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HomeMy WebLinkAbout76 r "LISTER, W. HARRY #76 7 West Road Special xception Cutchogue, NY July 31, 1958 .,RR T D,permission to construct a non- commerc al. marina with facilities :6or -mooring 22--boat-s r TOWN OF SOUTHOLD, NEW YORK ACTION OF THE ZONING BOARD OF APPEALS DATE...>UVO.6p.1958 Appeal No. 76' Dated Jnly 15; 1958 ACTION OF THE ZONING BOARD OF APPEALS OF TOWN OF SOUTHOLD To ■• $arty Lieter Appellant West Road, !leets Heokp Catehogeg Now lark--- At ork__At a meeting of the Zoning Board of Appeals on the appeal was considered and the action indicated below was taken on your ( ) Request for variance due to lack of access to property ( ) Request for a special permit under the Zoning Ordinance ( ) Request for a variance to the Zoning Ordinance (Y ) Regneat for a apeoial emeptien is accordance with the Zealog Ordiaaaoe 1. SPECIAL PERMIT. By resolution of the Board it was determined that a special permit ( ) be granted ( ) be denied pursuant to Article..... .............. Section.................... Subsection................ paragraph.................... of the Zoning Ordinance, and the decision of the Building Inspector ( ) be reversed ( ) 'be confirmed because 2. VARIANCE. By resolution of the Board it was determined that (a) Strict application of the Ordinance (would) (would not) produce undue hardship because (b) The hardship created (is) (is not) unique angp(would) (would not) be shared by all properties alike in the immediate vicinity of this property and in the some use district because (c) The variance (does) (does not) observe the spirit of the Ordinance and (would) (would not) change the character of the district because and therefore, it was further determined that the requested variance ( ) be granted ( ) be denied and that the previous decisions of the Buildinq Inspector ( ) be confirmed ( ) be reversed 3. SPECIAL SLCEPTIOHs *See Over ZONING BOARD OF APPEALS Grace B. Meyer Secretary Form ZB4 * Applicant requests permissive use as a Special Eneption as provided under Article III A, Section 350, paragraph 1. (reference Article III, Section 300, paragraph A - Yarinas or beat basins for the dooking; mooring or accommodation of noncommercial boats when authorized as a special exception by Board of Appeals as hereinafter provided). Findings: The land in question is zoned as "Y" and when purchased in 1955 prior to snast- ment of the Zoning Ordinance in 1957 the owner intended to build a motel with docking facilities. In 1956 a complete water system was installed and approved by Now York State Division of Water Power and Control. The Board as a group has visited this site and the members individually have gone over the property at different tines. The Board finds that the construction of this marina would improve the sharaoter of the area and is peculiarly well suited to this location. The slips will be located more or less in the middle of the water front owned by the applicant and would not have any connection with any property owned by others and will be part of the yachtel development. The proposed docks will replace a series of broken and rotted spites and will Out a dock now zoned for business which in tura abuts a Town Dock. In the business sone adjoining the Town Dock there are at present 17 slips now used by the local residents for mooring their amall craft. The public convenience and welfare and justice will be substantially served, and the legally established or permitted use of neighborhood property and adjacent was districts would not be substantially or permanently injured and the spirit of the ordinance would be observed. Decisions Special exception authorized to construct a noncommercial maria- with facilities for mooring 22 boai+s. . 2 _ Southold Town Board of Appeals August 70 1958 , Continued Appeal No, 76 - Application of W. Harry Lister - Public Hearing held on July 31, 1958. Applicant requested permissive use as a Special Exception as provided under Article III A, Section 3509 paragraph 1. (reference Article III, Section 300, paragraph 3► - Nkrinas or boat basins for the docking, mooring or accommodation of noncommercial boats when authorized as a special exception by Board of Appeals as hereinafter provided). rwi*ws: The land in question in zoned as "NO and when purchased in 1955 prior to enactment of the Zoning Ordinance in 1957 the owner intended to build a motel with docking facilities. In 1956 a complete water system was installed and approved by low York State Division of Water Power and Control. The Board as a group has visited this site and the members individually have gone over the property at different times. The Board finds that the construction of this marina would improve the character of the area and is peculiarly well suited to this locations The slips will be located more or less in the middle of the water front owned by the applicant and would not have any connection with my property owned by others and will be part of the yaehtel development. The proposed docks will replace a series of broken and rotted spiles and will abut a dock now zoned for business which in turn abuts i Town Dock. In the business some adjoining the Town Dock there are at present 17 slips now need by the local residents for mooring their small craft. The public convenience and welfabe and justice will be substantially served, and the legally established or permitted use of neighborhood property and adjacent use districts would net be substantially or permanently injured and the spirit of the ordinance would be observed. Decialons Special exception authorised to construct a noncommercial marina with facilities for mooring 22 beats. Kr. Klipp, Town Supervisor and Nr. Tasker, Town Counsel, joined with the Board in discussions regarding Signs and proposed amendments to the Zoning Ordinance. The Secretary was instructed to write Yr. Wickham of the Planning Board and advise his of the Board of Appeals unanimous recommendation of the proposed amendments.. The next meeting of the Board is scheduled for August 140 1958, at 7:30 P.N. Meeting adjourned at 10:15 P. Y. Respectfully submitted, Grace B. Meyer � 7 Secretary • 1 0 0 WHEREAS, a petition was heretofore filed with the Town Board of the Town of Southold by .... .1..ib� `k .. + ! #. ............................................. requesting a change, modification and amendment of the Building Zone Ordinance including the Building Zone Maps made a port thereof by chancq- ing ....... District to. '...' '•, �. 'i , .;.�i...Xi 'aCiCXlf� District the property described in said petition, and WHEREAS said petition was duly referred to the Planning Board for its investigation, recommendation and report, and its report having been filed with the Town Board, and thereafter, a public hearing in relation to said petition having been duly held by the Town Board on the ....�,PftM......day jWW of . ............ ......................... 195.0., and due deliberation having been had thereon NOW, THEREFORE, BE IT RESOLVED that the relief demanded in said petition be, and it hereby is *T11i y ordor of t1G -;oOUt Old oras -0-rd. Ot&�d f:�i�i'1S as of July 230 1911�=. Y COUNTY OF SUFFOLK STATE OF NEW YORK ss. Nbftm of SEARING _&hu aant to,section 287 of the Town Frederick C. Hawkins, being duly sworn, says that t►w mid the provisions of the amended building zone.ordinance of the Town of owner anhe is the d publisher of THE LONG ISLAND Southold, Suffolk Counity, M Y. a; TRAVELER - MATTITUCK WATCHMAN, a public news- public hearing will be held by the Zon-, Ing Board of Appeals of the Town of,j paper printed at Southold, in Suffolk County; and that Southold at the Town clerk's office„ Main Street Southold, N. Y. on July the notice of which the annexed is a printed copy, has been 31, at 8:00 P. M. (E.D.B.T.) upon the application of W. Harry Lister for a published in said Long Island Trove ler-Mattituck Watch- special exception to erect and main- tain ain tain a marina for noncommercial boats' man once each week for .....( . ✓fiC.� .. . weekfs/ in an "M"district. T/ This,property located on S/S Wei i Road, Fleets Neck, cutchogue, N. Y.`` successively, commencing on the ........�..er.'.................... Any person desiring to be heard on t the above.application should appear at day of / . . 19.. ...& the time pad place above specified, Dated July 22, 1958 by order of the t / {zoning Boaid of'Appeals of Towi Southold. c = .. . ' ( �t Sworn to before me this .........C.5/..... day of Notary Public ADELE PAYNE Notary Public, Stete of New York kesic.n"; 1.1 E-1:f0N county No. 52-''A1000 Commission Expires March 30, 1959 COUNTY OF SUFFOLK ss. STATE OF NEW YORK t Saesr�.NOTIM N07%4011 OF RKssiNG Frederick C. Hawkins, being duly sworn, says that Pursuant to section 267 of the Town he is the owner and publisher of THE LONG ISLAND Law and pmslatons of the building .sone ordinance of the Town of South- TRAVELER - MATTITUCK WATCHMAN, a public news- Old, Suffolk county. N. Y. a public hearing will be held by the Zoning paper printed at Southold, in Suffolk County; and that Board of Appeals of the Town of Southold at the Town clerk,&-ofnoq,. the notice of which the annexed is a printed copy, has been Main Street, Southold, N. Y. on An;: gust 28,'3868 at 7:20 P. M. (B.DS.T:1 published in said Long Island Traveler-Mattituck) Watch- upon the application of William zoni L1ndi (11 .,,.�f / „ weeks/ say for a variance of the Zoning on; man once each week for .... %-�� dlnance, Article 111, Section , sub 7. —7� This property located on Been Ave., // A y Mattituck N. Y successively, commencing on the .......... ..(.k:.... ....... Any person desiring to be heard on J this application should appear at the da of �. ...�........ 19..J..O time and place above specified. Y - Dated August 18, 1868 by order of s the Zoning Board of Appeals, of Town ' of Southold. Sworn to before me this ....... .. ....... day of ...�.�-�(...0.�....... 19.5.. .......( ..2c ...... .... . .. �-- Notary Public P.CFL`. fi�i ;E Notary fu New York Reson_ i-folk County No. 52„')41000 Commission Expires March 30, 1959 0 r COUNTY OF SUFFOLK STATE OF NEW YORK ! ss. LEGAL NOTICE NOTICE OF HEARING Pursuant to section 267 of the Town Law and the provisions of the amended Frederick C. Hawkins, being duly sworn, says that building zone ordinance of the Town of Southold,Suffolk County, N. Y. a pub- he is the owner and publisher of THE LONG ISLAND lie hearing will be held by the South- TRAVELER - MATTITUCK WATCHMAN, a public news- lsoard of Appeals QQf the Town of South- Mld at the Town'Clerk'e office, Main paper printed at Southold, in Suffolk County; and that !street, Southold, N. Y. on July Both, 1958 at 7:90 P. DS. (E.D6.T.) upoh the the notice of which the annexed is a printed copy, has been application of W. Harty Lister for a special exception to erect and maintain published in said Long Island Traveler-Mattituck Watch- (a marina for noncommercial boats. This property is located on SIB West /rr .Road, Fiesta Neck, CuWwgue, N. Y. man once each week for .......(,✓..;�1.�..,f_.-.�r�.. weeks Any person desiring to be heard on the above application should appear at successively, commencing on the ........... �.................. the time and place above specified. __ Dated July 15, 1958 by order of the Zoning Hoard of Appeals of Town of 1 day of .77� :C:�:....... 19.: ..: iSouthold. i / / ddd / C L�( Sworn to before me this./..... 1$........ day of :.yj. ........ 19 ..........C�.� ....... .... .. .. .. Notary Public j *OWN OF SOUTHOLD, NEW YORK APPLICATION FOR SPECIAL EXCEPTION APPLIC TI N NO. T DATE. ...!S.. f f4# TO THE ZONING BOARD OF APPEALS, SOUTHOLD, N. Y. I, 4YYA8 W HARRY LISTER of West Road= Fleets Neck Name Street and Number CutchoE1ze.......................................................... ...Naw.,York............................. Municipality State hereby apply to THE ZONING BOARD OF APPEALS for a SPECIAL EXCEPTION in accordance with the ZONING ORDINANCE ARTICLE III SECTION 300 SUBSECTION 3 A THE SPECIAL EXCEPTION IS REQUESTED BECAUSE I am the owner of certain property located on the southerly side of West Road at Fleets Neck, Cutchogue, which is now classified as "M" Multiple Residence District. I am also the owner of other property located immediately to the north on the opposite side of West Road which is classified as "B" Business District and upon which I operate the boatyard known as "Boatmen' s Harbor". As part of my comprehensive plan for the development of the area, I plan to erect duplex yachtel units on the "M" Zoned property, I propose to construct marina facilities on this property along the easterly shore of Wickham Creek extending southeasterly from the south side of West Road to the point where Wickham Creek enters Peconic Bay. The marina facilities will be both for the accomodation of the yachtel occupants and local boat owners who may wish to rent ipooring space, and will contain mooring space for approximately 22 boats. The construction of the marina is a necessary part of the proposed yachtel development and will fit in and compliment the existing facilities at "Boatmen ' s Harbor" and be a natural adjunct thereto. The granting of the special exception applied for will not disturb the orderly and reasonable use of adjacent properties, and the safety, health, welfare, comfort, convenience or the order of the Town will not be adversely affected by said permissive use and its location . In fact, the entire waterfront along Wickham Creek will be improved in appearance and use, including the town dock area at the foot of West Road. The navigability of the public channel from Peconic Bay through Wickham Creek will be substantially stabilizedidilch will all enure to the benefit of the residents of the Town. The proposed permissive use will be in harmony with and promote the general purposes and intent of the Building Zone Ordinance of the Town of Southold. STATE OF NEW YORK ) ^ 55 ...... ............. ..... .. ............................... COUNTY OF Suffolk ) Si nature Swor to hi ...11th...day of........ ly .. ..................19.. 5$.. ............. .. .... .... .. .. otary Public THOMAS M. STARK Not: y Public No. 529157850 State of New York Residing in Suffolk County ��` Commissiou Expires Much 30, P99;6 U FORM ZB2 LEGAL NOTICE NOTICE OF HEARING Pursuant to section 267 of the Town Lar and the provisions of the amended building sone ordinance of the Torn of Southold, Suffolk County, N.Y. a public hearingwill be held by the Zoning Boardof appeals of the Torn of Southod at the Town Clerk's office Main Street, Southold, N.Y. on July 31, at 800 PM ( E.D.S.T. ) upon the application of W. Harry Lister for a special exception to erect and maintain a marina for noncommercial boats in an "M" district This property located on SIS West Road, Fleets neck Cutchogue, N.Y. Any person desiring to be heard on the above application should appear at the time and place above specified. Dated July 22 1958 by order of the Zoning Board of Appeals of Torn of Southold. Please publish once and forward the affidavit of publication immediately to the building inspector. LEGAL NOTICE Notice of Hearing Pursuant to section 267 of the town law amd the provisions of the ammended building zone ordinance of the town of southold, Suffolk County, N.Y. a public hearing will be held by the Zoning Board of appeals of the Town of Southold at the Town Clerk' s offic Main Street, Southold, N.Y. on July 24th 1958 at 7:30PM (F.D.S.T. ) upon the application of W. Harry Lister for a special exception to erect and maintain a marina for noncommercial boats. This property is located on SIS West Road, Fleets Neck,Cutchogue, N.5 Any person desiring to be heard on the above application should appear at the time and place above specified. Dated July 15, 1956 by order of the Zoning Board of Appeals of Town of Southold. Please publish once and forward the affidavit of publication immediately to the Building Inspector i SUPREME COURT t SUFFOLK COUNTY STATE OF NEW YORK - - - - - - - - - - - - - - - - - - - x In the Matter of the Application of ) SUE G. NAGLE and ESTELLE K. COMES, ) and all other residents and property ) owners of the area known as Fleet's Neck, Cutchogue, Town of Southold, ) NOTICE OF Suffolk County, New York, similarly ) APPLICATION situated, Petitioners, ) -against- ) ROBERT GILLESPIE JR. , as Chairman ROBERT BERGEN,) HERBERT ROSENBEid CHARLES GRIGONI�, JR. , and SERGE DOfiN, JR. , constitu- ting the Board of Appeals of the Town of Southold, Suffolk County, ) New York; and HOWARD M. TERRY, Building Inspector of the Town of ) Southold; and W. HARRY LISTER, Respondents. ) SIRS3 PLEASE TAKE NOTICE, that upon the annexed petition of SUE G. NAGLE and ESTELLE K. COMES, verified the day of September, 1958, that the petitioners will move this Court at a Special Term thereof to be held at the County Courthouse Building, Riverhead, Suffolk County, New York, on the 22nd day of September, 1958, at ten o'clock in the forenoon thereof, or as soon thereafter as counsel can be heard, for an order herein, pursuant to the pro- visions of Section 267 of the Town Law of the State of New York and Article 78 of the Civil Practice Act, reviewing and annulling the determination of the respondents, the Board of Appeals of the Town of Southold, New York, and the Building Inspector of the said Town of Southolds among other things, granting the application of the respondent, W. Harry Lister, to erect a marina and yachtel at Fleet' s Neck, in the Town of Southold, Suffolk County, New York, as s more particularly set forth in the petition attached hereto, and for such other and further relief as may be just and proper in the premises. Service of answering affidavits or any papers in opposition] to this applisation ars requested to be served upon the attorney for the petitioners within five ( ) days of the return date of said application. Dated: Patchogue, Now York, September 1958. Yours, &C. , HAROLD ASHARK I Attorney for Petitioners Office & Post Office Address: 31 Oak Street Patchogue, Nov York. i i i I T 1 SUPREME COURT : SUFFOLK COUNTY STATE OF NEW YORK - - - - - - - - - - - - - - - - - - - - : In the Matter of the Application of : SUS G. NAGLE and ESTELLE K. COMES, a and all other residents and property owners of the area known as Fleet's i ![eek, Cutchogue, Town of Southold, Suffolk County, Now York, similarly s situated, s I Petitioners, a -against- PSTITIO ROBERT i I� W GILLESPIEJRas Chairman; RGROMRT BEEN aRROSENBERG, s I� CHARLES 4RIGO*IS, JR., and SERGE DOYEN, JR. , constituting the Hoard of Appeals s of the Town of Southold, Suffolk County, !' New York; and HOWARD M. TERRY Build- 3 ing Inspector of the Town of Aouthold; and W. HARRY LISTER, i Respondents. : i - - - - - - - - - - - - - - - - - - - - x j' TO THE SUPREME COURT OF THE STATE or NEW YORKs The petition of SUE G. NAGLE and ESTELLE K. COMES to this Court, respectfully shows and allegess 1. That at all the times hereinafter mentioned, petitionerst i were and still are residents on West Road at Float's Neck, in the IIII f Town of Southold, Suffolk County, New York. 2. That at all the times hereinafter mentioned, petitioner 'i SUE G. NAOLE, was and now is the owner in fee simple of premises bounded south by Little Peoonic Bay; north by West Road; west by Ijland of the respondent, W. Harry Lister; and east by land of Ij Elwin Schneider. 3• That at all the times hereinafter mentioned, petitioner ) +iSSTELLE K. COMES, was and now is the owner in fee simple of real property bounded south by West Road; north by land of Albert Brengel and Prod W. Young; west by land now or formerly of George j IYengel; and east by land of said Sue G. Nagle. 4. That the premises of the petitioners above described i �r i are improved by dwellings and are used by the petitioners --- their homes. That numerous other persons on whose behalf pati- '; tioners are making this application are similarly situated in that they are respectively the owners of real property at Fleet's Heck aj aforesaid, which lie adjacent, abut or are in close proximity to the promisee which are the subject of the application hereinafter referred to made by the respondent, W. Harry Lister, to the Board of Appeals of the Town of Southold, County of Suffolk, aforesaid. 5. That at all the times hereinafter mentioned, the rea- pondont, Robert Gillespie, Jr., was and still is the Chairman of it the Board of Appeals of the Town of Southold, and that the res- pondents, Robert Bergen, Herbert Rosenberg, Charles Grigonis, Jr. and Serge Doyen, Jr. , were members of the said Board of Appeals, 4 and constitute the said Board of Appeals of the Town of Southold. 6. That at all the times hereinafter mentioned, the Town of Southold was and now is a municipal corporation of the State i of Now York, in the County of Suffolk. II 7• That at all the times hereinafter mentioned, respondent Howard M. Terry, was and now is the Building Inspector of the Town of Southoldl Suffolk County, New York, and duly designated as such Building Inspector by the said Town Board of the Town of Southold. I 8. That said Board of Appeals of the Town of Southold, of which the respondents are the members, as above specified, was i created pursuant to Section 267 of the Town Law of the State of New York, and pursuant to the provisions of the .Building Zone Or- i dinance of the Town of Southold, hereinafter more specifically specified. 9. That the Town of Southold, on or about the 23rd day of j April, 1957, did cause to be adopted a zoning ordinance pursuant t the laws of the State of New York. That thereafter, the said zon- ing ordinance was amended and reenacted pursuant to resolution of s j the said Town Board, on or about April 26, 1958. -2- i i 10. That the said Building Zone Ordinance of the Town of Southold, as reenacted and adopted on April 28, 1958, provides in Article I, Section 100, subdivision 17A, under "Definitions", the following: "17A - MARINA OR BOAT BASIN - Any premises containing one or more piers, wharves, docks, bulkheads, buildings, slips, basins or land under water designed, used or intended to be used primarily for the docking, mooring or accommodation of boats for compensation, whether compensation is paid directly or indireetly." 11. That the said Building Zone Ordinance of the Town of ;f Southold, as reenacted and adopted pursuant to the Town Board resolution of April 28, 1958, provides in Article III, Section 300 j as follows: " "A" Residential and Agricultural District SECTION 300 - In the "A" Residential and Agricultural District) no building or premises shall be used and no Lilding shall be here- to after erectod or altered unless otherwise rovided in this Ordinance, except for one (1) or more of the following uses: 1 - One (1) family dwellings. 2 - Churches, schools, libraries. 3 - Non-commercial parks, playgrounds, (' athletic fields, bathing beaches, bathhouses or boathouses. 3A - Marinas or boat basins for the dock- ing mooring or accommodation of noncommercial boats when authorised be a special exception by the Board of Appeals as hereinafter provided. " 'I 12. That the said Building Zone Ordinance hereinbefore specified provides in Article III A, Section 350, as follows: " "M" Multile Residence District SECTION 3V0 - In the "M" Multiple Residence District, no building or premises shall be used, i and no building shall be hereafter erected or altered unless otherwise provided in this Ordi- nanee except for one (1) or more of the following uses: 1. A usepermitted in an "A" Residential and Agricultural District, 2. Multiple dwellings designed for and oc- cupied by not more then four (4) families. 3. Hotels, motels, and boarding and tourist houses. 4. Tourist cottages. (More than one (1) Tourist Cottage may be permitted on a lot when authorised as a special exception by the Board of Appeals as hereinafter provided) . 5. Accessory uses on the same lot with and customarily incidental to any of the above per- -3- mitted uses. ,, 13. In connection with the subject of the Board of Ap- peals, the said Town Ordinance provides in Article VIII, Section 801-C, as followas "C. SPECIAL POWBAS AND RULES. (MATTERS OF OP.IGI14L JURISDICTION AND BY APPLICATION TO THE BOARD OF APPEALS) . (1) Whenever a use, or the location thereof, is permitted only it the Board of Appeals 1ss shall approve thereof, the Board of Appeals may, in a specific ease and after notice and public hearing, authorise such permissive use and its location within the district in which this ordinance specifies the permissive use may be located, sub- ject however to the followings (a3 Before sxch approval shall be given, the Board of Appeals shall determines- (1) That the use will not prevent the orderly and reasonable use of adjacent properties or of properties in adjacent use districts; (2) That the use will not prevent the orderly and reasonable use of permitted or legally aa- tablished uses in the district wherein the pro- posed use is to be located or of permitted or G le fally established cases in adjacent use districts; 3) That the safety, the health the welfare, the comfort, the convenience or the orler of the Town will not be adversely affected by the proposed use and its location; and (4) That the use will be in harmony with and promote the general purposes and intent of this Ordinance. (b) In making such determination, the Board of Appeals shall also give consideration, among other things, tot- (1) The character of the existing and probable development of uses in the district and the peculiar suitability of such district for the location of any of such permissive uses; (2) The conservation of property values and the encouragement of the most appropriate uses of land; (3) The effect that the location of the proposed use may have upon the creation of undue increase of vehicular traffic congestion on public streets or highways; ? t4) The availability or adequate and proper public or private facilities for the treatment removal or discharge of sewage refuse, or other afluent (whether liquid, solid, gaseous or otherwise) that may be caused or created by or as a result or the use (b Whether the use, or materials incidental thereto, or produced thereby, may give off obnoxious gases, odors, smoke or soot; (6) Whether the use will cause disturbing emissions of electrical discharges, dust, light, vibration or noise; (7) Whether the operations in pursuance of the use will cause undue interference with the orderly enjoy- sent by the public of parking or of recreational facilities, if existing, or if proposed by the Town -4- r orb y other competent Governmental agency; (8) Toth* necessity for bituminous surfaced space for purposes of off-street parkins of vehicles Incidental to the use, and whether such space is reasonably adequate and appropriate and can be furnished by the owner of the plot sought to be used within or adjacent to the plot wherein the us shall be had; �9) Whether a hazard to life, limb or property because of fire, flood, erosion or panic may be created by reason or as a result of the use, or by the structures to be used therefor, or by the inaccessibility of the property or structures thereon for the convenient entry and operation of fire and other emergency apparatus or by the undue concentration or assemblage of persons upon such plot; (10) Whether the use, or the structures to be used therefor, will cause an overcrowding of land or undue concentration of population (11) Whether the plot area is sufficient, appropriate and adequate for the use and the reasonably antidoated operation and expansion thereof; and (12) Whether the use to be operated is un- reasonably near to a church, school, theatre, recreational area or other place of public assembly. (e) The Board of Appeals shall, in authorizing such permissive uses, impose such conditions and safeguards as it may deem appropriate necessary or desirable to preserve and protect the spirit and objectives of this Ordinance." i, 14. That Section 803 of the said Town Ordinance above , specified, provides as follows: "SECTION 803 - Upon the filing with the Board of Appeals of an appeal or of an application for special exception or variance, the Board of Appeals shall fix a time and place for a public hearing thereon and shall give notice thereof as follows: (a) By publishing a notice thereof in accordance with the Town Law. 15. That upon information and belief, at all the times ( hereinafter mentioned, the respondent, W. Harry Lister, was and ! now is the owner of two or more parcels of real property at ( Fleet' s Neck, in the Town of Southold, Suffolk County, New York, j ;which are situate on the south side of West Road. 16. That on or about the 15th day of July, 1958, the said respondent, W. Harry Lister, caused to be filed with the Court of IIAppeals of the Town of Southold, New York, an application for a !!special exception, allegedly pursuant to Article III, Section 300, i sub-section 3A, for permission to erect a yachtel with marina facilities. A copy of said application is annexed hereto and made a part hereof with the same force and effect as though herein set forth in detail. 17. That thereafter, and allegedly pursuant to the pro- visions of the aforesaid Building Zone Ordinance, the Board of Appeals caused to be published a notice of hearing in the "Long Island Traveler-Mattituck Watchman" a newspaper, edition dated July 17, 1958s as follows: LEGAL NOTICE NOTICE OF HEARING Pursuant to section 267 of the Town Law and the provisions of the amended building sone ordinance of the Tom of Southold, Suffolk County, N.Y. a public hearing will be held by the Zoning Board o'f Appeals of the Town of Southold at the Town Clerk's Office, Main Streets Southold, R.Y. on July 24th, 1958 at 7:30 P. M. `E.D.S.T.) upon the application of W. Harry Lister for a special exception to *root and maintain a marina for noncommercial boats. This property is located on 8/8 West Road, Fleets Neck, Cutchogu*, N.Y. Any person desiring to be heard on the above ap- plication should appear at the time and place above specified. Dated July 15, 1958 by order of the Zoning Board of Appeals of Tom of Southold. 1$. That upon information and belief, the hearing noticed for consideration by the Board of Appeals for July 24, 1958, was abandoned and was not the subject of any determination. 19. That thereafter, the said Board of Appeals caused a no} tics of hearing to be published in the "Long Island Traveler- Mattituck Watchman" in the edition dated July 249 1958, reading as follows: LEGAL NOTICE NOTICE OF HEARING Pursuant to section 267 of the Town Law and the provisions of the amended building sone ordinance of the Tom of Southold, Suffolk County, N.Y. a public hearing will be held by the Zoning Board of Appeals of the Town of Southold at the Town Clerk' s Office Main Street Southold N.Yon July 31, at 8s00 P.M. U'D.S.T.) upon the application of W. Harry Lister for a special exception to erect and maintain a marina for noncommercial boats in an "NO district. i -6- ..---._ This property located on SIB West Road, Fleets Neck, Cutchogue N.Y. Any person dosfring to be hoard on the above application should appear at the time and place above specified. Dated July 22 1958 by order of the Zoning Board of Appeals of Town of Southold. That the said notice of hearing is defective in that it does not specify any data of hearing, except July 31. That the said notice" of hearing is defective in that it does not describe the real property affected by the said application for notice of special exception; that the said notice of hearing is defective in that thea application for special exception is not PP p p properly described; that the said notice of hearing is further defective in that it describes the premises to be in an "M" Multiple District, which is incorrect and improper. The said notice of hearing is further defective in that no application for the second notice of hearing was filed or attempted to be filed, and that there is no provi- sion in the Town Law or in the said Zoning Ordinance for two notices of hearings with different return dates thereon. 20. That the printed copy of the notice of hearing pub- lished in the July 24, 1958 edition of the "Long-Island Traveler- i li Mattituek Watchman" will be submitted to the Court upon the pre- sentation of this application. 21. That thereafter, the said Board of Appeals of the Town of Southold proceeded illegally and improperly to hold a hearing upon the aforesaid application of said respondent, W. Harry Lister, pursuant to the application dated July 15, 1958, which had been abandoned, and without legal notice as provided by the Town Law of the State of New York and the Town Ordinance afore-4 " said. That the said hearing was held on July 31, 1958 at Southold New York. 22. That at the said hearing, petitions signed by approxi- i mately 165 residents of Fleet's Nock aforesaid, were presented in i' opposition to and in protest to the granting of the application of the respondent Lister, and were filed with the Board of Appeals. -7- In addition thereto, a number of residents of the area personally stated their objections to the application. 23. That at the hearing, there was no evidence or proofs taken of any kind or mature whatsoever. A general statement of why the applicant Lister desired to obtain a special exception was made by the attorney for the said Lister. No information was set forth by the applicant Lister as to any authority or reason why the said Board of Appeals should grant the applicant Lister a special exception to permit his to *root a yaehtel with marina facilities. 24. That nowhere in the Building Zone Ordinance, Articles I, III and III-A, is there any provision which permits the Board !I of Appeals to grant an application for a yacht*l with marina facilities. 25. That nowhere in the record of the minutes of the i hearing, which will be submitted to the Court on the presentation f j of this matter, is there any evidence presented for the considera- tion of the said Board upon which it could render a determination j it of the matters specified in Article VIII, Section $01-C. i'• 26. That the said Board of Appeals, notwithstanding the j facts hereinabove set forth, did on or about the 6th day of August, 1958, render the following determination in granting the applies- tion of the respondent Listers " *Applicant requests permissive use as a Special Exception asprovided under Article III A Section 350, paragraph 1. (reference Article III, Section 300, para- graph 3A - Marinas or boat basins for the docking, moor Ing or accommodation of noncommercial boat* when author iced as a special exception by Board of Appeals as hereinafter provided) . Findingss The land in question is zoned as "NO and when pur- chased in 1955 prior to enactment of the Zoning Ordi- nance in 1957 the owner intended to build a motel with j docking facilities. In 1956 a complete water system was installed and approved by New York State Division of Water Power and Control. The Board as a group has visited this site and the I _8- I members individually have gone over theproperty at different times. The Board finds that the construetio4 of this marina would improve the character of the area , and is pecmliarly well suited to this location. The slips will be located more or less in the middle of the water front owned by the applicant and would not have any connection with any property owned by others and will be part of the yeehtel de- velopment. The proposed docks will replace a series of broken and rotted spiles and will abut a dock now zoned for business which in turn abuts a Torn Dock. In the business zone adjoining the Town Dock there at present 17 slips now used by the local residents for mooring their small craft. The public convenience and welfare and justice will be substantially served and the legally es- tablished or permitted use oil neighborhood property and adjacent use district would not be substantially or permanently injured and the spirit of the ordi- nance would be observed. Decisions Special exception authorised to construct a non- j commercial marina with facilities for mooring 22 boats. " 27. That upon information and belief, the said determine- , tion of the Board of Appeals, together with the minutes of the hearing, were filed with the Town Clerk of the Town of Southold, pursuant to the provisions of the Town Law of the State of New York, on the 15th day of August, 1958. 28. That the said determination of the Board of Appeals j is erroneous and incorrect in that it granted the application of the respondent, W. Harry Lister, without legal authority therefor i a6d contrary to the laws of the State of New York and contrary to I the terms and provisions of the Building Zone Ordinance of the Tow* of Southold. 29. That the said determination of the Board of Appeals, granting the application of the respondent Lister, is arbitrary, capricious and unreasonable and unwarranted, for the following i ressonss (a) That the notice of public hearing provided for I in the Town Law of the State of New York and in the Building Zone Ordinance was notiven or issued or g published as proscribed by t 9- f r 1 law and any determination made pursuant to such notice is a nullit�. (b) That the determination of the Hoard of Appeals, granting the application of the respondent Lister 1s indefinite and defective in that it does not describe the property to be af- fected by such determination. (c) That the determination of the said Board is er- roneous and defective in that its purpose and use is to permit a yachtel with marina facilities, for which there is no provision in the Building Zone Ordinance, Articles III and III-A, for the property involved. (d) That the determination of the Hoard is without any warrant or legal substance for the reason that no hearing was held and conducted within the meaning and intent of the Town is Law and the Building Zone Ordinance, and, that no evidence whatso- ever was taken to support the application, and for the further reason that there is no record proof that the special exception i should be granted, as sought by the respondent Lister, and that i the granting of the same was arbitrary and without any warrant in law or fact. (e) That the granting of the petition of the respon- r dant Lister, deprives all other property owners in and about Fleet's Deck, in the Town of Southold, of the use of their homes and property without being subjected to the noise, traffic, sanitation problems and the general problems of the operation and maintenance of a business known as a yachtel, contemplated by the nsspondent Lister, as set forth in his petition, and solely for the personal gain of the respondent Lister, at the expense of all the other property owners of the area known as Fleet's Neck. (f) That to permit the respondent Lister to operate a yachtel with marina facilities in the area which is almost entire- 1 i ly residential, contrary to the interests and desires of almost i all of the property owners of the area, is arbitrary, capricious I I -10- i i and unreasonable and without any legal or factual warrant. (g) That the determination of the Board of Appeals in this matter extends to every property owner whose property frontal on Little Peconic Bay and Wickham Creek, the legal right to applyl for and obtain from the Board of Appeals, the same rights and us" extended to the respondent, W. Harry Lister, in the contemplated use of his property. That the result of such determination is to render of little or no value , the expensive procedures and program of zoning adopted by the Town of Southold in 1957 and re- 1 adopted at great expense to the petitioners and the taxpayers of the Town of Southold in the year 1958, by the Town Board of the Town of Southold. j i .I (h) That the claim of the respondent and the finding of the said Board that the subject property is toned Residence "M" is without any basis, since there is nothing in the published notice or the petition to show the specific property specified an does not include any property zoned Residence OM", (i) That the home owners in the area of Fleet's deck and the petitioners herein have no interest in the property of th respondent Lister insofar as any earnings or private gain he may obtain from his property, and therefore, to subject their propert to extra burdens of traffic, noise, sanitation problems and all 'I of the other problems that go with a business operational use suc i as a yachtel, results in confiscation and impairment of the use the property of petitioners and others similarly situated, with due process of law and is therefore unlawful. 30. That the determination of the action complained of by I the petitioners herein was not the result of -a civil action or proceeding in a court of record or Judge of a court of record. f That such determination by the Board of Appeals finally determine the rights of petitioners herein with respect to the matter sough to be reviewed, in that hearing, and a review or determination thereon cannot X101 adequately be reviewed by an appeal or by -11- application to sn officer or administrative body and the deter- mination set forth in the opinion of petitioners, can only be reviewed in this type of proceeding. 31. That petitioners have no adequate remedy either at law or in equity and that the sole remedy available to petition- ers is for an application to review and annul the aforementioned '' determination and action of the respondents Board of Appeals of i the Town of SouthHold, in granting the special exception to par mit the erection of the yachtel with marina facilities. 32. That the Building Inspector of the Town of Southold is made a party because of the fact that this proceeding direct- I ly relates to and concerns the issuance of building permits. i 33• Upon information and belief, said decision by the i :board of Appeals of the Town of Southold, respondents, is wholly illegal and that the grounds of such illegality are as heroin- above specified. 34. That no previous application for the relief herein i sought has been made. WHSREFORB, petitioners respectfully askthat an order be f granted pursuant to Article 78 of the Civil Practice Act, re- viewing and annulling the aforesaid determination of the Board of Appeals of the Town of Southold and of the respondents as the members thereof, granting the application of respondent Lister for a special exception as hereinabove set forth, and for such other and further relief as may be just and E y � proper in the pre- i i j mises, together with costs and disbursements. Dateds Fleet' s Reyk, Cutchogue, Suffolk County, Now York, September 4, 1958, due G. Nagle stella K. Comes —rj 1' 3 i 1 -12- I 4 STATE OF MW YORK } SS. E COUNTY OF SUFFOLK ) SUE G. NAGLE and ESTRUS K. COMES, being duly and several- ly sworn, depose and say that they are the petitioners in this proceeding; that they read the foregoing petition and know the contents thereof; that the same is true to their knowledge, ex- cept as to the matters therein stated to be alleged on informa- tion and belief, and that as to those matters, they believe it to be true. II Sue G. Nagle � I telle K. Cones Sworn to before m• this 1 day of September, 1958. Notary Public, Suffolk County, N.Y. 'i �I ato n �rK 1� ;t I I� i I! l 'k i t i _�3_ ITXH W 'M TOWN OF BOUTEtOLD 11 MM YORK APr"LICATION ?OR Si3>[dYIAL M$FTION Y APpliestion so. 76 .Date July 15,0 1958 i n+t 3«'S tsdi�«11 w L+ Arf17 MS'� Ah'l1TtiAL � a0V13 0Lr), N.Y. . !i 1. W. Barr Linter o! ! $cad. Fleets Beak cutese e _ )sem Xorh hersby apply to Tag A3JUX8 BOARD Or APPULS FOR A SPACIAL 27iv'1Fi" 0 in accordance with the ZONING O.xDVAI CS ARTICLS III SICTION SUB83CT` OR 3 A I� THE 8FMIU &=SnIort is iaiQrw-jya idti'rCjtUSjj I u the owner of eerteia property loaated on the southerly side of F*ost Road at Floet's Acok Cutchotrue, which is now *lassi- fled as OKI, multiple rRooldonee District. I am also the owner of other property located immediately to the north on the opposite aide of gest +toad which Is classified as "a" Nosiness District and upon which I operate the boatyard irtacwn aso:8ostmen's Harbor". I As part of any cO8Vrehens1vo plan for the dorelopmamt of the areane , I plan to erect duplex yaehtel units on the "N" cod prepe ty. I plan to construct marinas facilities on this proppearty al ng the easterly shore of Wickham Crook conceding southeasterly fres the south side of west Road to the pout whore Wickham Crook e ?*conic Bay. The marina facilities will be both for the aceomeds- tion of the y�aehtbl occupants and loom boat owners who easy wish to rent mooring spay, and will oaboain mooring space for appresimat4 iy 32 boats. 0. The construction of the marine is a necessary part the exithe sting facsed ilities at "Boatmeenn's Rand :�r"andibeand aa natrmp adjunct thereto. t The granting of the special amoption applied for will not disturb the orderly and reasonable use of adjacent proprrhea, and the safety health welfare, comfort convenience or the order of the Town call not 'be adversely arrested by said permissive use and Its loeation. In fact, the entire waterfront along W14kham Creels will be improved in appearance and use, including the tern deer area at the fast of hest Head. The =vigabillty, of the publie channel from Posoaid Bay through wickbam Greek will be substsatisl- ly stabilised which will all enure to the benefit of the residents of the Own. The proposed permissive use will be in harmony with and pro_ Ila The the general purposes and intent of the Building Zone Ordinance i of the Tovn sof Southold. algnedl W. Barry Lister ! 1�Tk7F o? tick: YO£tt: h A so 1�,OV 'TF Of Suffolk 3 SIR : INDEX NO............................— YEAR 19__.. PLEASE TAKE NOTICE, that the within is a SUPRE'i,E COURT 1 SUFFOLK COUNTY true copy of a STATE OF ITE + YORK this day made and entered'herein in the office of the Clerk of Dated, 194 In the Matter of the Applica- Youra, &c., tion of SUE G. NAGLE and ESTELLE K. HAROLD ASHARE COVES, etc. , Attorney for Petitioners, Office and Post Office Address 33 WEST MAIN STREET, PATCHOGUE -against- - >jFFOLK CO„ NEW YORK O ROBERT GILLESPIE, JR. , TO Esq, as Chairman; et al. , etc. , Attorney for Respondents. SIR Please take notice that an order of which the COPY NOTICE OF APPLICATION within is a true copy will be presented for settle. A0 PETITION ment and signature herein, to Mr. Justice of this HAROLD ASHARE this Court at the County of Attorney for Petitioners, the day of , 194 31 OaliOffice and Post Office Address at o'clock in the noon, ITMURnWjnMMSTREET. PATCHOGUE SUFFOLK CO., NEW YORK Dated, , 194 " Yours, &c., To Esq. R HAROLD ASHARE Attornffiy for Attorney for Office and Post Office Address Due and timely service of a copy of the within 33 WEST MAIN STREET, PATCHOGUE is hereby admitted. SUFFOLK CO., NEW YORK Dated, 194 To . Esq. Attorney for Attorney for