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HomeMy WebLinkAboutZBA-03/28/2002 HEARSOUTHOLD TOWN BOARD OF APPEALS TRANSCRIPT OF PUBLIC HEARINGS HELD MARCH 28, 2002 (Prepared by Paula Quintieri) Present were: Chainnan Goehringer Member Tortora Member Oliva Member Orlando Board Secretary Kowalski Absent was: Member Horning (as agreed) PUBLIC HEARINGS: 7:05 p.m. Appl. No. 4962 ROGER J. AND LESLIE WALZ. This is request for a Variance under Article XXIV, Section 100-242A, based on the Building Inspector's May 2, 2001 Notice of Disapproval regarding the proposed second-story addition to existing dwelling. Thc reason stated in the Notice of Disapproval states that the existing structure has a nonconfbnning setback of less than 10 feet and 15 feet o the side yards, and as a result, the addition of the second-story represents an increase in the degree of nonconformity. 2505 Old Orchard Road, East Marion; 37-6-5. (The hearing was concluded on November 29, 2001, and reopened at the request of applicants.) CHAIRMAN: Mr. Bressler we received your letter. We, of course, spoke to you prior to the letter and we're waiting to hear what you have to say regarding this application. ERIC BRESSLER, ESQ.: Well, Mr. Chairman, I think we're at the end of the road here. You have ruled the way you have ruled on the first half of the application; and, at least tbr the time being, that is the rule that applies to these particular projects. That being the case, my comments tonight will be addressed toward the application of that rule to this specific project. Hard cases make bad law, am I adding to the law. And I think if we were to examine this particular application we'd all be constrained to agree. I think the important thing to focus on at this particular juncture is measured against that particular rule, what is the relief that is sought by the applicant in this particular case. It is beyond argument that the applicant is entitled to something, even under the rule that this Board has announced. In fhct, the applicant is entitled to build with 15 feet on one side and 10 feet on another side. That is so. So the question beIbre you is, is that the best possible result of this situation. We have said from the beginning, even before the pronouncement of that rule, that that is not so. That is not the best possible result for the applicant; it's not the best possible result for the neighbors. It's not the best possible result fbr anybody. Now why is this so. This is so because the neighbor to the east has no objection to moving the bulk of the second story next to him. The neighbor to the west has an ob. jcction to what I can see to virtually anything, and docsn't want anything near him. $o, as a result of this, the proposed plan calls for the bulk of this second story to be next to the neighbor who doesn't object, and as thr away as possible fi'om the neighbor who does. That's what thc plan proposes. As of right, ali thc applicant can do is build iii a position that is further away from the neighbor who doesn't care aud is closcr to thc neighbor who does object. This is an irrational result. All wc have done, in order to aid the Board in looking at what the application and this new rule would require and why it doesn't really work in this situation, I've asked Mr. Brown to draw up thc building as it exists, the building that could be built, absence relict at?om the Board, and the building that is proposcd to be built thr away from the object ant and close to the neighbor who doesn't care. I've also asked him to calculate what the effect of thc proposed projcct would be on the objecting neighbor and he has calculated that there would be a reduction in bulk or volume within the nonconforming zone close to the objecting neighbor. And he has calculated that in cubic fect. So the net rcsult of all that is, therc is a reduction in bulk close to the objecting neighbor, it is further away it'om the objecting neighbor and it's near to a place where nobody cares. You will also hear from Mr. Brown, that architecturally this is the best possible design, given the lay of the land. You will hear from him architecturally it's the best possible design, given the interior design of the house. In short, this maximizes the beuefit for everybody and it minilnizcs the detriment for everybody. There is no reason not to grant this. Mr. Brown do you have these drawings? CHAIRMAN: Good evening Mr. Brown, how are you? ROB BROWN: Good evening. Fine thank you, how are you? Itl may? CHAIRMAN: Surely. ROB BROWN: I would just like to add a bit of history for the newer Members of the Board. In fact, when this design was conceived and actually well until the working drawing phase, this design was based on an Interpretation of the Code by the Building Department which made this design perf~:ctly legitimate and acceptable. It was not until the working drawings were almost completed, that the Building Department changed their Interpretation of the Code. That's just a little background. What I have here is a simple diagram, which shows, if I may explain it on the top, is the existing condition. This shows the three properties contiguous. This is viewing from the north, looking the last house from the center. The fourth house to the west is to the left, m~d the Martin residence to the right is to the West, the fourth house is to the east. The top shows the existing conditions and directly below that is the proposed plan. As you can see the reduction of the gable roof on the west side of the Walz residence, as proposed, would reduce the volume of structure in the nonconi-brming area by 120 cubic feet. There are three reasons, three basic design concepts behind this original proposai. The first is when you're dealing with slope terrain you want to move the mass, the large proportion of mass upslope i~br the simple matter of visual stability. In this case, the second factor behind this design was the fact that its structurally logical and, therefore, economical to build a second floor directly over a first floor rather than having to suspend over air, which Page 3, Mmch 28, 2002 ZBA Public Hem ing I ran>cript would be thc case bclow. The third, and I think you might see some irony in this, is that the design, if wc were to conform to the setback regulations, actually has a iht more significant impact on the house to the west than the proposed design. You could, of course, put the 15 feet on the east side, l'ln sorry the 10 feet on the east side, and the 15 fcct on thc west side. ROB BROWN: Certainly, and you will understand that this diagram is showing a worst case. MEMBER TORTORA: It's uot to scale. ROB BROWN: Thc 15act of the matter is the preponderance of the mass would be closer to the house to the west than to the east. MEMBER TORTORA: The dwelling is not to scale. ROB BROWN: It's roughly to scale. MEMBER TORTORA: The three feet that you're showing from the property line on the east. CHAIRMAN: He just showed you there's a 15 on that side. MEMBER TORTORA: No, I mean on what's existing. MEMBER OLIVA: The proposed, Mr. Brown, I mean Mr. Martin's complaint it seems to me with your roof line the way it is, ail that run off; unless you do some gutters and leaders and putting some drywells in there, all that soil and everything else is running right down into his property and the property that is today on the west side of the Walz property is eroding. ROB BROWN: Well, ifI may, first of all. MEMBER OLIVA: Because of just runoff, not property. ROB BROWN: But if I may, we've never stated any objection to gutters, drywells, French drains or any other matter. We felt that that was not a matter for this Board, but for the Building Department. Secondly, the proposed design does not have a single square inch more of roof area than the existing house does. And certainly we would do anything to mitigate runoft; but we didn't feel that was an issue to this Board. That's between us and the Building Department in my opinion. MEMBER TORTORA: About a year, not even a year, about at one of the earliest hearings, I was going through the flies today and I noted that you said that you were applying to the Town Trustees because the project is within their julisdiction. That's in Page 4, March 2g, 2002 ZBA Public llearing Ttmlscripl thc minutes of one of thc meetings and yet I don't sce any Trustcc permit or Lctter of Non-Jurisdiction. ROB BROWN: That I'm sure is a clerical situation if we applied, I'm sm'e its bcco approved, l mcan we'rc going back avcry long time now. We've bccn at this ten months, just with this Board. MEMBER TORTORA: You're quite right ROB BROWN: To my knowledge you have whatever documentation was nceded. If that's not the case, then obviously anything you do would be subject to. MEMBER TORTORA: The only reason I ask this, Mr. Brown, is because genuinely the Trustees do, are very concerned about matters of runoff; particularly when it involves wetland areas and waterfront area, as they are very concerned. ROB BROWN: And we take it very seriously too. MEMBER TORTORA: Yes, it can have a tremendous impact and that's why generally, these applications are reviewed by the Trustees first and we take very seriously their comments. ROB BROWN: Well, again there is zero difference in the roof area between the proposed plan and the existing structure and if there were any concern, I mean aside from any concern that any Board might have, this is something that as any responsible architect, designer or engineer would consider, runoff is an issue under any conditions in any situation and its something to be dealt with. Certainly, if this Board wanted to make that a condition of their approval we would welcome that, but it certainly wouldn't make us any less or more interested in doing that, that's something that we have to do. MEMBER TORTORA: I'm sure if you could just show us either the Trustee permit or Letter of Non-jurisdiction, and put it into the record we would appreciate it. ROB BROWN: I am certain we can get that for you. MEMBER TORTORA: Thank you. CHAIRMAN: Mr. Brown it would be very interesting to see this from the opposite side, from the waterside. Is there any possibility of you assembling that from the waterside? ROB BROWN: Mr. Goehringer the plans that I presented many months ago, that showed a photographic rendition of the existing with an overlay of drawing, of the proposed was from the other side, I really, with all due respect that's kind of beating a dead horse. CHAIRMAN: Okay. Any other questions ofMr. Brown? Page 5, Mmch 28, 2002 ZBA Public Hemi~lg Transcript MEMBER ORLANDO: No questions. CHAIRMAN: Okay, thank you. ERIC BRESSLER, ESQ.: In closing, I would just like to say; it has been an extremcly long fbr my client. He's retired. Despite all this, he still wants to retire out here and build and he needs to have a decision. With all duc respect, I don't feel that another rendition tbnn the waterside is going to change the thcts. The thcts are what they are. The proposal has mininfizcd the effect on the west side, we all know that; the bulk was moved over to the cast. If that's something that the Board thinks is a good thing, then we urge you to approve. If you don't think that that is a good thing, under thc circumstances, then don't approve it. And we cither build as of right, take an appeal or both, I don't know. But give us a decision. The Martins have been here objecting fi)r months. You can now see there is nothing else we can do. And everything else that we might consider, whether its 10 or 15 on one side and the other, it doesn't really matter, its going to be worse. CHAIRMAN: But, you asked for this re-hearing, we didn't ask for it. But, we're here ERIC BRESSLER, ESQ.: Let me just clarify that. You asked whether I would waive something, and thc answer is no, I'm not going to waive it. The fact that I'm here, I think is a good thing, l think especially the new Members of the Board needed the opportunity to hear what this was about. 1 think because the Board announced a new rule, it would be not a good thing to rule on the variance without taking into account what the new rule's impact was on this particular project. In particular, Mr. Brown's computation of the reduction in volume on the Martin side I think is something that the Board can rightfully take into account in terms of evaluating the project. I think that's important and I think before the rule is announced nobody even knew that that was even marginally relevant. Well, now it is and we've introduced evidence to the Board to show that there is a reduction and that is the amount of reduction. We've also shown you that we've moved it as far away as we possibly can and anything else is going to be closer to them. Whether it's a foot, two feet, three feet, whatever it is, its going to be closer to them and its going to end up in something less desirable for them. That's where I think the bottom line is, given the fact that the neighbor to the east doesn't object, we urge you to look at this plan and see whether or not you agree with us that this is the best possible resolution for everybody in the neighborhood. Or would I send Mr. Brown back to the drawing board and think about doing something else. CHAIRMAN: Mr. Bressler, the neighbor to the east told us that when they laid out the sub-division, and that neighbor is here tonight, that he agreed with a 6-foot by 8-foot side yard, this Board has never agreed with a 6 foot or an 8 foot side yard. You are telling me that he is, this house is 3 feet from the property line on that side and he is 6 feet from the property line, or how close is his house from the property line? MEMBER OLIVA: 6 feet. CHAIRMAN: 6 feet, okay. So 6 and 3 is 9, we're talking 9 feet between the two houses. Page 6, Mmch 28, 2002 ZBA Public Hearing Transcript ERIC BRESSLER, ESQ.: lie has no objection. CHAIRMAN: I don't care if he has any objcction. I have an objcction. ERIC BRESSLER, ESQ.: Wait a minute Mr. Chairman, you said two things; the first, I take issuc with and l find it totally unacceptable that you have stated on the record that you don't care what the neighbor thinks. I think that's wrong. I think you have to care to a degree. Now you might. CHAIRMAN: Let me rephrase my question. Just a minute (raising his voice) 1 have ERIC BRESSLER, ESQ.: May I finish my sentence'? CHAIRMAN: No I'll finish. ERIC BRESSLER, ESQ.: No, I can't finish my sentence? CHAIRMAN: No you can't finish your sentence. No. ERIC BRESSLER, ESQ.: What kind of a ruling is that, that I can't finish my sentence? CHAIRMAN: Because, pardon me Mr. Bressler. ERIC BRESSLER, ESQ.: Mr. Chairman, I have never been treated where I have not been able to finish a sentence. Please. Now you say that you care, yes I agree. That what you think matters a lot. You are on the Board, what all of you think matters. But to say that you don't care that the neighbor doesn't object I think is unfair. That's my point. I'm not saying its determinative, l'm saying that you ought to take it into account when one neighbor says I object a lot over here, and the other one says I don't. That's my only point. No one says you're bound by it, but I think you have to, as reasonable people, listen to what they say in the neighborhood, that's all. CHAIRMAN: I never said I would not listen sir, all I said was that I still contend that 9 feet between these two houses, at the height that is going to be constructed, is too close and that's my opinion. I'm not thrusting that opinion on anybody else, that is my opinion as a fireman for thirty-four years in the Town of Southold. That's ali I'm telling you. ERIC BRESSLER, ESQ.: My only ploy is, I don't think its fair for any Member of the Board to say that they don't care what a neighbor says. You may not be bound by it. CHAIRMAN: I will change my statement. ERIC BRESSLER, ESQ.: But, I object to that. Page 7, Mmch 28, 2002 ZBA Public neathng Transcript CHAIRMAN: Well, you can object to whatever you want, ! said I will changc my statement. ERIC BRESSLER, ESQ.: Okay, fhir enough. My point is we've done evcrything in accordancc with what we think the neighbors will live with and what they want. And if this Board doesn't want to do that, then we will be guided accordingly. And if we need to move this over, closer to the Martins, then that's what's going to happcn. We're here at the end of the line, as I said at the beginning, its up to you people to decide what you're going to permit here and what you're not going to permit. My job is only to tell you the way I sec it and that's the way I sec it. The rnan to thc east doesn't care. The man to thc west has a vital objection and wants it as fhr away as he can, and we've tried to meet that. MEMBER TORTORA: Mr. Bressler, just a quick question? 1 went back to the transcript to get, to try, one of the transcripts it was INAUDIBLE, some of the parts were inaudible and that happens sometimes when people move away from the microphone. ERIC BRESSLER, ESQ.: And talk over one another, and I do apologize for that. MEMBER TORTORA: Ycs, gentlemen. CHAIRMAN: Did I stop him, he continued. MEMBER TORTORA: Okay. Just to get some stuff on the record here that we kind of lost in the transcript. What is the square fbotage of the ground floor of the house now? ROB BROWN: We can certainly get that l'br you, I didn't bring that information with me. ERIC BRESSLER, ESQ.: Keep going, if we can't answer it. MEMBER TORTORA: I know there's a two-car garage and there's, on the bottom now of the house? ERIC BRESSLER, ESQ.: Yes. MEMBER TORTORA: And that would remain correct? ROB BROWN: Yes. MEMBER TORTORA: I was trying to figure it out, it's about 1800 2000 square feet now, I don't know? l'm sure you have that intbrmation. ROB BROWN: Not with me I'm afraid. I thought that that was old news. Page 8, March 28, 2002 ZBA Public Hearing Tr,msc~spt MEMBER TORTORA: It would be old news if we had a perfect world where nobody jiggled papePs and everybody spoke into the microphone and everything could get transcribed, but it was not picked up in the transcription. ROB BROWN: 1'11 see if I have it with me, if not I will certainly get that to you as quickly as possible. MEMBER TORTORA: Just one thing I want to note, Town Law has not changed. Our Interpretation will still consider and be focused on the criteria set fbrth in New York State Town Law. That the criteria are, will it be a detriment, benefit to the applicant versus the detriment to the community, correct? ERIC BRESSLER, ESQ.: Absolutely, the only thing that's changed is your Interpretation of what can be done with thc nonconforming uses. MEMBER TORTORA: That does not change New York State Town Law and the criteria under which we're supposed to look at a variance. It changes nothing. ERIC BRESSLER, ESQ.: Oh no, that doesn't change. What changes is what you're looking at, not what standards you apply. You are now looking at something which you've called a noncon/brming area, but yes, you must apply the same factors absolutely. MEMBER TORTORA: And as to the degree of the variance, I don't carc what method you're using, the Code requires 25 foot total side yards ERIC BRESSLER, ESQ.: That's correct. MEMBER TORTORA: and by any measure, a request fbr 9 feet is substantial. There is no disputing that. What I see here is you're trying to mitigate that. I sce that you are trying to mitigate that. This is a very old sub-division. The lots, in my opinion, its my opinion, its not a statement from the Board or anything else, its my observation. The lots are substandard, they're small, and they're tiny little lots. Mr. Martin, the neighbor who is the objector, his property is 6 feet from yours. Unfortunately, his property is underneath your property, so your property is here, and Mr. Martin is here. So when you want to put a two-story house on, there is a towering effect. And that is a fact. ERIC BRESSLER, ESQ.: It's a fact. MEMBER TORTORA: When we walked around the property I was struck by one thing, 1 was struck the fact that the brick patio on the, I'm trying to think, the Martin side is the west? Okay, the patio on the Walz property is next to the Martin property is actually sloping like this. It's looks like it's falling. And we see things like this. This isn't something that you can put in a report or any type of textbook, this is something that you visually see, you sec that the property is eroding and it's eroding onto the Martin property. So, I would hope, that you would be able to devise a plan that would prevent your soil from ending up on the Martin's property. Just as I'm sure, if the situation were reversed, and Mr. Walz house was where Mr. Martiu's is, he would want the same and you, as his attorney, would ask fur the same. So that's a consideration. ERIC BRESSLER, ESQ.: I don't think that there's any doubt that Mr. Brown will design this in such a manner that erosion, at least from the watcr, will not be a factor here. MEMBER TORTORA: Could we throw in soil too'? ERIC BRESSLER, ESQ.: I don't know what you're suggesting? MEMBER TORTORA: In other words, when a ERIC BRESSLER, ESQ.: The only thing that we're doing is going up and we're not changing the roof area, so what is it that you're proposing. MEMBER TORTORA: I know, you have one piece of property that's like this, and another that's like this. ERIC BRESSLER, ESQ.: Are you proposing some sort of bulk heading, along that line to prevent MEMBER TORTORA: I'm no expert and I don't intend to be. I think you have, at your expertise, people who could suggest ways to mitigate that. I'm not an expert. I am only telling you what l saw in personal inspection. ERIC BRESSLER, ESQ.: We certainly don't have any objections to that, it's just without any guidance, it raises a whole of issues, but 1 don't have any real objections to. MEMBER TORTORA: Just think about. As I mentioned to Mr. Brown, the other thing is, we do rely on the Trustees to review the projects and, in reviewing them, to issue a determination based on their criteria of wetlands, decking and everything else. So I would like to see their permit and/or their Letter of non-jurisdiction. That's all. ROB BROWN: We can certainly get that to you. To be very honest with you, in clerical terms, I don't deal wit (inaudible). MEMBER TORTORA: See you're going to be lost in one of these transcripts. BOARD SECRETARY KOWALSKI: We're not picking you up. ROB BROWN: I personally did not handle all of the paperwork involved with all the permits that we deal on a regular basis. I have every reason to believe that we did make that application and we have the documentation, if that's not the case, I will certainly get it for you. But one way or another, I will make that available to you. And certainly in answer to your other question, and your comment, the Walzs asked me [~om the very beginning of the design of this to take into consideration the fhct that the Martins house is lower than theirs and to design it in such a way as to minimize the impact. I must say, from the bottom of my heart, that is exactly what we tried to do. I don't know if there is any other way that we could'ye designed this that lessened the impact the Martins have on anything at all and that's t?om the bottom of my heart. MEMBER TORTORA: The height of this is 21 feet? The one that, not the new one, is very tall. ROB BROWN: The final height to the ridge or to the. CHAIRMAN: Main roof. ROB BROWN: Thc main roof I believe is about 21 feet yes, to the best of my recollection. CHAIRMAN: Mr. Bressler I would like to aftbrd Martins a copy of what Mr. Brown has given, if you would please and let them concentrate on that fbr a couple of minutes. And we'll see what develops throughout the hearing here. We'll now ask if there's anybody else that would like to speak in favor of this application'? Mr. Thorpe how arc you tonight? FRANK THORPE: My name is Frank Thorpe, l represent my brother Edward and his wife Virginia who are the people are immediately to the east. I would just like to clarify something; I never said that there was an 8-foot setback with this particular lot. These original deeds did not have the 8-foot setback the subsequent deeds in Gardner's Bay Estates did. My deed, my brothers deed, the deed to this particular house, the deed to the Martins particular house and the deed to the east of the Martins house did not contain those restrictions at all. Subsequent deeds sometime in the later 30's did. The map of Gardners Bay Estates was filed in 1927 with the County of Suffolk. That map of Section II and I. That's what set up all these particular lots as such. Section III is half acred zoned. CHAIRMAN: So where did the 8 feet come in then? FRANK THORPE: The 8 feet came in CHAIRMAN: I mean in your discussion? In your opinion? FRANK THORPE: I believe later, mid to later 30's. CHAIRMAN: Now that was a covenant in the deed saying that that's what you had to have as a minimum side yard? FRANK THORPE: Correct. Pilgc I l, Mmch 28, 2002 ZBA Public ttcming Transcript CHAIRMAN: Okay, and your side yard preseutly on the house that you'rc representing for your brother is 6 tbct, is that correct'? FRANK THORPE: No, 5 feet. CHAIRMAN: 5 feet. FRANK THORPE: At one point. And when it was added on to, in 1976, did not require any subsequent thing, because it was no closer than the original 5 feet. CHAIRMAN: Okay, thank you. Is there anybody else that would like to speak in favor'? Mr. Martin? RALPH MARTIN: Good evening ladies and gentlemen of the Board. I feel like a soldier in a tbxhole, all these big guns shooting at me. Nonetheless, l shall carry on. On Saturday, March 2"d at 7:30 in the morning my wife and 1 were served with a request for judicial intervention by Mr. Eric Bressler on behalf of the petitioners Roger and Leslie Walz on which we wcre named as respondents, along with the Zoning Board of Appeals of the Town of Southold. Our involvement with the Walzs application has been thc result of our being advised and invited by registered letter of the Zoning Board of Appeals to attend the application hearing and to express our objections if any. We had voiced our objections in a businesslike way and have not slandered or nor have made ourselves, and have made ourselves available to the Walzs, their attorney and their architect to discuss amicably why we are not in fhvor of their proposed second story addition. Apparently they were not desirous of any such discussion since a meeting was never arranged. We have a right to our opinion and have expressed it belbre this Board in thc proper manner. Therefore, we are puzzled as to why we have been named in this lawsuit. However, since there are new Board Members, and this application hearing has been re-opened, we wish to request that out' previously submitted comments and photographs, which are all part of the file, be considered during your deliberation. To reiterate briefly, their lot is less than 47 ½ wide on which has been built an approximately 38 tbot wide, single-story house. The addition they propose will loom overwhelmingly large on a small, narrow piece of property with the exception of one, we know of no other two-story home in the community that is built on such a narrow lot. Also, since there are house is at the highest elevation of the slope of the land between the two houses we are very concerned about the additional drain on and possible overflow of their septic system. Inasmuch, as there will be an increase in the number of bedrooms and bathrooms, should the existing septic systems fail and all overflow, the affluent could not our property but possibly leach into the nearby shallow waterway as well. The Suttblk County Department of Health has very specific regulations regarding sewage disposal systems and minimum septic tank areas and capacities. And you would hope that the Building Department would seek the County's approval of the septic system. It would appear that in order to be in compliance with the current County of Department of Health Regulations a new and/or enlarged system would be required. However, we can't imagine where it would be constructed on a small lot. We would also like to know if the Town Trustees have made a detern~ination of jurisdiction regarding this construction due to its closeness of tidal water. The size of thc housc they arc proposing is more in kceping with the south shore than Gardners Bay Estates. Onc bas only have to ride around in some of the smaller more established waterfront communities in Southold to see what happens when residents whether full or part-time decide that they should be able to do whatever they wish and the Building Codes are made ibr everyonc elsc but them. Ladies and gentlemen I thank you for your time and I will give you a copy of what I have just said. CHAIRMAN: Yes, Mr. Brown? ROB BROWN: I would just like to clarify one point. I've had several conversations on the phonc with Mr. Martin requesting a meeting with him to discuss plans and how they came about and they how they affect him. And he declined to meet with me if the Walzs were not prcsent. Thank you. CHAIRMAN: Mr. Martin, let's just wrap this up please. RALPH MARTIN: I wish to rebut that. We did call the gentleman and ask fbr a meeting with the Walzs. The Walzs apparently could not attend, for whatever reason it was, and 1 wanted them to be there as our neighbors to see if this could be worked out amicably. It never happened. LESLIE WALZ: Mr. Chainnan, you should know that we were asked to meet with Mr. Martin. I'm very sorry we didn't meet. My husband was in the hospital, I wonder why! CHAIRMAN: Mr. Bressler is there anything you would like to wrap up with? ERIC BRESSLER, ESQ.; Yes, thank you. Thank you Mr. Chairman, 1 think it is evident from what you've heard by way of objection tonight, that the principle issues before you are not really addressed by those objections. What the Trustees do, the Trustees will do. What the Health Department does, it will do. And they are charged by law of doing certain things, as are you. So those objections don't really go to the heart of this particular application. What I heard is that there is an objection to having a second-story. We all know that the Walzs are entitled to something. Something that's going to be less desirable for the Martins, than what is proposed, and I think that's the issue here. I think when you consider what you're going to do about this you ought to take into account the f~tct that from the very beginning this project has been designed to provide the maximum relief given the lay of the land, the location of the dwellings on the land, and now we're before you asking for that type of relief. I'm fond of saying from time to time, that no good deed goes undone and no good deed goes unpunished. Now I feel that this is where we are, we designed this thing the way we designed it. I know, Mr. Chairman, you asked, is there anything that we could do? I think, lbr the Martins, I think that the drawings make it clear that we have moved as far away as we can. We have reduced by 120 cubic feet, the volume of structure that is on their side. There is not greater roof area. The runoff will not be any greater since the roof area is not increased. There will be gutters, leaders and drywells and anything else that we can do to mitigate whatever Page 13, Match 28, 2002 ZBA Public llearing T~ansc]ipt effects there may be. What we propose, we think is a reasonable plan givcn the nature of the opposition and given thc naturc of thc agreement and we would urge you to afford us that rclief measured against the standards that this Board has announced, the program that we have designed tbr this building meets thc spirit of that particular ruling in beauty and thc light of the neighbors conccrns and I think that's what we're looking at here and that we would urge you to grant relief and we urge you to do it in an expeditious manner so that thc Walzs now know what they're going to do since Spring is upon us. They would like to retire here and we would like to know what we're going to do if anything. Thank CHAIRMAN: Seeing no hands and hearing no further comment, 1'11 make a motion closing the hearing reserving decision until later. SEE MINUTES FOR RESOLUTION 7:51 p.m. Appl. No. 5058 PETER AND VAL LEONIAK. - (Continuation f?om February 28, 2002). This is a request for Varianccs under Zoning Code Sections 100- 30A.3 and 100-31, based on the Building Inspector's November 29, 2001 Amended Notice of Disapproval. The applicant proposes Parccls 1 and 2, each with less than 40,000 square feet in size. Parcel #1 will also contain less than 125 fl of lot width (frontage), and includes the existing accessory garage on a lot, presently vacant and without a principal usc. Location: 2040 Pine Tree Road, Cutchogue; 100-98-1-15, 16 and 17 (approx. 1.5 acres as exists). WILLIAM C. GOGGINS, ESQ.: Good evening, William C. Goggins tbr the applicant Leoniak. I think I've said all I could say. The drawings speak for themselves. We initially came here to unmerge three lots. We amended our application, as you know. The way its set up, since the lots merged to the point where they need to be bulk schedule and here is 40,000 square feet, so two lots are a result of that. I guess the question is which ones merge and which ones didn't. In the end, we decided to amend our application so it would have two larger lots that conform to the neighborhood, as opposed to one that conforms and two if they're not. So we made our amendment, l don't think I need to reiterate what I brought up at the last meeting. I'll stay here if you have any questions fbr me or if you want to make any rebuttals to any opposition that's here tonight. Thank you. CHAIRMAN: Thank you. Is there anybody else that would like to speak in favor? Anybody like to speak against? Miss Wickham, how are you tonight? ABIGAIL WICKHAM, ESQ.: Good evening, Abigail Wickham, representing Thomas and Jane Catrell who owns the property to the north of this. I would like to thank the Board for recessing this hearing since I couldn't be here last time and ask that any items in the previous record that might be applicable to the previous proceeding be included in this matter since there was quite a bit of material covered. First of all I'd like to take issue or make sure I understand the issue with respect to whether there are currently two or three, I'm sorry, one or two lots existing. As I read the merger section of the code, ali Page 14, Mmt:h 28, 2002 lots mergc until they bccomc . And I dou't sce how, if you can havc two lots that arc noncouformiug merge, which I belicve is what Mr. Goggins is sayiug, you still have a nonconforming third lot out therc and I believe merges in as well. So I just, from reading the transcript of the last hcaring, it appeared that we were considcring that there are actually two lots there now and not one. Is that somcthing the Board has acceptcd or is that.just an argument'? CHAIRMAN: Arc you referring to the two lots that are before us right now? ABIGAIL W1CKHAM, ESQ.: No, I'm referring to how many lots currently exist'? Maybe I just misread the transcript. CHAIRMAN: To my knowledge there were three. ABIGAIL W1CKHAM, ESQ.: There were three lots, but they have all merged into one lot, as I understand it. CHAIRMAN: That's correct. ABIGAIL WICKHAM, ESQ,: But not two lots, as I thought Mr. Goggins was saying. CHAIRM AN: That was our understanding. ABIGAIL WICKHAM, ESQ.: Okay, I just want to clarify that. Thank you. I also, secondly, just like to address the procedure because at this point, this is clearly a sub- division application and yet I do not believe any application has been made to the Planning Board. So I think the application to your Board is really premature. Generally, it is the Zoning Board's position I believe that when this type of sub-division is presented to the town and a variance is necessary that you seek input from the Planning Board and they haven't had an opportunity to do this because I don't believe they have an application. CHAIRMAN: We have here Miss Wickham, a very unique situation. Possibly, through the mitigation process, and 1'11 use that phrase, that possibly we had a minor little discrepancy when we discussed this with counsel. MEMBER TORTORA: In the procedures. CHAIRMAN: In the procedures. We freely admit it that this really has gone from a merger to an area variance application. ABIGAIL WICKHAM, ESQ.: I understand that, but CHAIRMAN: But we understand what you're saying also. MEMBER TORTORA: See what happened, just with the transcripts, we hear, we saw these three lots. And you were weighing them under the merger law and saying well you're going to be creating one big lot and these two teeny little lots on the end. So, actually at the suggestion of thc fellow on Fishers Island who made perfect sense, said, well wouldn't it be better to create two lots that were consistent with the other size of thc lots in the neighborhood and we all thought very logically, yes, it would be and we said well how should wc do that. So then we thought, well really weren't sure whether we could do it through the merger law because the merger law discusses original lot lines. So we said, no better not do that. So that's when we suggested to Mr. Goggins to apply to the Planning Board and us at thc same time. Us for an area variance; and yes we have a couple of variances before us that the Planning Board has no thoroughly reviewed. Should they, at some point, or will they? Of course, yes sure. So to answer your question, yes I think featureless, the only other suggestion would be to, his application before us is proper and to proper apply for a sub-division because I'm not sure you can do a lot line change through a merger or a lot that's merged. ABIGAIL WICKHAM, ESQ.: I don't believe you can and I understand how we got it here, but I'm not sure you should be making the dccision until there's at least been an application. CHAIRMAN: There is a great possibility we will not be making one until such time as an application is made. ABIGAIL WICKHAM, ESQ,: My reason for that will come up in a minute. So those are the two points that I want to clarify that we are dealing with. MEMBER TORTORA: The only other thing I would say is we did not deny this application for a waiver of merger. CHAIRMAN: It is still pending actually. MEMBER TORTORA: It was not denied. ABIGAIL WICKHAM, ESQ.: I understand that. MEMBER TORTORA: I think we have everything straightened out now. Is that right? WILLIAM C. GOGG1NS, ESQ.: Well, yes. If I wanted to amend the application my first concern was shouldn't I going to the Planning Board because this is like a subdivision and I've never had to deal with this type, I'm not sure if you have either. CHAIRMAN: We really never had Mr. Goggins. WILLIAM C. GOGGINS, ESQ.: When 1 first was speaking to the Board about this I was a little bit concerned, I said well gee don't I have to do a subdivision first, or a lot line change or something. At the time, it was the Board's position I believe that I didn't have Page 16. Mmch 28. 2002 ZBA Public [fearing T~m~script l~l/wn ill' Southold to, but then I think alter you reviewcd it further, you realized that I did. So, it 1 was kind of mixed up myself as to what procedure to go through. I hope that you are going to grant the other application that you havc is that the amendcd application hopefully will make a decision subject to Planning Board approval of a lot line change. But as far as what Gail was sayiug beforc, whethcr this is three lots or two lots, 1 may be wrong with this too, but when 1 read thc Code it said that the lots merged to the point where they're infunning. That's what the law says. And what we have here is we have Lot 15 at 16,900 square feet and we have Lot 16, at 28,803 square feet. So if those two lots are to merge, you 45,771 squarc feet. Therelbre, that lot becomes confunning. And theu the third lot stands by itself. So, when I said before, my interpretation what I read in the Code indicates to me that right now wc have two lots. MEMBER TORTORA: See, we don't have the old file in front of us, so we're going back to what we've reviewed before. WILLIAM C. GOGGINS, ESQ.: When I originally made this application, we wanted to get three lots. But then when we went to amend it, I further read it more deeply and I realized that, and l'm not sure that the Board was aware of it, but I remember the Member from Fishers Island asked mc, would you be happy with two lots instead of three. At the time, I said, no, we wouldn't be. But after reading the Code, I said wait a second, you already have two lots because according how I read the Code they merged to the extent of which they are conforming. So that's where Gail's question, I'm sure she'll oppose it. Thank you. CHAIRMAN: In reality, being honest with you MEMBER TORTORA: We would have to go back and review the whole file, but I think what he said is true. CHAIRMAN: I really don't know at this juncture, if it really makes any difference at this point. We are here to address this issue, if you think that the issue is premature, then we'll close the file, recess the file, and then ask counsel to make his application to the Planning Board and then come back with it once the Planning Board has made their recommendations. However, in your absence, the good doctor in back of you, we had some discussion with him, and if you want to get to that issue tonight, if you don't want to get to that issue that's all right also. ABIGAIL WICKHAM, ESQ.: I think it makes sense, we're here, I'd like to tell you what the other things that we have a concern about, sc) at least it can all be discussed now and maybe resolved as we go down the road. But 1 do think it makes a difference whether we're talking about one existing lots or two lots and I do disagree with that reading of the Code. if you merge 15 and 16 to get over 40,000 square feet, you have a confurming lot, but you've still got that other undersized lot on the other side that's going to merge in too, because that is nonconforming and it will merge to the extent it becomes nonconfbnning. So maybe that's a technicality that we may or may not need to look to eventually. But 1 do think it's pretty clear there's one lot their now and not two. But I don't think that's the main issue that we need to address. Just so we can get going, I would like to address what are thc lnain concerns. Thc first is that by creating this division in this manner, you are showing an accessory garage on one lot with no principal use. My understanding is that is not permitted under 100-31C.1. Unfbrtunately, I don't have the Notice of Disapproval Ii-om thc Building Inspector in li'ont of me, but l don't recall him raising that issue and I think that is an additional variance that this Board would have to consider because the Code does not allow you to have an accessory structure on a lot where there is no principle building. One of the reasons that Code was probably put into effect was because you would then have no ownership or not principle activity on thc property and the neighbors might, are concerned, that that garage could be deteriorating. You don't have anybody there taking care of it or living there. Particularly if they sell the other lot with the house on it and that goes on independently. So that is a real concern that there would be a building there that's an accessory in violation of CHAIRMAN: Could I just stop you? My discussion with the doctor at the last meeting when you were not available was that we would put a restriction on that. Just how the restriction would be worded, but I did tell him that, and of course he's here to voice his own opinion, but that we now have the power to do that because we're now back to this area variance aspect and so that was the discussion. BOARD SECRETARY KOWALSKI: And it was also on the Disapproval. It was advertised based on that Disapproval written that way. ABIGAIL WICKHAM, ESQ.: l'm sorry; I didn't have it in front of me. 1 do think that's a second type of variance that you're being asked to grant here. And the other related issue is that when, if this application is granted, how that garage would fit into the eventual development of the property because it is pretty much in the middle of the property. Are you going to need another variance to put the house behind it and have a front yard accessory building or some other side yard issues. I think it really would need to be explored just how that would be dealt with on this particular configuration. C[lAIRMAN: Let me just stop you again. We could ask tbr it to be torn down. MEMBER TORTORA: Or moved. CHAIRMAN: Or moved. ABIGAIL WICK[tAM? ESQ.: Is it brick? CHAIRMAN: It's wood. ABIGAIL WICKHAM, ESQ.: Oh it is wood. My second point that I would like to make, and this is really a ma,jor concern, is that there are alternatives that could be effectuated on this property that would result in a lesser variance. I think that's a consideration that you have to make when you're granting an area variance. Are there alternatives with more ___impact. For instance if you divided the property north, south rage 18, Mmch 28. 2002 ZBA Public [teadng Tmnsc~/pt and you don't have the accessory garages, you don't havc possibly somc evcntuaI sidcline issues. And that's something again, and 1 think thc Planning Board maybe would nccd to look at and give you input on beIbre this variancc was granted. CHAIRMAN: We will get that. MEMBER TORTORA: If we did that, because I actually saw what you're saying. If we did that, then you still would have one parcel that is considerably larger than the other parcel. Because you have that little wood deck on the end of the house, so if you did slice it the other way, it is possible. If you sliced it the other way, you would still have. MEMBER ORLANDO: They'd need a variance fur a side yard setback. CHAIRMAN: Or a rear yard. ABIGAIL WICKHAM, ESQ.: Well a rear yard could be, because it'd be a comer lot. MEMBER TORTORA: It would be awfully; unfortunately the structures are almost dead center in the property. So in order to slice it up and down you're ahnost slicing thc structures up and down. ABIGAIL WICKHAM, ESQ.: Its something that I think should be looked at by the Planning Board if it would help. And I also have to say that this is probably, in light of the general trend in the real estate market, and I hope you can take notice of that on the record, that this is probably a tear down. So we're not talking about where that little wood deck is fight now. Because that would be totally be done 1 would expect. So if it's a better configuration or not, 1 think is something the Planning Board maybe ought to look at. It may or may not be, but there is an alternative that would involve a lesser variance. MEMBER TORTORA: Does your client object to creating these two lots? ls there an objection to this? ABIGAIL WICKHAM, ESQ.: Yes. My third point is that there really is no practical difficulty here to the applicant. The lot is not out of keeping as an entire lot with many in the neighborhood. 1 will grant you, there are many various size lots in this neighborhood, but again, given the trend in the real estate market, the lot can accommodate a very nice, large house and accessory structures which are certainly what seems to be in demand these days. MEMBER TORTORA: Pardon me, but in this block, I'd be hard pressed to find any coni-brming lots period. ABIGAIL WICKHAM, ESQ.: The ones that are on the other side of the street are there are a few. Page 19, Mmch 28, 2002 ZBA Public Hcmiag Fmnscnpt MEMBER TORTORA: They're actually, thc lots that he would be crcating as f'ar as .just a quick look at the map, arc actually going tu be larger than the adjoining of thc lots that already exist in the district. CHAIRMAN: In the old part of that sub-division. ABIGAIL WICKHAM, ESQ.: That still doesn't mean that he has a practical difficulty. MEMBER TORTORA: What do you mean by a practical difficulty? ABIGAIL WICKHAM, ESQ.: The standard l-hr granting an area variance. I don't know, that's his.job to say. I don't think he said it. In answer to your specific question, certainly this is better than a three-lot plan. I just think there are a lot of considerations that have to be looked at, but by your Board and the Planning Board, belbre a final decision is made. MEMBER TORTORA: I just want to clarify something for the record. That a practical difficulty is not part of the standard. It was de-codified in January 1992, as a part of New York State Town Law. Thc word practical difficulty doesn't even appear. ABIGAIL WICKHAM, ESQ.: There was a hardship. MEMBER TORTORA: It's not there anymore, in fact, the relevance of hardship is now clearly that the difficulty was not sell-created, which shall be a consideration but not a determining thctor. And that's verbatim fi~om the law. We all like the old standard, but it doesn't exist anymore. It was a much tougher standard because there was. ABIGAIL WICKHAM, ESQ.: What 1 mean then is, I don't know that he's shown a basis as to why he needs the variance. I think he's method criteria. Nonetheless, I do think there are, if you ii'eel inclined to grant one, I do think there are a lot of steps that have to be taken and a lot of other considerations looked at before you do that. CHAIRMAN: We concur with you. MEMBER TORTORA: We agree with that. CHAIRMAN: There's no question about it. MEMBER TORTORA: And we welcome the Planning Board's input and this Board does not, as a matter, re-arrange lot lines and totally defers to the Planning Board for their expertise in that manner. CHAIRMAN: This is one of the first Miss Wickham. ABIGAIL WICKHAM, ESQ.: I have one other question, l would like to know and perhaps the applicant could be addressed on this, as to whether the property is on the market or in contract? Page 20, Mmch 28, 2002 ZBA Public [leafing Tmnscrq>l CHAIRMAN: I forgot what was said, Mr. Goggins, in thc beginning. WILLIAM C. GOGGINS, ESQ.: At thc first hearing, that was brought up and the Board determined that it was not relevant. That was brought up at the first hearing. ABIGAIL WICKHAM, ESQ.: So does that mean that we're being told we're not going to get an answer to that question? WILLIAM C. GOGG1NS, ESQ.: The Board had already decided that question. MEMBER TORTORA: Is it on the market Mr. Goggins? WILLIAM C. GOGGINS, ESQ.: It was on the market, yes. MEMBER TORTORA: Is it still on the market? WILLIAM C. GOGGINS, ESQ.: Yes. MEMBER TORTORA: Thank you. ABIGAIL WICKHAM, ESQ.: May I just read one section then, A106,20, before making any offer to sell, a sub-division application should be made. So I do think it's relevant. MEMBER TORTORA: We agree. ABIGAIL WICKHAM, ESQ.: I have nothing further, but I believe Dr. CatTreI1 would like to say something, thank you. CHAIRMAN: Doctor how are you? Just state your name for the record please. TOM CATTRELL: My name is Tom Cattmll. CHAIRMAN: How do you do? TOM CATTRELL: I find myself puzzled by some of the things that I've heard tonight. I raised the issue of an accessory building on an otherwise undeveloped piece of property. I don't recall Mr. Goehringer, your response to that. I heard something tonight that I don't understand. CHAIRMAN: Well, doctor, I will say it again to you. You sat back in the same area when I discussed that with you, this is not a sarcastic statement to you, okay in any way, manner or form. My sarcasm will be left from the first hearing of this evening, public hearing that is. You said to me, I have a concern regarding the accessory building. I said to you, doctor we now are within the scope of what we could do because we are now back to the area variance standards. Which gives us the ability to put restrictions on the Page 21, Malch 28, 2002 ZBA Public Heating Transcript existing improvements on these properties. I still hold to that, and again, maybe you didn't understand what I was saying. TOM CATTRELL: 1 guess 1 didn't. CHAIRMAN: And this is completely, this is the f~ding that of what we had. What we are doing, not to confuse you tonight, but we're transferring something that was a merger application and it was done by our Member of Fishers Island, and I'm not blaming him, because it was a very good idea in putting this into an area variance situation. Which Mr. Goggins has this map re-drawn and we still have the accessory building, which is of?ur concern. We understand that. TOM CATTRELL: It's my concern on the new project. CHAIRMAN: On the new application, that's correct. MEMBER TORTORA: Is your property TOM CATTRELL: To the north. MEMBER TORTORA: It's the adjacent lot to the north? TOM CATTRELL: Yes. MEMBER TORTORA: So you're 187 AB1GAIL WICKHAM, ESQ.: Yes. CHAIRMAN: The contiguous lot to the north. MEMBER TORTORA: It's not somewhere up out there in the neighborhood? Thank you. That's all. CHAIRMAN: So we're going to continue with this and we're not going to make a decision, we're going to ask the. TOM CATTRELL: If I may, at the last meeting I heard you tell Mr. Goggins to go to the Planning Board. MEMBER TORTORA: Yes, we did. TOM CATTRELL: Thank you. CHAIRMAN: Mr. Goggins, have you gone to the Planning Board? WILLIAM C. GOGGINS, ESQ.: One Board Member said I should go to the Plannil]g Board, ouc Board Member said I should wait. I chose to do nothing until this hearing tonight. CHAIRIVIAN: What happened we had two discussions with counsel aud thc second discussion basically outlined exactly what we discussed tonight and so, therctbre, we are requesting that you go to the Planning Board. And we sincerely apologize tbr thc length of time that it has taken us to understand this entire process. MEMBER TORTORA: It's the first time we've ever had to .just oppose the merger law with a sub-division, lt's a little confusing. CHAIRMAN: Excuse me Lydia, I apologize. We would not have you draw this map, if we didn't have an interest in dealing with this application as it stands. Okay. Whatever the Planning Board says regarding this, then we'll deal with it okay at this point. We hope that it doesn't require another re-draw, but we can't say what the situation is. I think what we'll do is we'll recess until you get back to us from the Planning Board. MEMBER TORTORA: And they may come up with an idea that will be far better than you've had or we've had that may address all of your concerns. WILLIAM C. GOGGINS, ESQ.: I think its important because Gail and 1 disagree on a very important point, and that is whether two of the lots merge or not. That's important when I make my sub-division application to the Planning Board because it determines whether its going to he moving a lot line or whether I'm sub-dividing one larger piece of property. That's why it is important fbr this Board to interpret the Code to determine whether the lots merged, as I say, to the extent where they are coni-brming with any other adjacent lot unmerged. Or whether, just because they're all next to each other they become one giant lot. MEMBER TORTORA: Mr. Goggins, don't you dare say the word interpret to the Zoning Board of Appeals (laughter). CHAIRMAN: Not without an Interpretation application. WILLIAM C. GOGGINS, ESQ.: Oh. A decision does have to be made. MEMBER TORTORA: But we can't, fi'ankly the easiest thing for you to do, go right down to the Building Department and present your scenario to them and see what they say. WILLIAM C. GOGG1NS, ESQ.: So if the Building Department says that there are two lots instead of one MEMBER TORTORA: Then it's a lot line change. Page 23, Mmch 28. 2002 ZBA Public Heating I nmsc~ipl ABIGAIL WICKHAM, ESQ.: No its not. MEMBER TORTORA: Wait a minute guys, come on. CHAIRMAN: We'rc doing this at a Special ttcaring bccause I really couldn't take this during the normal agenda, I apologize. MEMBER TORTORA: If the Building Department says that you have two lots, then you can change a lot in two lots. Correct? Correct. ABIGAIL WICKHAM, ESQ.: If thc Building Department correctly determines that, that's absolutely right. MEMBER TORTORA: Exactly. Okay. So we've got that tar. So couldn't thc Building Department say do I have two lots or one lot, I've got my 40,000 square feet, but does that mean if they say no, you still have three lots, then go to the Planning Board. And you will know what you're asking the Planning Board. WILLIAM C. GOGGINS, ESQ.: Okay. MEMBER TORTORA: And don't ask us why this is all so confusing because we really don't know. CHAIRMAN: Do you want to give us some time on this, on what you think this will take, or do you want us to just recess it? WILLIAM C. GOGGINS, ESQ.: Why don't we just recess it. CHAIRMAN: Okay. WILLIAM C. GOGGINS, ESQ.: We'll notify you if we decide to, when we decide to go fbrward. BOARD SECRETARY KOWALSKI: You'd have to recess it with a date, not to re- notice. WILLIAM C. GOGG1NS, ESQ.: Why don't we pick a date in June'? CHAIRMAN: June 20th, same night as the heron application. WILLIAM C. GOGGINS, ESQ.: Oh great! BOARD SECRETARY KOWALSKI: But if you need more time, you could ask for a further recess. WILLIAM C. GOGGINS, ESQ.: I understand. Okay, thank you. CHAIRMAN: We're sorry about this Mr. Goggins, but at lcast at this juncture, we know wherc we're going from on these things again. We'll remind each other. WILLIAM C. GOGGINS, ESQ.: Thank you. CHAIRMAN: I'll make a motion recessing to June 20th. SEE MINUTES FOR RESOLUTION END OF PUBLIC HEARINGS. Transcribed by Paula Quintieri