's Beach area. Thank you very much. CHAIRMAN: Thank you, Is there auybody else on the cast side'? Seeing no hands, we'll go to this side. Yes sir? State your name for the record'? JOHN CASAMAT1S: John Casamatis, 3735 Kenny's Road, north and across the street from the restaurant. CHAIRMAN: Kindly raise your right hand; do you solemnly swear the infbnnation you are about to give us is the truth to the best of your knowledge? JOHN CASAMATIS: Yes it is. CHAIRMAN: Thank you sir. JOHN CASAMATIS: I have several questions also. In my opinion, 1989 it was refurbished. Many of those compressors had to go up on the roof because of F.E.M.A. flood zone. They couldn't be down on the ground level. I don't see any compressors on this roof here. I hear those compressors all night long. So if this place is going to become bigger, we're going to have bigger compressors. They're going to make a lot of noise. You're taking up a lot of parking. Kenny's Road is parking by permit only. Do we start calling the police every time somebody parks on Kenny's Road to go to the restaurant? Is it our responsibility to provide parking for a non-conforming business in a residential area? I like the restaurant the way it is. 1 frequent the restaurant. I think it fits right there the way it is. To expand it like this, I think the counsel made a great ar~,mment for the handicapped and I think they get into most of the restaurant. I don't see where it's our responsibility, as a community; to make this to me it appears it's a rule to make this a Legends on the Sound. And if that's what it is, once you give the approval, like the opposing counsel said, State Liquor Authority takes over and they can stay open till four o'clock in the morning. But I ask a question; does the Town of Southold have cabaret licenses? CHAIRMAN: No to my knowledge. JOHN CASAMATIS: So that means live music could be placed in that restaurant without any permit of any type from the Town of Southold correct? CHAIRMAN: That's a very interesting question. I don't know the answer to that right JOHN CASAMATIS: Neither do I, but I pose that question. And since we don't have any noise ordinances in this town and we hear from the vineyards, people that are living a thousand, two thousand feet away from churches that have festivals and it becomes a town wide controversy, my neighbor here is only less than 100 feet away from the restaurant. I'm lucky; I'm four or five hundred feet away. The other neighbors here are Page 4 I, Febmmy 28, 2002 ZBA Public Hearmg I'ransctipt only a few fcet away. So this is a consideration. I didn't hear anything about live music, noise ordinances or anything like that. That's something that should be considered. I know you cannot force them to make any guarantees. So this is something that 1 think you should consider. CHAIRMAN: We can force them to do anything we want that's reasonable. JOHN CASAMATIS: Is it enforceable? CHAIRMAN: Anything we want that's reasonable. JOHN CASAMATIS: But is it enforceable? MEMBER TORTORA: I don't agree with that. CHAIRMAN: You don't? Okay. JOHN CASAMATIS: That's all I have to say tonight. Thank you. CHAIRMAN: In the center again? Sir? You've been very patient, would you pull that microphone over to you a little bit. Please state your name for the record? CONSTANTINE GEORGOPOLOUS: Constantine Georgopolous, 1330 North Sea Drive. CHAIRMAN: Raise your right hand please. Do you solemnly swear the information you are about to give us is the truth to the best of your knowledge? CONSTANTINE GEORGOPOLOUS: Mr. Chairman, Members of the Board I have been a resident of the Town of Southold since 1990 and I've been vacationing here since 1966 and have been in the Kenny's Beach area since 1970. Indeed, the restaurant once upon a time was a refreshment bar. I remember, Mr. Tsunis said he doesn't think that there's anybody who could remember it, but I can assure him, I remember it and some of my neighbors very well remember it. It was a frankfurter stand, and it's grown now into a restaurant. Most of my comments have been addressed by other speaks this evening, but there are a few items that I would like to take up. Although there appears to be a 47 or 51% increase in the space, Mr. Tsunis did not explain how did they account for the loss of the parking space. But of course, naturally, the loss of that parking space will spill over into North Sea Drive and also onto Kenny Road. We all know that there are no sidewalks either on North Sea Drive or no sidewalks on Kenny Road. We also know that there is no city lighting on either of those roads. Again, I know from personal knowledge in the evening and on weekends, there are many pedestrians walking either east or west on North Sea Drive, and north and south on Kenny Road, children on bicycles, and mothers with baby carriages. In the evening, I've been witnessed to speeding cars going north and south on North Sea Drive without the proposed restaurant as the owners plan to construct it. As it is now, there is some, I don't want to say drag racing, but because its Pagc 42. Fcbmats/28, 2002 ZBA Public Homing ]'mnscfipt Town ill' Southold not two automobiles, but there are speeding cars in thc evening. What's going to happen, what will happen when this proposed bar, and by the way, it was a speaker who spoke in support of the restaurant that sports bar. What's going to happen if there is going to be a sports bar there, and then you have patrons leaving at 1:00 and 2:00 and 3:00 speeding up and down these roads. It's going to be a problem, a very serious problem. It's going to be a problem in the evenings with pedestrians on those roads. We don't want this to become another Claudio's with what goes on in Claudio's. Last time l recall reading in the newspaper that there were New York State Police undercover agents at Claudio's watching out for drag deals. I don't think we want that in a residential, we don't want it at all. Certainly not in a residential area. Again, this is a residential area; it's certainly not a commercial area. We don't want that here. We also don't want a repeat of Lizzie Grubman's episode in the south shore. Not that we know if it will happen, but we don't want those types of people in this area. As it is now, I see families going there. My wile and I patronize the restaurant from time to time. I see elderly senior citizens; I don't see motorcycle patrons in there now. I don't know if there will be motorcycle patrons in the future, but there may well be. To quote Mr. Tsunis, he referred to "quote hard- working" people that own the business. What about the hard-working residents that are paying mortgages and that are paying taxes. Not one or two or three but all of' them. What about their interests, don't they have rights, don't they have interests? I believe they do. I also believe that the petition that Mr. Tsunis presented to the Board should be looked at critically to see how many of those signatories were north of the North Road and within the boundaries of lqorton's Point, Horton's Lane, Kenny Road and Lake Drive and __Drive. I would be curious to know how many local residents in the Kenny Beach area signed that petition, l think its if I may say so. That terminates my address to the Board this evening. Thank you. CHAIRMAN: Ma'am in the back? Come up and use the microphone ma'am. Kindly state your name tbr the record ma'am? MARYANN MURTAGH: My name is Maryann Murtagh. CHAIRMAN: Could you raise your right hand please? Do you solemnly swear the intbrmation you are about to give us is the truth to the best of your knowledge? MARYANN MURTAGH: Yes it is. I live on Soundview Avenue, not too far from Kenny's Lane. Our home has been there for a very long time. My parents lived there and my grandparents before that, and I must say that we used Kenny's Beach all the time. We have for many years, probably going back to the 1940's when my grandparents moved there. My grandmother was Agnes McCabe, whose family McCabe's Beach was named. I must say that I feel that I need to speak out a bit on this. I must commend the owner for their wish to improve the outside of their building; I think that should be done. I think they're some improvements that should be done regardless of the expansion aspect of their project. I think, the part of the building near Kenny's Road needs definitely to be improved. Essentially when you walk up toward the beach, alongside the restaurant virtually you see hanging out in the back because Kenny's Road view includes both the back of the restaurant. I think that definitely should be improved, it the Page 43, Fcbmaw 28. 2002 ZBA Public Hearing hanscript TOWI1 ol' Southold neighborhood to have that aspect of the restaurant so protninent as you walk up the street. However, I think the tact that apparently they want to improve the sports bar or have an active bar as opposed to a bar that just delivers drinks to tables, I think should not be allowed. I don't know how that is controlled by the zoning aspect of the problem, but the fact of thc matter is, if indeed as the lawyers said, this is a family restaurant. There should be no reason to have a sports bar. In fact the emphasis in any expansion, if its allowed, should be with the emphasis on using it as a formal restaurant, not for a sports bar and active bar. One of the main issues that I have great concern about is, in fhct, the water supply in our community. We have adequate, but limited water supply at our local field wells. We do obviously have now access to Suflblk County Water, but the fact is Suftblk County Water provides in the local community from the local field wells and I don't see that having an expansion in this project will, I actually feel concern that an expansion in this project will over the years contribute to the jeopardy toward the quantity of that water. We are expecting to have a problem with water in the future in general. 1 don't think we need to have greater stress on our local field wells and the next spills over to, what about the septic tanks? If you have a greater need for water, you're going to have a greater need for disposal of your waste. That concerns me really a great deal. As far as the issue of parking is concerned, I have to tell you that several times during the summer I walk up to Kenny's Beach parking lot and do my own private canvassing, to just see how many cars have Southold stickers. And ! have to tell you that I've been there three times last smnmer, basically between 30 40% of the cars don't have stickers. I don't know if some of those people are in the restaurant or not, I'm sure some of them are right on the beach. But I can tell you that the police don't keep the numbers down in that regard. So if they don't keep the numbers down in regard to the number of cars that arc in the parking lot without stickers, and also they don't keep the speeding cars from coming up on North Sea Drive. Because I can hear them in my house and I live on Soundview Avenue. I don't even live up on North Sea Drive, but in the summertime, you can hear those cars on weekend nights, and its bad. I really feel for the people that live up on North Sea Drive. Now if the police don't keep those two issues, those two problems under control now, and then you add on more cars coming up to this restaurant, and a so-called sports bar that would stay open at night. I think you have a very big responsibility to see that, in fact, the laws of this community are obeyed, that is the Zoning Laws, and that in addition to that the people the community where this restaurant is, are respected and their wishes carried out. Thank you. CHAIRMAN: Thank you. Is there anybody on the west side? Seeing no hands. Mr. Tsunis 1 would really like to wrap this up tonight. GEORGE TSUNIS, ESQ.: I will be very brief Mr. Chairman. CHAIRMAN: Hold on, yes after him. GEORGE TSUNIS, ESQ.: Mr. Chairman I appreciate the opportunity to respond, 1 think some of the neighbors concerns are well placed, we sympathize with them and its our desire to work with them. And perhaps I could meet with learned counsel and some of the neighbors to see where we can find the areas of compromise in working together, because it is our intent on doing something that is sensitive and working with the community and I'll make an eflbrt to reach out. Begging Mr. Forrester's pardon, there is a mcchanism in the Town Code that the legislative body enacted that allows a non- confurming use to be expanded. It is Chapter 100-243AIB. You have to go to the Planning Board, granted, but I'd like to analogize it, that you can increase your current building by 30%, which is approximately 850 square feet. It produces substantial enhancement of the overall site landscaping and natural vegetation which we're proposing to do, and improvement of the best visual practices by upgrades to existing building facades and/or designs of new buildings to make it more historic in existing of rule of character which we're also trying to do, so that there is a mechanism to expand non- confbrming uses. l think the legislative body took great pains to say; in special situations we do recognize that there is such a need. Secondly, Mr. Chairman there was a lot of discussion about the exclusive nature of the neighborhood. Learned counsel Moore spoke about the increase value of homes. Those homes are going fur $600,000 to $1,000,000. I would venture to guess that this restaurant has been here for a long time and I think in the last years, the property values have gone nowhere but up with the restaurant there so I think we have been a neighbor that has a lot of property values to increase. Now there are many safety valves and layers of approvals in any project. Whether it be the New York State Fire Prevention and Building Code, F.E.M.A., the 20% lot coverage, Health Department, I will stipulate to you right now, we will follow all of them. We will comply with all of them, and if we can't get those approvals, this project doesn't happen. And that's the way zoning and Building is designed. But it's not the issue before you. ! think it serves to skate a little bit, but I will say that we will stipulate that we will comply with F.E.M.A. We will comply with the Health Department. As far as, the young gentleman mentioned compressors. I stated that in my application, that with a new and improved restaurant where a lot of money will go into refurbishment and improvements, you will have an enhanced sanitary system. You will have brand new compressors. You will have a more beautiful building. You will have a restaurant that is more sensitive to the area. I appreciate the comments that came from the neighbors and counsel. I think what people have is a fear of the unknown sometimes. And perhaps its incumbent on us, the applicants, to sit down with them and explain to them very, very seemingly and clearly what we're proposing to do. There is a concern that we are going to become a Legends. We're not Legends, we're not even close to Legends. I don't think anyone would remotely call us that. It's a family restaurant. It is smaller than the Legends. The bar is certainly smaller than Legends; the entire restaurant is smaller than Legends. It's a different clientele. It is one that several of the neighbors who have apprehension here, have admitted that they frequent and that they enjoy. These don't seem to me the type of people that are bikers and drug addicts, and things like that. They seem like good neighbors who go there to enjoy a nice meal. It is not the owner's intent to create Legends. It is not the owner's intent to create a sports bar. Some of the neighbors said, well can we force them to do that? Mr. Chairman, you said yes you could. I agree with you. Respectfully, Mrs. Tortora disagrees with you. 1'11 tell you what can be done, covenants that run with the land. We'll sign covenants; we'll file them with the clerk that addresses many of these concerns. Covenants that will not allow this place, that is completely enforceable. They will always run with the land and can't change, so it Page 45, Febtxtm7 28, 2002 ZBA Public Hcat'ing TIanscript does not become a Legends and it just becomes a better thmily restaurant; something it's always been. Thank you very much. CHAIRMAN: Before you sit down, Mrs. Tortora? MEMBER TORTORA: Who arc covenants enlbrceable by? GEORGE TSUNIS, ESQ.: Ma'am you have a Code Enforcement Department here? MEMBER TORTORA: No, who are covenants enforceable by? GEORGE TSUNIS, ESQ.: They are enforceable by anyone. In an action, in a court of law; they're enforceable by the Zoning Board. Any grant, any grant that this Board makes, is revocable if the conditions and covenants are not met. If you say, Mr. Tsunis we're going to grant such and such expansion or such and such a use or such and such a relief provided that you comply with X, Y and Z. If you don't comply X, Y and Z that grant is lifted. That grant is lifted. So its enforceable by this Board and enforceable by your. MEMBER TORTORA: You would be willing to agree to covenants, for example, I'm serious, let's go down this road. That would address the concerns, it would not become a drinking establishment, it would not become, not now or ever, you would sign such covenants'? GEORGE TSUNIS, ESQ.: You know Brandise once said; the best thing to septic is sunlight. Let's get it out in the open; we're a restaurant that has a bar. We do a modest bar business, but if you look in our bar on a daily basis, I think you'll find people ti'om the community, people that are a little bit more mature and not the type of patrons that Legends has. We have heard a lot about the surrounding property owners being hurt, if the drag racing and drugs and all this sort of things come into our community, I can't agree more. The person who would be most hurt would be my client, the applicant, they certainly don't want that; they've never been that type of establishment. They're not seeking to be that type of establishment. So with learned counsel, Ms. Moore, in consultation with her clients and the neighbors, with the Town Attorney's office, I would be happy to sit down and draft some reasonable clients that speak to these valid issues that the neighbors have. MEMBER TORTORA: Thank you. CHAIRMAN: Mr. Tsunis last point, and again I hate to be symmetrical, but you will leave no stone unturned in reference to what's been presented to you. Of what you've presented, what your clients have presented and what Miss Moore has dealt with tonight. GEORGE TSUNIS, ESQ.: Mr. Chairman, I'm a little embarrassed. I agree with you and quite frankly I agree with Miss Moore as to the site plan. We can do better, we should do better, and I will clarify things. I would also like an opportunity to meet with Miss Page 46, February 28, 2002 ZBA Public Heating I mnscripl Moore if I could and if we could have a little bit more time. If you can schedule us in April, instcad Of May 28th, it will give us a little bit of time to possibly work things out. MEMBER ORLANDO: One more question, Mr. Chairman? CHAIRMAN: Surely. MEMBER ORLANDO: Have you done any calculation on how many parking spots you can get on your property'? GEORGE TSUNIS, ESQ.: Yes sir. There are, a number of neighbors felt about that. This building is not going into the parking area. The proposed expansion, if all of it is granted, it does not go into the parking area. The parking area is currently unstriped. This provides a tremendous opportunity to stripe it, to pave it, to make it better. We have a site plan that has 43 parking spaces that will comply with Code and no part of the proposed expansion goes into the parking lot. We are able to completely park this structure on the premises. Do not need a municipal lot and do not need parking on Kenny's Road or the neighborhood to do that. MEMBER ORLANDO: So 43 is enough to accommodate your client? GEORGE TSUNIS, ESQ.: 43 is enough. MEMBER OLIVA: Then where is the expansion going to take place? GEORGE TSUNIS, ESQ.: If I may? This is the parking lot. This is the proposed construction area. As you can see it's this grassy area to the side. That's where the proposed construction area will be. It's not onto the impervious surface space where the parking is. MEMBER OLIVA: That's going to be 1700 square feet, right in there? GEORGE TSUNIS, ESQ.: No ma'am, we're going to have, its probably closer to 1400 square feet. In the calculations, and we clearly were ambiguous, its not Miss Moore's fault. We included a cooler area, that already exists in the building. It was included in the proposed expansion. That clearly is 115 square feet that lessens it by. They also included the portico area as building areas and you see it's just a column where it's really not considered closed floor area. So that was inadvertently included, it would lessen the amount of square footage that we're seeking. But again, like I said, that is our oversight, we'll correct that, and I'll have something. CHAIRMAN: Will you stay for a couple of minutes after the hearing to show everybody who hadn't seen the privilege of your? GEORGE TSUNIS, ESQ.: I would be glad to. I~agc 47, FebmalS, 28. 2002 ZBA Public Hearing Tntnsc~ipt CHAIRMAN: Last issue, everything that is bcfore us, must go back to the Building Department. You must get this corrected Notice of Disapproval. My suggestion to you and your client is that we recess it without a date, you call us and since we have to re- advertise anyway with the latest Notice of Disapproval, it will then at that time that we will address all these final issues. GEORGE TSUNIS, ESQ.: I don't think it benefits anyone to rush this process. We want to do it right and we want to do it with input with the community. 1'11 be happy to do that. CHAIRMAN: Man with the red shirt, you were first. Remember you're still under oath. PAUL STETH: Paul Steth, I talked to you before, I live at 270 North Sea Drive. Maybe we covered some areas that are kind of redundant. If you want to have smoking or not smoking, that shouldn't be a consideration. That's like gold chandeliers or smoking or non-smoking that should not affect you. The second thing I want to bring up here is parking. Currently, on a Friday, Saturday or Sunday night the cars are overflowing in the existing restaurant. Now they say they have 40 spots, that's 80 people, that's 40 tables. I assume they don't have that problem. But obviously there are in parking. When I walk down my property line the cars are parking in the road. They're not in the parking lot. There's no buffer zone around the property. They're parking right up to my property line all the way around. There should be a ten-foot zone all the way around. So already you're going to lose 40 cars. The other thing I want to bring up is they seem to have 350 feet of access to this property. There's no driveway cut. I have an access to my property of 12 feet to my driveway. Everyone else here has about 12 feet of access to his or her property. If you go there you can pull into this property, 120 feet down Kenny and 200 feet down North Sea Drive. Now they're going to eliminatc this? This is going to get curbed, where CHAIRMAN: 1 hate to be PAUL STETH: This is what I'm saying should be considered when they're drawing these plans. Because they're making it sound like it exists as it is. CHAIRMAN: First of all we don't do parking. Parking is done by the Planning Board. PAUL STETH: Well I'm just bringing this up, because when they draw this up they're going to drop a plan that exists like it exists now. You're referring to an improved community. You want to make it nicer, put in ramps. They haven't put in a ramp yet, but they're going to do it after they get the improvements. They haven't yet put in a ramp for people to go in, for handicapped. They haven't done this yet. I don't know why they haven't. I don't know why they haven't limited the parking. I don't know why they haven't fixed up what they want to do. So if they haven't done things that don't require your approval to make us feel it's wonderful. Let's listen to what they have to say. They want us to approve everything first, put in the ramp, fix up the parking, solve the problem then come back to us and say now we have a problem. But they haven't done that, they Page 48, Feb~um~ 28, 2002 ZBA Public Hearing Tnmscript want us to give them everything first. Put io the handicapped ramp, solve the parking problem, stop parking in thc street, create the buffer zones, get rid of the loud noises, get rid of the fans running all night, solvc all your other problems. Then come back and say okay, wc've done everything just to make it nice for the community. We need help, then we'll help you, but not before that. Okay, thank you CHRIS POPPEI: There are a tremendous amount of residents down there that are older couples that live in Florida, or go away for the winter that are not around this time of year. I got a call I¥om a lady in Florida, another one from France who are very interested in this, and would love to be here. I'm wondering counsel I see wants to wait a month or two, I wondering if we should put this offto maybe May or June and when all these other summer residents, people who own houses down there can be here and voice their opinion too. There is a tremendous amount of people I tried to get in touch with that are not around this time of year. They own houses down here, they've owned them for many years, they're taxpayers and they have a right to say something too. It's being done in the middle of the winter and a lot of people are not around, so maybe this is something you could take into consideration. The second thing I was going to say is, the parking business, I knoxv you don't, if you add another extension he's going to need more parking. CHAIRMAN: We would urge you please to get in touch with these people and have them reduce their opinions to writing. CHRIS POPPEI: A lot of them did that, because I know attention. Thank you. to your CHAIRMAN: What's the question, sir? Give me the scope. UNKNOWN GENTLEMAN: The reason for the size of the sports bar. CHAIRMAN: It's not a sports bar. UNKNOWN GENTLEMAN: The large bar. CHAIRMAN: I assure you we are not granting, if this Board grants anything it will be an addition to a family restaurant. That's only if it intends to do so. Ma'am last time. I need you to use the mike and please not as lengthy as you were before. MARYANN MURTAGH: If you have a hole in the wall, if you have a good enchilada people will come. They don't really need the expansion to make more money, what they need is better ~tbod. CHAIRMAN: Sir, the man in back of Mr. Tsunis, you did not speak tonight sir? Gentleman in back of Mr. Tsunis. You need to state your name for the record because you didn't get up. Page 49, Febllla15, 28, 2002 ZBA Public Hearing Transcript (nmne inaudible) My name is the restaurant. from 3070 Kenny's Road right across from CHAIRMAN: Do you solemnly swear to speak'? (NAME): The seating capacity for the expanded restaurant in numbers? CHAIRMAN: We're going to get that. We are going to get every possible, single element that we can possibly imagine before this thing will be closed. (NAME): Thank you, CHAIRMAN: Mrs. Moore knows what we request. Mr. Tsunis we haven't had the pleasure of you being before us. But I think we've had some family members in the past before us. You might want to talk to them. But we will leave no stone unturned. So whatever you can do for us only makes our job much easier. Okay. Thank you again Mr. Tsunis as you offered to stay around just to point out a couple of things to anybody, we will appreciate it. 10:00 End of Public Hearing