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HomeMy WebLinkAboutZBA-03/16/1989APPEALS BOARD MEMBERS GERARD P. GOEHRINGER. CHAIRMAN CHARLES GRIGON)S, JR. SERGE DOYEN, JR. JOSEPH H. SAWlCK[ JAMES DINIZiO, JR. Southold Town Board of Appeals MAIN ROAD- STATE ROAD 25 SOUTHOLD, L.I., N.Y. 1197] TELEPHONE (516) 765 1809 MINUTES REGULAR MEETING THURSDAY, MARCH 16, 1989 A Regular Meeting, continued from its March 9, 1989 Regular Meeting Agenda, was held by the Southold Town Board of Appeals on THURSDAY, MARCH 16, 1989 commencing at 7:00 o'clock p.m. at the Southold Town Hall, Main Road, Southold, New York 11971. Present were: Gerard P. Goehringer, Chairman; Charles Grigonis, Jr. and James H. Dinizio, constituting a quorum of the Board. Absent were: Serge J. Doyen, Jr. of Fishers Island and Joseph H. Sawicki (out-of-state). The Board deliberated on each of the following matters: Gladys W. Howell, Appeal No. 3826 - Decision on Page 2; Susan A. Forbes, Appeal No. 3825 - Decision on Page 5; Rev. Charles Bell, Appeal No. 3830 - Decision on Page 8; Nick and Katie Nickolaus, Appeal No. 3824 - Decision on Page 11; Richard and Janet Schl~mpf, Appeal No. 3811 - Decision on Page 14 (Continued). ~outhold Town Board of Appeals -2- March 16, 1989 Regular · Meeting ACTION OF THE BOARD OF APPEALS Appl. No. 3826: Matter of GLADYS W. HOWELL for a Variance to the Zoning Ordinance, Article VII, Section 100-71 for approval of conversion of existing accessory building for dwelling use, accessory to the main dwelling structure, in this Residential-Office (RO) Zone District. Location of Property: 51470 Main Road, Southold, NY; County Tax Map District 1000, Section 70, Block 2, Lot 2. At a Meeting of the Zoning Board of Appeals held on March 16, 1989, the following action was taken: WHEREAS, a public hearing was held on March 9, 1989 under File No. 3826, filed February 6, 1989; and WHEREAS, at said hearing all those who desired to be heard were heard and their testimony recorded; and WHEREAS, the Board has carefully considered all testimony and documentation submitted concerning this application; and WHEREAS, the Board Members have personally viewed and are familiar with the premises in question, its present zoning, and the surrounding areas; and WHEREAS, the Board made the following findings of fact: 1. By this application, applicants request a Variance under Article VII, Section 100-71 for approval of conversion of existing accessory building for dwelling use, accessory to the main dwelling structure, in this Residential-Office (RO) Zone District. Southold Town Board of Appeals -3- March 16, (Appl. No. 3826 - HOWELL decision, continued:) 1989 Regular Meeting 2. The premises in question: (a) contains a total area of approximately 13,078 sq. ft; (b) is improved with both a single-family, one-story principal dwelling structure and accessory garage structure, located in the rear yard area; (c) is identified on the Suffolk County Tax Maps as District 1000, Section 70, Block 2, Lot 2. 3. For the record, floor plans of the accessory structure which is the subject of the variance for conversion into livable area has been submitted and prepared by Gary Williams for the property owner. 4. The principal use of the premises is a single-family dwelling use in the existing principal structure, which is conforming in this Zone District. 5. The building which is the subject of the proposed conversion is the accessory garage building. The accessory building has had recent renovations and other improvements to include new electrical and other utilities (without town approvals). 6. The area of the proposed conversion consists of a size of approximately 18 ft. x 20 ft. and is proposed to contain cooking facilities, to be used on a temporary basis to provide a convenient location on site for additional living quarters needed in the care of the property owner, who is under medical care and is 91 years old. Although the Board Members are sensitive to the personal nature of this matter, they strongly feel that they are without authority under the laws to allow a second dwelling unit on this substandard parcel located in this RO Zone District, as further noted below. 7. The use requested by this variance is not a permitted principal or permitted accessory use in this RO Zone District. 8. Applicant has indicated an intent to attach the garage structure to the principal dwelling, if it would lend to the creation of an Accessory Apartment use, a use which is a common permitted use in an existing principal building in the AC, R-80, R-120, R-200, R-400, R-40, HD, RR, LB, and HB Zone Districts, subject, of course, to the conditions specified under Article III, Section 100-31B(14) of the Zoning Code. This Accessory Apartment by Special Exception permit was not included in this RO Zone District when the Town enacted the new Zoning Code, although the same was permitted under the previous zoning ordinance for the prior "A" Residential and Agricultural Zone District. Southold Town Board of Appeals-4- March 16, 1989 Regular Meeting (Decision, continued:) 9. The criteria for issuing use variances are several: (a) proof by dollars and cents that the land in question can't yield a reasonable return if used for purpose allowed in that zone; (b) plight is due to unique circumstances and not to general conditions in the neighborhood which may reflect unreasonableness of the zoning law itself; (c) use won't alter the essential character of the neighborhood. (See Otto v. Steinhilber, 282 N.Y. 71 (1939); Fayettville v. Jarrold, 53 N.Y. 2d 254 (1981); Douglaston Civic Association, Inc. v. Klein, 51 N.Y. 2d 963 (1980). The criteria for the issuance of a variance in this application has not been satisfied to that required by the Courts. Accordingly, on motion by Mr. Goehringer, seconded by Mr. Grigonis, it was RESOLVED, that the relief requested in the Variance Application for GLADYS W. HOWELL under Appl. No. 3826, BE AND HEREBY IS DE~IED WITHOUT PREJUDICE (for the reasons stated above.) Vote of the Board: Ayes: Messrs. Goehringer, Grigonis and Dinizio. (Absent was: Member Sawicki {out of state) and Member Doyen (family bereavement). This resolution was duly adopted. $outhold Town Board of Appeals -5- March 16, 1989 Regular Meeting ACTION OF THE BOARD OF APPEALS Appeal No. 3825: Upon application of SUSAN A. FORBES for a Variance to the Zoning Ordinance, Article III, Section 100-31, and Article XXIV, Section 100-244 for approval of open deck addition with an insufficient front yard setback. Lot area of premises is nonconforming at approximately 11,300 sq. ft. in this R-80- Zone District. Location of Property: 1075 Narrow River Road, Orient, NY; County Tax Map District 1000, Section 27, Block 3, Lot 6.2. WHEREAS, a public hearing was held and concluded on March 9, 1989 in the Matter of the Application of SUSAN A. FORBES under Appeal No. 3825; and WHEREAS, at said hearing all those who desired to be heard were heard and their testimony recorded; and WHEREAS, the Board has oarefully considered all testimony and documentation submitted concerning this application; and WHEREAS, the Board Members have personally viewed and are familiar with the premises in question, its present zoning and the surrounding areas; and WHEREAS, the Board made the following Findings of Fact: Southold Town Board of Appeals-6- March 16, 1989 Regular Meeting (Appl. No. 3825 - FORBES decision, continued:) 1. By this application, appellants request a Variance under Article III, Section 100-31 and Article XXIV, Section 244 for approval of an open deck addition (with portico entrance) as shown on the architectural rendition prepared by Forbes-Ergas Design Associates, Inc. dated May 12, 1984 (Drawing No. D-1. 2. The premises in question is a parcel of land containing a total lot area of 11,325+_ square feet situated along the north side of Narrow River Road in the Hamlet of Orient, Town of Southold, and more particularly identified on the Suffolk County Tax Maps as District 1000, Section 27, Block 3, Lot 6.2. 3. The subject parcel is improved with an one-story single-family house set back 25.7+- feet from its closest point to the south (front) property line {exclusive of the subject deck and portico extension}. 4. Article III, Section 100-31, and Column iii of the Bulk Schedule of the Zoning Code provides for a minimum front yard setback for parcels in the R-80 Zone District to be 60 feet. 5. Article XIV, Section 100-244 of the Zoning Code provides relief to legal nonconforming lots with an area of than 20,000 square feet for a minimum front yard setback of principal building at 35 feet. less a 6. The area of jurisdiction before this Board is that area toward the street within the 35 ft. front yard restriction. The setback at its nearest point (at the southwest corner) requested by this application is at 14-1/2 feet. The portion of the extention in front of the dwelling extends out eight feet (see architect's sketch and site plan). 7. The amount of relief requested in relation to the requirement is substantial, being a variance of 20-1/2 feet, or 58%, for a 14-1/2 feet setback (in lieu of the required 35 feet). The reduction in relation to the existing nonconforming setback is also substantial, being a variance of 31%, or eight feet. 8. It is the opinion of this Board that an alternative to the requested variance, which would allow for a lesser percentage of relief, is a four-foot deck extension from the front of the house. -7- Southold Town Board of Appeals March 16, 1989 Regular Meeting (Appl. No. 3825 - FORBES decision, continued:) 9. It is the position of this Board in considering this application that: (a) the circumstances are uniquely related to the premises, particularly due to the front yard and lot area nonconformities; (b) the relief as granted is not unreasonable and is the minimal necessary; (c) the relief as granted will not alter the essential character of the neighborhood; (d) there is no other method feasible for appellant to pursue other than a variance; (e) the variance, as granted, will not in turn be adverse to the safety, health, welfare, comfort, convenience, or order of the town, or be adverse to neighboring properties; (f) the interests of justice will be served by granting alternative relief, as noted below. Accordingly, on motion by Mr. Dinizio, seconded by Mr. Goehringer, it was RESOLVED, to GRANT alternative relief for approval of a four-foot open deck structure with extension along side of the existing dwelling, and 6 ' x 8 ' portico entry, under Appeal No. 3825 in the Matter of SUSAN A. FORBES, SUBJECT TO THE FOLLOWING CONDITIONS: 1. Deck extension not protrude more than four feet forward of the front of the house, across its entire proposed length. 2. Deck area not be roofed or enclosed for livable floor area. Vote of the Board: Ayes: Messrs. Goehringer, Grigonis, and Dinizio. (Absent were: Member Doyen of Fishers Island and Member Sawicki {out-of-state}.) This resolution was duly adopted. Southold Town Board of Appeals -8- March 16, 1989 Regular Meeting ACTION OF THE BOARD OF APPEALS Appeal No. 3830: Application for REV. CHARLES BELL for a Variance to the Zoning Ordinance, Article III-A, Section 100-32A and Bulk Schedule for permission to construct addition at rear of existing dwelling with an insufficient rearyard setback. Zone District: R-40. Location of Property: 1330 Donna Drive, Mattituck, NY; Lot #32, Deep Hole Creek Estates; County Tax Map District 1000, Section 115, Block 15, Lot 15. WHEREAS, a public hearing was held and concluded on March 9, 1989 in the Matter of the Application of REV. CHARLES BELL under Appeal No. 3830; and WHEREAS, at said hearing all those who desired to be heard were heard and their testimony recorded; and WHEREAS, the Board has carefully considered all testimony and documentation submitted concerning this application; and WHEREAS, the Board Members have personally viewed and are familiar with the premises in question, its present zoning, and the surrounding areas; and WHEREAS, the Board made the following findings of fact: 1. The premises in question is located along the westerly side of Donna Drive, in the Hamlet of Mattituck, Town of Southold, and is identified on the Suffolk County Tax Maps as District 1000, Section 115, Block 15, Lot 15. 2. The subject premises is known and referred to as subdivision Lot No. 32 on the Map of Deep Hole Creek Estates, Map No. 4256, approved January 28, 1965, contains a total area of 20,467 sq. ft., road frontage of 180.07 feet, and average lot depth of 113.50 feet, and is improved with a single-family, one-story frame house, all as shown on survey prepared by Roderick VanTuyl, P.C. dated November 20, 1978. Southold Town Board of Appeals -9-March 16, 1989 Regular Meeting (Appl. No. 3830 - BELL decision, continued:) 3. By this application, appellant requests a variance from Article III-A, Section 100-32A, and Bulk Schedule of the Zoning Code, for permission to construct new 11 ft. by 16 ft. extension at the southwest section of the rear portion of the existing dwelling, and attached to an existing screened (deck or) porch. 4. Article III-A, Section 100-32-A and Column ii of the Bulk Schedule, of the Zoning Code requires a minimum rearyard setback at 50 feet. Article XXIV, Section 100-244(B) permits a rearyard reduction for a principal structure to 35 feet for lots containing less than 20,000 sq. ft. The subject premises contains a lot area of 20,467 sq. ft., and therefore is regulated by a 50-foot minimum rearyard required for nonconforming lots containing more than 20,000 sq. ft. but less than 40,000 sq. ft. 5. The closest setbacks of the dwelling with the rear deck, as existed prior to its replacement with the new deck, scales at a setback of approximately 30.5 feet from the rear property line. The setback requested by the proposed 11' by 16' addition, which will be in line with the above-mentioned deck, is 19.5 to 20.5 feet (average of 20 feet), depending on the angle. 6. The amount of relief requested by this application is 30 feet from the current zoning code, effectuated on or about January 22, 1989. The zoning requirement prior to January 22, 1989, required a minimum rear yard setback for a principal structure at not less than 35 feet under Column A of the Bulk Schedule, and Section 100-31. 7. In considering this application, the Board also finds and determines: Ga) there is no other alternative available for appellants to pursue other than a variance; (b) the variance requested is uniquely related to the property and will not alter the essential character of the neighborhood; (c) the variance requested is the minimal necessary to afford relief and is not substantial; (d) the variance will not in turn be adverse to the safety, health, welfare, comfort, convenience or order of the town, or be adverse to neighboring properties; (e) in view of all of the above factors, the -10- Southold Town Board of Appeals March 16, 1989 Regular Meeting (Appl. No. 3830 - BELL decision, continued:) interests of justice will be served by granting the relief, as requested and conditionally noted below. Accordingly, on motion by Mr. Goehringer, seconded by Mr. Dinizio, it was RESOLVED, to GRANT the relief requested under Appeal No. 3830 in the Matter of the Application for REV. CHARLES BELL, applied. as Vote of the Board: Ayes: Messrs. Goehringer, Grigonis, and Dinizio. (Members Doyen and Sawicki were absent.) This resolution was duly adopted. DELIBERATIONS/DECISION: Appl. No. 3824 - NICK AND KATIE NICKOLAUS. (continued on next page) $outhold Town Board of Appeals -11- March 16, 1989 Regular Meeting ACTION OF THE BOARD OF APPEALS Appeal No. 3824: Application of NICK AND KATIE NICKOLAUS for a Variance to the Zoning Ordinance, Article III, Section 100-33 (previously 100-32) for permission to locate accessory building in an area other than the required rear yard. Zone District: R-80. Location of Property: 17555 Soundview Avenue, Southold, NY; County Tax Map District 1000, Section 51, Block 1, Lot 2. WHEREAS, a public hearing was held and concluded on March 9, 1989 in the Matter of the Application of NICK AND KATIE NICKOLAUS under Appeal No. 3824; and WHEREAS, at said hearing all those who desired to be heard were heard and their testimony recorded; and WHEREAS, the Board has carefully considered all testimony and documentation submitted concerning this application; and WHEREAS, the Board Members have personally viewed and are familiar with the premises in question, its present zoning, and the surrounding areas; and WHEREAS, the Board made the following findings of fact: 1. The premises in question is located along the north side of Sound View Avenue in the Hamlet and Town of $outhold, and is identified on the Suffolk County Tax Maps as District 1000, Section 51, Block 1, Lot 2. Southold Town Board of -12- Appeals March 16, 1989 Regular Meeting (Appl. 3824 - NICKOLAUS decision, continued:) 2. The subject premises is a described parcel of land containing a total area of 3.01 acres, lot frontage of 130.0 feet (lot width at the principal building line approximately 278 feet, and lot depth of 550+- feet. 3. The subject premises is improved with a single-family, two-story frame house and inground swimmingpool with fence enclosure along the westerly side of the dwelling, all as sketched on survey dated February 10, 1981 (of Roderick VanTuyl, P.C.). 3. By this application, appellants request a variance from Article III, Section 100-33 of the Zoning Code for permission to locate 10' x 18' one-story storage shed along the existing pool fence enclosure with a setback of approximately 90 feet from the bluff and 60+- feet from the westerly property line, all as sketched on the copy of survey submitted for consideration. 4. Article III, Section 100-33 of the Zoning Code requires accessory buildings to be located in the required rear yard area. The required rear yard area for this parcel is that land area between the house and the bluff. 5. It is noted that at the time of the filing of this application on February 3, 1989, Article XI, Section 100-119.2 of the previous zoning code was not included in the newly adopted zoning code amendments (when enacted on or about January 22, 1989). For practical purposes, it is noted that the location of the subject pool shed along the outside of the fence enclosure is not much different than locating same within the fence enclosure, particularly due to the great distance in the yard setbacks (which will not require additional relief by way of a variance). 6. In considering this application, the Board also finds and determines: (a) there is no other alternative available for appellants to pursue other than a variance; (b) the variance requested is uniquely related to the property and will not alter the essential character of the neighborhood; (c) the variance requested is the minimal necessary to afford relief and is not substantial; -13- Southold Town Board of Appeals March 16, 1989 Regular Meeting (Appl. No. 3824 - NICKOLAUS decision, continued:) (d) the variance will not in turn be adverse to the safety, health, welfare, comfort, convenience or order of the town, or be adverse to neighboring properties; (e) in view of all of the above factors, the interests of justice will be served by granting the relief, as requested and conditionally noted below. Accordingly, on motion by Mr. Grigonis, seconded by Mr. Goehringer, it was RESOLVED, to GRANT the relief requested for location of a 10' by 18' pool-storage shed, at a height not to exceed 10 feet, along the existing fence enclosure, as applied under Appeal No. 3824 in the Matter of NICK AND KATIE NICKOLAUS, SUBJECT TO THE FOLLOWING CONDITIONS: 1. Accessory shed shall be used for storage purposes incidental and accessory to the residential use of the premises; 2. Accessory shed shall not be used as sleeping quarters; 3. No kitchen or food preparation shall be permitted; 4. Shower doors must be constructed along the outside wall of building (must open to the outside, rather than a single entry from the inside of building). Vote of the Board: Ayes: Messrs. Goehringer, Grigonis, and Dinizio. (Members Doyen and Sawicki were absent.) This resolution was duly adopted. Southold Town Board of Appeals -14- March 16, 1989 Regular Meeting ACTION OF THE BOARD OF APPEALS Appeal No. 3811: Upon application of RICHARD AND JANET SCHLUMPF for Variances: (a) to the Zoning Ordinance, Article III-A, Section 100-32A for permission to construct principal building with an insufficient front yard setback, and (b) pursuant to New York Town Law, Section 280-a for approval of access over private right-of-way referred to as Silkworth Road extending from the east side of Westphalia Avenue (Road), Mattituck, NY. Zone District: R-40. Location of Property: Lot #1, Map of Point Plesant; County Tax Map District 1000, Section 113, Block 9, Lot 12. WHEREAS, a public hearing was held and concluded on March 9, 1989 in the Matter of the Application of RICHARD AND JANET SCHLUMPF under Appeal No. 3811; and WHEREAS, at said hearing all those who desired to be heard were heard and their testimony recorded; and WHEREAS, the Board has carefully considered all testimony and documentation submitted concerning this application; and WHEREAS, the Board Members have personally viewed and are familiar with the premises in question, its present zoning and the surrounding areas; and WHEREAS, the Board made the following Findings of Fact: -15- Southold Town Board of Appeals March 16, 1989 Regular Meeting (Appl. No. 3811 - SCHLUMPF decision, continued:) 1. By this application, appellants request: (a) a Variance under Article III-A, Section 100-32A for permission to construct principal building with an insufficient front yard setback at 10 feet from the westerly property line, and (b) pursuant to New York Town Law, Section 280-a for approval of access over a private road, extending from the easterly side of Westphalia Road (Avenue) along Silkworth Road up to its intersection with Home Pike Road, in the Hamlet of Mattituck, Town of Southold. 2. The premises in question is a parcel of land containing a total lot area of 23,960+-- square feet situated along the north side of Home Pike (Or Pt. Pleasant) Road, and along the east side of Silkworth Road, in the Hamlet of Mattituck, Town of Southold, and more particularly identified on the Suffolk County Tax Maps as District 1000, Section 113, Block 9, Lot 12. 3. The subject parcel varies in lot width from 59+- feet in width at the southerly end and at 110.54 feet at the northerly end of the subject premises. The contours of the property also vary from 26 feet above mean sea level at the southerly end of the property to zero at the ordinary highwater mark (at the northerly end) of the premises. 4. Article III-A, Section 100-32A of the Bulk Schedule of the Zoning Code provides for a minimum front yard setback for parcels in the R-40 Zone District to be 50 feet. 5. Article XIV, Section 100-244 of the Zoning Code provides relief to certain nonconforming lots with an area of less than 40,000 square feet, but more than 20,000 sq. ft, for a minimum front yard setback of a principal building at 40 feet. 6. The setback at its nearest point requested by this application is at 10 feet from the westerly property line, which abuts a private right-of-way (presently used for access to one parcel). The dwelling is proposed to be situated at the average lot depth setback line at a distance 200 feet northerly from the south property line. The lot depth in this area varies between 82+- feet and 87+- feet in lot depth. 7. It is the opinion of this Board that the character, size, shape and contours of the site lend to the difficulties. -~6- Southold Town Board of Appeals March 16, 1989 Regular Meeting (Appl. No. 3811 - SCHLUMPF decision, continued:) 8. For the record it is noted that a portion of the right-of-way extending from Westphalia Road (Avenue) to premises now or formerly of Thomas Perillo, County Tax Map Parcel No. 1000-114-1-7, was improved and accepted under Appeal No. 3317 March 3, 1989 (decision rendered February 14, 1985). The remaining portion of the right-of-way is in need of improvements, which are stipulated below. 9. It is the position of this Board in considering this application that: (a) the circumstances are uniquely related to the premises; (b) the relief as granted is not unreasonable under the circumstances; (c) the relief as granted will not alter the essential character of the neighborhood; (d) there is no other method feasible for appellant to pursue other than a variance; (e) the variance, as granted, will not in turn be adverse to the safety, health, welfare, comfort, convenience, order of the town, or be adverse to neighboring properties; or (f) the interests of justice will be served by granting alternative relief, as noted below. Accordingly, on motion by Mr. Goehringer, seconded by Mr. Dinizio, it was RESOLVED, to GRANT a Variance for permission to locate new principal dwelling structure with a setback from the westerly property line at 10 feet as shown on the plot plan dated April 20, 1987, and for approval of access, SUBJECT TO THE FOLLOWING CONDITION: That the access road be improved as follows: 1. Improved a full minimum width of 15 feet with full clearance of all brush or plantings to 16 feet in width; -17- Southold Town Board of Appeals March 16, 1989 Regular Meeting (Appl. No. 3811 SCHLUMPF decision, continued:) 2. Improvements be placed to a minimum depth of four inches of packed three-quarter-inch stone blend, then with 2" loam, to be applied to the ground surface and shaped, or excavated to permit the application to same to the minimum depth (after packing). 3. Entire access road from Westphalia Road be maintained at all times in good condition, satisfactory to the Board of Appeals. Vote of the Board: Ayes: Messrs. Goehringer, Grigonis, and Dinizio. (Absent were: Member Doyen of Fishers Island and Member Sawicki {out-of-state}.) This resolution was duly adopted. INTERPRETATION FOR ALTERNATIVE DESIGNATION OF REAR YARD AREA. Several verbal inquiries have been made through our office from other departmental personnel concerning designation of "rear yard area," most of which affect unusually shaped parcels of land with odd angles or lines, or circumstances quite different from the norm. On motion by Mr. Goehringer, seconded by Mr. Dinizio, it was RESOLVED, that the following rule be used in designating the rear yard area of certain parcels, as AN ALTERNATIVE TO THE METHOD DESCRIBED IN THE ZONING CODE, to be used only in UNUSUAL PROJECTS (such as those properties or principal buildings with odd angles or lines): ALTERNATIVE FOR DESIGNATION OF REAR YARD - An unoccupied ground area fully open to the sky between the rear lot line and a line drawn parallel thereto extending from the center of the average lot depth, when the subject lot is improved with a principal structure. This alternative method should not be used in any of the following circumstances: 1. When the lot is vacant (not improved by a principal structure); 2. When the lot is improved by a principal structure wholly set back greater than that area between the street line and the center of the average lot depth. (Lot depth is defined under Section 100-13 of the Zoning Code.) Southold Town Board of Appeals -18- March 16, 1989 Regular Meeting Vote of the Board: Ayes: Messrs. Goehringer, Grigonis and Dinizio. (Absent were: Members Doyen and Sawicki.) This resolution was duly adopted. INTERPRETATION: NONCONFORMING BUILDINGS, Article XXIV, Section 100-242. Several inquiries have been made concerning several examples of extensions of an existing building with a nonconforming yard setback. On motion by Mr. Goehringer, seconded by Mr. Dinizio, it was RESOLVED, that the following interpretation shall apply under Article XXIV, Section 100-242: New construction within the (legal) footprint of the existing construction in order to square off the structure shall not be considered an increase in the nonconformity of a nonconforming building with a conforming use. If this interpretation is unclear, and there are any questions or further clarification needed by any other department, same shall be directed through the Board of Appeals. Vote of the Board: Ayes: Messrs. Goehringer, Grigonis and Dinizio. (Absent were: Members Doyen and Sawicki.) This resolution was duly adopted. (Continued on next page) Southold Town Board of Appeals -19- March 16, 1989 Regular Meeting 7:51 - 8:46 p.m. Public Hearing was reconvened in the Matter of Appl. No. 3785 - RAYMOND NINE, CF~kRLES ZAHRA and PAMELA NINE. Special Exception to the Zoning Ordinance, Article III, Section 100-30B(16) for permission to establish "Bed and Breakfast Use," "an owner-occupied building, other than a hotel, where lodging and breakfast is provided for not more than six casual, transient roomers, and renting of not more than three rooms. Location of Property: North Side of New Suffolk Avenue, Mattituck, NY; County Tax Map District 1000, Section 114, Block 11, Lot 20. (Also, see verbatim transcript of hearing prepared under separate cover and attached at the end of these Minutes for reference.) At the close of the verbatim testimony, motion was made by Mr. Goehringer, seconded by Mr. Grigonis, That the written portion of this hearing be and hereby is extended until the next Regular Meeting of this Board (April 13, 1989), pending consultation with the Town Attorney and if necessary, further questionning by the Members of the Board of Appeals. Vote of the Board: Ayes: Messrs. Goehringer, Grigonis and Dinizio. (Absent were: Members Doyen and Sawicki.) This resolution was duly adopted. INQUIRY AS TO PARKING JURISDICTION: Appl. Nos. 3783 and #3784. Matters of JOSEPH STOCKEN/M & N AUTO by J. Kevin McLaughlin, Esq. Discussion was held concerning correspondence from Mr. Joseph Stocken, and recent requests through the ZBA Office (c/o Linda Kowalski) by J. Kevin McLaughlin, Esq. and Garrett Strang, R.A. with reference to meetings with the Planning Board Members as to the proposed parking area. Mr. McLaughlin indicated that clarification was needed as to the Southold Town Board of Appeals -20- March 16, 1989 Regular Meeting appropriate Department to take lead authority under the site-plan (parking) regulations, particularly since the Board of Appeals had made reference to consideration by the Planning Board of the location of the parking areas. The Board Members unanimously agreed that the following response be sent to Mr. McLaughlin, subject to approval by the Town Attorney, as worded: ...Dear Mr. McLaughlin: This letter will confirm for the record that Condition No. 4 of this Board's decision rendered November 16, 1988 under Appl. No. 3783 in the above matter is hereby clari- fied to leave the parking areas at the sole discretion of the Planning Board under its jurisdiction in the site-plan review process. It is not the intent of the Board of Appeals to substitute its judgment over the Planning Board's discretion in this project. The wording of Condition No. 4 is clear in the first line stipulating that "...the parking areas shall be as designated by the Planning Board .... " This condition was intended only in the event the Planning Board had waived jurisdiction and the applicant proceeded with the plan submitted under the Special Exception. The Board of Appeals, by unanimous vote, hereby waives its jurisdictionunder the parking regulations if the Planning Board wishes to alter the same... " Vote: Ayes: Messrs. Goehringer, Grigonis and Dinizio. (Absent were: Members Sawicki and Doyen.) UPDATE: Appl. No. 3542 - TIDE MARK (CLIFFSIDE ASSOCIATES). Special Exception application pending for Motel Units. Planning Board has accepted Final Environmental Impact Statement (FEIS) and as a part of that review are requiring a reduction in the number of units, thereby requiring amendments to the site-plan maps and possibly floor plans/construction plans. On motion by Mr. Goehringer, seconded by Mr. Dinizio, it was Southold Town Board of Appeals -21- March 16, 1989 Regular Meeting (Appl. No. 3542 - CLIFFSIDE/TIDE MARK Update, continued:) RESOLVED, to authorize a letter to the attorney for the applicant, TIDE MARK/CLIFFSIDE ASSOCIATES, subject to Town Attorney approval, indicating tentative placement for a public hearing at the first available calendar following submission by applicant of the following to complete and update the file since the initial filing: 1. Four site plan maps (revised to comply with FEIS and Planning Board action); 2. Two sets of floor plans and/or general construction plans of units; 3. Written authorization to update file for this new RR Zone District, renun~bered to new Article VI, Section 100-61, Subsection B(4). Vote of the Board: Ayes: Messrs. Goehringer, Grigonis and Dinizio. (Absent were: Members Doyen and Sawicki.) This resolution was duly adopted. NEW APPLICATION: Appl. No. 3831 - RALPH AND PATRICIA PUGLIESE. Review was conducted of this new application for a Special Exception for Winery Use with Wine Storage at 34876 Main Road, Cutchogue, New York. Additional site plan and construction information was requested of the applicant at the time of filing of this application, and to date, same has not been received to complete the file. On motion by Mr. Goehringer, seconded by Mr. Dinizio, it was RESOLVED, that the following documentation be submitted as early as possible to complete the file in the Matter of RALPH AND PATRICIA PUGLIESE under Appl. No. 3831: Four original prints of a site-plan map depicting all the site plan elements required under the zoning code {as accepted by the Planning Board prior to certification by the Building Inspector} showing screening of the parking areas; Southold Town Board of Appeals -22- March 16, 1989 Regular Meeting (Review: Appl. No. 3831 - PUGLIESE, continued:) 2. Two clearly legible prints of the floor plan layout and construction plan of the proposed building. Notice as to the time that the Planning Board feels comfortable with the general elements of the site plan - such as parking areas, ingress, egress, layout of the proposed lot lines, or lot area of 2.0 acres, which is shown to be different than the site as conveyed to you with an acreage of more than 42 acres. Vote of the Board: Ayes: Messrs. Goehringer, Grigonis and Dinizio. (Absent were: Members Doyen and Sawicki.) This resolution was duly adopted. UPDATE - CARRYOVERS FROM HEARINGS HELD MARCH 9, 1989 were noted for the record: Applo No. 3829 - BROWERS WOODS ASSOCIATION and BARBARA REITER for a Reversal of a Determination by Building Inspector to Grant Building Permit No. 17508Z dated October 6, 1988 concerning a proposed "steel building for indoor storage of boats" to be located at premises referred to as "MATT-A-MAR," now or formerly owned by Wickham Road Marina, Inc. Zone District: Marine II. (Previous Zone District: B-Light Business.) Application was filed citing the prior Zoning Code, Art. VI, Sections 100-60 and 100-61, and Art. XIV. New Zoning Code citations refer to Sections 100-121 and 100-122, and Article XXVII for the same or similar provisions for this M-II Zone District. Property Location: W/s Wickham Avenue, Mattituck; 1000-114-3-1. This matter was held over in order to allow time to receive maps, to be submitted within approximately two weeks, for the Z.B.A. file. Appl. No. 3814 - RYCK KOKE. Variance for accessory pool with fence enclosure in the side yard area. Zone: R-40. Location: 245 Kimberly Lane, Southold; Paradise-By-the-Bay Subdivision Lot No. 2. (Rehearing by unanimous vote of the Members present in order to allow further questionning and/or entry of additional facts, evidence and testimony, and amendments as may be required under the newly adopted Master Plan provisions to effectuate the same. (The initial hearing was concluded on January 12, 1989; the last hearing was held March 9, 1989.) Letter from adjacent property owner, Mrs. Corranacchia, was expected to be submitted within the next few days confirming the oral agreement between Ryck Koke and herself. Southold Town Board of Appeals -23- March 16, 1989 Regular Meeting CODE COMMITTEE MEETING DATE: The date of the next Code Committee Meeting was confirmed for Wednesday, March 22, 1989 at 7:30 o'clock p.m. HEARINGS FOR ADVERTISING: On motion by Mr. Goehringer, seconded by Mr. Grigonis, it was RESOLVED, to authorize and direct Board Assistant, Linda Kowalski, to prepare and submit for advertising the Notice of Hearings for the following matters, to be held at a Regular Meeting before this Board on THURSDAY, APRIL 13, 1989: 7:35 p.m. Appl. No. 3832 - JOHlq FORSBERG. Variance to construct deck(s) to existing single-family dwelling structure, maintaining the nonconforming sideyard setback as exists at the westerly side. Lot area of premises is nonconforming at approx. 11,500 sq. ft. in this R-40 Zone District. 1310 West Road, Cutchogue. 1000-110-5-12. 7:40 p.m. Appl. No. 3839 - DIANE DUNBAR. Variance for permission to construct open deck addition with an insufficient setback from the front property line along Dogwood Lane (west). Lot area of premises is nonconforming at approx. 16,243 sq. ft. in this R-40 Zone District. 615 Dogwood Lane, East Marion; Gardiners Bay Estates, Section 2, Lot Nos. 98 and 99; 1000-37-1-11. 7:45 p.m. Appl. No. 3833 - PETER DESANCTIS. Variance for approval of open deck addition with an insufficient setback from the south side line, adjacent to existing fence enclosure. Lot area is nonconforming at 26,964 sq. ft. in this R-40 Zone. Inlet Lane, Greenport; 1000-43-5-2. 380 7:50 p.m. Appl. No. 3836 - ANNA SCHALLER. Variance for garage addition. Lot area is nonconforming at 11,718 sq. ft. in this R-40 Zone. 115 Parson's Boulevard, East Marion; Gardiners Bay Estates, Lot 77 and part of 78; 1000-37-2-5. 8:00 p.m. Appl. No. 3835SE ARTHUR V. JUNGE, INC. Amendment to Special ExceptiOn Granted under #3705 under Art. VIII, Section 1--80B of the prior Zoning Regulations for this previously zoned C-Light Industrial Zone District, now re-zoned to Light Industrial, Art. XIV, Section 100-141, to include establislmment of car repairs with Southold Town Board of Appeals -24- March 16, 1989 Regular Meeting (Hearings for April 13th, continued:) outside storage and future occupancy of vacant building area at easterly side of building (a use to be a permitted use in this Zone District). Location of Property: 22355 C.R. 48, Cutchogue; 1000-96-1-19; containing 45,589+- sq. ft. in lot area. 8:05 p.m. Appl. No. 3834 - FRANK CURRAN. Variance to the Zoning Ordinance, Article III, Section 100-31 for amendment to prior Appl. No. 3769 rendered October 26, 1988 for construction of a pool with deck and fence enclosure with an insufficient frontyard setback and excessive lot coverage, at premises known as 780 Haywaters Road, Cutchogue, NY; County Tax Map Parcel No. 1000-111-01-016. Lot in nonconforming with a lot area of 19,080 sq. ft. in this R-40 Zone District. 8:15 p.m. Appl. No. 3819 - RUTHANN BARTRA. Variance to the Zoning Ordinance, Article III, Section 100-32, for approval of lot containing insufficient lot area located along the easterly side of Breakwater (or Luthers) Road, Hamlet of Mattituck, NY; identified on the Suffolk County Tax Maps as District 1000, Section 106, Block 9, Lot 2.004 (part of 2.1). The premises is located in the R-80 Zone District. 8:20 p.m. Appl. No. 3787 - MARION ROBINS. Variance to the Zoning Ordinance, Article III-A, Section 100-30A.3 for approval of four parcels with insufficient lot area in this pending subdivision located along the east side of Little Neck Road, the north side of Baldwin Place, and the west side of Strohson Road, in the Hamlet of Cutchogue; County Tax Map No. 1000-103-10-2. Total lot area: 6.039 acres. The premises is located in the R-80 Zone District. 8:30 p.m. Appl. No. 3813 - SHELDON HILLS as Trustee for Barterama Corp. Employees Sharing Trust. Variances requested to reduce side yards to less than the required 20 and 25 feet, and less than the total 45 feet for both side yards, on this 2+ acre vacant parcel. Zone District: R-80. Location of Property: Private Right-of-Way referred to as Private Road #11; also referred to as Aldrich Lane Extension), extending off the north side of Sound Avenue, Mattituck, NY; County Tax Map District 1000, Section 112, Block 1, Lot 12; Southold Town Planning Board approved set-off Map March 4, 1985. Southold Town Board of Appeals -25- March 16, 1989 Regular Meeting (Resolution for Hearings for April 13th, continued:) Vote of the Board: Ayes: Messrs. Goehringer, Grigonis and Dinizio. (Absent were: Members Doyen and Sawicki.) This resolution was duly adopted. USES OF ACCESSORY BUILDINGS: Buildings situated separately on a parcel of land, accessory to the principal building of a parcel, and uses thereof were discussed, tt appears that certain accessory buildings are being used for offices, maid's sleeping quarters, workshops, etc., most of which appear to be incidental to the owner's residential use of the premises (and possibly operated without profit or gain). It was the unanimous consensus of the Board Members to bring this subject to the attention of the Code Committee for discussion, and further interpretation may be necessary and/or change of wording in the regulations under the new zoning code. The Secretary was authorized to send a memorandum to the Code Committee Chairman concerning this issue. ACCESSORY APARTMENT SPECIAL EXCEPTION - RO ZONE DISTRICT. {See Gladys Howell decision rendered same date hereof (pages 2-4).} It was the consensus of the Board Members to recommend returning the Provision pertaining to Accessory Apartments by Special Exception to those properties which have now been rezoned from "A" Residential and Agricultural to Residential-Office (RO). This use was not included in the new zoning code regulations. REAPPOINTMENT OF BOARD MEMBER: The Board Members unanimously support and confirm its recommendation in the reappointment of Board Member Charles Grigonis, Jr. Member Grigonis has been an active, dedicated Board Member with the Board of Appeals on zoning matters in the Town of Southold for more than 33 years, and his experience and knowledge over these years are irreplaceable. The Secretary was authorized to send a letter to the Town Board urging Member Charles Grigonis' reappointment. Chairman Goehringer, Member Doyen, Member Sawicki, and Member Dinizio indicated that they would sign the letter as individual members also. The meeting was adjourned at approximately 9:10 p.m. ~es4~ectfully submitted, ..~ y~~_<~~/~._~__~..-"~'~'~.//~--~-~/ Southold Town Board of Appeals ~.-~pproved - A~ril 13, 1989 Southold Town Board of Appeals MAIN RrlAD-STATE RrlAD 25 BOUTHrlI..g, /.I., N,Y. 11cJ'71 TELEPHONE (5161 765 1809 APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. JOSEPH H. SAWICK[ JAMES DINIZIO, JR. TRANSCRIPT OF PUBLIC HEARING SOUTBOLD TOWN BOARD OF APPEALS MARCH 16, 1989 REGULAR MEETING (CONTINUED) Appl. No. 3785SE - Matter of RAYMOND NINE and CHARLES ZAHRA. Special Exception to the Zoning Ordinance, Article III, Section 100-30B(16) for permission to establish "Bed and Breakfast Use," "an owner-occupied building, other than a hotel, where lodging and breakfast is provided for not more than six casual, transient roomers, and renting of not more than three rooms. Location of Property: North Side of New Suffolk Avenue, Mattituck, NY; County Tax Map District 1000, Section 114, Block 11, Lot 20. Present were: Chairman Gerard P. Goehringer, Member Charles Grigonis, Jr. and Member James Dinizio, Jr. Also present were: Board Assistant Linda Kowalski, and approximately 10 persons in the audience. (Absent were: Joseph H. Sawicki {out-of-state} and Member Doyen of Fishers Island - {family bereavement}.) 7:51 p.m. The Chairman opened (reconvened) the public hearing. (For the record, it is noted that the previous hearings on this application were held on October 26, 1988, and March 9, 1989.) CHAIRMkN GOEHRINGER: I'll ask Mr. Bressler if there is anything he would like to say before we start with the -- ERIC J. BRESSLER, ESQ.: Not at this time. CHAIRMAN: Thank you. Mr. DeReeder, you are here with your attorney? JOHN DEREEDER: Yes, Sir, I am. CHAIRMAN: Who would like to speak? MR. DEREEDER: I would like to speak first if possible. I can't promise I'm going to be brief. That's not one of my strong ones. I'm a terrible speaker; I write everything out long hand and type it up. It takes forever but I think we'll get from one end to the other. I'll keep at it. Page 2 - Transcript of Hearing Appl. No. 3785SE - NINE & ZAHRA ZBA March 16, 1989 Regular Meeting MR. DEREEDER, continued: As a start, I will ask the Board to once again refer to Mr. Bressler's exhibits. These are Polaroid pictures, two of which include a substantial stockade fence. I can understand the considerable glea, which Mr. Bressler's clients erected their fence. It's maximu~ height, its finished side in and has no gate, but I'd like to point out in the interest of accuracy the word safety contrary to Mr. Bressler's assertion was not used by me at any time during my comments to the Board on this matter. I am sure of Mr. Bresster's ability to read as he was of mind last week when he attempted to deny me opportunity to consult Counsel before speaking here. Should you have chosen to employ his reading Mr. Bressler could have examined the transcripts of last October's hearing and avoided placing words in my mouth that never belonged there. Instead of asserting that the fence provides such safety, as if these gentlemen had any general regard for the safety or well-being of my family, Mr. Bressler might have added to his credibility instead of eroding it, acknowledged that what this provides is a major of satisfaction to his otherwise frustrated clients. Mr. Nine and Mr. Zahra intended to teach me a lesson with this fence. I hope it is a lesson that neither of them soon forgets. They should cherish their small satisfaction for I'm determined it will be the full measure of their satisfaction regarding this application. The fence is objectionable to say the least--and its erection underscores just how anxious Mr. Nine and Mr. Zahra are, to be the good neighbors that the owner-occupancy requirement in the law is intended to insure. The Zoning Board's first denial of this application is not based as Mr. Bressler asserted in his letter to the Board of January 6th and again at the hearing last week. Simply, "on erroneous reading of the agreement put in evidence and the law applicable thereto," from Mr. Bressler's letter. The denial was made because the Board correctly found and determined last December, and I'm quoting from the denial, "that this Board is without authority to grant a Special Exception use when the project does not meet all of the applicable requirements of the Zoning Code." Nothing within this application has changed to allow the Zoning Board to find and determine different now. Yes, Mr. Bressler is now personally stepping in on behalf of his applicants, and now Pamela Nine has been formally presented to the Zoning Board. And let's not forget the Article 78 Proceeding that has been filed by Mr. Bressler on behalf of his clients in Supreme Court. But the important facts upon which the previous denial was based remain the same as at the last hearing, and they remain clear. Page 3 - Hearing Transcript Matter of NINE & ZAHRA - Appl. No. 3785 March 16, 1989 ZBA Regular Meeting MR. DEREEDER (continued): This property, by any rational standards remains non-owner-occupied. And its use as a Bed and Breakfast under its present ownership, whoever that happens to be, is clearly neitherly incidental, nor subordinate. Mr. Bressler last week addressed only one small part of the deficiency of this application when he attempted to demonstrate that Pamela Nine is entitled to operate a Bed and Breakfast on this property because she is a contract vendee. I'd expect Mr. Bressler to come charging in to last week's hearing, full of landmarked precedents, overwhelming arguments and irrefutable logic. We all know that he's very good at this sort of thing, and frankly, I'd half-feared that he was going to be so formidable that I might take a pretty good trashing. I shouldn't have worried. Instead of landmarked precedents, Mr. Bressler focused nearly as much of his energy last week trying to prevent me from speaking. As he did starring his client's case. And instead of overwhelming arguments in his clients' favor, he sidestepped the of this application and at the heart of its previous denial. Instead of irrefutable logic, Mr. Bressler presented the Board with three Polaroid pictures of the fence. And then he presented Pamela Nine. The Board learned through examination and in giving of testimony, that Pamela Nine is 21 years old, lives with her parents and works in the family card store. She seems like a very nice girl. She likes to cook; she knows how to clean and she thinks she would do a good job running a Bed and Breakfast. She agrees with Mr. Bressler that operating a Bed and Breakfast will allow her to move out on her own. Mr. Bressler's line of questionning also disclosed that she is the same Pamela Nine, who is benefitted by the agreement to operate a Bed and Breakfast, made part of the Board's record that October; and that her father, a one-half owner, will execute a deed to her, in the event that this Board grants a Bed and Breakfast permit. On questionning from the Board, it was learned that she is the same Pamela Nine, who will, under that same agreement forfeit her rights and so-called owner if either Number One, the real owner's decide to sell, or Number Two, she fails to operate a Bed and Breakfast on the premises. Perhaps Mr. Bressler has demonstrated to this Board's satisfaction that Pamela Nine has a legitimate interest in this house. As they have themselves presented the facts; however, neither Charles Zahra nor Raymond Nine occupies, nor intends to occupy these premises which is a clear requirement of the Zoning Ordinance. Page 4 - Transcript of Hearing Matter of NINE & ZAHRA - Appl. No. March 16, 1989 ZBA Regular Meeting 3785 MR. DEREEDER (continued): If Mr. Bressler has convinced you that Pamela Nine is an owner of some kind, and now that there are three owners of the property, by extension of the application before you, you are being asked to place your ability to control any use in which owner-occupancy is a requirement in terrible, irrevocable jeopardy. Let's say that instead of three persons, ten persons now own this house. All of whom live elsewhere. Let's say they own four or five houses all around Southold Town. They invite a new class of partner into their partnership. Not as operators per se who might be construed as employees but as partners. Maybe these invited partners have to give up their share of ownership should they fail to operate a Bed and Breakfast at the satisfaction of the majority. Maybe they don't. Maybe these invited partners have to give up their ownership if the majority decides to sell. Maybe they don't. And maybe these invited partners are all worthy, hard-working, local young people who are frustrated that at 21 years old, they can't buy houses of their own and may be faced with having to live at home. There are rational, healthy purposes for the requirement for owner-occupancy in zoning ordinances. This requirement is a well defined option available to Towns to pursue legitimate zoning goals. legally allows some citizens to approve financial benefits that are withheld from others. This is clearly the case in both the Accessory Apartment uses and the Bed and Breakfast uses in residential zones in Southold Town. It If the Zoning Board wishes to set this dangerous precedent by granting the Special Exception use to a partnership, the decision this Board must make lies at the end of a compellingly simple riddle. How many of the owners of a property must live there in order to meet the owner-occupancy requirement of the law? Simple answer: All of them. I see no room for compromise. More important, however, our present Town Attorney, who was on the Code Committee that drafted this law, sees no room for compromise either. I submit to you part of Mr. Schondebare's letter to this Board dated appropriately Pearl Harbor Day 1988, which I quote: "In order for this application to be approved, Mr. Zahra and Mr. Nine will have to state under oath that they both reside on the premises. As they have both listed their addresses as some place else, I fail to see how they can now state otherwise." The first denial of this application, received and filed by the Town Clerk on December 13, 1988, quotes the actual zoning ordinance. The ordinance specifically provides for "the renting of not more than three rooms in an owner-occupied dwelling for lodging and serving of breakfast and not more than six casual and transient roomers, provided that the renting of such rooms is clearly incidental and subordinate to the principal use of the dwelling." Page 5 - Hearing Transcript Matter of NINE & ZAH~A - Appl. No. March 16, 1989 ZBA Regular Meeting 3785 MR. DEREEDER, continued: Now let's review the document provided to the Board by the applicants upon which his attorney builds his case for owner-occupancy. This is the document under which Mr. Nine transferred to his daughter under carefully set conditions one-half of his one-half interest in the Reeve House. Instead of being called a contract of sale, or anything like that, it boldly titles itself and I quote from the underlined capital letters at the top of its first page: "Agreement for Operation of a Bed and Breakfast." Still confused by the way, even after Mr. Bressler's speech last week, I'm not quite sure that it was determined that this was a valid Contract of Sale at all, or whether Pamela Nine is indeed a contract vendee. I hope that my attorney may be able to clarify that for me in a couple of minutes. But it is revealing that this agreement for operation of a Bed and Breakfast includes the following language: In the event purchaser fails to operate a Bed and Breakfast establishment in accordance with this agreement, she shall upon demand execute and deliver a deed reconveying her inter- est to seller. The provisions of this agreement shall survive delivery of the deed. "That the use is clearly incidental and subordinate to the principal use of the dwelling" is one of only a very few conditions placed upon an applicant seeking a Bed and Breakfast use under Southold Town Law. In view of the extreme severability in Pamela Nine's purported rights of ownership, any Bed and Breakfast use of these premises under present ownership simply is not fully incidental and subordinate to its principal use as an owner-occupied dwelling. Instead this use is clearly anything but incidental and subordinate. Pamela Nine must operate this Bed and Breakfast or have a fragile interest in the property revoked under the same agreement for operation of a Bed and Breakfast that grants her this unusual interest in the first place. As explained to this Board five months ago, and as I have again pointed out tonight, this Board very clearly and very simply does not have the authority to grant this application. Even though Mr. Zahra and Mr. Nine were kind enough again tonight to allow you this new opportunity to consider their case, even though Mr. Bressler may have tenuously placed Pamela Nine in some relation to this application, this property remains owner-occupied for purposes of the Zoning Ordinance only in the imaginations of the applicants and their attorney. Page 6 - Hearing Transcript Matter of NINE & ZAHRA - Appl. No. March 16, 1989 ZBA Regular Meeting 3785 MR. DEREEDER, continued: Furthermore, in light of the document upon which Mr. Bressler has based his arguments regarding owner-occupancy, any finding that this proposed Bed and Breakfast use is clearly incidental and subordinate remains outside the boundaries of any honest argument and beyond the reach of any logical conclusion. Neither Mr. Zahra or Mr. Nine went to approach me and my family before making this application. Or at any time before the first hearing in October. After the hearing, I telephoned Ray Nine, whom I considered a good neighbor, if not a close friend, to explain my strong reaction to their surprise application to try to reopen communications between us. Mr. Nine told me he was upset and he couldn't talk to me. I asked him to call me back so he could speak about the hearing after he cooled down. He never called me back, and he hasn't spoken to me since. In the transcripts of the last hearing, you might recall the following: Mr. Nine: me in the driveway, still goes around, but if there's a problem with that we certainly could do something to interrupt it by We could rectify that. Rectify that so that they wouldn't be able to go around. By nature of a split-rail fence or somethign of that Mr. Zahra. Mr. Nine. Chairman: nature. Mr. Zahra: like. Mr. Nine: Absolutely. Could put up any type of fence that you'd Split rail fence. Trees. Concrete wall. Whatever. Whatever you have to do. In the interim after the hearing, among other comments Mr. Nine and Mr. Zahra directed additional remarks to me about the appropriateness of a concrete wall dividing our properties. This winter the Zahra-Nine fence went up, as you can see from Mr. Bressler's exhibits. The fence between our properties is not split-rail fence. It's 6-1/2 ft. high. It's purposely unfriendly. It's a stockade fence. It's directed wrong-side out and has no gate, and it offsets much of the grace and charm of both our houses. My family will live with that fence as we must because the owners are completely within their rights to keep it there. The Zoning Ordinance cannot regulate mean-spiritedness. My family solace is that the person who appreciates the grace of the Eveyln Reeve House enough to purchase it would likely see the inappropriateness of the fence and remove it. There may be those in this Town who look upon Mr. Zahra and Mr. Nine as local heroes of some kind. And part of that is for a very good reason. Mr. Nine's hard work, generosity, and personal loyalty are legendary around Mattituck. Mr. Zahra has demonstrated Page 7 - Hearing Transcript Matter of NINE & ZAHRA - Appl. No. March 16, 1989 ZBA Regular Meeting 3785 MR. DEREEDER, continued: to the joy of many that our governmental process while imperfect occasionally can be remedied in favor of a righteous citizen. when the Zoning Board finds once again against this application, as it must, hundreds of local citizens and at least one newspaper will be eagerly looking forward to Mr. Zahra's next crusade against municipal oppression. And probably at least as many will be wondering how Mr. Nine came to be involved in all of this. I will be watching as well and participating, if need be. If Mr. Zahra and Mr. Nine had shown my family the slightest consideration, or even given me the courtesy of a phone call at any time during this process, we all might have been able to avoid this entire ugly mess, but they've chosen instead to make me their adversary, and I will be as worthy an opponent as I could have been their ally. These gentlemen have ly misjudged me. I can be sympathetic to and accow~odating of other people's needs more than most people, and I will staunchly defend anyone's property rights, even Mr. Zahra's and Mr. Nine's, but I will not be bullied by tough talk or stockade fences. And I become encouraged not coward when someone begins spending his reputation cheaply because he perceives it to be invincable. I will continue to votely assert my views and vigorously defend my rights so long as either Mr. Zahra or Mr. Nine takes the slightest pleasure in compromising my family's lifestyle or uses the faintest indication that they would attempt to run rough shod over our rights to the quiet enjoyment of our home. Mr. Nine owes it to me and to himself to examine the supposed facts as he believes them about our properties and my business affairs, upon which he seems to justify a large measure of personal resentment towards me. They are simply not true. He should also know that I would like to try to become neighbors with him once again, based on the walls of trust and mutual respect we had shared to some degree before all this began. Should they ever wish to discuss this matter further with me, out of the public forum, I invite Mr. Zahra and Mr. Nine to meet with me in my home. I can only believe that through honest communication between us, both my family's concerns and Mr. Zahra's and Mr. Nine's economic needs can be met. Thank you for your time. Page 8 - Transcript of Hearing Matter of RAYMOND NINE and CHARLES ZAHRA ZBA Regular Meeting of March 16, 1989 JOSEPH ATTONITO, ESQ.: Good evening. Joseph Attonino. The firm's name is Scheyer, Jellenick and Attonito. 227 Middle Country Road, Smithtown. Gentlemen, I'm here tonight for the first time and of course I was not present at the other hearings, so that if I ask some rather naive questions, please have some patience because all I did is pick up naturally from the printed record. However, as I see this, this is an application for a Special Exception. This Board knows very well that in an application for a Special Exception, each and every prerequisite must be met. The proofs are very specific. We go through whatever is in the Code and you have a lot of the usual, general language in your Code that the-- as to the prerequisites that are applicable to each and every Special Exception. Then you have Special-- I won't even go into those because I have to assume that Mr. Bressler covered them in previous hearings and if they're not covered to your satisfaction, that you will vote against it. However, there are certain things, as Mr. DeReeder mentioned, that are specific to this application and just really two to three items. And I will be brief. Two or three items that are very surprising to me. It is not surprising to have a Bed and Breakfast statute linked to an owner-occupancy. I'm from Southampton Town. We have the same thing. My partner has something to do with zoning in Islip. They have the same thing for many of theirs. Smithtown has it. Brookhaven has it. That's quite common. I also notice the rather unusual Agreement that is purported to show owner-occupancy, and that's the agreement that Mr. DeReeder referred to which is labeled and is an Exhibit in this-Agreement for the Operation of a Bed and Breakfast. There is also in your files dated January 6, 1989 a letter from Eric J. Bressler and it states that we are the attorneys for Mr. Nine and Mr. Zahra, et cetera, et cetera. Without quoting the entire letter, it states in part: "In the first instance, the Agreement for Operation of a Bed and Breakfast requires Pamela Nine to reside on the premises and operate a Bed and Breakfast. The Board apparently incorrectly focused only on the permission to do the same executed by Charles Zahra. As a matter of law, the Contract Vendee, Pamela Nine has the requisite direct interest in the property, and then he cites "Matter of Commco, Inc. v. Amelkin." First of all, I seriously dispute whether the Agreement labeled "Agreement for Operation of Bed and Breakfast" is a Contract as stated by Mr. Bressler. First of all, it's totally revocable at almost any time. It is certainly revocable if this Board decides that there shall be no Bed and Breakfast at that house. Page 9 - Hearing Transcript Matter of NINE & ZAHRA Appl. No. March 16, 1989 ZBA Regular Meeting 3785 MR. ANTONITO, continued: Secondly, it has no consideration. Pamela Nine is not paying anything for it. I assumed that Mr. Bressler did not make the statement or the applicants did not make the statement that she paid anything for it in the beginning, and if she's getting a gift, which she very well might and it's perfectly legal, it is about the most revocable gift in the world because if this Board decides that this application is not to be granted, then Pamela Nine doesn't an interest in the house. And if the other two owners decide to sell Pamela Nine has to go along. So what we have here is not a Contract. But Mr. Bressler makes another statement in the letter that it gives the requisite direct interest in the property. This Board well knows that the interests that have been recognized by Zoning Boards traditionally are the gives one's status to make an application is either ownership or application as a contract vendee. I would legally dispute whether this qualifies as a Contract. I would legally dispute whether Miss Pamela Nine qualifies as a contract vendee. I assume that you will get an opinion from the Town Attorney's Office, and I have every reason to believe that the Town Attorney would agree in that particular matter that it is neither a Contract, nor does it really give her an interest in property. It gives her a rather illusory interest. In fact it's a rather illusory document. What you have here is they have to get the approval, or she gets no interest in the property. If she doesn't run the Bed and Breakfast, she's out. And if they want to sell, she has to go along with them. Now I don't care what the deed says. The deed, which I've seen a copy of, also refers to this Agreement, so I cannot believe that that's a real and true interest in the property. And you get to the second point on this particular document. A point with which was made by Mr. DeReeder. Your law calls for owner-occupancy. What exactly is owner occupancy? I'm going to go even a step further than Mr. DeReeder. You have 100 people on the deed and one of them is operating a Bed and Breakfast. Is that an owner-occupancy? Here you have two owners that paid money. I would assume their deed carries documentary stamps and shows consideration. You have another person with who purportedly has an interest by virtue of a rather unusual agreement and she is the one who is going to occupy it. Not a person who has paid money, not a person who has an irrevocable gift, but a person who will go in there solely for the purpose of the owner to be an owner occupany so that you can run a Bed and Breakfast. It would seem to me to be the most illusory of interests in real property. And hardly one that goes along with your statute that calls for owner-occupancy. But even--let's assume though for purposes of argument that it qualifies. Let's assume that this agreement qualifies to make Pamela Nine an owner-occupant. Your statute goes further to state, I may have lsot my marking, here we go--that the use as a Bed and Breakfast must be "clearly incidental and subordinate to the principal use of the dwelling." The principal use of Page 10 - Transcript of Hearing Appl. No. 3785SE - NINE & ZAHRA ZBA March 16, 1989 Regular Meeting MR. ANTONITO, continued: the dwelling is as a one-family house. This is an R-40 District. And it is purely a residential district, so that that must be the principal use. If that is the principal use, how can Pamela Nine make an argument that is valid to this particular Board that her using it as a Bed and Breakfast is the incidental use to her primary use of occupancy? She is only in there by virtue of the agreement which is an exhibit before this Board which is labeled an "Agreement for the Operation of a Bed and Breakfast." And that particular agreement states that if this Board doesn't grant it, she's out as an owner. If she doesn't run it as a Bed and Breakfast, she's out as an owner. If the other two people want to sell, she's out as an owner. How can her occupancy of that house be the principal occupation for that house when it very clearly states that her ownership is only linked to running the Bed and Breakfast? I wish I could come in with these. It would be very easy to put together an agreement that's purportedly fulfills the four corners of the statute, but this doesn't. And I do respectfully submit that if this were a variance, you would have some discretion as you know, variances on variance applications, Zoning Boards of Appeals are vested with relatively broad discretion. But I also submit that this Board is not vested with broad discretion when it comes to a Special Use Permit. The law is clear cases over and over and over again. The Board must make a finding, and that finding must be based upon the evidence submitted by the applicant, the applicant's attorney, or any witnesses that the applicant brings up that the applicant has fulfilled each and every prerequisite for the granting of the Special Use Permit, without again going into the basis prerequisites as found in your Zoning Ordinance, I respectfully submit that the two prime prerequisites have not been met in any way, shape or form. The prerequisite of owner-occupancy and the prerequisite of the Bed and Breakfast being an ancillary use to the prime use as a one-family residence. Thank you, gentlemen. CHAIRMAN: Mr. Bressler? MR. BRESSLER: ~nank you, Mr. Chairman. Let me first address the remarks made by Mr. DeReeder. He made several points. I'll address them one by one. Mr. DeReeder first issue was concerning the fence. And says that there are certain motivations behind the fence. Without getting into that, I would just note for the Board--I'm sure the Board recalls--that Mr. DeReeder asked in the original hearing that the Zoning Board consider a modification to the applicants' plan that will minimize the effect on his family--the loss of privacy. Now though Mr. DeReeder may differ as to the means to achieve that end, I think it's clear that the fence was erected, certainly serves the dual purpose of minimizing the effect on his family on the loss of privacy. In fact I can't think of anything that would minimize the effect greater than a six-foot stockade fence. I don't see that there's any complaint. Curiously, an issue was made that there's no deed and the fence. I really don't understand that argument. The whole idea is to Page 11 - Transcript of Hearing Appl. No. 3785SE - NINE & ZAHRA ZBA March 16, 1989 Regular Meeting MR. BRESSLER, continued: insulate Mr. DeReeder from whatever may go on in the property. Secondly, to address a point of both Mr. DeReeder and Mr. Antonito made with respect to the standing of the Contract Vendee. The cases are clear. As cited, you need authority. The Contract Vendee has the requisite standing. I don't think there's any doubt about that. The next argument that was raised was that all owners must occupy. I don't see that in the Code. It doesn't say all owners. It says it must be owner-occupied. If one who owns lives there, it's owner-occupied. That's what the Code says. This Board is bound to apply it that way. Moreover, the reading of the Ordinance urged by the objectants here leads to some fair and peculiar results. For instance, in the case of a Matrimonial, there was a husband and a wife, they had broken up, the husband moves out, the wife wants to operate a Bed and Breakfast. In the objectant's reading, that of course would not be possible because the estranged husband would have to move back into the house. I don't think that that was the intent of the drafters. I can give you another example. The situation where you have both parents and children akin to our application where they are both on the deed for one reason or another, I don't think that the drafters of the ordinance envisioned everybody moving back in. Owner-occupied. It says owner-occupied. That's what it means. It's owner-occupied. The next issue that was raised is barely worth addressing. I'll just note that whatever the agreement may have been labeled is hardly binding or even relevant. The substance of the agreement is what is important. The next issue that was raised was the fact that there could be a re-conveyance. There's nothing in the Code that says there has to be an ownership interest and it can't be subject to a limitation or a re-conveyance. In this regard, I would note that if Pam Nine doesn't have an interest in the property, I would like to know the title company that would ensure over her deed. The next issue that was raised was a subordinate and incidental issue. This is kind of slippery, a slippery concept since there's no definition of that in the ordinance. But I think the fact that the agreement requires that she operate it as a residence clearly satisfies the principal test. You heard testimony from Miss Nine as to what she is going to do, how she is going to conduct herself, and I think that amply supports the fact that this is an incidental use. Page 12 - Transcript of Hearing Appl. No. 3785SE - NINE & ZAHRA ZBA March 16, 1989 Regular Meeting MR. BRESSLER, continued: Next Mr. Attonito raises an issue regarding consideration. And this as the Board knows and as Mr. Attonito well knows, consideration need not be in the terms of a monetary payment. I think we all know that, so I think the focus on that aspect is misplaced. I think, Mr. Chairman, you asked the question at the last meeting about that, and I think I amply responded to that issue. Finally, I think that the issue here is getting lost in the objectant's arguments here, and it seems to me that what we are dealing with is the issue that a Contract Vendee has standing. That this person will go on the deed. That this person in required to live there. That this person needs to live there. That the next-door neighbors will have privacy and that the application generally meets each and every test set forth in the Code. Now one additional thing I would like to say about this particular area, is to note for the Board, and I'll be handing these up in a moment, that the area in which this premises is located, and of course the DeReeder premises immediately to the west thereof, was prior to the amendment of the zoning ordinance (1989) surrounded on 2-1/2 sides, if you will, by business property and in near proximity to industrial property. After the amendment to the zoning ordinance, we have the properties again surrounded on 2-1/2 sides by Hamlet Business, and nearby we have residential office. And it seems that, therefore, the use of a Bed and Breakfast is one of the lesser intrusions that the objectant could be subjected to with respect to the zoning on the surrounding properties. I'm going to hand up the two zoning maps, which indicate the subject premises in green and the objectant's premises would be the rectangle immediately to the northwest thereof. In sum, what I think we have is a lot of smoke and no fire. I think that the law is extremely clear on the fact that the contract vendee has standing. The contract vendee is going to have a deed. I dare say that that contract is enforceable and on that issue I find one thing very peculiar in the argument made by objectants. They present this Board with the notion that a contract contingent upon a municipal approval is some how a strang animal. This Board sees them all the time. The Planning Board sees them. Every board sees them. There's nothing peculiar about that whatsoever. And I think that to the extent that attention is focused on that, to some how distinguish this contract, or any other contract, is absurd and it doesn't make it any less binding. What it does, as any contract does, it contains conditions. Whether it be this one or other ones. I'm sure the Board is familiar with the fact that all contracts contain certain contingencies, title, zoning in some instances, Planning Board approval, water, sewer, whatever. And I find that to be completely normal and not Page 13 - Transcript of Hearing Appl. No. 3785SE - NINE AND ZA~RA ZBA March 16, 1989 Regular Meeting out of the ordinary. In sum I think that the arguments presented by the objectants tonight are without substance and I think the Board has before it a sufficient record to grant this application. CHAIRMAN: Any rebuttal, Sir? MR. ATTONITO: I don't want to beat a dead horse and I'm not particularly interested in fences. They may make good neighbors, but I'm not entirely sure and I don't think it's particularly pertinent here, one way or the other. I have to get back to the statute. Let's get right back to the statute, and the agreement that's been presented here. The statute says, as a prerequisite of the grant, this Board must find that the use as a Bed and Breakfast is clearly incidental and subordinate. Clearly incidental and subordinate. The applicant has made the point that this contract is enforceable. I'm not going to arqu whether it is or it isn't. What I'm saying, the point was made that the contract requires the young lady to live there. That's true. That's true. She has to live there. But what it really requires is, purchaser, that is Miss Nine, "agrees to establish and operate a Bed and Breakfast establishment in accordance with the Southold Town Zoning Ordinance and the approvals therefore." The contract is unusual in a number of instances. It is not the standard conditional contract that contains conditions subject to a variance, conditions subject to a map filed, site plan being approved. This contract doesn't give -- is not requiring her to live there, it's requiring her to live there only if the Zoning is granted, and that can't possibly fit in the four corners of this statute that says that the applicant must prove that the use as a Bed and Breakfast is clearly incidental. It makes the use as Bed and Breakfast the primary and the only way that Pamela Nine can get title to this property. If you people turn her down, she has no right to get title to this. It's only if you approve her, and she operates the Bed and Breakfast, then she gets a color of title because I have heard nothing, and I don't know anything before this Board that says that if this is every sold, that Pamela is going to get 25% of the proceeds. It says it's revocable, and she has to go along with it. It doesn't say that anybody has paid anything for it. That's all right. Then Mr. Bressler is right. She didn't have to pay anything for it. What happens at the end product? If it isn't payment and bought it, is it a gift? And if it is a gift, what happens if it's sold. Does she get 25%? I don't know. I don't know. But I do know one thing, that this particular agreement does not call for her to live there. It calls for her to live there only if she runs a Bed and Breakfast. That is not incidental. And that's certainly not clearly incidental. So, again, I get back to this. I feel that this is an illusory instrument only to give a color of right to get before this Board, and I believe that even if it does give the right to get before this Board, give Miss Nine or the applicants the right to get before this Board, that it must fail. Because on its own face, it simply says: Miss Nine, you can live there if we are successful and if you run a Bed and Breakfast. If she decides not to run that Bed and Breakfast, she doesn't live there any more. Page 14 - Transcript of Hearing Appl. No. 3745SE - NINE AND ZAHRA ZBA March 16, 1989 Regular Meeting MR. ATTONITO: And if she's not going to live there anymore, how can it possibly be the primary use. How can the Bed and Breakfast possibly be clearly incidental to the main use of the property, which an R-40 zone is a one-family house. Thank you. MR. BRESSLER: Mr. Chairman, Board. Very briefly. Again, we have issues I believe that are without substance. Whether this Board is concerned with what happens at the back end of this contract or what Pamela Nine is going to get, why this Board would be interested in that escapes me. However, I would note just to answer the point, she will be on the deed and the provisions of the agreement require that she enter into the contract of sale as a one-quarter owner, she's entitled to a one-quarter interest, and that's fairly clear. Secondly, I hope the last word on this incidental and subordinate issue, the agreement attracts the ordinance and supports it. It was drawn that way; that's'what it does. It doesn't defeat it. The only way she can go into title is both to own it and operate it. It doesn't make the operation primary, and I think that the objectants are grasping its straws here. And I urge the Board to grant the application. CHAIRMAN: Thank you. Any questions from Board Members? Jim? (None) I'm going to change the situation a little bit here and I'll see if I get an appropriate vote on it, but I'm going to suggest we close this at the next regularly scheduled meeting with no further oral testimony. Since we have two people missing and I do want to confer with the Town Attorney concerning this. So. I'll offer that as a motion. MEMBER GRIGONIS: Second. Vote: Ayes: Ail. (Members Doyen and Sawicki were absent.) t~'I~inda F. K~walski, Board Assistant Secretary, Board of Appeals Town of Southold