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HomeMy WebLinkAboutZBA-03/21/2002 HEARSOUTHOLD TOWN BOARD OF APPEALS TRANSCRIPT OF PUBLIC HEARINGS HELD MARCH 21, 2002 (Prepared by Paula Quintieri) Present were: Chairman Goehringer Member Tortora Member Homing Member Oliva Member Orlando PUBLIC HEARINGS: 6:31 p.m. Appl. No. 5073 - JOHN AND CATHERINE MCDONALD. This is a request for a Variance under Zoning Section 100-30A.4, based on the Building Department's January 11, 2002 Notice of Disapproval for a building permit application to locate a proposed accessory garage in a yard area other than the required rear yard at 1235 Wunneweta Road, Cutchogue; Parcel 104-12-12.2. CHAIRMAN: Good evening sir. Could 1 ask you to use the microphone and state your name for the record? JOHN MCDONALD: I am John E. McDonald. CHAIRMAN: Mr. McDonald we had the pleasure of seeing you're very beautiful house last week, Mr. Vinny and myself here. You showed us where the garage is going to go. We don't have any specific questions other than asking you the approximate height of the garage and how many cars it's going to have just fbr the record. JOHN MCDONALD: Two-car garage and approximately 18 feet I guess the height. CHAIRMAN: 18 feet to the ridge? JOHN MCDONALD: Yes, I went to the Building Department. They said it was to the mid, CHAIRMAN: It's median. JOHN MCDONALD: The median where it would be 18 feet. CHAIRMAN: And the utility you would be putting in that garage is what, just electricity? Page 2, March 2 I, 2002 ZBA Public Healing T~anscript I own of Southold JOHN M ~DONALD: At this time no. I don't plan to put electricity therc now. CHAIRMAN: Well what would be the maximum type of utility you'd put in a garage? JOHN MCDONALD: Electric lights and stufflike that at that time. You know a regular box; there would be a 60-amp that would cover that. CHAIRMAN: We'll start with Mr. Homing. Any questions of Mr. McDonald? MEMBER HORN1NG: No, no questions. CHAIRMAN: Mr. Orlando? MEMBER ORLANDO: You will be putting electric garage door openers I would assume? JOHN MCDONALD: 1 didn't plan on that at this point. Some day 1 will I guess. I'll put a regular garage door in and then I'll put electricity in it later on. MEMBER ORLANDO: Secondary storage up top, is possible there? JOHN MCDONALD: Yes. CHAIRMAN: Mrs. Tortora? MEMBER TORTORA: No questions. CHAIRMAN: Okay, we'll see what develops throughout the hearing; please don't leave until we close this hearing. Would you hand that to our secretary down there? Thank you so much. Is there anybody else that would like to speak in favor of this application? Is there anybody else that would like to speak against the application? Hearing no, seeing no hands, or hearing no yells out from the crowd, I'll make a motion closing the hearing and reserving decision until later. SEE MINUTES FOR RESOLUTION 6:35 p.m. Appl. No. 5104 - MARTIN KOSMYNKA. This is a request for a Variance under Section 100-244B based on the Building Department's February 20, 2002 Notice of Disapproval of a building permit application to locate an addition with in-ground swimming pool, all located at less than the code requirement of 10 feet on one side and 15 feet on the remaining side, and less than 25 feet for total combined side yards. 1985 Pine Tree Road, Cutchogue; 98-1-t 1.2. CHAIRMAN: Could we get the microphone for you Marty? Page 3, March 21,2002 ZBA Public tlcmmg Transcript Town el Southold MARTIN KOSMYNKA: I have a big mouth. I have a brochure on the pool and I also took some pictures of my surrounding neighbors just to get an idea of the character of the neighborhood. MARTIN KOSMYNKA: My name is Martin Kosmynka. I'm here with my wife Christine. I reside at 1985 Pine Tree Road in Cutchogue. I'm here before you to request a side yard variance to install a therapeutic swimming place pool in an enclosed sunroom for year round use. This type of therapeutic swimming place pool is a medical necessity due to my paralysis. The pool is to be constructed in a one-piece fiberglass structure with approximate measurements of 8 x 18. The room will have a minimal impact on my neighbor's side yard because there will be a six-foot fence between our side yard and trees will be planted along the fence as a screening. The pool equipment will be installed in the basement of our house so no noise from the machinery will be heard from outside. The room itself will be constructed so that the wall facing our neighbor will have no windows. The sun room will be constructed to conform with the character of the neighborhood and enclosed find existing photographs of existing houses in my neighborhood that will show what I'm proposing is not, will not be unreasonable in this area. The side yard is the only location for the pool due to the positioning of my cesspools in the front yard and the house sitting on the waterfront piece of property. I have presented letters to the Board from my general practitioner and my physical therapist stating that this is a medical necessity. In addition, I have contacted attorneys up in Albany representing the American Disabilities Act. They have sent me a section of the ADA Code that states that this request would be regarded as a medical necessity. My neighbors also sent some letters in of support I believe. I also have the Section of the Code and I have the section of the ADA, it's a big book if any of you need to see it. The only other thing I want to add is statistically, and 1 hate saying this part of it, has shown that the leading cause of death for a person in my situation is due to the lack of cardio- physical activity. The therapeutic swimming place pool is one of my only means for prevention. I'm asking the Board to please grant me a side yard variance in order for me to have year round access for this activity. Thank you. CHAIRMAN: I just have to ask you this question. You have really no ability to walk Marty? MARTiN KOSMYNKA: No, I'm paralyzed, TI 1 and T12. CHAIRMAN: Going back to the place itself, is there any particular reason why you need this to be placed, or you need the building to be 14'? MARTIN KOSMYNKA: You mean width wise? CHAIRMAN: Yes. MARTiN KOSMYNKA: Yes, well you see along side there I want to be able to open up and enclose the pool myself. So l'm only getting around two sides of the pool. One would be a the long side and one would be the wider side where there'll be a lift where I Page 4, Mmch 2 I, 2002 ZBA Public Ilcming Tumscdpl Town ol Southold can get out of my chair into this lift and will lift me up and then bring me into the pool. You know when you add it up what are we talking, five feet on thc side. In a wheel chair you can never not have enough room to maneuver. But I think if you look at the corridor, what are we talking six fbot, five feet somewhere in there. CHAIRMAN: The reason I ask that question is because if you move the pool closer down to the back of the house, which is the part closer to the water, with the way the house is constructed and that nitch area which is actually a cantilever type, its not really a cantilever its part of the house, I assume it's a fireplace area I mean you could in effect gain more room. MARTIN KOSMYNKA: That nitch area is actually going to be taken out and that will be a doorway going in. Again, the room that you're talking about, I see what you're saying bring the pool towards the waterfront side is that what you're saying. The reason why I'm asking that I could have a little bit of room. I think that room is actually working out 14 x 9 or something like that it scales out? MEMBER OLIVA: 14 x 29. MARTiN KOSMYNKA: No the area past where here's talking about the pool area. Its somewhere in about that, and the reason being again, in a wheel chair you don't have much room. At the time I get this lift, there's going to be this hydraulic lift, it's called a hoya lift. And that will be placed in that area and I will be swinging from that, getting into that and, it's another piece of equipment that's being installed there. Again, if I could make it all work, being in a wheelchair, you can't have enough room. I'm not trying to. CHAIRMAN: Our concern has always been the closing up of side yards. It's always been. MARTIN KOSMYNKA: The three-foot is only encroaching just in that one spot. Unfortunately, my lot is undersized. I didn't create it that way, it's just the way it is and most of the lots are less than 20,000 square feet in this neighborhood. And because my lot is cone shaped, as the room starts going towards the water, that setback starts to get a little bit easier. Its just hitting that one comer is three feet. MEMBER ORLANDO: I think that's what we're getting at, if you shift it back towards the water with your lot being pie shaped as you say, you would increase your side yard from three foot to maybe six foot. MARTIN KOSMYNKA: But then I wouldn't have enough access to get around the pool. [ mean it's got to work for me otherwise. MEMBER ORLANDO: No, I mean keep the same size you have now, but just physically build towards the water with the whole setup. Pagc 5, Ma~ch 2 l, 2002 ZBA Public Homing Transcript I own of Southold MARTIN KOSMYNKA: Right, but what lhn saying is when that set up that's in front of that pool is where the hoya lift and where I'm going to be able to transfer fi'om my chair into this lift to get myself into the pool. MEMBER HORNING: ! think what my colleagues are asking is to shift the entire pool, sunrooln addition. MARTIN KOSMYNKA: I realize that, but I need a place to get myself in the pool. That's the problem. MEMBER HORNING: Well why couldn't you do that with the whole structure? MARTIN KOSMYNKA: But then the pool's going with it, that's what I'm saying. You're saying bring the whole structure tbrward. The pool's got to come with me, correct. And then what happens is I'm shortening up the area that I can't get transferred into the lift and then into the pool. CHAIRMAN: Are you actually putting a ramp where that nitch is Marty? MARTIN KOSMYNKA: Show me what you're talking about? CHAIRMAN: Is the ramp going in here? MARTIN KOSMYNKA: No, this is actually at grade; this is my den in my house. I'm going to go into a doorway literally out of my den, at grade, into the pool area. MEMBER TORTORA: Where's the width? MARTIN KOSMYNKA: The width will be installed here. This is just an alleyway so that I will be able to at least grab the cover of the pool to open and close it. And then in here will be installed the lift for me to get out of my chair into the lift and swing me into the pool. And I believe this area is literally 9 x 14. I mean its not. CHAIRMAN: You got the Trustees approval. The Trustees approval is for the particular spot that this is now. MARTIN KOSMYNKA: That's correct. That have the same thing that you've gone. CHAIRMAN: All right, we'll go on to Ruth. Ruth do you have any questions of Mr. Kosmynka? MEMBER OLIVA: No I had asked him some questions when I was there this morning. I think I understand what he wants to do. CHAIRMAN: Lydia? Page 6, Mmch 21,2002 ZBA Public Hcatlng Ytanscupt MEMBER TORTORA: Just to get a clear record here. Then Notice of Disapproval which is our jurisdiction says that construction survey knows the minimum setback of three feet, that's what you're requesting for the new addition and 15 feet combined side yard. The survey indicates four feet side yard on the north side and, so the total side yard that you are requesting would be a total of seven feet. MARTIN KOSMYNKA: You know to be honest with you, the Building Department wrote that up and I don't quite understand that. MEMBER TORTORA: It doesn't jive with your survey, that's what I'm trying to establish a clear record here. So that's the first thing I'd like to know. I'd also like to know the exact dimensions of your lot, the square footage of your lot? MARTIN KOSMYNKA: It's on the survey there. MEMBER TORTORA: I have a copy of the survey, which was last updated 6/02/02. MARTIN KOSMYNKA: That total lot area is 16,306 feet. Here I'll give you a copy. And then I also show how much of it is being developed as a gross area fbr the whole entire parcel. MEMBER TORTORA: At 19.27 So we're asking for a total side yards of seven feet, square footage is 16, 306 correct, and 19.2 on lot coverage? MARTIN KOSMYNKA: Yes. MEMBER TORTORA: I just want to get that clear. Sometimes it gets fuzzy later on. CHAIRMAN: Let me just, before it goes over to Mr. Orlando, I just want you to be aware that we know that this is a very unique circumstance. But one of the main concerns of the Board, and this has nothing to do with your circumstance, is how are you going to get anything to the rear part of the property? It's going to have to come in by barge. Or you going to have to have some really nice neighbors that are going to let you. MARTIN KOSMYNKA: You mean iii wanted to get around? CHAIRMAN: If you want to work on the front of the house or get something, when I say the front I'm talking about the waterside of the house. MARTIN KOSMYNKA: You go around the opposite side of my house, which I have a path fight now. I have fbur feet. CHAIRMAN: There's no way you're going to get equipment through that. MARTIN KOSMYNKA: My lawn mower gets through. Page 7~ March 21,2002 ZBA Public [[eating Transcript Town of Sontbold CHAIRMAN: I wasn't referring to a lawn mower; I was referring to anything that has to work, that might have to be done to your rear yard area. MARTIN KOSMYNKA: Well the other thing is there's a right of way, which is the next house next to me, I don't know what it is, fifty feet. And then right there is a right-of-way down to thc water, Pine Tree Road. CHAIRMAN: I just wanted to go on the record to tel1 you the reason why we don't normally close up sides, and I know this is a unique situation. MARTIN KOSMYNKA: And I wouldn't be here ifI didn't need it. And if the Town had a pool, I'd gladly donate the money that this is going to cost me to do to there. CHAIRMAN: Mr. Orlando? MEMBER ORLANDO: 1 guess replacing the wood deck with this pool is not an option, your rear deck would kind of be a nice ideal spot to just plop it right in there. MARTIN KOSMYNKA: Yes, but again I'm trying to do an enclosed area. I'm trying to do an enclosed area lbr year round use. To plop it in there, again I was against the waterfront and it was an issue that just. By the time that would happen, 1 would have no deck. There would no place to enjoy any type ofbackyard. Plus I have no way; I would have to reconfigure access. Right now I got a rmnp that gets me out of my deck to go out to the back of my house. It really wouldn't work. This seemed to be about the least amount of impact on everything. I had two sheds along the side that were there that we took out. That were there right there where the pool was going to go. MEMBER ORLANDO: And you're air conditioning units? MARTIN KOSMYNKA: They will get removed. They will be put over, they will he moved. MEMBER OLIVA: And then you're going to leave that fence up or you're going to add more trees on that side of the fence. iMART1N KOSMYNKA: What you saw today, the trees are there, they'll go against the fence line and then if I need to I'll add whatever. Look, I want to be a good neighbor. I'm not trying to hurt anybody here, I'm just; and again I had those two sheds there. They were close they were like two foot off the property line. It's really, and I pulled out the two sheds, which are going to be dismantled. What I'm trying to say is there was already structure there, it wasn't a permanent structure, but there were structures there. CHAIRMAN: Mr. Homing, question? Page 8, March 2 I, 2002 ZBA Public Ilcatmg Transcript Town ol Southold MEMBER HORN1NG: Well again, I think we are concerned with the extreme narrowness of the three-fbot side yard. Is there any possibility you could again, move the whole structurc, the little area, have the same size base but probably relocate the access door from your house into that area because it would be shifted down six feet or something. MARTIN KOSMYNKA: Yes, I understand I'd love to tell you yes, because I understand that this is a problem for you guys I just don't know how it would work for me physically to make it all happen. You're talking about a 9 x 14 area. By the time the Hoya lift goes in there, you know a Hoya lift is something that looks like a, something that pulls something out of a car motor. CHAIRMAN: It's a crane. MARTIN KOSMYNKA: Yes, it's a crane and it's on a lift that's going to mechanically turn around. Its not, you know in the world of being in a wheel chair, that's not a big space to operate in. MEMBER HORNING: We're not suggesting you reduce the size of the space. I think the suggestion is to consider moving the space. MARTIN KOSMYNKA: But then I'd have to flip flop it to the other way. Either way I still need that area to operate in. So I don't know how I'd achieve that. Either I bring the pool down but I'd still have to go the backside to make it all one. CHAIRMAN: Thank you. MARTIN KOSMYNKA: Thank you. CHAIRMAN: Okay, we'll see what develops; please don't leave until the hearing is over. We hope to have a decision for you next week. We are not going to get to any decisions tonight. MARTIN KOSMYNKA: When you say hearing over, does that mean? CHAIRMAN: This particular hearing, in case somebody wants to say something. Is there anybody that would like to speak in favor of this application other than the applicants? Anybody like to speak against the application? Seeing no hands I'll make a motion closing the heating, reserving decision until later. SEE MINUTES FOR RESOLUTION RESOLUTION CANCELING THIS HEARING AND RE-SCHEDULING WITH NEW CH. 58 NOTICES, AS REQUESTED BY APPLICANT FOR APRIL 18TM. Page 9. March 21,2002 ZBA Public Hcating Transcript 6:52 p.m. Appl. No. 5076 - NEVIO AND OLGA BLASKOVIC. This is a request fbr a Variance under Section 100-244B based on the Building Department's January 15, 2002 Notice of Disapproval of a building permit application concerning a comer section of a new dwelling, fbr thc reasons that the property has three f¥ont yards, and the map shows a front yard setback at less than 35 feet from the right-of-way to the southwest of the property, and a rear yard setback of less than thirty-five (35) feet. Location of Property: 580 Willow Point Road, Southold; Parcel 56-5-29; Lot 26 to he Map of Willow Point. CHAIRMAN: Good evening sir, how are you? I haven't seen you in a long time. How have you been'? LARRY LISO: Fine. This is the Affidavit. CHAIRMAN: Thank you. Would you state your name for the record sir? LARRY LISO: I'm Larry Liso. CHAIRMAN: Nice to see you. When you come down to this house, noticing of course, that it lacks the grandeur of what you want to construct tbr your client. What actually is this going to look like when it's built? How tall is it going to be? LARRY LISO: It's a two-story colonial I guess. It's a two-car garage. It's about maybe 32 feet high, which is a normal size height. MEMBER TORTORA: Could you switch the microphone around, its awfully hard to pick you up. Thank you very much. CHAIRMAN: The grade is not going to change? It will be on the grade that the present house is on? LARRY LISO: The grade is going to be a little bit higher because of the flood zone. CHAIRMAN: How much higher do you think? LARRY LISO: Maybe two and half to three feet. MEMBER TORTORA: What is the flood zone? LARRY L1SO: Elevation 8 at the bottom of the crawl space, there's a four-foot crawl space. MEMBER OLIVA: Because you're front yard was a little bit mushy this morning. CHAIRMAN: Why don't we start with you Ruth? Any questions of Mr. Liso? Page I 0, March 2 I. 2002 ZBA Public Hearing IIanscdpt Towll Ol' Southold MEMBER OLIVA: It certainly is an odd shaped lot. How high are you going to build it up'? LARRY LISO: It's going to be Elevation 8. MEMBER OL1VA: Up to Elevation 8, what arc you now'? LARRY IJSO: We're going to be about three foot higher than the grade is now. MEMBER OLIVA: So that will make the total house how tall? LARRY LISO: Well the whole grade is going to be raised, so the house will be about 32. CHAIRMAN: When you say 32, you're referring to 32 of the approximate ridge'? LARRY LISO: It would be 32 to the ridge, but actually that's not considered that, they consider it between the total height between the __and under. 1 think the total height is going tn be 32 to the ridge. The whole thing with this was CHAIRMAN: Excuse me tbr jumping in. MEMBER OLIVA: That's all right. CHAIRMAN: No, go ahead. LARRY LISO: was the parcel of land along side of it. When I originally went to the Building Department to find out how this piece of land, what was the side yards and what was the rear yards, because of the point it came to the Building Department told me that the point in the back should become a triangle and that would be the rear yaM. And then there's a side yard on your right, and the rear yard is another side yard. So we went through nine months of permits and everything else, D.E.C., Town Trustees and we got everything according to that. I applied for a permit and was disapproved because they call that strip of land along side a right-of-way and they're calling it a road. It's not a road. The description on the deed, do you have a copy of that? MEMBER OLIVA: Yes, I saw it. That paper road, or whatever it is, and they're calling it what, a right-of-way? LARRY LISO: They're calling it a fight-of-way because on some tax card it says right- of-way. According to the description on the deed, it says it's a parcel of land approximately 30 feet in width lying between lots 26 and 27, map of Willow Pond as says leading to a fight-of-way. Leading to a fight-of-way is showing the extreme southerly part of the property. Now this is what's on the deed. Isn't that the word? Because all that piece of property does is it services water. There are water lines going through there so this is the house in the back. They put more poles in there, which you Pagc Il, March 21,2002 ZBA Public Healing TmnscI~pt must have seen, that service the houses. It was never said to be a right-of-way. I don't know how they. He said he found it on a tax card. That's why he disapproved it. CHAIRMAN: Okay. LARRY LISO: But anyway, that's where we are. So we went through this whole thing and we would like to get relief. MEMBER OLIVA: How many square feet is the house? LARRY LISO: The house is 3,000 square feet. MEMBER OLIVA: And basically you're moving what the house is here, the new house is going to be moved back further, fi'om what I can see from your. LARRY LISO: Yes, so that it would fit on the property line. MEMBER OLIVA: A little bit higher up. LARRY LISO: A 35-foot setback to the CHAIRMAN: Anything else Ruth? MEMBER OLIVA: No, I don't think so right now. CHAIRMAN: Mrs. Tortora? MEMBER TORTORA: The right-of-way is still owned by this Beacor Corporation? LARRY LISO: No it's owned by the Association. iMEMBER TORTORA: Okay. LARRY LISO: Everybody calls it a right-of-way, but it doesn't say right-of-way. That's the reason they're trying to say it's a road. MEMBER TORTORA: Well the Building Department has actually determined that you have three front yards, because of not only the right-of-way on the east, but that portion of the right-of-way on the west. So it's severely restricted where you can put the house on the property. LARRY LISO: I know, but what they're saying is that that's a right-of-way, and because it's a right-of-way it becomes a road. MEMBER TORTORA: I understand, that's what I'm saying. Page 12, March 21,2002 ZBA Public Heating Transcript Town ill South~dd LARRY LIS, O: And because if that's a road, that means the rear of the property becomes a rear yard. So if would be 35 off each way. CHAIRMAN: What it is is a piece of property owned by the Association of which there's an easement granted over it and that's it. For the purposes of water linc. LARRY LISO: Exactly. CHAIRMAN: Anything else? MEMBER TORTORA: No, I don't have any further questions. CHAIRMAN: Mr. Orlando? MEMBER ORLANDO: I notice that you are putting a deck almost on top of a patio, ls that a little redundant, back-to-back? LARRY LISO: A deck over a patio? MEMBER ORLANDO: You have the deck and two/bet away you have a patio. LARRY LISO: How small? MEMBER ORLANDO: It's pre-existing but. LARRY L1SO: Oh, where the shed is? MEMBER TORTORA: The flagstone part, I think he's talking about. LARRY LISO: Yes, that's just an existing patio. I don't know, I never even thought about moving it or anything. Does it have to be removed? CHAIRMAN: I didn't go to the back of the house, is that at ground level? LARRY LISO: The patio, I think so, yes. MEMBER ORLANDO: I was just wondering if it was redundant. A deck that falls onto a patio, you may not need the deck if you have a nice patio. LARRY LISO: I don't know, the people don't want this patio, they want a deck with the house. MEMBER ORLANDO: I noticed that everyone, I guess it's a communal boat storage also, the right-of-way or paper road, whatever you want to refer it to. Page 13, March 21,2(1(12 ZBA Public }leafing [mnsc~ipt lown ol S(mthold LARRY L1SO: I guess the land, I think what Jerry just callcd it sounds right. He used thc right words, 1 didn't. MEMBER ORLANDO: And I saw the water valves on that piece of property, but I don't know what they actually trenched from one side to the other. I didn't sec any. LARRY LISO: They go to the houses in the back yes, and they go to the houses on either side, lot 26 and lot 27. And that's another thing Lot 26 and Lot 27, the existing house, when these houses were built, that house and the house to the right of it are Lot 27. There was no real right-of-way. They were built as side yards, because they're right up to the side yards. They're not front yard properties; the existing house isn't. MEMBER TORTORA: The house on Lot 27 is right up to the edge of that right-of-way? LARRY LISO: Exactly. It's a side yard. It was a side yards in '88 something like that, I don't know when. Event he existing house was built as a side yard. MEMBER ORLANDO: And once again, you are the builder not the homeowner, but this questions is, I'm assuming Lot 27, that person is fhirly good friends with the people you are building for? LARRY L[SO: Yes. MEMBER ORLANDO: Because I notice a walkway connecting houses, so I don't think they would oppose this or are not opposing this? LARRY L1SO: I don't know of anybody that's opposing it no. MEMBER ORLANDO: No other questions. CHAIRMAN: Mr. Homing? MEMBER HORNING: Sir again, tell me on the right-of-way, in your estimation, what is the potential for it being used for vehicular traveling for a right-of-way for access to somebody, what potential is there? LARRY LISO: I wouldn't know of any potential. It's all trees in there; there are all water lines in their poles. It's going to a right-of-way that's almost abandoned. Because the people in the back bought part of that right-of-way. MEMBER HORNING: So it doesn't go anywhere. LARRY LISO: Basically it ends right where you see it, on the dotted line. That's where it separates and that's where the right-of-way starts in the back. MEMBER HORNING: And that right-of-way in the back. Page 14. Mmc:h 2 I, 2002 ZBA Public Heming Trm/script LARRY LISO: That right-of-way is abandoned because it just takes care of the houses that come off of __Road and goes into the right-of-way. It doesn't go through. The people from the back bought part of that whole right-of-way. MEMBER HORNING: The people on the other side of that right-of-way from Lot 27 are actually using that portion of it for access? MEMBER OLIVA: Or the other lot in the back. LARRY L1SO: The other lot in the back. But not this strip of land, the strip of land is just tbr water service. MEMBER TORTORA: I was curious, if the Association owns it, do you have any knowledge about this Association, and is it still in existence? LARRY LISO: As far as I know, when I sent out the cards, I sent the cards to an Association and it was to Joseph McGagnan. I don't know if he's still the President of the Association or what. MEMBER TORTORA: So, in other words, it's not defunct. LARRY LISO: Somebody is paying taxes on it. MEMBER TORTORA: That's what I was getting at. LARRY LISO: Yes. Thank you. CHAIRMAN: Mr. Liso just don't leave until we close the hearing sir, this hearing. Thank you. Is there anybody else that would like to speak in favor or against this hearing? Seeing no hands I'll make a motion closing the public part of this record and reserving decision until later. SEE MINUTES FOR RESOLUTION 7:06 p.m. Appl. No. 5074 - CYRIL LUKEMAN, JR., ET AL. This is a request for a Variance under Zoning Code Section 100-3IA(l) based on the Building Department's January 14, 2002 Notice of Disapproval of a building permit application to replace an existing nonconforming habitable accessory building (studio/shop) which will have an insufficient rear yard setback and lot coverage at 22+- percent, at 550 Village Lane, Orient; Parcel 25-1-10. The reason stated in the Disapproval is that the construction is arranged, intended or designed to be used, in whole or in part, as a one-family dwelling, and not more than one dwelling is permitted on this lot. CHAIRMAN: Mr. Lukeman we're ready any time you are sir. Pagc 15, March 2 I, 2002 ZBA Public Healing Tr, tnscript CYRIL LUKEMAN: I'm seeking relief to reconstruct a barn that was previously existing. CHAIRMAN: That's the barn that's lying down? CYRIL LUKEMAN: Well the wind came by two weeks ago, and gave it quite a kick. CHAIRMAN: What do you intend, I need this for the record. I mean, we've of course read it all, but I need you to tell us what you want to do at this point. CYRIL LUKEMAN: I would like to do what has been done historically with the barn. Keep the existing tbotprint, as it was. I know I can't go to the previous height that it had when it was first constructed in the 1880's but I could live with the height that was allowed after it was hit by lightening in the 1940%. So with that, I presented plans l looked what the law stated to keep it 18 feet t¥om the ridge, and I tried to have something prepared that looked appropriate for the neighborhood and also reflect what the usage was there prior to its demise. CHAIRMAN: When you're referring to 18 feet to the ridge, are you referring to the ridge, or 18 feet to the roof? CYRIL LUKEMAN: I believe, Mr. Chairman on that, I explained to the architect or the person who would draw the plans to follow the Town Code. CHAIRMAN: Okay, so it would be 18 feet to the ridge. CYRIL LUKEMAN: Correct. CHAIRMAN: Okay, now when we look at the interior of the building on this plan, there is actually a third story is their not? CYRIL LUKEMAN: Are you referring to the cupola up top? CHAIRMAN: Yes. CYRIL LUKEMAN: Yes, that window vent. CHAIRMAN: That's not part of this 18 feet? CYRIL LUKEMAN: I don't have the answer to that. If it weren't, probably Ibr the decision to let me reconstruct it, I would remove it. I just thought it looked very good. CHAIRMAN: I mean it's certainly more than a weather vane. CYRIL LUKEMAN: Oh most certainly. Page 16, Ma~ch 21,2002 ZBA Public Headng Tumsciipt CHAIRMAN: It's a cupola. CYRIL LUKEMAN: We had to keep it small. What my wife had asked me when I was preparing it, she like those old widow walks that you see throughout the village, and if we could put something like that on it. So that's what the aim for on that was. CHAIRMAN: What about utilities in the building? What are we talking about? CYRIL LUKEMAN: Well, previously it had water and electric. And I've set up the place so that I can bring water and electric to the building again. CHAIRMAN: So I notice a bathroom in here. What's the purpose of the bathroom'? CYRIL LUKEMAN: Well the bathroom, the house has 1 V2 baths. A lot of people come out over the summer and plus if you're outside working around, the bathroom's there to clean up in. And then there are the outside showers for when you're coming off the beaches or just the kids playing around. Then there's that other set of water, which would be a fish cutting station; because sometimes when you're cutting fish its easier if you have everything set up in a cleaner more efficient manner. CHAIRMAN: There's no attempt to sleep in this or occupy this in any way, is that correct'? CYRIL LUKEMAN: I don't know if that's where I would necessarily go with this because we do have a previous Certificate of Occupancy since 1972. CHAIRMAN: But that building is down. We're starting flesh. I mean we appreciate that, but that is separate. CYRIL LUKEMAN: lfthat would be the conditions, then that would be the conditions. CHAIRMAN: All fight sir, we'll start with Mr. Homing. Any questions Mr. Homing of Mr. Lukeman? MEMBER HORNING: Yes, when you applied for your building permit in fact in May 2001, what was the condition of the building at that time? CYRIL LUKEMAN: It was in bad shape, real bad shape. MEMBER HORNING: the site where it remains. CYRIL LUKEMAN: Well we ran into a little bit of a jam on this one. To put a time element on it, I guess in the 1980's my father had three of us in college at the time, and when he lost his independent pensions, there was only so much money to go around. The barn basically was not a priority. Subsequent to that, I was married, not to my present wife, I was married once before and it was a mistake. But I left home and I developed Pagc 17, March 21. 2002 ZBA Public Heating Tlansctipt testicular cancer. So, again, priorities for money ccrtainly wasn't that barn. And then 1 was in New York duly employed in the construction industry as a consultant to Sachs and my lather was extremely concerned with the developing tone within the community about property rights and he persuaded me to come home to start redoing the properties. I made a mistake in November prior to that May when I was addressing the barn I t~ailed to realize I needed a demolition pcrmit. But it was in such a state that l felt with the heavy storms that we may possibly get and the kids in the neighborhood, 1 didn't want to see anybody getting hurt, so I started ripping it apart. And then I realized, fbr just the education of a person trying to deal with this town, not saying it's a bad town to deal with, its just 1 had to meet all these other things. Some people suggest just go ahead and do it. But I said not in the position that I'm in, I need to try to follow the rules so that's what I've been trying to do. MEMBER HORNING: We have a copy of your Certificate of Occupancy tbr an accessory building and have dismissed it as a greenhouse addition. CYRIL LUKEMAN: Yes, in 1971 my father with Spencer Terry, they built an addition onto that barn. That was moved five years ago. We used to have a green house there, and we turned it into a chicken coup, had about seventy chickens. MEMER HORNING: Now, correct me sir if I'm wrong, but now there's nothing there but a pile of rubble? CYRIL LUKEMAN: Everything is in the eye of the beholder. CHAIRMAN: The is showing and it's lying on the ground, so the top story of the building is lying on the ground. CYRIL LUKEMAN: Not entirely. CHAIRMAN: Pardon me? CYRIL LUKEMAN: Not entirely, there's still a little bit trying to hang in there. MEMBER HORNING: There is no greenhouse? CYRIL LUKEMAN: No the greenhouse was totally removed. MEMBER HORNING: So this Certificate of Occupancy for a greenhouse. CYRIL LUKEMAN: A greenhouse and barn that was issued fbr both. Its not a separate issue, its all one in the same. But I'm not asking you to build a greenhouse because god forbid I do that, they're going to tell me I'm 27, 28% over lot coverage. There's always a give and take in these processes. Page 18, March 21,2002 Towl~ of Silutho[d MEMBER HORNING: It does lead to a question of what you intend to use this separate building t~r because not many house applicants. CYRIL LUKEMAN: Years ago we had outhouses. Do you want to take a walk around the neighborhood and take note of all the bathrooms in barns and garages? CHAIRMAN: We know that your neighborhood has a lot of them. There's no question of that. We are well aware of it. I'm sorry Mr. Homing, I jumped in on you. MEMBER HORNING;: I'm done. CHAIRMAN: You're done. I do want to address the placement of the barn after we let Mr. Orlando speak. MEMBER ORLANDO: The reasoning for you to keep this in the exact spot and not moving is the historical grant to the barn? Do you have any paperwork, or I couldn't see when I was there, any dates written on it? Do you have any documentation for this, because this is the main factor for keeping it in this spot.'? CYRIL LUKEMAN: One second, I do have a photograph, I was able to take from a neighbor that used to over there in the 1920's. I won't have horses on the property. CHAIRMAN: Mr. Orlando? MEMBER ORLANDO: No further questions. CYRIL LUKEMAN: Thank you very much sir. CHAIRMAN: Now assuming the Board is in agreement Mr. Lukeman to allow you to construct this barn, is there a possibility other than the picture you had just shown us that we could move it a little closer in on the property? CYRIL LUKEMAN: To bring it more towards Village Lane? CHAIRMAN: Yes, a little more towards Village Lane and a little more towards the center of the property. I'm not talking about a lot here; I'm talking about ~eet. CYRIL LUKEMAN: If the removal of the ramp will allow for a more positive decision on seeking of relief, then we can remove the ramp. MEMBER TORTORA: What would that effectively do? CHAIRMAN: Allow us to move the barn over and MEMBER OLIVA: How much further? Page 19, March 21,2002 ZBA Public [[earing Transcript CHAIRIMAN: We haven't discussed it yet really. What we're saying is we need a little leeway here. CYRIL LUKEMAN: Exactly, or give or take at the same time, my parents have a great deal to say about what's going to get done here, which is as is right. They're in thvor of moving the ramp. I, myself, am looking at precedence that may come down on the right to protect other neighbors rights, they've gotten into a jam through their lifetimes and a barn went to a little bit of disrepair and they weren't necessarily meeting the codes placed upon them after the original construction. That would be my only hesitancy and at the same time, in the needs of secretly, understand that is a place where you have to give. CHAIRMAN: Mrs. Tortora? MEMBER TORTORA: Really the only plan I want to clarify here is there was never a C.O. on this for a habitable house from the documents that you showed me, it was for an accessory building and I guess the major concern of the Board is always in instances like this that we don't end up with two houses on one small lot. So to that end, I really don't, that's my concern here and I don't think, I'll just ask you do you have any objection to the condition that it remains an accessory structure as it is now. CYRIL LUKEMAN: There would have to be some sort of lesser rent. The Town is looking, if you listen to what the Town Board speaks about, even with the Zoning Codes that we have, if the decision would come down in such a way that I feel 1 could best use the property and there's also the opportunities to petition the Board and ask a change in zone to Hamlet Density. MEMBER TORTORA: Absolutely. CYRIL LUKEMAN: But that's a costly procedure. I'd state that a good amount of the homes in the Village don't have a Certificate of Occupancy for the main dwelling. So we're playing apples and oranges on that one. MEMBER TORTORA: No, the only set point I'm saying is that when they do, the Building Department does issue a C. O. for this they're going to issue it for something and we have to, before we write the determination, we have to know what that something is. So you really have to tell us. CYRIL LUKEMAN: I answered that question to some degree. I'm listening to what the Town Board has been speaking about. I read, I can't give you the title, but I guess what Valerie Scopaz did a pretty interesting document stating goals in tbr our communily. And if we keep talking about Hamlet Density and we keep talking Community Centers, then we would be so interruptive to have restriction placed on the property that would hinder proper use of the __ Page 20, Match 21,2002 ZBA Public Hcadng I'~,mscdpt Town OI Southold MEMBER TORTORA: Well, let me put it this way, any restriction or condition, it wouldn't be a restriction, would of course if there were changes in the code that would allow ]tbr something different that would go without saying. The condition would be non-revocable. CYRIL LUKEMAN: I believe that's how you feel. MEMBER TORTORA: We're trying to figure out exactly what you want. MEMBER OLIVA: It's an accessory building and that's it. CYRIL LUKEMAN: Correct. MEMBER OLIVA: Not a habitable building, no kitchen or what have you. Just an accessory building for a shop and a bathroom and what have you. No third story on it. CYRIL LUKEMAN: Correct. MEMBER HORNING: Have you provided us with a survey? MEMBER OLIVA: And you don't object if you had to move that whole slab up and then over. CYRIL LUKEMAN: To move the slab would be demolition. MEMBER OLIVA: Then you would prefer to keep it where it is, if possible. If not you are willing to give a little bit. CHAIRMAN: Is there anything else Mrs. Oliva? MEMBER OLIVA: No I don't think so. CHAIRMAN: Cy, we'll see what develops throughout the hearing, we'll have a decision for you in approximately a week, ten days, maybe two weeks, okay. Please don't leave until we close this hearing. CYRIL LUKEMAN: Understood, thank you very much. CHAIRMAN: Is there anybody else that would like to speak in favor of this application? Is there anybody that would like to speak against the application? Seeing no hands 1'11 make a motion closing the hearing, reserving decision until later. SEE MINUTES FOR RESOLUTION Page 21. Mm ch 21,2002 ZBA Public Headng Transcript Town of Soufiu)ld 7:27 p.m. Appl. No. 5079 FRANK AND ELIZABETH MURPHY. This is a request for Variances under Zoning Code Section 100-3lA and Section 100-244B, based on the Building Department's January 22, 2002 Notice of Disapproval of a building permit application to: (1) construct an addition to an existing single-family dwelling structure for use by thc applicants, at 600 Bayer Road, Mattituck; 139-3-18.1. FRANK MURPHY: Members of the Board, I'm Frank Murphy, the applicant. Basically there are two questions; (1) we would like to put an addition on our house, mainly to accommodate our youngest daughter who has a very sick child and needs help at the present time and, in the far future, I hope, we are getting older and we would like the companionship. Presently, our master bedroom is on the second floor and its getting tougher and tougher fbr both of us to be walking up and down stairs all the time; and we would like a master bedroom on the first floor. We would like to have it separated and have our own eating quarters and have a little privacy. It's not a two-family house. It's strictly a one-family house, its my daughter and just us. We are putting bedrooms upstairs, mainly to accommodate our other children who come and visit and guests who would come and spend some time with us. The other part of the application is setback. The architect has answered all the questions, I have his statement here; but it's basically to keep in line with what we have there and what the character of the neighborhood is. CHAIRMAN: Mr. Murphy, we of course know that you are a past councilperson and a past supervisor. My question to you is, how would you compare this to the old farmhouses that have existed out here, where the family members of the farmhouses, after marriage, stayed in the house with the owners of the farm. Any difference? FRANK MURPHY: No different. CHAIRMAN: The only difference that we have is basically the fact that you're asking for two kitchens. You're asking for the kitchen to exist in the present structure that you have, or the present dwelling that you have and you are going to create a new kitchen. FRANK MURPHY: It's a brand new kitchen; it's been terrible to take it out. CHAIRMAN: And you are requesting a brand new kitchen in the addition for you and your wife. FRANK MURPHY: Correct, right; and we're having a family room, an open room, washer/dryer, toilet that's it. CHAIRMAN: Right. Mr. Homing. FRANK MURPHY: It fits in nicely with the house. We kept the same lines on the house, if you look on the plan, it looks quite nice. CHAIRMAN: Okay, now there is going to be a second story in your new area? Page 22, March 21. 2002 ZBA Public Hearing 'lmnsc~{pt Town ol Southold FRANK MURPHY: Correct, it would be the same elevation as the present roof~ MEMBER HORNING: Sir, how did you end up with a Notice of Disapproval, did you have a permit to build? FRANK MURPHY: We applied for a Building Permit and because of the second kitchen and then because of the variance on the front yard setback. It's automatic. CHAIRMAN: You have a copy of the Notice of Disapproval? MEMBER HORNING: No. CHAIRMAN: Oh, we'll give you a copy, because it addresses that issue of multi-family as opposed to single-family. You are telling us that the purpose of this is to keep the family together. FRANK MURPHY: To keep the family together. Presently, our younger daughter needs us, and in the not too future, we will probably need our younger daughter and her kids and husband. CHAIRMAN: Mr. Orlando, any questions of Mr. Murphy? MEMBER ORLANDO: No questions. CHAIRMAN: Mrs. Tortora? MEMBER TORTORA: No, I went out to the house last weekend and I did have an opportunity to go inside and I can see the difficulties of climbing the stairs because the master bedroom was definitely, most definitely located on the second floor. In my view, this is just a family who wants to stay together and care for each other, and it is definitely not a two-family dwelling. FRANK MURPHY: There's no way we were going to try to knock the downstairs bedrooms out and make them into a master bedroom, but it's impossible. MEMBER TORTORA: No, I could see that physically when I went inside the house. CHAIRMAN: So downstairs, on the new area that you are going to construct, you are going to construct a master bedroom for you and your wife downstairs. FRANK MURPHY: Correct. CHAIRMAN: Yet, there will still be an addition upstairs for your additional children, if they so chose to come and visit you. FRANK MURPHY: Two small bedrooms. Page 23, Mmx:h 2 I. 2002 ZBA Public Hcming Transcript CHAIRMAN: Right. I noticed the roofline of the house itself is relatively shallow on the existing house, and you are keeping that same rooflinc. FRANK MURPHY: We're keeping the exact same roofline. CHAIRMAN: Mrs. Oliva? MEMBER OLIVA: No, I don't think so. CHAIRMAN: We thank you Mr. Murphy, please don't leave until we close. Is there anybody else that would like to speak in favor of this application? Is there anybody that would like to speak against this application'? Seeing no hands, 1'11 make a motion closing the hearing reserving decision until later. SEE MINUTES FOR RESOLUTION 7:29 p.m. Appl. No. 5080 THOMAS FITZPATRICK. This is a request for a Variance under Zoning Code Section 100-30A.3 based on the Building Department's January 16, 2002 Notice of Disapproval of a building permit application to locate a proposed dwelling with a front yard setback at less than the code requirement of 50 feet, at 1030 Clearview Avenue, Southold; Parcel 89-3-11.3. CHAIRMAN: Mr. Anderson, it's nice to see you. I just want to tell you, we're trying to restrict these hearings to about 25 minutes. BRUCE ANDERSON: I don't think it will be that long. In the packets you have before you is an application/'or a variance. Mr. Fitzpatrick proposes to construct a dwelling of 1900 square feet footprint. There would be on that a deck, which measures approximately 694 feet. Located off a right-of-way and the front lot line is off that right- of-way in front of the house, because, its actually an extension off Orchard Lane in Southold. But you will note from the survey this is a right-of-way that's 50 feet in width. The actual road is a dirt road, its narrow; it's almost like a common driveway. Because of the width of this right-of-way, which on the map is designated 50 feet, the house by itself is 40 feet t?om the eastern edge of that right-of-way, but more like 65 feet from the actual road. I'll hand you up copies of some of the photos of some of the other houses for your files. A very simple point here is that the house is similarly situated from the right-of- way or road, than are other houses in the area. In fact, if you look closely at your survey you will see the adjacent property owned by Kapinsky. The location of that house is shown on the survey and that location is the same, relative to the right-of-way, so what results is, a house that lines up with the other houses in the area. Because of that, we argue that variance will not cause an undesirable change to the neighborhood. This is a waterfront lot and because of that, we've gone through quite a bit of regulations both from D.E.C. and the Trustees. Their preservation goals are such that their interest is in what we have is as far from the wetlands as possible, and this application does that. Once that happens, the practical hardship result, and that is with the house being too close to Page 24, Malch 21,2002 ZBA Public Hearing Tmnsclipt I own of Southold the right-of-way. This house is of similar size as to what appears to be in the neighborhood in evidence by the that I've submitted. And furthermore, we would suggest that the reason for request is not substantial as we are only requesting relief of ten feet from this unimproved, basically, common driveway for which there are essentially no plans of that we are aware of to improve it any more than it exists today. So the variance constitutes 20% of the requirement, but in actuality, as you measure the distance between the house and the road you are in excess of what the requirement would normally be. We argue that the house will not have an adverse impact on its physical environmental condition of the site based on the conditions, the existing conditions in the neighborhood, and based upon the sighting of the house done in a way to maximize setbacks from wetlands. This is not a difficult in that it is self-created in that the wetlands are where they are. The argument with a parcel on a trial sub-division, however, the parcel itself with the creation of pre-base zoning, more or less contains 44,769 square feet, which from an area standpoint would comply with the R40 district in which it applies. Having said all that, if you were to quick look at the survey, you will conclude that of this essentially one-acre parcel, approximately half of it is wetland so you're really dealing with a parcel here that is effectively half an acre. I just brought in, as part of your file, in front of you, which shows you what the house will look like. I think you will agree with me it is an attractive house and I think when you look at the front; it will indeed work well in this particular neighborhood. For those reasons, we request the variance be granted. Thank you. CHAIRMAN: Mr. Anderson we know that you are an environmental consultant and you are telling us that there is no physical way that the D.E.C. would have allowed this house to be placed any closer to the wetlands than you have proposed at this time. BRUCE ANDERSON: It would not have been because of the fill required. This thing is going to have to be elevated in order to comply with the flood plan and to also get the septic system properly elevated above the ground. MEMBER OLIVA: What is your elevation? BRUCE ANDERSON: Of the house? MEMBER OLIVA: No, I mean of the land. BRUCE ANDERSON: The grade will be raised approximately three feet in the area, and if you look at the grades on the front of the house, we do take them down to the existing grades. That distance from the depth will the of the fill, is approximately 30 feet, which is not an excessive distance by any stretch. MEMBER OLIVA: Will this house have a crawl space or cellar, basement? BRUCE ANDERSON: The house will have a basement because it is located within flood plan B that has no required . The purposes of the fill, quite honestly, are to get the septic system suitably elevated above ground level. Page 25, Mm~h 21,2002 ZBA Public Hearing Tnmscdpl MEMBER OLIVA: According to this document you just gave us, Orchard Lake kind of swings through all these properties, is that, how does that relate to all the different properties. Your property, there's a right-of-way right through the middle ofthcm. BRUCE ANDERSON: That's correct. MEMBER TORTORA: Who owns the right-of-way? MEMBER OLIVA: Who owns it? BRUCE ANDERSON: Well, presumably the property owners I believe own up to half the right-of-way, and that's what the survey shows. MEMBER TORTORA: Is that what your deeds says? BRUCE ANDERSON: I'm not entirely clear on that, 1 could check on that. MEMBER TORTORA: It would be in your deed. If, the property owner of each individual owns a portion of that right-of-way, and is reflective in your deed. Is it in your deed? BRUCE ANDERSON: I don't know. I have the deed with me, but I didn't anticipate that question. CHAIRMAN: You did give us that answer. MEMBER TORTORA: Because, it does, the County Tax Map shows Old Orchard Road going right smack middle through your property. BRUCE ANDERSON: It does, well what happens is that the centerline of the right-of- way is the front lot line as per your survey, The Town takes the position of, f¥om the zoning standpoint that the front yard setback is from the edge of the right-of-way, not the edge of property line. That's what's created the zoning variance. In other words, we are suitably set back from front lot line, it's just that the right-of-way overlays the front lot line by 25 feet in that direction. So the Building Department has taken the position correctly, or incorrectly, that house then becomes 40 feet from the road, the right-of-way, even though it's really 65 feet from the front lot line, which would make it conforming. MEMBER TORTORA: Yes, I understand that, I understand how they, I won't say. I know what you're talking about. What I'm .just concerned about is that the Suftblk County Tax Map shows that there is, that Old Orchard Road goes right through your properties and I would like to see a deed so that we could straighten it out. You don't have to do it tonight Mr. Anderson. Page 26, Man;h 21,2002 ZBA Public Homing Tmnsct'ipt ]own of Southold BRUCE ANDERSON: I just so happen to have it here. It appears to describe the property boundaries and the answer, l suspect, may lie in the underlying survey that being the map of Cedar Beach Park. It's the best answer I can give you. MEMBER TORTORA: You don't see it in the deed? ls it a copy? Is that a copy, do you have another one. BRUCE ANDERSON: They can give me another copy; it's not a problem. CHAIRMAN: Thank you. BRUCE ANDERSON: I suspect that's the answer. Again, the description of that is the description we show on the survey, but the missing piece is re-stated. According to the deed, the property owner would own half the right-of-way. I guess in answer to your question. MEMBER TORTORA: (inaudible) CHAIRMAN: It's a creeded land. BRUCE ANDERSON: Typically, the property across the street would own CHAIRMAN: The Trustees have total control over it, and really it's a moot point because no one else can use it. And most of those meandering little right-of-ways were done when there was farmland across the way, so that no one would ever be shut out of utilizing the waterfront. That was the sole purpose of it. Bearing in mind in most of those, before the property was acreeded, and before all that dredging occurred, it was under water. BRUCE ANDERSON: Its also like an urban renewal map, and old file map where you may own lots across from each other and it has a block access, you simply claim that space in between. In this case, it's a real right-of-way. Simply owned half MEMBER TORTORA: Half by your client and half by your client. BRUCE ANDERSON: Well, up to the first 25 feet. It's a 50-foot right-of-way. I had, frankly, fi'om the actual road, as I said, we will comply, its just that. And from the standpoint of the front lot Iine, it's just that we wind up taking short from the eastern boundary of a mapped right-of-way. CHAIRMAN: Where do we leave this off? Who would like to speak next? Who would like to ask Mr. Anderson m~y other questions? MEMBER OLIVA: What is the square footage of the house? Page 27, Match 2 I, 2002 ZBA Public Hearing Transclipt TowI1 o1' S~mthold BRUCE ANDERSON: 1900 square feet. The second floor is about two-thirds the size of the first floor. MEMBER OLIVA: So its over 2,000 square feet? CHAIRMAN: Any other questions? MEMBER OLIVA: I don't think so. CHAIRMAN: Any other questions of the Board for Mr. Anderson? BRUCE ANDERSON: There is no issuance of lot coverage; we're complying with all of the requests. CHAIRMAN: Mr. Anderson please doesn't leave until the hearing is closed. Thank you for your presentation. Is there anybody else that would like to speak in favor or against this application? Sir. Anybody, yes. Please come up and state your name? RICHARD PERRY: Richard Perry, I live at 830 Clearview. CHAIRMAN: How do you do? What would you like to tell us? RICHARD PERRY: I just want to go on record that I have no objections to that setback, it seems tine. My only concern is that retaining wall going out, it seemed to go out into the setback and I wasn't sure if that was something to consider or not. CHAIRMAN: Well, Mr. Anderson could probably explain that to you. I can't answer that question, that's the advantage of having it here. So maybe what we should do is, you should discuss that with them out in the hall and then we can close this hearing in 15 or 20 minutes. We'll take the next hearing. RICHARD PERRY: And you'll note on that road that splits the property, my deed doesn't show it at ali. And it was declared abandoned, I don't know if that means anything. CHAIRMAN: Even if its declared abandoned, unless the Town actually recognizes as abandonment, its not abandoned. RICHARD PERRY: I thought the Town did. CHAIRMAN: You think theydid. RICHARD PERRY: Yes. CHAIRMAN: Is there anybody else that would like to speak? Sir, please state your name for the record? Page 28. March 2 I~ 2002 ZBA Public Healing Tlanscripl Town of Southold FRANK GIPLINSKY: My name is Frank Giplinsky and I live on the opposite side of his property there. 1 have the same comment that Mr. Perry did. My deed does not show thc additional twenty-five feet. I would like to talk to this gentleman also because there could be some flooding onto my property. Thank you. CHAIRMAN: Is there anybody else that would like to speak? Okay, so we'll recess this hearing fi)r about twenty minutes Mr. Anderson, if you would just take that easel down to allow us to go into the next, you can actually put it over there if you like. You can resolve some of these issues with these nice people, the property owners. Then we'll reconvene and close the hearing and we'll take any testimony. Thank you sir. Anybody else? I again, offer that as a resolution, to recess for twenty minutes (+-). (recess Fitzpatrick ~ 7:46) 7:45 p.m. Appl. No. 5071 WALTER TERESKO AND ELIZABETIt MCGRATH. This is a request fbr a Variance under Zoning Code Section 100-30A.3 based on the Building Department's January 10, 2002 Notice of Disapproval for insufficient lot area, width and depth in the proposal to change lot line between Lots identified on the County Tax Maps as 109-7-6 and 7, situate along the east side of New Suffblk Road, Cutchogue. CHAIRMAN: How are you tonight? GAlL WICKHAM, ESQ.: Good evening ladies and gentlemen. I do have to start by saying I think this is probably one of the more difficult applications I have made to the Board, but I would hope that after I expand a little bit on the history of the property beyond what was stated in the application that you will see that as the basis of the applicant's reasoning for making this request to create what is a very small lot on the one hand, but adding the difference to a larger lot on the other. I have a hand out that I'd like to give you. I will go through it with you. I don't think it will take too long. The top page is a reduced version of a Van Tyul map that was prepared in 1954 when Harrison Case who owned all of this property negotiated with the Teresko's to purchase the house piece, ~vhich is shown in yellow the .344 acre parcel which is the 100 x 150 parcel which we are attempting to create now. That contained the house which Mrs. Teresko, Walter's mother wanted to buy from Mr. Case. And, Walter, who was in the greenhouse business, her son, negotiated with Mr. Case to buy three acres of property in the back and three acres was a the deal. That was all that was going to be purchased and sold. They started with Mr. Beebe's line, or actually its shown as Julius Tuthill on the south, and went north up to the line that shows 531 feet. That was three acres back there and that's what they agreed to purchase and at the same time, Mr. Beebe bought an additional 50 feet to the rear of his property. Mr. Case also, at the time on that .877 acre piece that is now part of our Lot 1, that was not purchased until later. So in 1954 there was an agreement for Mrs. Teresko to purchase the .344-acre house parcel and for Walter to purchase the 3.00 acres behind for his nursery business. And if you turn to the next page, you will see, in fact, Van Tyul prepared a description, which specifically show the house lot as 100 x 150 as it matches the survey. There were some other parcels in the back; I didn't attach them because they weren't relevant. When they worked on going towards the closing, Mrs. Page 29, Match 21,2002 ZBA Public [[cming Transcript Town of $outhold Teresko applicd to North Fork Bank for a mortgage. Shortly, thereafter, Carl Tuthill, who I'm surc at least Mr. Goehringer remembers was the president, called Walter and said I'm sorry Waltcr but your mother will not qualify for a mortgage, she doesn't have the income, but wc can do it if you go on the deed. Well, Mrs. Teresko said that if Walter was going on her deed, she was going on his deed. So that's why, in 1955, when the transaction occurred and the two deeds conveyed those two parcels, they were both to Walter and Esther. Subsequently, the mortgage was paid off and Mrs. Teresko went on the house piece and then later Walter went on the nursery piece. But that's the history of how that happened. Also, in 1958 Walter was then able to buy from Mr. Case the .877 acres which then made up his whole piece in the back. Now tbr some reason in 1955 when Mr. Case conveyed the house piece to Mrs. Teresko and Walter, it didn't have the 150 x 100 description; it had the larger description with the piece in the back. I don't know why that happened, whether that was something the bank required, whether it was something Mrs. Teresko wanted or whether it was just a mistake. But apparently, it was something that was raised back at that time, as not having been the way the deed should have been properly reflected. And the third attachment is actually a letter, sometime later in 1974, to my father, from L. C. White, who was Mr. Teresko's sister. And it clearly reflects the fact they had understood that 5,000 square foot parcel that we are seeking to change to the back piece was considered part of the property that Walter had bought. That portion of the property was used by Walter f¥om the beginning, as you can see there's some animal sheds on there, his father had a garden back there, and for quite a long time, the help that worked at the nursery parked in that area behind the house even though it was part of the house piece by deed. And later on when Walter went out of the chrysanthemum business and didn't require those main employees, the parking ceased. But the animals, as you can see if you've been out there, are still there and the garden area is still there. And that has always been considered by him, as part of his property and that's what he is asking for this request. Fairly recently he rented the house to a young lady by the name of Miss McGrath, who is a very energetic young woman and she did a lot of fixing up to the house and thought of obtaining an agreement f¥om Mr. Teresko to sell her the house. He said he would sell her the house but he didn't want to sell her the garden piece and that's why we're here. We have to get that issue resolved as to whether you will allow it to be transferred back to the back piece. I think a couple of important things here in terms of the overall, should you grant a variance criteria on number one, it does not increase the overall density. If you add 5,000 square feet to the piece Lot 1, it will not enable to subsequently get more lots back there. If you look at the lot size, under the zoning code, another 5,000 aren't going to allow them to ease out another lot. And we would be on the covenant that the transfer of that property would not be able to be utilized for density. And that is really in the nature of the cluster concept that 1 think the Planning Board had mentioned in their reservations about this particular application. The second thing I would like to point out is that the parcel as proposed, not only has been used as it is, as that type of size property, but it is in conformity with other lots in the area. Particularly five lots right across the street, that, if I read the tax map correctly are even smaller they are 100 x 130. And the other houses along the east side of New Sufi-blk Lane are also small. The next thing I'd like to point out and the final attachment is a copy of the zoning map and that clearly shows the small lots across the street and on either side of this property. The parcels to the rear will not be, this application would not be a Page 30, Mmx;h 21. 2002 ZBA Public Ileafing ]'ransc~ precedenl in terms of dividing those lots, because they are in an A.C. zone so they're on a totally different type of minimum lot area requirement in any event. The other interesting about the zoning map is that Mr. Beebe's property immediately to the south was zoned as limited business. That's immediately contiguous to this property. Now l'm sure that was done because he had his contracting business in their as a noncontbrming use fbr many years, but: it seems to me that the fact that the Town saw fit to actually change that to an LB zone indicates that they didn't feel that would be as detrimental to the residential nature of this area. So, certainly, creating this application I don't think would be either. Because we're really not changing anything except the boundary line itself. I'm going to ask if you have any particular questions, I'm sure you may. CHAIRMAN: I draw your attention again to the letter that we received from the Planning Board and the last statement where they reserve judgment. Could you do us a favor and go to the Planning Board and discuss this with them so that they know exactly what you're talking about. Why don't you, in effect, show them exactly, at one of their work sessions, how this whole thing evolved. And then we'll recess this little thing for a month and then we may get a more favorable response from them at that point after you explain that to them. ABIGAIL, WICKHAM, ESQ.: I'd be glad to do that. I don't think they can formally entertain this application until you rule on it. But I would be glad to discuss it with them in the meantime, because theirs is a recommendation to you. You're the ones that have to decide on the variance and whether it's justified or not. CHAIRMAN: What usually happens then is, the chairman calls me and says to me, based upon the memo~ we now understand the process and therefore, we really don't have an objection. ABIGAIL WICKHAM, ESQ.: No, I would be glad to set up a work session meeting with them. CHAIRMAN: That's basically what this letter is asking for. ABIGAIL WICKHAM, ESQ.: I did send a letter in response tn that letter, which went to them as well. But I'd be glad to discuss it with them. Okay. CHAIRMAN: Mrs. Oliva, any questions of Miss Wickham? MEMBER OLIVA: Not right now. CHAIRMAN: Mrs. Tortora? MEMBER TORTORA: No, it's probably a good idea to go over this plan with the Planning Board so that you can address their concerns. Page 3 I, Malch 21,2002 ZBA Public Hearing Tral~SCtipt Town ol Southold ABIGAIL WICKHAM, ESQ.: Yes, I know they'll have other concerns, the access on some of the other parcels but I would be glad to do that. CHAIRMAN: Thank you. Mr. Orlando? MEMBER ORLANDO: No questions. CHAIRMAN: Mr. Homing? What would be practical impediment to extending that lot 50 feet further in depth so that it had a 200-foot depth rather than 1507 1 see there are some things on the survey. Would those things really be an impediment to have a 100 x 200 square foot parcel of 20,0007 ABIGAIL WICKHAM, ESQ.: Because Mr. Teresko's garden and animals and parking area fbr the nursery have always been there and he would like to incorporate that legally into the property. If you look the letter from the sister in 1974, this has been something that's been discussed with the family but apparently it was not, shall we say convenient for Mrs. Teresko for other reasons to approach it. She died in 1979 and it just never happened, but now its been brought to the forefront because of the sale of that property, the house piece. MEMBEP, TORTORA: Aren't you going to be creating a parcel will be partially divided between the AC zone and R407 CHAIRMAN: Yes. ABIGAIL WICKHAM, ESQ.: Lot 17 MEMBER TORTORA: In other words, the zoning district now, as George said, if you go back 200 feet, that would be all R40 and directly behind that is AC. So if you went ahead with the lot line change where you're proposing it, you're going to have a tiny little strip in there that would be R40 and the rest of the parcel would be AC. ABIGAIL WICKHAM, ESQ.: I think we already had that. Let me look at the map, its hard to read, I'm looking at the blue print now. MEMBER TORTORA: Where as if you did ABIGAIL WICKHAM, ESQ.: But we already have that to some extent, and yes, it would probably increase that differential that the bulk of the property is AC and that's pretty much going to govern the zoning density on an 80,000 square foot minimum basis. Right now the zoning district line imprecates the piece that we're looking at. MEMBER TORORA: The only way that it would not do that is if it was lined up with the Beebe property. But you have kind ora little mess in there anyway. ABIGAIL WICKHAM, ESQ.: I understand that. Page 32, March 2 I, 2002 ZBA Public Hcam~g Transcript MEMBER TORTORA: Because you've got AC, Business and R40 all overlap there. ABIGAIL WICKHAM, ESQ.: Well, we have that now. I'd be glad to discuss that with the Planning Board in terms of whether that's going to make any difference to the density in the back. That's not his intention. His intention is to restore the outline of the property to the way it was originally intended and has always been used. MEMBER TORTORA: And he wants to create that fight-of-way there so he can have access to the. ABIGAIL WICKHAM, ESQ.: Right, that's a paper right-of-way. It may have to be revised, I'm not sure if it makes sense to be there or maybe further over on that lag that goes out to New Suffolk Road. But that's something we'll have to discuss with the Planning Board. I asked Mr. Teresko to speak, but he wouldn't. Unless you have specific questions. Oh, here he comes. WALTER TERESKO: You did a good job. ABIGAIL WICKHAM, ESQ.: Thank you. CHAIRMAN: Mrs. Oliva, any questions'? MEMBER OLIVA: No, no questions. CHAIRMAN: I don't think its necessary for him to speak. You're going to come back and see us in a month. MEMBER TORTORA: Do you want to make a date? CHAIRMAN: Why don't we do it for the special meeting next month? ABIGAIL WICKHAM, ESQ.: IfI can get Planning Board to accommodate that. MEMBER TORTORA: Recess that to what date? CHAIRMAN: Do we have a date Paula for the Special Meeting? I know the regular meeting is the 16th. CLERK QUINTIERI: April 18th, the regular one. MEMBER TORTORA: When was the next one? CHAIRMAN: We're just going to say the Special Meeting after that okay, which is probably the week from April 18th. Page 33, March 21,2002 ZBA Public Hearing Tmnsclipt ABIGAIL WICKHAM, ESQ.: That would be fine. Thank you. CHAIRMAN: Good night sir. SEE MINUTES FOR RESOLUTION Recess 8:10- reconvene 8:15 p.m. 8:19 p.m. Appl. No. 5077- TItOMAS AND ANGELA LAOUDIS. This is a request for a Variance under Zoning Code Section 100-30A.3 and 100-230C.3, based on the Building Department's January 4, 2002 Notice of Disapproval, Amended January 16, t002, regarding a building permit application to locate a dwelling, covered walkway structure, covered stone path structure, and additions and alterations to an existing building referred to as an accessory "pool house" structure. The reasons state in the Disapproval are: (1) that this construction is not permitted; (2) that a single side yard is proposed at less than 15 feet, (3) that the lot coverage tbr all construction is proposed in excess of 20% of the total lot area; (4) that placement of a new dwelling ~vill also place the existiug building, proposed as an accessory non-habitable building and tennis court structure in a side yard rather than the required yard; (5) that the height of the pool house structure is greater than the code limitation of 18 feet for an accessory building; and (6) that the proposed covered walkway will project into a yard area overlapping the property line. Location of Property: 405 Kimberly Lane, Southold; Parcel 70-13-20.35. Appl. No. 5078 THOMAS AND ANGELA LAOUDIS. This is a request for a Variance under Zoning Code Section 100-30A.3 and I00-230C.a, based on the Building Department's January 4, 2002 Notice of Disapproval of a building permit application to make additions and alterations to the existing dwelling and covered walkway structures. The reasons stated for the Disapproval are: (1) that the additions and covered walkway structures are proposed at less than 15 feet from the side property line (zero setback, overlapping the property line); (2) that the covered path structures are proposed at less than four feet from any property line (zero setback, overlapping the property line); and (3) that the roof overhang of the dwelling will project more than two feet into the side yard on the northern end of the property, leaving a setback at less than the code requirement of 15 feet. 635 Kimberly Lane, Southold; Parcel 70-13-20.04 CHAIRMAN: Let me just say something, for the record this is Patricia Moore. What we are going to need from you, at the end of this hearing are two things. We are going to need a lot line delineation between the house and the pool lot. In other words, showing us the lot line clean, without the improvements that your client is requesting. PATRICIA MOORE, ESQ.: An original survey, like a pre-construction survey? CHAIRMAN: I don't care if it's a survey or an actual lot line lay on the map. You can do an overlay on the map. PATRICIA MOORE, ESQ.: Well it actually is on your plans. Page 34, Mat'th 2 I, 2002 ZBA Public Healing Tnmscdpt Town of Soutbold CHAIRMAN: I know, but it's muddied by the improvements. I need a clean one. Because what we're going to do PATRICIA MOORE, ESQ.: We have them on two separate sheets; you want them all on one sheet. CHAIRMAN: The other thing is we need you to go back to the Building Department on the issue of the garage/apartment/house so to speak. So that they address that in the Notice of Disapproval. PATRIC1A MOORE, ESQ.: It's a dwelling, keep in mind these are two separate, this plan was submitted to the Building Department. Each lot is a separate, independent lot that's why you have two Notices of Disapprovals and it's actually a dwelling. Just the design of it is a three-car garage with the amenities of a single-family dwelling. CHAIRMAN: I understand that, but we're not sure that the Building Department actually looked at this plan when you filed the application back in December. PATRICIA MOORE, ESQ.: Yes they, the only difference between the plans was the patio design, that's it. And I actually showed it to the Building Inspector, to Damon, to say do I need a new Notice of Disapproval when I deviate some of the patio area? He said no. CHAIRMAN: So when we conclude this, and we close it sometime next month with that new delineation on the lot line, showing both sides clean, we then need you to just have him say, yes he looked at it and it does not need a second Notice of Disapproval. Because the concern is that we didn't properly advertise it and we want to make sure it's properly advertised. PATRICIA MOORE, ESQ.: Yes, I think you did properly advertise, because it's a single-family residence, it's a dwelling. CHAIRMAN: Okay, so that when we talk about number three, we are talking about the new dwelling with the garage, and that is the only residence that, except for the existing pool house that exists on the property. PATRICiA MOORE, ESQ.: In fact, let me go through, because some of these are going to be eliminated. For example, the pool house, and the architect's design originally showed a 20-fbot peak. The existing peak was 19, the renovations are going to actually bring it down to 18, so because it's in the midst of construction we didn't want to delay on the Notice of Disapproval, we just said we'd withdraw. If we don't need a variance, we'd withdraw it, so we don't need a variance for a height on the peak of the pool house, so it is conforming. You have a drawing that shows 18 feet as the final height of that pool house, which is actually less than the existing. The existing is 19 something. Page 35, March 21. 2002 ZBA Public Heaiing [lansc~ipl CHAIRMAN: Just so I understand, because this pool house situation has been bantered around. PATRIC1A MOORE, ESQ.: There's some confusion on that, let me just. I think one of the things which I disagreed with the Building Inspector was, there was just so much in f?ont of him 1 think, that he mixed a little bit on the Notice of Disapproval. The pool house and the tennis court are actually in the rear yard of the dwelling. The dwelling is that garage. I call it a garage, hut it's the dwelling. Physically it's in the rear yard of that structure. He called it in the side yard and I think it may have been he inadvertently looked at the main house, rather than the dwelling. It might be the clarification there to make sure, do you really need what you said. CHAIRMAN: Okay. When you refer to the frame pool house, which exists, that's going to be renovated? PATRICIA MOORE, ESQ.: Yes. CHAIRMAN: Okay. So there's going to be changes on that pool house? PATRICIA MOORE, ESQ.: Its shingle change, finishes, paint. CHAIRMAN: So there's not going to be any structural change? PATR1CIA MOORE, ESQ.: No, WARREN BOHN, ARCH.: No change of use. PATRICIA MOORE, ESQ.: Well structurally, are there changes to the window or the foundation. WARREN BOHN, ARCH.: Only window replacement, no foundation replacement at all. CHAIRMAN: Now I'm not trying to be devils advocate here, but we're wrapping this up at 9:10. PATRICIA MOORE, ESQ.: Okay. Don't ask me any questions, I'll - Very simply there are certain identifiable variances that we have here and I'll try to simplify things. With respect to the lot, which has the tennis court and the pool; the original sub-division had the pool on the property when the lots were created. The tennis court was added by variance of the Zoning Board at the time, in the 1970's and I attached a copy of that decision as part of your paperwork. The variance is necessary for the connection on the trellis walkway connection that goes from the main house to the pool and garage dwelling structure. Because there are two variances, two sections of the Code that are applicable; one Code provision that says that structures have to be with a setback of 15 feet, which obviously if there is zero lot lines because you've got it coming from one lot and coming Page 36, March 2 I, 2002 ZBA Public Heming I ranscript Ti)wn oI' Southokl from the other; its connecting the two. Keeping in mind that if the day ever comes that they want to separate the properties, actually sell off the one piece, keep the other, you can take down that trellis structure without any impact to the new structures. CHAIRMAN: That's why we want the clean copy of the lot line. PATRIC1A MOORE, ESQ.: That's fine, okay we can do that. Another provision of the Code that's applicable are stairs are pennitted to protrude four feet to the property line. And, again, because of the topographic difference and the main house and the pool area, there is a three or fbur fbot drop, between the properties. We, very conservatively, asked the architect and I ask you to refer to the architect's drawings not to the surveyors plans, only because when it came to the decking there was some deviations that changed the lot coverage calculations. The problem is that the Building Inspector will count a patio that is somewhat above grade, whether it's a fbot or an inch above grade it results in lot coverage issues. So what we did is, we took all of the patio area and very conservatively said, lets assume all of it is above grade, lets take the whole thing and ask for lot coverage variance :for the patio. So, what we have included for both sides is, while the main house there is no lot coverage issue because the parcel is large enough, that the house and the patio area are within the 20% lot coverage rule. Because on the other parcel because of the tennis court and the pool, that again, the surface coverage of the property, even though its all open and they're accessory structures, the Building Department and the Code always looks at the patio area and the surface area of the pool and the tennis court as part of the lot coverage calculation. So it throws the lot coverage over the top of 20%, particularly when we add the dwelling, the garage and the overhang that brings the two structures together. So there are lots of sections that are sited in your Notice of Disapproval, but it really boils down to very few actual impact areas. It's just other sections of the code that are referenced, cross-referenced. So that the architect's final drawing shows 29.18-iot coverage for the walkways, covered walkways, pool, and tennis court, everything that is on that one parcel. I call it the lot, the garage parcel. With respect to the house, again very simplistic, we can narrow it down to very simplistic issues. Again, it's the walkway coming, the covered walkway coming from the house to the property line, results in those setback issues of the two sections of the code. Again, this house is a very unique architectural design. There are eves, existing eves that are 4.2, protruding out 4.2, I took a picture of that. The eve that l took a picture of is actually the one on the westerly side. CHAIRMAN: When you say 4.2 you're talking 4 feet 2 inches? PATRICIA MOORE, ESQ.: 4 feet 2 inches of extending out from the wall for those eves. The architectural design is actually continuing the existing architectural style of the house and as it goes around, again, the Building Department prefers to take everything conservatively so that we don't have issues and since we were here anyway, I said no problem add that on to the mix. And on the westerly side where the overhang actually reduces down to 3 foot 6 inches, from the 4. 2 that were pre-existing, it still exceeds the 18-inch overhang provision, which is existing in the code. So pre-existing was 4.2. We're reducing it down to 3.6 on that line and so if you recall walking around to the Page 37. Match 2 I, 2(/02 ZBA Public Hcm-ing Tlansct Town of Southold westerly side of thc property, there's actually a door which protrudes much furthcr into the side yard, but that is excluded and its pre-existing that's not changed. The fhct that the roof was, has come down and is being replaced and rebuilt was included in this variance. Really that's it when it comes to the variances. There are lots there listed. I had a neighbor Mr. Mendelbaum. Mr. Mendelbaum, very nice gentleman, my notice to them was to please go look at the plans, because the plans were so voluminous that it was impossible to send to them individually. We followed the code requirements and he gave me a call and said, just explain it to me because he didn't quite understand. ! explained it to him, he raised certain issues, which I'll put on the record, and I told him that we had no problem with any of this. First he wanted to clarify, is it a one floor or two floor addition on his side; it's a one floor addition. It's remaining as one floor. His concern was the drainage on his side of the property. Apparently, there's been some history, his piece came from the original Comaccia larger tract, and there were some drainage problems from the original house. We agreed that we would put in appropriate drywells on that side, so that we obviously want to keep all roof runoff from going beyond the property line, there's going to be extension landscaping here. So there certainly was no objection, no problem, as part of the overall design here to make sure that all water is contained. So there will be drywell MEMBER OLIVA: Which side of the house was that? PATRICIA MOORE, ESQ.: From the westerly side, where the overhang, the only variance being the overhang, that side. He also wanted to see what, he hoped there was certainly going to be some landscaping, m~d certainly there will be. So he had no problem. He is happy to have him as a neighbor, he was very sweet, very cordial and he said absolutely everybody here is cooperating. CHAIRMAN: This is the gentleman standing in front of the main house on the right hand side'? PATRICIA MOORE, ESQ.: Correct, when you face the house, the right hand side. CHAIRMAN: Okay. Now who is the gentleman who was out of state that called us? PATRICIA MOORE, ESQ.: He was in Colorado, calling from Colorado? He called me. My letter to them was, if you have any questions; call me; because it's much easier for me to explain something than to write a thesis explaining it. He called me and I explained it all to him and he was fine. Any questions? 1 have the architect here, Warren Bohn, who is the principal and did a wonderful job on the renovations here and he's here in case. CHAIRMAN: We'll go through the Board to see if there are any questions. Mr. Homing, any questions? MEMBER HORNING: Not at this point, no. CHAIRMAN: Mr. Orlando? Pagc 38, Mmx:h 2I. 2002 ZBA Public Healsng Transcript Town of Southold MEMBER ORLANDO: You had said that the canopy is removable in case they did separate the properties and sell them? PATRICIA MOORE, ESQ.: Yes. MEMBER ORLANDO: ls that the objective or is that the future'? PATRICIA MOORE, ESQ.: No, well I can tell you from, Mr. Laoudis would like to be buried in this property, given the amount of work he has put into it. No, obviously two parcels here, waterfront parcels, extremely valuable. Each of them has to be maintained and is maintained as a separate parcel. It is easily, whether you have to take the whole thing down or actually cut it back to the conforming side yard setbacks of an accessory structure of whatever the code says at the time. But, no, there is no intention of selling; there is no intention of changing the use as one large use. In Pact, he also owns the beachfront that had been lost to the county, he acquired it from the county and it is in his control in an LLC. MEMBER ORLANDO: That's why I brought it up, because you brought it up that it was removable and I was curious. PATRICIA MOORE, ESQ.: To the extent that it is not, it won't create permanent connection it could be removed, yes. It could be removed; it won't change the integrity of either structure on either end. CHAIRMAN: That will be one of the issues that we deal with in reference to the granting of the variances on this property. PATRICIA MOORE, ESQ.: Sure, I would imagine that if CHAIRMAN: In the way of a covenant. PATRICIA MOORE, ESQ.: Okay. That's fine. CHAIRMAN: Mrs. Tortora? Are you done, Mr. Orlando? MEMBER TORTORA: That was my concern too. Obviously there are two separate lots and are considered developed as one piece. We just would want some assurances that should that, first of all you know where the line is, and second of all, to insure that it remain as t~vo. PATRICIA MOORE, ESQ.: Two separate. MEMBER TORTORA: Exactly. Page 39, Match 2 l, 2002 ZBA Public Hearing T~m]sctipt PATRICIA MOORE, ESQ.: Yes, certainly that is in thc owner's interests or value. It has historically been sold to, the two lots to the same individual so I would itnagine that the bcauty of this property is to have it, both parcels under your control. MEMBER TORTORA: As long as we can see some flexibilities so that if the two parcels are separated in the future, its something that's practical. PATRICIA MOORE, ESQ.: Exactly, I think at the time, if it were ever sold off; whatever creative architect would come in and say or they might end up coming back to you at that point and saying I want to do X, Y and Z, who knows. But, realistically, the simple thing is, just cut it oft: Whatever the setbacks are at the time, you just cut it off to that point and you've got a canopy with a house, and a canopy from wherever to the other house. MEMBER TORTORA: I think that's why its important that we do have the overlay, so that we can clearly set out what the minimum setbacks are on both lots. PATRICIA MOORE, ESQ.: I think its zero. It's a zero lot line. You don't want to regulate what the Code is thirty or fifty years down the line. MEMBER TORTORA: No, I'm not suggesting that. I'm suggesting that we want to know what that is so that the Board can decide whether that is agreeable for us, the zero lot line. PATRICIA MOORE, ESQ.: I'1I show you where the line is. It brings the two structures together. I don't see how you can do it any other way. If you come from one end and you come from the other end, you'd have a significant architectural gap between the properties. So there's really no practical way of doing it without connecting the two with a zero lot line. Again, I think it's a very practical solution to put a covenant on that says if the parcel is never sold independently of the other, that they will be disconnected and be confortning. CHAIRMAN: And cut back PATRICIA MOORE, ESQ.: To whatever the code requires at the time. MEMBER TORTORA: Exactly. I don't have any other questions. CHAIRMAN: Mrs. Oliva? MEMBER OLIVA: Did you say that the garage and the dwelling are one story or two? PATRICIA MOORE, ESQ.: The garage is two-story. The first floor is the base, the garage base and the second story is the dwelling portion. CHAIRMAN: Yes, Mr. Homing? Page 40, March 2 I, 2002 ZBA Public Heanng Transcript Town o['S~mthold MEMBER HORNING: Mrs. Moore, Lot #3 with the garage, the tennis court and pool, what is the principal use? PATRIC]A MOORE, ESQ.: It will be the dwelling. MEMBER HORN1NG: What dwelling? PATRICIA MOORE, ESQ.: The garage dwelling. CHAIRMAN: The dwelling above the garage. PATRICIA MOORE, ESQ.: You can't have two dwellings on one property. MEMBER HORN1NG: So the garage is going to be the single family, PATRICIA MOORE, ESQ.: The garage will be the principle with the accessory, exactly, yes. And I gave you the interior diagram, which is a two bedroom. CHAIRMAN: What's important at this point, in case the architect doesn't come back on the 25th of April, what is very important here is that if you have any questions of the architect that you would ask them now. So during this process of the continuation of this hearing, l'm just reciting this to the Board, if you have any questions regarding the architectural review of this, then lets ask him those questions. So at this particular point Mrs. Moore, we'll zip through the public portion of the hearing and see who has comments from the neighbors. How are we going to treat the man Colorado other than the discussion you had'? Is he going to send us a letter saying that? PATR1CIA MOORE, ESQ.: I could ask him, he had me, he called me on the cell phone from the slopes and I spoke to him and said, sure, no problem. 1'11 get you all the infbrmation. These are the questions that he asked of me, and I checked with the architect and said, is there any problem with any of this, no no problem with this whatsoever. So if you want, either he can write a letter or I can write a confirmation of our conversation letter. Which might be easier fbr him if he's on vacation, to confirm whatever we agreed to, which is really just the drainage. Its making sure that there are drywells on that side of the - or taking whatever roof runoff from that end of the property, retaining it on our property. CHAIRMAN: We're going to set that date at April 25, whatever that Thursday is after, so I assume its April 25th. PATRICIA MOORE, ESQ.: For what purpose, to close the hearing at thai time? CHAIRMAN: And you'll supply us with that clean copy of that issue? Page41, Mmch 21,2002 PATRICIA MOORE, ESQ.: I can never predict, l think I had every single drawing except that one. Fine. CHAIRIVlAN: Is there anybody else that would like to speak in favor of this application that may not be here on the 25th'? IS there anybody that would like to speak against the application again that may not be here on the 25th? Okay, seeing no hands, hearing no one I'1l make a motion recessing to April 25th. SEE MINUTES FOR RESOLUTION 8:40 p.m. Appl. No. 5045 FLOYD KING TRUST - (Continued from the January hearing calendar). A Variance is requested under Zoning Code Section 100-30A, based on the Building Department's Notice of Disapproval for insufficient lot area, width and depth, due to a proposed changed in lot line between Parcels 1000-24-2-26.2 and 26.3, located on Private Road, Orient. CONTINUED ON APRIL 18TM, 2002 SEE MINUTES FOR RESOLU1TON 8:45 p.m. Appl. No. 5065 P AND M NICO¥IC - (Continued fi'om the February haring calendar.) A variance is requested under Section 100-244B, based on the Building Department's Notice of Disapproval of a building permit application for an as-built deck with an insufficient rear yard setback at 505 Miriam Road, Mattituck; Parcel 99-1-35.1 CHAIRMAN: How are you tonight sir? You appear to be the same gentleman that was here last month? Just state your name for the record if you would please? BILL AMATO: Bill Amato, representing Peter and Mafia Nicovic. CHAIRMAN: We're just going to see what develops throughout this hearing and then you may react either verbally or in writing, whatever you chose to do. BILL AMATO: Thank you. CHAIRMAN: Is Miss Wickham here? I didn't see you. You weren't hiding. ABIGAIL WICKHAM, ESQ.: Good evening, my name is Abigail Wickham and l'm here representing the adjoining owner to the east, Miss Corretta and her brother Mr. Lauro who resides on the property and has lived there since he built it many years ago. CHAIRMAN: We did take some testimony from them. ABIGAIL W1CKHAM, ESQ.: Yes, I understand that. I would just like to reiterate, I spoke to Mr. Amato, as I believe Mr. Amato may have said. The concern is that the deck rage 42, Mmch 21,2002 ZBA Public tlcatmg Fmnscrirl I-own of Southold is located about five feet offhis line. His house by virtue of effect is that he is the corner lot and is at a lower elevation that's very close to the side yard of the Nicovics. When the deck was constructed at that higher level, the cff~ect was the privacy that he would have enjoyed had this side yard setback of an accessory structure been maintained, was violated. So people standing on the deck can actually look down over the fence into his property. And I spoke to Mr. Amato about it, I don't understand why they couldn't have built the deck further out on the west side rather than extending all the way over on the east side to his property because it was not built in that location originally. There was something, perhaps closer to the ground, but not that far out. He explained it would've meant moving a fence, and dealing with multi-level platfom~s. But still, I don't think that that would have been a considerable hardship that would justify having to need a variance to do it into the side yard incursion. I also had mentioned in my letter that we do believe this property is an accessory structure and should be located in the rear yard and that the side yard setback should comply with that. CHAIRMAN: And what's your feeling on that 5 or 107 ABIGAIL WICKHAM, ESQ.: I think it should be 10 feet. I just have a few photos I would like to show the Board. I'm sorry I don't have six prints, but this photo illustrates the fhct that the deck on the west side of the pool on the Nicovic house side is very shallow and there's no reason, that whole area is lawn area there, if they needed area around the pool they certainly could'ye obtained it that way, This shows that the deck is very close to the fence and Mr, Lauro's house and that since there is only a differential level of fbet between the top of the deck and the top of the fence, you can look over. CHAIRMAN: Miss Wickham, who owns the fence? ABIGAIL WICKHAM, ESQ.: Please correct me if I'm wrong, I understand the Nicovic's put it up, facing their property with some poles. This is what Mr. Lauro has to look at on his side. These two photos illustrate, there's a tremendous amount of area between the east side of the pool and the east side of the deck. They really don't need all that to have adequate space around their pool area. It just seems that he shouldn't be prejudiced, being allowed to encroach into the side yard area to that extent. The fact that his house is very close to the line is a functional fact that his property is a comer lot and was built that way many, many years ago. But I don't think that that justifies the neighbors being able to go so close to his line when he had every expectation that in compliance with the zoning ordinance there be at least a 10 foot differential there. CHAIRMAN: Is there any type of evergreen bush that could be posed that could exist without moving the deck back at this point, as a screening option? ABIGAIL WICKHAM, ESQ.: I suspect if the screen were evergreen, but it would take some time I think for them to grow, because while the stockade fence is 6 feet in height it was not located, the bottom of that fence was not at grade. So it's going to be much more Page 43. Mmch 21,2002 ZBA Public Hearing I'mnscript Town of Southold than 6 feet. If you planted 8 foot arborvitae maybe, but then by the time they filled in and grown up, it might be a few years. CHAIRMAN: And they would have to be continuous. ABIGAIL WICKHAM, ESQ.: To what extent that would block the noise I don't know. The visibility, eventually as they filled in, but when you plant a arborvitae, I'm just using that as an example its going to be coned at the top and so it will not create the full hedge effect along the top of the fence which is where the problem. Whereas if you brought the deck back another five feet from the side line, that would change your angle of view over the fence. CHAIRMAN: The reason why I bring that issue up and its interesting that you mention arborvitae, is because I was always impressed with Mr. Entenmann's house on Sound Avenue on how quickly they grew together. That is really an option and, of course, in his case he h~.s a drip system. ABIGAIL WICKHAM, ESQ.: I'm sure he had lots of attention to grow those trees. CHAIRMAN: There's no attention, very simply it's a drip system, okay, in my particular opinion. [ don't know what they did from the rear side, but they never did anything from the roadside. But I'm asking that as an option. ABIGAIL WICKHAM, ESQ.: I don't know if within a five foot width you could get that big an arborvitae. Probably if you put that big a tree in the base area is going to be pretty big. I don't know we could look into that. I think given all that area that they have on the other side behind their house, it would make more sense to cut the deck back. CHAIRMAN: Mrs. Tortora has a question, and then we'll go down the row. MEMBER TORTORA: There's only a small portion of the deck that's not in the required rear yard. Theoretically, he could simply cut off that portion of the deck and he would be in. Because then it would be located in the required rear yard and it would meet the setback requirements for accessory structures, correct? Which is something he had pointed out to us at the last hearing, that's why I'm bringing that to your attention. CHAIRMAN: Mr. Amato brought that to our attention. Do you concur with that Miss Wickhmn? ABIGAIL WICKHAM, ESQ.: Well, that's not the way they built it and we're looking at the way it is now. MEMBER TORTORA: That's why I'm saying no, because they could just as easily instead of cutting it off on your side, they could just as easily cut it off on that small portion, the three or tbur feet or whatever it is. Page 44, Match 2 I, 2002 ZBA Public ltcaimg Tnmscript ABIGAIL WICKHAM, ESQ.: But it's still attached to the house. Sec 1 don't necessarily buy the fact that it is an accessory structure. It is attached to the house. That was the other part of my letter; it is attached to the house. MEMBER TORTORA: I read that. l know that that is the way the Building Department has interpreted it. ABIGAIL WICKHAM, ESQ.: I take issue with that. I think that being attached to the house, its part of the principle structure and should meet the 10 yard side yard setback. When you have a totally separate facility, that's a different issue. CHAIRMAN: Where do you want to go with this? ABIGAIl. WICKHAM, ESQ.: Could I just take a moment to speak to my client? CHAIRMAN: Surely. Mr. Amato could I speak to you while Miss Wickham is speaking? Mr. Amato there may come a time when, you being the intermediary between the Nicovics, that you might just want to, confer with your clients and then speak to Miss Wickham's office to see if there's anything we can do. What we're trying to do is cause your clients possibly not to cut this deck back, but to plant the proper greenery that would preserve the value of these people's property and cut down some of the noise. BILL AMATO: May I make a statement about that. Originally, that had been planned to plant along the side of the fence with arborvitae. That was going to be brought up, back filled and the arborvitae were going to be coming up over the stockade fence so that the top of his house would not be visible, except the very top. That had originally been planned that way. Of course, that all came to a halt when the Town got involved. As to the deck, the deck was there. To move it out would have meant removing the fence and removing part of the deck that's already been established there to the back of the house, which would cause a big problem. It would've been a lot of work to do. It was simpler just to keep it within the confines of where it was, the fencing that's been there since 1987. That stockade fence has been there since, I would assume, about the same time. It was not put up by Mr. Nicovic, it was put up by the prior owner and I believe 1 could get a statement from her that the fence has been up there since 1987, when the pool was put in. That's when the pool was put in and the C.O. was given for the pool and the fencing. CHAIRMAN: By Mrs. Twomey? BILL AMATO: By Mrs. Twomey, that's correct. CHAIRMAN: Well, let's see what Miss Wickham has to say. ABIGAIL WICKHAM, ESQ.: We keep going back and forth, but I'd just like to clarify. According to Mr. Lauro the original deck was about 15 feet from the side yard and for the owner to say that it would have been inconvenient to build a conforming deck just because he had to take down a fence and deal with some multi-levels, I don't think Pagc 45, March 2 l, 2002 ZBA Public llearing Transcript TOWll of Southold .justifies moving it all that way into the side yard. Mr. Lauro really feels that he would like to see them cut the deck back somewhat, at least several feet. And it shouldn't be a hardship. There's plenty of room around the pool. They've got plenty of room on the other side, and they went ahead without a permit and built an illegal structure. And he notified the Building Department at an early stage, they did tell him they were busy and it would take a while to get to it. But he did notify them right away. He would just like to see it cut back to whatever you feel, as a Board, might be reasonable but he feels that five feet is just too close. Thank you. BILL AMATO: It's already been cut back five feet from the fence line. Now you're asking for another five feet, essentially, I don't know if Mr. Nicovic would go for that. Originally the plan was to give him his privacy, and I don't know how he could expect privacy moving his house within five feet. It's even closer with the overhang to the property line. So I don't know how he could expect the privacy by putting your house within five feet of a property line. ABIGAIL WICKHAM, ESQ.: We're only asking him to comply with the ordinance. CHAIRMAN: Any questions from the Board Members of either of these nice people? So the Board will then address the issue and will come up with some amiable solution, we're not sure what that's going to be. BILL AMATO: Thank you. ABIGAIL WICKHAM, ESQ.: Thank you. CHAIRMAN: Is there anybody else that would like to speak for or against this application? SEE MINUTES FOR RESOLUTION Recess 8:55 to 9:00 9:00 p.m. Appl. No. 5072 - DR. JERRY CALLIS, et al, ADDelants. This is m~ Appeal Application requesting Reversal of Building Permit #27894-Z dated 11/13/01 and Certificate of Occupancy #Z-28096 dated 11/30/01, issued by the Building Department, concerning existing construction referred to as a 60 sq. ft. "platform with monument" located at property owned by James and Barbara Miller, 1610 Paradise Point Road, Southold; Parcel 1000-81-3-19.4. (On February 21, 2002, JOHN PETROCELLI AND JOSEPH MACARI submitted authorization for Dr. Callis to appeal in their behalf.) CHAIRMAN: Mr. Angel, how are you tonight sir? STEPHEN ANGEL, ESQ.: I'm fine thank you Mr. Goehringer. Page 46, Mat'th 21,2002 ZBA Public Heam~g Transcript ]'own o[' Southold CHAIRMAN: For the record could you just state your nmne and your address? STEPHEN ANGEL ESQ.: We're the applicants, Esseks, Hefter and Angel, 108 E. Main Street, Rivcrhead, New York by Stephen R. Angel of counsel. CHAIRMAN: Before you start 1 just want to set some ground rules and l'm going to go to Mr. Orlando, because I believe he's going to say something. MEMBER ORLANDO: Mr. Chairman, I will be recusing myself from this application. CHAIRMAN: Fine, thank you. Mr. Angel we are going to ask for a couple of things tonight. The first thing we are going to ask for is that any spokespersons in the audience or anybody that would like to speak will be sworn in. Counsels will not be sworn in. Number two, we are centering ourselves on the germane issue that's before us and that is the issue of the building permit that granted this structure so to speak by our own definition, and we didn't create the building permit. It was created by another agency in this Town. We are not here to discuss any other issues unless those issues are germane to that building permit, which is presently before us and that I believe you are going to address. Is that correct? STEPHEN ANGEL, ESQ.: That's correct. CHAIRMAN: Okay, I'm ready. STEPHEN ANGEL, ESQ.: I think befbre I begin, Mr. Chairman, I have a series of Affidavits of Posting and Mailing I think we faxed over before hand. As you know this is an unusual case involving an appeal by neighbors, so we are not coming before you in connection with property that our clients own. So I have a series of affidavits, which I would like to introduce in record at the beginning of the hearing, showing our substantial compliance with all your requirements. ! won't burden the record with identif~,ing that there are tbur affidavits related to the posting and the sending of the certified letters, as well as giving notice of application to the property owner. May I hand them up? CHAIRMAN: Surely. STEPHEN ANGEL, ESQ.: Now as you stated, we're here on an appeal from the issuance of a Building Permit and Certificate of Occupancy by the Building Inspector. The Building Permit,/hr the record is dated November 13, 2001 and it is number 27894 issued to James and Barbara Miller. And the Certificate of Occupancy is dated 11/30/01 and its number is Z28096. CHAIRMAN: What did you say the date was on that sir? STEPHEN ANGEL, ESQ.: 11/30/01 I believe. The Certificate of Occupancy is November 30, 2001. As we perceive the appeal there are two basic issues, one is a zoning issue whether the Building Permit and the Certificate of Occupancy were properly Page 47, Marcb 21,2002 ZBA Public Hearing Transcript Towl101' Soutbold issued or improperly issued and whether they are legal or illcgal under zoning and that the second issue is a more legalistic issue. It has to do with application ora legal doctrine which is known as issue prcclusion as will bc developed in my relatively brief presentation tonight. And as you most likely know, there has been substantial litigation among the parties to this dispute over the last two or three years. In the course of that litigation, the courts have dealt with what we believe to be the precise issue befbre your Board. We believe that the courts had dealt with that issue from our viewpoint, which would lead to the conclusion that the Building Permit and the C.O. were improperly issued and are in violation of zoning. In other words, there's only been a determination of that effect. Those are generally the two topics that I want to address tonight. Initially, I would point out that Dr. Jerry Callis is here, he'll make a brief statement and Mr. and Mrs. Petrocelli are here. Mr. Macari could not make it. I would like to hand up, at this time, a couple of things, and I believe I have multiple copies of both. One is a letter from a person who lives within ten or fifteen feet of the subject property, Alice Mineret, not spelled that way and she faxed that to me and I told her I would hand that up to the Board. The other thing that I prepared is brief discussion of all the prior decisions in this case, to which I've appended the prior decisions, starting with your decision which was I believe was undated but in response to the meeting on March 3, 1998 running through eight decisions, orders or judgment issued by Supreme Court by Justice Buhrer of the Supreme Court, culminating in a order denying an application to state enforcement of the judgment and that was dated June 29, 01. I have, is five copies enough, you have five members? CHAIRMAN: Yes. I never get one; mine goes to the file and I have to read it on the weekends. STEPHEN ANGEL, ESQ.: I have a sixth. CHAIRMAN: Oh, I'll take it. STEPHEN ANGEL, ESQ.: I didn't hand up Mineret's letter. There are six of these also. Initially what I'd like to point out is one, I don't know if it's an important factor of the determination, but I want to make the record clear, that even though there's been substantial litigation on this matter, the substantial litigation was commenced by Mr. and Mrs. Miller. They were the plaintiffs in the litigation. All of those decisions, the eight court decisions that am attached to that document that I just delivered to you, or I just gave to you are decisions that were issued in connection with the case that Mr. and Mrs. Miller brought initially against the Town, against one of the Town Justices, Justice Price, and against the Building Inspector himself, Mr. Verity. That's critical to some extent on our legal argument because Mr. Verity, who issued the Building Permit and the Certificate of Occupancy would have been bound by the determinations in that underlying lawsuit. Before I briefly discuss our zoning positions I wanted to state something, and I'm not sure that it's directly relevant to the issue of the Certificate of Occupancy and the Building Permit. But its something that I think needs to be said. The Zoning Code in the Town of Southold and zoning codes in general when they deal with height limitations which is essentially what we have before us tonight, are esthetic Page 48. March 21,2002 ZBA Public Hearing Tmnscripl neutral, they're art neutral. There is nothing in thc Zoning Code that says if you build a structure that's a house that's 35 feet or less, that it has to look a certain way. There's nothing in the Building Code that says if you have an accessory structure to a house of 18 feet or less that it has to look in a certain way. All it does is say that there's a height limitation on these structures. So we're not talking about any esthetic judgment, we're talking about a neutral code provision that has nothing to do with whether something is beautiful, something is great art or something is pedestrian and garbage. What we're talking about is just a height limitation. And I tried to use an example. The example that I've been using, since I've been involved in the case, that came to mind probably a year or two ago, is if in Southold I owned a valuable piece of property and I wanted to make an artistic statement and 1 wanted to hire the most renowned architect in the world, I wanted to hire Fred Gary who just did that museum, the Guggenheim Museum in Bilboa Spain; or I wanted to hire Richard Meyer who just designed the Getty Museum tbr $10 billion in Los Angeles and I told them I wanted a monument to my taste and wealth in the fbrm of a house, it would have to be 35 feet or less in height. The fact that it is esthetically pleasing or that these people are in fact great artists, doesn't put it up higher. Also, if that house a garage or a cabana it has to be 18 feet or less, even though, you could apply tbr a variance hut within the Zoning Code it has to be 18 feet or less even if designed by a world renowned architect, even if magnificently beautiful. Now, the Zoning issue. CHAIRMAN: I just don't know how that relates to a Building Permit, other than the fact that you're reiterating the fact that it's 18 feet. STEPHEN ANGEL, ESQ.: I think the argument advanced Mr. Chairman, that art should not be subject to zoning, and I just want to clear the air on that. That's all, that's the only reason I say that. In fact, the Building Permit in this case is very specific, and now I'm going to get to the issue. The Building Permit is issued for an accessory structure, so we're dealing with a determination that this is an accessory structure to a single-family residence. Building Permit requires that as an implicit finding, because that's the way it was issued. And then it also says that a monument is that accessory structure. And I tried to analyze what ultimate facts were necessary for the Building Inspector to conclude in order to issue the Certificate of Occupancy. One of the facts, or legal conclusions that we had to conclude, was that this heron structure is a monument. Even though, as you will hear a little bit later from one of my witnesses, the expert Terry Elkewitz, the planner, even though it doesn't meet the definition of a monument. A monument deals with a some sort of edifice or structure for dead people or some historical fact. But the Building Inspector had to conclude that it was accessory and that it was a monument. Go back to number two. I said he had to conclude that it was a monument. Number two is, he had to conclude that this more than 40 foot high structure is accessory to a single family residential dwelling, and that means its customary and incidental under your Code. So he concluded that a monument of this size in this residential location is customary and incidental to the principle use which a single-family residence in a R80 district. And the third thing that he had to conclude was that a self-characterization of a structure by the property owner, was sufficient to make the structure immune fi-om the height limitations that admitted under the code. 1 say, and I submit to you, that its not a monument, doesn't meet the definition of a monument and Terry Elkiwitz will read you the definition of Page 49, March 21,2O02 ZBA Public Hearing ]iansc~ipl Town o1' Soulhold that's been adopted by your Code. Its not accessory, and not customary and incidental to a single-family residence. I've given a lot of thought since we made this application, what would a true monument one that memorializes a past act of a dead person, where would a monument be an accessory'? Well, the Village Green where some public gathering, or public commemoration can take place? In front of a courthouse, it would probably be an accessory to a courthouse. And I tried to think of private uses where a monument may be accessory. And the only thing that I could come up with is possibly a church, possibly a university, possibly a private school where they commemorate in a monument, their long deceased founder or somebody of that nature. The other third aspect is that I think its absolutely terrible public policy when you're dealing with something that has to have a public character to allow someone on an individual lot to self-characterize a structure as a monument, and that's what was done here. There is no public zoning in this particular area, in fact in the R80 District, and I'm sure you're aware in many of your decisions one of the factors that the courts take into consideration is the quiet and security of residential neighborhoods. That's contrary to putting a public monument on somebody's property. I thought of some examples. If you were to affirm the determinations of the Building Inspector and dismiss our appeal, so that a monument when somebody self-characterizes a particular structure to he a monument for whatever purpose he or she says he could build it without regard to the height limitations, 1 was thinking about my clients, who live within the area. Mr. Petrocelli's main business is the construction business; perhaps he would build a 50-foot monument to some person who is well known in the construction business, a big contractor or an edifice to a structure. Dr. Callis, who used to run the Plum Island Research Facility perhaps could commemorate with a 60-foot structure with somebody who is well known in the sciences th who fbund something. Greg Ennendal the geneticist from the 19 Century, I don't know. And Mr. Macari, who has the very obvious winery up here, could build an edifice to the Greek god Bacchus 100 feet in height because he wanted to commemorate the love of wine and good times represented by that mythic figure. The truth is that thcy're not going to do those things. I'm just joking. But these examples are real examples. What I think will happen is not that Dr. Callis will go out and build a 50 foot structure, Mr. Petrocelli will build a 60 foot one, and Mr. Macari will build a 100 foot one, but somebody who has valuable property either on the sound or on the bay will want to identify his parcel with a monument. And he will have the right to do it. And he will have the right to put a 60- foot monument or a 70-tbot monument. And he will have the automatic right to do that without any restriction as to height. That's more likely. The second aspect of my argument clearly fbcused on the issue, is our position that determinations, copies of which you have in my submission to the Board, are determinative under this doctrine called issue preclusion by the courts. Another way of labeling the doctrine is the lawyer's call it the doctrine collateral estoppels. And I brought a copy of, and I'll just read a sentence of what it means, the doctrine of collateral estoppels or issue preclusion, in more modern terminology bars re-litigation of issues of ultimate fact between the same parties when those issues have been determined by a prior valid final judgment. In our case you will see in the package of papers there was a prior valid unappealled prior judgment. And you will see when you read those papers, if you care to do so, a couple of things and I'm going to read to quotes/Yom the last of the documents submitted to you which is an order issued by Judge Berler June 29, 2001, and it's the final letter he issued so far in this Page 50, March 21,2002 ZBA Public Ilearing Transc~ipl Town of Southold case and it was in connection with an application by Mr. and Mrs. Miller to stay the judgqnent, to stay his direction to remove the structure. When he first started out he says the instant application, and that's the application to stay the judgment, is hopefully the last of the series of actions taken on the part of the plaintiffs, and in this case the plaintiffs are Mr. and Mrs. Miller. Whereby they have installed a certain heron structure on the beach in the Town of Southold New York and have avoided having to remove said structure despite several decisions of the Supreme Court of Suffolk County and the Appellate Division second department finding this structure to be illegal. Now, specifically on the argument of whether this characterization of the structure as a monument somehow gives you a get out of jail free card so you can avoid the height limitations of 18 feet for accessory structures was discussed in the case before Judge Berler. And those papers also have the followiug statement, despite plaintifPs efforts in their own attempt to label the structure as a monument, the fact remains that accessory building and structures cannot be taller than 18 feet and it refers to the Southold Town Code, Section 100-33A. That concludes my comments but I'd like to introduce our planning expert Theresa Elkewitz who ! believe has been before your Board on other applications. She will briefly explain her; she will give you a copy of her CV and also states some of her pertinent planning qualifications, and thank you for listening to me. I appreciate it. CHAIRMAN: Thank you. Miss Elkewitz 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? THERESA ELKEWITZ: Yes Mr. Chairman, I do. Good evening Chairman Goehringer, Members of the Board. For the record my name is Terry Elkewitz and I'm a principle of the firm Elkewitz Consulting Group with offices at 368 Veterans Memorial Highway in Commack. I was retained by the applicant in this matter as a planning expert and they asked me to review this and to render an opinion as to whether the Building Permit and the associated C.O., Certificate of Occupancy, were issued in compliance with the Zoning Code of the Town of Southold. Now the Board is aware, Mr. Angel has brought you up to date relative to the issue. The height of the platform and the heron is approximately 40 feet, and the property owners have represented to the Town that this 40-foot structure is a monument. And I'm here to give you my opinions relative to this issue based upon my qualifications and my review of the matter. As Mr. Angel said I've testified before this Board on many occasions also before the Planning Board on many occasions. I'm going to give you a copy of my Curriculum Vitae and I will briefly my municipal planning experience with you if you would like to hear it. I've been a practicing planning and environmental consultant for over sixteen years. I am the president of the firm that I tbunded in 1988. In that capacity I have prepared and performed numerous planning and environmental studies and evaluations. I also serve, or have served as a consulting municipal planner to several municipalities, including but not limited to the Village of Lake Success, Sands Point, Brookville, Old Brookville, Manor Haven and Great Neck Estates. I provide consulting services to the City of Glenn Cove and the Town of Babylon. And I was retained this week as a Planning Consultant to the Village of Nesequague. In my capacity as municipal planner I reviewed applications such as this Page 5 I, March 21. 2002 ZBA Public HeaIsng Tlanscript [hr compliance with Zoning Codes. I assisted drafting zoning districts and subdivisions regulations and I assist Boards in compliance with SEQRA. [ also sit with Boards of Trustees, Planning Boards and Zoning Boards at public hearings and give planning and zoning advise. I am the Chairperson of thc Suffblk County Council on environmental quality. A position I have held for over a decade. In addition to my municipal experience and experience which you are very fhmiliar, I've testified before zoning boards, planning boards, town boards and village boards on behalf of private applicants in planning and environmental matters. I provide expert testimony and sworn affidavits in court cases on such matters. I also hold a Master of Science degree and am a member of numerous professional organizations, including the American Planning Association and the Environmental Assessment Association. Now the opinions that I'm going to present to you this evening, relate solely to zoning and planning matters. It's my opinion that the issue that's before you is not one of freedom of expression, nor is it one of art appreciation. It's one of land use regulation and the proper application of the zoning code to this matter, Now I've reviewed your zoning code and in the R80 District you can, if you don't have, you have principle uses, you have accessory uses. This is clearly not a principle use. It must be an accessory use. And if you define this structure as an accessory structure, the Code is clear relative to height. Section 100-33A of the Zoning Code specifically provides a maximum height 18 feet for accessory structures. And as this structure exceeds 18 feet in height it is my opinion that the Building Inspector did not have the authority to issue the Building Permit that he issued. 1 wanted to explain to you my rationale for this opinion. The R80 Zoning District sets forth various permitted uses. One-family detached dwellings, agricultural operations, building structures and uses owned or operated by the Town of Southold, school districts, park districts and fire districts and wineries. Those are the permitted uses. Now there are also various Special Exception uses upon approval by this Board. Accessory uses are also permitted but your Code is very clear, Section 100-31CI specifically says relative to this matter, permitted accessory uses must be and I quote, "any customary structures or uses which are customarily incidental to the principle use, except those prohibited by this chapter. I respectfully submit to the Board a 40-foot heron is not customary nor is it incidental to a principle residential use. In fact, I am personally not aware of any residential use in the Town of Southold or in any of the other municipalities in which I work that allow a 40- foot high accessory structure. One that clearly exceeds the maximum prohibited height of a principle structure. It's just not done. And it doesn't matter if it's a piece of art. Such a structure is not customary, incidental to a residential use. Now based upon your zoning code and my own experience, this structure no matter what it represents could not be defined as an accessory structure by the Zoning Code of the Town of Southold because its not customary. Now even if you were to consider the possibility of this 40- foot structure being an accessory structure, I submit that the Zoning Code precludes it from being constructed. Section 100-31C of the Zoning Code indicates that accessory uses are subject to conditions listed in Section 100-33. The pertinent requirement is as tbllows and I quote, "such buildings shall not exceed 18 feet in height. No one is disputing if this structure exceeds 18 feet in height. So it violates the Zoning Code and the Building Inspector should never have issued the Building Permit. Based on the property owner's application, it appears that they were very aware of this problem and in my opinion; they tried to circumvent the zoning code by unilaterally deciding to declare Pagc 52, Marcb 2 I. 2002 ZBA Public Hcarmg Transcript Town ol' Southold the structure to be a monument. As I am sure the Board is aware, Scction 100-230D of the Zoning Code sets tbrth height exceptions, exceptions to those limitations. That Section specifically accepts spires, belfries, copulas and domcs, not lfbr human occupancy and monuments and transmission towers and several other things. What's very interesting is when one looks for the definition of a monument in your Zoning Code, such definition is not provided. But what your Zoning Code, which is somewhat unique, is it directs you to a specific dictionary. The Code specifically directs, in Section 100-13B, and I quote, "any word or term not noted below shall be used with a meaning as defined in Webster's Third New International Dictionary of the English Language, Unabridged or Latest Edition." And I see Mr. Angel was kind enough to point it out to you. [ purchased that specific dictionary so that I could find the definition of a monument. And I would like to read to you, but I'm going to submit copies. The definition that's from the dictionary named in your Code as the source document for such a definition, but I'm going to read to you the current definitions of a monument, not those definitions deemed by this dictionary to be obsolete or archaic because you will also see that there are obsolete and archaic definitions. Monument: Something that by surviving represents or testifies to the greatness or achievement, especially of an individual or . A structure, such as a pillar, stone or building erected or maintained in memory of the dead or to preserve the remembrance of a person, event or action. A natural or artificial but permanent object serving to indicate a limit or to mark the boundary. A natural feature as a mountain or canyon or an area of special historic or scientific interest as a battle site or fossil remains that is set aside by a local or rational government as public property. A lock pinnacle or column resulting from erosion and resembling a man-made monument. A written tribute testimonial. And I respectfully submit that based upon those current definitions of the word monument, the property owners assertion that this structure is a monument is without merit. I further submit to the Board, and if you are inclined to concur with the property owner's assertion that this structure is a monument, and as such is not subject to the height restrictions in the Code, you'd be contravening the purposes of the comprehensive zoning plan of the Town of Southold that is set forth in Section 100- 10 of the Zoning Code and there are many of them. But there are several that you would specifically be contravening. The maximum protection of residential and historic areas, the enhancement of the appearance of the Town of Southold as a whole, particularly its open and rural environment. The encouragement of flexibility of desit=,m and development of land in such a way as to produce the most appropriate use of lands to facilitate the adequate and economical of streets and utilities and to preserve the natural and scenic qualities of open land. And in addition to these purposes that I believe this Board would be contravening, you would also be setting what, as a planned professional ! believe, is a very dangerous interpreted precedent. And Mr. Angel gave you some very real examples of what could happen. But I have some more that are even more absurd and I believe that people would, in general, find offensive. If the Board determines that this 40 foot structure is a monument, how could the Town deny a resident who may be the franchise owner of a McDonald's from erecting a 60 foot high Ronald McDonald in their backyard? It's a structure just like this heron is. How could the Town deny the construction of 150-foot high replica of the World Trade Center on a residential property? Someone declares it a monument you couldn't. And while these examples are absurd, they concur realistically, if this Board deten'nines that a private citizen can Page 53, March 2 I. 2002 ZBA Public Homing l~anscript Town o1' Southold unilaterally define a structure, a nonconfbrming structure as a monument purely to circumvent your Zoning Code. This is not a matter of art; it's not a matter of free expression. It's clearly a zoning issue. You may like the heron; you may not like the heron. You may like a statue of David, you may not. But land use and zoning decisions are not made on the basis of personal taste nor do they defer to t~eedom of expression. They are dictated by the zoning code and land use regulations of' the town in which thc property is situated. 1 thank you very much for your time and patience. CHAIRMAN: Mr. Angel, is Dr. Callis going to make a statement at this point? STEPHEN ANGEL, ESQ.: I expect that Dr. Callis and maybe Mr. Petrocelli are going to make statements. CHAIRMAN: Dr. Callis how are you tonight sir? DR. JERRY CALLIS: Fine CHAIRMAN: Would you raise your right hand, do you solemnly swear the information is the absolute truth to the best of your knowledge sir? DR. JERRY CALLIS: I do. I too, as you've heard worked in the public sector in my case for 41 years. Thus I'm well aware its not possible to please all of your constituents all of the time. However, I found that it helped me to learn how your constituents felt about issues, even if you did not agree with them. Its in this spirit I come to you tonight to let you know I am disappointed and frankly upset with your determination to grant a permit for what has become known as "The Bird" to be positioned on the beach between Cedar and Paradise Points. Why do I not like this piece of artwork? My reason is simple; it seems so very out of place. Some, an Ode to the Bay, calls it yet it's barely 20 feet from the water's edge. Is not a memorial usually placed a distance from what or where it actually honors rather than in this case, adjacent unless, of course, it something like a sculpture of John F. Kennedy which is inside the JFK Center in Washington where the building and the bust of JFK both are actual memorials. But would the bust seem appropriate on the beach at the Kennedy compound in Hyannis Port. This bodes the next question. Why do we need something to memorialize the bay, which is barely 20 feet away from the sculpture? Just stand back, look to the east and enjoy the unobstructed view of the bay. My concern is, what will be your determination if someone in the area, perhaps even on the same beach, decides a 40 foot or even higher replica of the %vin Towers would look good in front of their property, as well as honor those who died in this tragic event. I'm fearful your decision has set a dangerous precedent in this rapidly developing town. A decision, which should be revoked, less other petitions for similar items come to you. Thank you. CHAIRMAN: Mr. Petrocelli? Do you solemnly swear the information you are about to give us is the best of your knowledge? Page 54, March 2 I, 2002 ZBA Public Hearing Tnmscripl JOHN PETROCELLI: 1 do. I just feel as though I can't reiterate what I said, everything has been said that I wanted to say. But I just want it known that Mr. Miller really never considered his neighbors in erecting the bird or whatever they call it. We asked them not to do it and we went to his house and he called us the Gestapo and then he went ahead and did what he wanted to do anyway. That's all I have to say. CHAIRMAN: Is there anybody else that would like to speak regarding this application that's before us? Sir? ROBERTO BISENE: I am the artist who built the sculpture. CHAIRMAN: We're not here to discuss art tonight. ROBERTO BISENE: I know, I'm going to address some of the points that were made here by the planner Ms. Elkewitz. CHAIRMAN: What's your name sir? ROBERTO BISENE: Roberto Bisene. CHAIRMAN: How do you do. Do you solemnly swear the information you are about to give us is the truth to the best of your knowledge'? ROBERTO BISENE: Absolutely. Yes, my name Roberto Bisene and I am the artist who built the monument. Certainly I'm not here to talk about art, however, I've heard some things that are pretty outrageous tonight. The notion that this is not a monument. I'm glad that Ms. Elkewitz brought forth the definition. CHAIRMAN: You must, at all times sir, express your opinion to this dais and not to anybody else. ROBERTO BISENE: Yes. I'm very glad that she provided the definition of monument because early on in the definition she very quickly worked over exactly what it is that I determined as my reason for declaring this a monument. This was not a unilateral declaration of Mr. Miller. This is, in fact, my designation of my artwork as a monument. Now, Ms. Elkewitz said that monuments can be created to the gx'eatness or achievement of an age. That is not a past, deceased person or past event. That is something else entirely. And that's exactly what I intended for this monument. That's precisely what I had intended with this monument that it would be a monument to the environmental balance that we are starting to achieve at this time. This is a balance of development in nature. Mr. Callis talks about the beauty of the bay. That's exactly what this is about. Now ! will say one thing about art and land use, and that is not a zero sum game. That is, is you have a game on the part of an artwork it does not necessitate a loss of some other value. You can have a win win situation. I just wanted to address the question of the monument because the statements that were made are not accurate. Thank you. Page 55, March 2 I, 2002 ZBA Public llcmmg [mnscript CHAIRMAN: Dr. I just want to address one issue that you brought up in the beginning and I'll let you speak if you would come back up to the microphone sir. I was a little confused by the beginning of your statement. Please be advised that we did not grant this permit. We're here to deal with this permit based upon on the application of your attorneys. DR. JEFFREY CALLIS: I stand corrected on that. CHAIRMAN: Okay. DR. JEFFREY CALLIS: The one issue that I neglected to discuss. We've been calling this a heron. Well let's set the record straight, it's not a heron, it's not a sculpture of a heron, and it's a sculpture of a bittern. A heron you would never find with its neck and its beak pointed towards the sky. It's a bittern, not a heron. Thank you. CHAIRMAN: We have to go to Mr. Amoffnow sir, and then we will let you speak. Mr. Amoff. HARVEY ARNOFF, ESQ.: Good evening Mr. Goehringer. Harvey Arnoff, 206 Roanoke Avenue, Riverhead, New York on behalf of the Millers. Artistic license, and we can call this sculpture anything we'd like. It is, in fact, a sculpture I'm not here to address the artistic aspect of it. It's been approximately four years and twenty-three days since I had the pleasure, not since 1 was here but since the date that I was here. And Mr. Forrester had posed a question to this Board. I sat here and I listened to the argument and I had nothing to do with this, I was here on another application and as a member of the community I rose and I said something to the Board then that it seems to be echoed in some indirect manor by my colleague Mr. Angel and that is the Code's not sufficient on its face. I said you need to define things. You need to set up rules; you need to do things now. Nobody did anything. We are here today with the same problem we were here with on that date in February 1998. There's been no definition of a monument added. There's been no definition of a monument added. There've been no rules and regulations applicable to monuments added by the Town Board during any kind of legislation propagation. This Board's job, and I'm not going to lecture on your job, is to interpret the law and to apply it not to legislate. Now. CHAIRMAN: That's correct. HARVEY ARNOFF, ESQ.: There are issues: 1. Has this property been properly posted since there is substantial compliance as alleged by Mr. Angel sufficient to get us beyond the cusp of jurisdiction. I have not observed the documents that he has handed up, but I'm sure that's something this Board will certainly consider. But let's be mistaken about certain things. We litigated and litigated for a long time on the issue of whether or not this work of art was a structure. Justice Berler did decide that it's a structure. I don't happen to agree with him. That's the law of the case, and we're bound by that. We chose not to appeal it. We did what Judge Berler told us to do, indirectly. Come back to the Town, make your application and do what you have to do. Now I will point out one Page 56, Match 21,2002 ZBA Public Hearing Tmnsctipl I own o[' Southold thing. In Justice Berler's decision, which Mr. Angel has provided you with a copy of so I need not do that? He specifically says, and it's the last paragraph, in addition parenthetically this court has been made aware of much public criticism suggesting it has initially held the subject matter as a structure not a work of art. It is emphasizcd that such is an outrageous interpretation of its home. The initial home simply states the subject matter bird does not conform to the requirements of the Zoning Board of thc Town of Southold defining a structure or a building; which was the only issue to be decided by this court. They never determined whether it was a monument, they never determined whether it met height requirements, they merely determined was it a structure. That's what Judge Berler did. In fact, it goes on to say on a contraries legion that in building a structure may be defined as a work of art such as was the case of the Empire State Building, George Washington Bridge when the same were constructed. The court further suggests that there may have been a contrary holding if it was required to define the subject matter bird as a work of art. Now let's look at what's before the Board and let's cut from this in a very simple fashion which is really what I intended to do because I don't want belabor this it's been four years and I'm tired. It's an accessory building. Does it meet the setback requirements? Yes, it does. Now does it meet the height requirements? No, it does not as an accessory structure. There's no question it's well over the height requirement. However, the Town in its infinite wisdom carved out certain exceptions and they've been read into the record and l'm not going to bore you with reading them again. A monument is an exception to this record, to these rules. Now, because this is what you have to hear, because the person who is missing tonight is the Building Inspector and I would ask that perhaps this matter be continued for this Board to take testimony from the Building Inspector. In reality the Building Inspector acted. He had an application for a Building Permit. He reviewed it; he reviewed the definition that was read into the record and other definitions of monuments as well. He unilaterally made a determination and interpreted and said this is a monument and issued the Building Permit. Now, what do the Millers do? They didn't come to you. They didn't have to come to you. They got a Building Permit, which is what Judge Berler told them to do. Go get a Building Permit, you didn't do it. Now, what did they render, in reliance on that they acted and they constructed the bird, they put the bird back on its pedestal and then went back to the Town as they were supposed to do and said, we think we complied with the rules and mandates surrounding the Building Permit can we have a Certificate of Occupancy. And I believe Mr. Verity or another representative of the Building Department went and inspected and made sure everything was in compliance and issued the Certificate of Occupancy. And it's that narrow issue as you quite properly stated Mr. Goehringer to begin with; this Board has cause to inquire into. Now, if it's a monument I believe we have nothing further to talk about. Let me tell you why. This section which was read in regard to accessory structures if any customary structures or uses, which are customary incidental for principle, use has nothing to do with the height of anything. Are statues, religious icons, proper and customary or any type of statues that one puts on the lawn, are they monuments? Well, I'm not so sure they're monuments, but are they structures? Now we had this discussion Mr. Goehringer, I believe when I was here in February of 1998. That one views the Code that they're structures. So if I pour a little concrete base and put a statue on my front lawn, I need a Building Permit. Now the next question is the Code gives no guidance to the Building Department as to how high it can Page 57, Mm'ch 21,2002 ZBA Public I lcadng Transcript Iown of Southold be except, they say, if it's a monument there are no height requirements. It's very dangerous. Let's not minimize these hundred foot World Trade Center things that someone could put in their back yard. It's quite possible. Is it what we want in this municipality, no I don't believe it is? But until the Town fathers chose to promulgate legislation, we are left with what, its right here the Zoning Code in the Town of Southold and the definitions provided. Now, its my position with my client may not be heard at this point to change this determination of the Building Department because it is not clear on its face. In other words if somebody had examined the total stranger had read our Code cover to cover and examined it would they then say its clear that this is not a monument and we needed a variance. And by the way if we can hear them indirectly, that this Board chooses to act as Mr. Angel would act are we back here again, much like ground hog day making an application again fbr a variance. I'm going to read this again, because l'm not so sure what the net result of an adverse determination would be here. But be that as it may, I hope I don't have to address that in the future with this Board. Now, it isn't true that there aren't similar structures in the Town of Southold. There may be similar, there may not be 38 feet high structures, but there are many structures, we are now defining works of art and structures that violate technically speaking our Town Code. Nobody does anything about it. Now, I could go through the list or part of the file and there's certainly part of the judicial file and this Board could certainly be privy to it if it wants. MEMBER TORTORA: We don't have that in our file could you provide that ~:br us? You said there are many. Could you provide that? HARVEY ARNOFF, ESQ.: Yes, I could provide you copies of the photographs that we submitted as part of the litigation, yes I can and I would be glad to do that. MEMBER TORTORA: Thank you. CHAIRMAN: Mr. Arnofl:'? HARVEY ARNOFF, ESQ.: Yes, sir? CHAIRMAN: I'm sorry to say that I suffer from a case of glaucoma and I'm going to have to go get my hat very shortly, so whenever you're HARVEY ARNOFF, ESQ.: I'll be very quick. I'll shortly finish. CHAIRMAN: We're going to have to take a short break. HARVEY ARNOFF, ESQ.: Do you want to do that now Mr. Goehringer? CHAIRMAN: No, you can continue. HARVEY ARNOFF, ESQ.: Okay. Now, something was mentioned, I want to reiterate this. That the Code didn't envision a monument of this size, this is not customary a Page 58. March 2 I, 2002 ZBA Public Ilcafing I mnscdpt Town of' Southold monumcnt of this size. Bare in mind, I must reiterate thc Code never addresses that issue. Now, is this a monument? In 1998 a ceremony was held, the sculptor was dcdicated and I believe someone else will be here to address or come before this Board addressing exactly what happened at that time, and if they don't I'll do it before the close of this hearing. There was a plaque made, the sculpture has been dedicated as a monument to the bays. I was pleased to be at that ceremony in 1998. If we call it self- characterization I don't think that's thir. Because Mr. Miller came and said to this municipality's Building Department I have an accessory structure, its 38 feet high. Its my position its monument, and these are the reasons why. You tell me Mr. Building Inspector and Mr. Building Inspector did exactly what he was supposed to do, he approved it. Because he felt it was a monument. Now that's the discretion that has been vested in the Building Department by our Town Code. Make no mistake about it, that's what's there. And if Miss Elkewitz, Mr. Angel, Mr. Callis, Mr. Petrocelli anyone else, Mr. Macari wish to disagree as to whether this is a monument, let us not also tbrget that reasonable people will disagree. But there comes a point when we have to rely on something. Now we as members of the community go to our Building Department and we make an application for a Building Permit and we all go there and I've done it, get our permit and act in reliance on that permit. That's what the Millers did. Now are we now going to say that when is somebody safe with their Building Permit? When are they safe with their Certificate of Occupancy? This is clearly an accessory structure. This is clearly a monument and I submit the Certificate of Occupancy, the Building Permit was properly issued. Thank you. Oh, and I have additional definitions of monument which are, which I personally forwarded to the Building Department and I would hand them up if the Board wishes to see them. CHAIRMAN: Surely. MEMBER TORTORA: I do have a copy of those from the Building Department file. HARVEY ARNOFF, ESQ.: I can hand up other copies if you want. MEMBER TORTORA: It's not necessary, there are a lot of definitions, but they're not from Webster's and as you know, our Code directs us Webster's. HARVEY ARNOFF, ESQ.: Fine, that's okay and that was one of the definitions that was along with the others. CHAIRMAN: Before you sit down Mr. Arnoft; how do you draw the analogy and I'm trying to understand this, how do you get to that monument aspect. And that's what confuses me. And I say that because maybe it's the lateness of the hour, maybe it's the fhct that I'm not understanding how you go, because this Board determines this to be a structure in 1998. HARVEY ARNOFF, ESQ.: No, the Board did not do that. The Board was asked a generic question. The Board rendered a generic decision. It made no fact finding as to this particular item. And I will remind the Board; l have the Minutes of that. You, Mr. Page 59, March 2 I, 2002 ZBA Public Hcadng Transcript Town of Southold Goehringer, started off the meeting by saying we are not here to make a specific finding on any specific CHAIRMAN: Let me change that philosophy then. Based upon that decision and the reliance of that decision members of the town then indicated that this was a structure. Is that correct? Am I incorrect in calling this a structure? HARVEY ARNOFF, ESQ.: Not now, no you're not sir. CHAIRMAN: What has caused this to cause it, Judge Berler's decision'? HARVEY ARNOFF, ESQ.: Yes, I would say that that Judge Berler's decision finally determined that it was a structure, that's correct. There was a determination by the Building Department and a Stop Work Order, and then ultimately our litigation led to a determination that this was a structure. CHAIRMAN: And that was a four-year period? HARVEY ARNOFF, ESQ.: Well no, it was a three-year period. June 2001 was when the final determination was made. CHAIRMAN: I'm not trying to get sticky about this; l'm just trying to understand this. So during that period of time fi'om 1998 to the year 2001 or wherever Judge Berler's decision was, if I refer to that this bird as a structure I would be incorrect? HARVEY ARNOFF, ESQ: Not necessarily. Not according to this municipality no. CHAIRMAN: So I just want to clear that up. HARVEY ARNOFF, ESQ.: No, you're fine. CHAIRMAN: So how do we get from the structure aspect to the monument aspect? Other than the fact that we go; there was a dedication and so on and so forth. I mean you can think about this because we're going to take a short break. But how do we get from that aspect to this aspect? I'm just trying to figure that out. MEMBER TORTORA: I think that, you correct me if I'm wrong, didn't you raise the issue of a monument, or tried to raise the issue that this was a monument and that an exemption be put into the Code that the code had been modified and try to raise the issue befbre Berler, and he did not accept that. Is that correct? HARVEY ARNOFF, ESQ.: I don't believe that is exactly correct. What we did, we did raise the issue of it being a monument, and however, he did not make a fact-finding determination as to whether it was or was not. He merely said it was a structure and did not determined either directly or indirectly that it was not a monument. Page 60, Match 21,2002 ZBA Public Homing Transctspt MEMBER TORTORA: I don't read his decision that way lhn just. He just says that parenthetically plaintiffs argue that 45A of the Town Code no building permit is required fbr a structure less than 100 square feet which obviously you attempted. And since the heron structure has a square footage of less than 100 square feet in floor area, it is allegedly exempt from the building requirement. However, the court notes that Southold Code 45A provides whether or not buildings permit is required. All structures must comply with provisions of the zoning. And it currently goes on with, the despite the attempt to label this, as a monument the fact remains the accessory structure cannot be taller than 18 feet. See it's very confusing because I think, when he says that it really appears that he is saying that the judge is saying 18 feet. Those are his words. HARVEY ARNOFF, ESQ.: Well, no he was saying the structure is 18/bet. He did not make a determination on whether or not this was a monument and the thct, there was no fact-finding hearing ever conducted by Judge Berler fkom day one. No testimony was ever taken in this matter. Therefore, the determination, that type of determination would only come alter fact finding by him. CHAIRMAN: Mr. Arnoff I just have to ask you one question, there was an issue raised regarding the 1998 hearing as to your capacity as being the Town Attorney were you the Town Attorney in the Town of Southold at that time? HARVEY ARNOFF, ESQ.: No. CHAIRMAN: Okay. HARVEY ARNOFF, ESQ.: I had not been 1 think for four years. I think 1994 was when I was. CHAIRMAN: I just want to clear that issue up. MEMBER TORTORA: Could you address the issue of collateral estoppels? HARVEY ARNOFF, ESQ.: Collateral estoppels would not apply in this case and the reason it would not apply is that the issue of, the thing that would apply on collateral estoppels is the issue of whether or not this is a structure. It's a structure. We were stopped fi'om denying that this work of art or monument is what is not a structure. Whether it is or it is not a monument was not something that the court held on to when they made the fact-finding determination on it. And that issue is we are not precluded on and the Building Department properly acted when they issued the Building Permit and the Certificate of Occupancy. MEMBER TORTORA: As far as being accessory structure, that's kind of vague in my head really at this point. Customary and incidental is it customary? HARVEY ARNOFF, ESQ.: It is not customary. Page 61, Mmch 21. 2002 ZBA Public Heming Tnmscripl MEMBER TORTORA: A 40 fnot high piece of art. HARVEY ARNOFF, ESQ.: 1 said your making the quantum leap. Ask yourself the first question; are statues on people's property customary in the Town of Southold? The answer, yes. Is there an exception for monuments that are over, there's a height exception for monuments, answer yes? You can't ask the initial question, are 38-foot high monuments customary in this municipality. I would venture to say that 38-fbot high monuments are not customary in any municipality in the United States or perhaps the world. That's not the issue here. The issue here is, is it customary and usual, the answer is yes. Throughout our community you will see statues all over the place. That's not the issue. CHAIRMAN: Are you raising the issue of compliance by the applicants fbr proper advertising based upon our code compliance? HARVEY ARNOFF, ESQ.: I would see the documents to address that issue directly. CHAIRMAN: So you are going to review those. HARVEY ARNOFF, ESQ.: Yes I am. CHAIRMAN: So at this time, we'll take approximately a 3 - 4 minutes break and I will get what 1 need to get from the office. Before anybody gets up, I just would like to know how many people would, by a show of hands, and I'm not putting anybody in a bad position. How many people would like to speak tonight? Again. Please be advised that we will probably have a second hearing. Also please be advised that it is my understanding that this Board does have subpoena powers, however, we don't like to use them. We will openly request the Building Inspector to come if it is of necessity for either counsel to speak to or ask questions of the Building Inspector. HARVEY ARNOFF, ESQ.: I'll do that when you come back. Break CHAIRMAN: Mr. Amoff, you'll wrap this up right? HARVEY ARNOFF, ESQ.: I will, I just wanted to, you asked me a question, which I always like to answer questions if I can. You asked me how do we get the monument. What made the monument? I would answer, whatever my client wanted it to be. Whatever Mr. Homing might want it to be. Whatever Mr. Goehringer might want it to be. Whatever anybody else. If you dedicate it to and make it fit within the definition as set forth and is read upon the record, that's all it takes because there are no definitions in our Code to make it otherwise. And my client went far beyond that. He didn't .just merely pick that, at the end of Judge Berler's determination in the year 2001. In 1998 he dedicated this work of art as a monument. He went through a procedure, they held a ceremony, a plaque was prepared which was made and I believed that that would be Page 62, March 21,2002 ZBA Public Hcm'ing Transcript Town of Southold sufficient. Now will there be a requirement for some clergy to bless this thing. Would that make it a monument? Not according to our Code. Would it be taken after by Town Board or our legislature or County legislature? Not according to our County Code. It can be whatever that definition says it is. I think that's, I kno~v that sounds kind of a like sarcastic, it's not. It's what our Code provides. And unfortunately, that's all it provides. CHAIRMAN: Thank you Mr. Arnofi5 HARVEY ARNOFF, ESQ.: Thank you. CHAIRMAN: The gentleman in the back, yes sir. Would you state your name tbr the record and raise your right hand? THOMAS COBURN: Thomas Coburn. CHAIRMAN: Do you solemnly swear the infonnation you are about to give us is the truth to the best of your ability? THOMAS COBURN: I do. CHAIRMAN: Thank you. THOMAS COBURN: I came here tonight as a resident of Southold Town for the last 32 years. I knew somewhat about what was going on and the fact that they were arguing over this heron bird. I sense a lot of bitterness, whether it's a bittern or whether it's a heron. Who gives a crap? Southold town used to be about common sense and I think they have a lot specific definitions. In my lifetime the Webster dictionary has changed definitions many times over the years. There's bitterness about whether 8 feet or 40 feet. l think they will still argue this point whether it was 17 feet. They just don't like it their beach and they're going to try to find a way to knock it down no matter what happens. It's a piece of art, contrary to what the court said. I think its nice looking and have gone by it on the bay. It doesn't harm anyone's view or anybody's appreciation of the beauty of the neighborhood. I used to sit on Cedar Beach when I was in high school, and it was beautiful and its still beautiful. I don't know what the issue here is. Southold Town gave the man a building permit, he complied with the laws. The same Building Department that gave me a hard time about a latch on my fence for my pool, is giving this man a permit. And I think that should be the end of it. Enough of the taxpayer's dollars being wasted on this Town. Taxpayers aren't going to like paying more ., and it's enough. The man complied with the laws and it should be over with. That's all 1 have to say. CHAIRMAN: Thank you. Again we are going to have a second hearing on this to wrap up some of the issues, but anybody else that would like to speak, sir? State your name for the record please? MARK MILLER: Mark Miller. Page 63, March 2 I, 2002 ZBA Public Hcm'ing Tnmscdpt CHAIRMAN: How do you do? Do you solemnly swear Mr. Miller that the infonnation you are about to give us is the truth to the best of your knowledge? MARK MILLER: I do. CHAIRMAN: Thank you. MARK MILLER: I just want to make a couple of points. One was when the planner was speaking to the group, I'm not sure if she specifically stated, but certainly was implicit that monuments were really only for public properties. I'm not so sure that that is really a lair statement because there are monuments that people have on their own property. A Madonna is certainly a monument. I would think it's a religious artifact and people would have something like that on their property as a monument and to say that only monuments can be displayed on public property l'm not sum is correct. And so the issue then, of course, is again the fact that monuments are exempt from the height restriction and it doesn't specifically state anywhere that monuments have to be a certain height. Is it customary to have monuments on private property and residential property? It is. It's all over town. And so, ! think that that's really the question is whether their incidental, whether monuments are private property and if so, then, the exemption for the height restriction has to be examined. I thought that something was very interesting from the February 28th hearing to the ZBA, and Mr. Homing's comments were probably the best to sum everything up. He said, "Is a sculpture a building? Yes. If you strictly interpret the existing (?ode. It is a building because any combination of materials forming a construction is a building and I would interpret the Code strictly because that's what I thought my job to be. So I reviewed it to be a building. However, 100-230 exempts monuments from these height limitations accessory buildings and a statue is a monument which is a sculpture and so, therefbre, strictly speaking, I would interpret that the sculpture be exempt from height limitation which gives me a problem with the Code. Because the Code, again, is deficient and should be addressing these monuments in some fashion in terms of height and size and because it doesn't, we're at a loss and those are my comments." And I think that's really it. We have a bad Code and I think everyone has to acknowledge that. However, the Code, as has been applied, has been applied correctly. And if people are concerned about 60 fbot and 70 foot and 100 foot monuments in the future, the Town should be urged to change that Code. But in living with the Code that we have today, everything has been done correctly. And I sat in on meetings with Mr. Verity. I went in with my dad and worked very hard in preparing information for him on definitions of monuments. We provided this definition that was referred to the default definition fbr the Town. And he reviewed this and everyone did as well. And it's too bad that the people don't feel that the deal was a good one at this point in time. But they should change the Code and not retroactively go back and try to create something that isn't the wording of the municipality's code now. That's all 1 have to say. CHAIRMAN: Thank you Mr. Miller. Next person? Okay, you are going to say something quickly in a rebuttal. Page 64, Mat(h 2 I, 2002 ZBA Public Hea~ing Transcript STEPHEN ANGEL, ESQ.: Just a couple of legal issues fitting with my position in life. CHAIRMAN: Just let me stop you l:br one second. Just as I gave you the ground rules before which we will abide by Mrs. Tortora is going to make a final statement, we will recess this hearing until May 23, 2002. That is the way it fits into our calendar. Excuse me tbr stopping you at this point, just so everybody is aware. Mr. Angel. STEPHEN ANGEL, ESQ.: A couple of quick things. There are some statements about how the Building Inspector has discretion. The Building Inspector considered things, and we were involved in this consideration. But he considered things and that's the end of the story. That's not true. Section 267A of the Town Law encompasses upon you the obligation and duty on a proper appeal to review a Building Inspector's determination of the Zoning and I'm sure I don't mean to be patronizing, but I'm sure you recognize that. The Building Inspector's word is not the last word. Yours is the last word until the others give the next series of the last word. But you have the duty to review that on this proper application. So to say that the Building Inspector acted in the story is not true. Harvey mentioned that we're going to come back for a variance. Well, to get a variance you have to show that the application won't alter that particular structure won't alter the essential character of the neighborhood. Typical burden in this particular circumstance. Now, ! would point out also in connection with the concept or the doctrine of collateral estoppels which is also called res judicata, or bishop preclusion I'm just going to read an introductory sentence that I pulled out of the commentaries to Section 267A of the Town Law in McKinney's which you people probably look at every once in a while. That's the one that gives your authority to act and defines your responsibilities and grants your powers. In their discussion the first sentence under res judicata says, principles of res judicata bar a party from bringing any issues, which were litigated or could have been litigated in a prior action. And it says res judicata also applies our essential determinations of municipal administrative agencies including Zoning Boards of Appeal. Now, finally, as all those, every once in a while you do research probably less than we should, and I researched this issue on customary and incidental use bclbre I came here and I have a case that is relevant because when we're talking about customary, incidental and the largeness of this particular structure I think the case is especially relevant and I have one copy of it which I'll give you. Now the case title is "Allen Coriando,etal. Vs. Stanley Picanokin, Chairman of the Zoning Board of Appeals of the Town of Huntington. That case involved an application to permit an oversized garage type structure on the piece of property for the property owner to store a 32-foot speed board. You can have a garage of 750 square feet but they wanted a 1,080 square foot garage to store this relatively large boat, compared to a car. The Zoning Board held that it was customary, incidental an accessory even though it was larger than all the rest. The courts, even though the Zoning Board, as you well know, has substantial discretion, which was from the Building Inspector, the courts annulled the Board's determination. The court determined that applicant sought to build a narrow an unusually large structure in which to store and service his boat in. While boating may be a popular hobby in Mr. Brown's, the applicant's neighborhood, the record is the proof that the type of structure proposed would be customarily Ibund in connection with the type of one family residence to be built on the subject plot to as to qualify as an accessory building. Indeed there is no Page 65, Mai'th 21,2002 ZBA Public Hcluing Transcript proof that such structures exist in similar residential zones, much less the sub-structures on customarily found in said zones, this failure proof is fatal. So largeness is a component of customary and accessory. And l commend you to the case l have a copy. CHAIRMAN: What I'd like you to do, if its not an imposition Mr. Angel, is make six copics or seven copies and send one to Mr. Arnoff and send us the six copies tomorrow with a cover letter. STEPHEN ANGEL, ESQ.: Okay, thank you. CHAIRMAN: Mr. Amoff? HARVEY ARNOFF, ESQ.: I just have one question. Could you possibly, 1 had another matter tonight before the Zoning Board of Appeals in Southampton. And I asked my associate to adjourn it to their May meeting, thinking that this might go two meetings and I would be here in April. Could you then possibly schedule this for your June meeting, is that possible? CHAIRMAN: Sure. We'll give you a date. HARVEY ARNOFF, ESQ.: I'm sorry I just, I mean I've already done that as we speak, and I would feel that there may be some issues that would coincide. CHAIRMAN: Okay, we'll give you a date. Paula, we have to look for the June meeting okay. It will be the June Special Meeting, and we'll give you a date. If its not tonight, we'll give you a date tomorrow. HARVEY ARNOFF, ESQ.: All right, thank you very much. CHAIRMAN: I'm sorry you wanted to say something? MEMBER TORTORA: Yes, Mr. Angel, I'd like you to submit a very clear request of this Board. You raised a number of issues. You've raised the issue of accessory structure, the matter of res judicata, and the matter I'm not quite sure if you're asking for a Reversal of the Building Department's Determination based on Interpretation of customary, incidental. Based on interpretation of monument, you've raised a number of issues. You haven't raised one issue; it's a shotgun appeal. STEPHEN ANGEL, ESQ.: It wasn't meant to do that. But I can put our issues in writing and show how they impact what our application. MEMBER TORTORA: 1 want to know what's before us very specifically. STEPHEN ANGEL, ESQ.: No problem. MEMBER TORTORA: In the nature of the appeal. Yes, Harvey? Page 66. March 21,2002 ZBA Public Healing Tumsclipt Town of Southold HARVEY ARNOFF, ESQ.: I would like a copy of whatever he says. STEPHEN ANGEL, ESQ.: You will get a copy of everything. MEMBER TORTORA: It will be in public record. STEPHEN ANGEL, ESQ.: Any time limit on that? CHAIRMAN: Usually when they're within two weeks of the commencement of the final draft. MEMBER TORTORA: If we could get it beIbre that we would appreciate it, thanks. STEPHEN ANGEL, ESQ.: I'll get it to you at least a couple of weeks, since we going so far in the future, before the next hearing. So you'll have it before, if that's okay? Is that enough time? MEMBER TORTORA: Yes. CHAIRMAN: Okay, we'll recess this to June 20th. SEE MINUTES FOR RESOLIJTION 10:15 P.M. END OF PUBLIC HEARING Prepared by: Paula Quintieri