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HomeMy WebLinkAboutZBA-02/09/1989Southold Town Board of Appeals MAIN ROAD- STATE ROAD 25 SOUTHOLD, L.I., N.Y. 11971 TELEPHONE (5161 765-1809 APPEALS BOARD MEMBERS GERARD P. GOEHRINGER. CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN. JR. JOSEPH H. SAWICKI JAMES DINIZIO, JR. MINUTES SPECIAL MEETING THURSDAYr FEBRUARY 9r 1989 A Special Meeting was held by the Southold Town Board of Appeals on THURSDAY, FEBRUARY 9, 1989 com~encing at 7:00 p.m. at the Southold Town Hall, Main Road, Southold, New York. Present were: Gerard P. Goehringer, Chairman; Charles Grigonis, Jr., and James Dinizio, Jr., consisting of a quorum of the five-member Board. Absent were: Serge J. Doyen of Fishers Island and Joseph H. Sawicki (out-of-state). Also present was Linda Kowalski, Board Secretary. The Chairman opened the meeting at 7:00 p.m. and the Board Members signed the Waiver of Notice of Meeting. DECISION/UPDATE: Appl. No. 3797. FISHERS ISLAND UTILITY COMPANY, INC. for Variances to the Zoning Ordinance, Article III, Section 100-31 for approval of insufficient area of two proposed parcels in this pending division of land. Location of Property: West Side of Crescent Avenue and North Side of Central Avenue, Fishers Island, NY; County Tax Map District 1000, Section 6, Block 6, Lot 20.4. The Board took the following action: WHEREAS, on December 10, 1987, a Notice of Disapproval was issued by the Building Inspector disapproving an application dated December 10, 1987 on the following grounds: "... Article III, Section 100-31, Bulk and Parking. Variance required by the Zoning Board of Appeals for insufficient total area; Article I, Section 106-20, Subdivisions by Authority of the Planning Board; Southold Town Board of Appeals -2- February 9, 1989 Special Meeting (Appl. No. 3797 - FI UTILITY CO. decision, continued:) and WHEREAS, on November 3, 1988, an Application for Variances was filed under Appeal No. 3797 under the prior zoning code; and WHEREAS, on January 10, 1989, a new Master Plan Zoning Update was adopted under Local Law No. 1-1989, by the Southold Town Board; and WHEREAS, on or about February 2, 1989, the new Zoning Update Map and Regulations were deemed in effect; and WHEREAS, the subject premises was re-designated "R-40" requiring a minimur~ lot area of 40,000 sq. ft.; and WHEREAS, it has been held by the Courts that the law that exists at the time of a decision will apply {Alscot Investing Corp. ¥. Rockville Centre, 99 AD 2d 754, 471 NYS2d 669 (1984), 2d Dept.}; (Aversano v. Two Family Use Board, 117 AD2d 665, 498 NYS2d 403 {1986, 2d Dept.}); {Cathedtral of the Incarnation v. Glimm, 61 NY 2d 826, 473 NYS 972, 462 NE2d 149 (1984)}; NOW, THEREFORE, on motion by Mr. Grigonis, seconded by Mr. Goehringer, it was RESOLVED, for the above reasons, this Board is without authority in the Matter of the Application of FISHERS ISLAND UTILITY COMPANY, INC. under Appl. No. 3797 to consider a Variance as to insufficient lot area when the lots as proposed conform to the lot area requirements of the zoning code in effect at this time. Vote of the Board: Ayes: Messrs. Goehringer, Grigonis and Dinizio. (Absent were: Member Serge J. Doyen and Member Joseph H. Sawicki.) This resolution was duly adopted. $outhold Town Board of Appeals -3- February 9, 1989 Special Meeting HEARING CALENDARED: Appl. No. 3814 - RYCK KOKE. The public hearing on this matter was previously concluded on January 12, 1989. Deliberations commenced on January 12, 1989, and a vote of less than three members to deny or to approve did not carry. The Board Members unanimously agreed to reopen the public hearing, and took the following action: WHEREAS, at a Regular Meeting held January 12, 1989, public hearing was held and concluded in the Matter of Application of RYCK KOKE under Appl. No. 3814; and the WHEREAS, deliberations commenced and a vote was taken subsequent to the close of the hearing on January 12, 1989; WHEREAS, the vote taken on January 12, 1989 by the three Board Members present did not carry to effectuate an official action as required by statute; and WHEREAS, it is the opinion of this Board that the hearing should be reopened 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; NOW, THEREFORE, on motion by Mr. Goehringer, seconded by Mr. Grigonis, it was RESOLVED, to reopen the public hearing in the Matter of RYCK KOKE under Appl. No. 3814 to be held at the Southold Town Hall, Main Road, Southold, New York, on THURSDAY, MARCH 9, 1989, and be it further RESOLVED, that Board Secretary Linda Kowalski is hereby authorized and directed to advertise notice of same in the local and official newspapers of the Town, on or before March 3, 1989, and to send notice to the applicant's attorney. Vote of the Board: Ayes: Messrs. Goehringer, Grigonis. (Members Doyen and Sawicki were absent.) resolution was duly adopted. Dinizio and This Southold Town Board of Appeals -4- February 9, 1989 Special Meeting UPDATE/ACTION OF NO JURISDICTION: Appl. No. 3775 THE COVE AT SOUTh{OLD, INC. The Board Members reviewed Article VI, Section 100-61C of the new Zoning Code pertaining to this RR Zone District designation which was effectuated at the beginning of February 1989. In reading 100-61C, the accessory uses permitted were referred to Section 100-32 of the AC and Low Residential Zone Districts. It was noted that there was no reference directly made to Section 100-33 for the RR Zone District. The Board Members compared this omission for the RR District with the other Zone Districts. Ail the other Zone Districts specifically incorporated the requirements of Section 100-33, and the RR Zone District appeared to be the only Zone District without 100-33. It was noted that it appeared that Section 100-33 was not included in the RR Zone District apparently for several reasons: 1. The property owner is not waived of the requirement for site-plan approval for accessory uses or buildings in the RR Zone District; 2. The rear yard area would technically be that area closest to the waterfront or wetlands, and it is not within the best interests of the town to require an applicant to construct near the water; 3. The Planning Board must require the accessory buildings to be located in an area within the best interests of the Town and the community under its site-plan review; and 4. Any and all accessory buildings must be located not closer than the minimum front yard setback for a principal building. Any deviation from this rule must require a variance or further interpretation for this RR Zone District. ACTION OF THE BOARD OF APPEALS WHEREAS, on August 30, 1988, an application was filed under Appl. No. 3775 in the Matter of the Cove at Southold, Inc. based upon Article III, Section 100-32 and Article IX, Section 100-119.1 of the Zoning Code in effect at that time, in the proposed construction and location of accessory swimmingpool and tennis court structures as shown on the April 25, 1988 Area (Site Plan) Map prepared by Henderson and Bodwell; and Southold Town Board of Appeals -5- February 9, 1989 Special Meeting (Appl. No. 3775 - THE COVE AT SOUTHOLD dec., continued:) WHEREAS, reviews have been made and input received from two other town agencies for this proposal, to wit: the Southold Town Planning Board and the Southold Town Trustees (see letters lastly dated January 12, 1989 and November 1, 1988, respectively); and WHEREAS, by letter dated March 14, 1988, the N.YoS. Department of Environmental Conservation confirms the inclusion of these accessory structures under Wetland Permit No. 10-84-0118; and WHEREAS, by resolution adopted January 10, 1989, Local Law No. 1 - 1989 was adopted by the Southold Town Board concerning approval of the Master Plan Zoning Updates and new Zoning Maps; and WHEREAS, on or about February 2, 1989, the Department of the Board of Appeals commenced its review of pending appli- cations for updates under the new Master Plan Zoning Update; and WHEREAS, under this Department's review, it is noted that the premises which is the subject of this application has been re-designated on the new Zoning Maps from the "A" Residential and Agricultural Zone District to "RR" Resort-Residential; and WHEREAS, Article VI, Section 100-61C of the new Zoning Updates permits the subject accessory uses, provided they are incidental to the residential use of the premises and not operated for gain; and WHEREAS, Article III, Section 100-32 under the previous Zoning Code, applicable to the previous "A" Zone District designation of this property, was amended to Article III, Section 100-33 under the new Zoning Update and is applicable to the following Zone Districts: "...Agricultural-Conservation District and Low Density Residential R-80, R-120, R-200 and R-400 Districts..."; and WHEREAS, Article IX, Section 100-119.2 under the previous Zoning Code has not been made a part of the new Zoning Code; and WHEREAS, it has been held by the Courts that the law that exists at the time of a decision will apply {Alscot Investing Corp. v. Rockville Centre, 99 AD 2d 754, 471 NYS2d 669 (1984, 2d Dept.}; {Aversano v. Two Family Use Board, 117 AD2d 665, 498 NYS2d 403 (1986, 2d Dept.)}; {Cathedral of the Incarnation v. Glimm, 61 NY 2d 826, 473 NYS 972, 462 NE2d 149 (1984)}; Southold Town Board of Appeals -6- February 9, 1989 Special Meeting (Appl. No. 3775 - THE COVE AT SOUTHOLD decision, continued:) NOW, THEREFORE, on motion by Mr. Dinizio, seconded by Mr. Goehringer, it was RESOLVED, that for the above reasons, this Board is without authority to consider a Variance in the Matter of the Applica- tion of THE COVE AT SOUTHOLD, INC. as applied under Appl. No. 3775 (filed August 30, 1988). Vote of the Board: Ayes: Messrs. Goehringer, Grigonis and Dinizio. (Absent were: Member Serge J. Doyen due to serious family illness and Member Joseph H. Sawicki {out-of-state}.) This resolution was duly adopted. CALENDAR DATE: Appl. No. 3785 - NINE AND ZAHRA. On motion by Mr. Goehringer, seconded by Mr. Dinizio, it was RESOLVED, to set THURSDAY, MARCH 9, 1989 as the date of a public hearing in the Matter of RAYMOND F. NINE, PAMELA NINE and CHARLES ZAHRA for a Special Exception 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; and BE IT FURTHER RESOLVED, that the owner and occupant of the dwelling and operator of the proposed Bed and Breakfast Use complete the attached Special Exception form and return same together with a copy of the deed showing proof of ownership for the same. Vote of the Board: Ayes: Messrs. Goehringer, Grigonis and Dinizio. I Absent were: Member Serge J. Doyen due to serious family illness and Member Joseph H. Sawicki (out-of-state}.) This resolution was duly adopted. COUNTY PLANNING RESPONSES. Copies of the February 2, 1989 communications pursuant to the Z.B.A.'s recent referrals was distributed to each of the Board Member leaving the following matters for local determination: Southold Town Board of Appeals -7- February 9, 1989 Special Meeting Howard Lucas/Alice Hussice Appl. No. 3802 Doris Price Moeller Foster Appl. No. 3806 Anthony and Rosemary Bolletino Appl. No. 3810 Peter and Janice Steil Appl. No. 3912 D~)ris K. Brown Appl. No. 3817. Appl. No. 3786 in the Matter of Marion Saccone (SD-88-38) was disapproved by the County Planning Co~nission for the reasons listed on its February 2, 1989 response. REVIEWS: The following pending application were updated under the new zoning code regulations by Board Assistant Linda Kowalski, and were deemed without jurisdiction by the Board of Appeals on the following for the reasons noted therein: Appl. No. 3821 - Wernick. Section 100-119.2 was not in effect at this time since it was eliminated by the adoption of the new zoning code January 1989. The Board's jurisdiction may change if a building permit is not obtained prior to the re-insertion of this provision in the zoning code which may take place at some time in the future. Appl. No. 3822 - Macari. Section 100-242 concerning "nonconforming buildings with conforming uses" now provides that enlargement shall not t~ prevented if such action does not create any new nonconformance or increase in the degree of nonconformance with regard to the regulations pertaining to such building. Appl. No. 3649 Connors. Section 100-119.2 was not included in the newly adopted zoning code regulations and therefore the Board is without jurisdiction at this time. Appl. No. 3818 - Lowell. Section 110-119.2 was not included in the newly adopted zoning code regulations and the Board is at this time without jurisdiction. New application and filing fee check for Nina S. Magen was authorized for return to the applicant for the same reasons as Connors and Wernick, supra. The Board Members unanimously authorized withdrawal and return of the above applications. Southold Town Board of Appeals -8- February 9, 1989 Special Meeting OTHER REVIEWS: The Board Members were updated on each of the following applications and the following action was taken: On motion by Mr. Goehringer, seconded by Mr. Grigonis, it was RESOLVED, to authorize and direct Linda Kowalski to advertise notice of the following matters for public hearings to be held before the Southold Town Board of Appeals at the Southold Town Hall, Main Road, Southold, New York for a Regular Meeting on THURSDAY, MARCH 9, 1989 at the following times: 7:30 p.m. Appl. No. 3826 - GLADYS W. HOWELL 7:35 p.m. Appl. No. 3825 - SUSAN A. FORBES 7:40 p.m. Appl. No. 3813 SHELDON HILLS as Trustee 7:45 p.m. Appl. No. 3828 - ROSEMARY SULLIVAN 7:50 p.m. Appl. No. 3823 - THOMAS THOMPSON 7:55 p.m. Applo No. 3830 - REV. CHARLES BELL 8:00 p.m. Appl. No. 3814 - RYCK KOKE 8:10 p.m. Appl. No. 3824 - NICK AND KATIE NICKOLAUS 8:15 p.m. Appl. No. 3811 - RICHARD AND JANET SCHLUMPF 8:20 p.m. Appl. No. 3785 - RAYMOND F. NINE, PAMELA NINE and CHARLES ZAHRA 8:30 p.m. Appl. No. 3829 - FRED RENGANESCI and ano. Vote of the Board: Ayes: Messrs. Goehringer, Grigonis and Dinizio. (Absent were: Member Serge J. Doyen due to serious family illness and Member Joseph H. Sawicki {out-of-state}.) This resolution was duly adopted. UPDATE: Appl. No. 3808 - GUNTER MORCNEL. The Board was updated concerning the pending application of Mr. Morchel for his proposed addition (for storage purposes) at premises located at the corner of the S/s of the Main Road and the E/s of Sigsbee Road, Mattituck, 1000-143-2-1 & 30. In the Z.B.A.'s recent Southold Town Board of Appeals -9- February 9, 1989 Special Meeting (Appl. No. 3808 - MORCHEL coordination, continued:) referral to the Planning Board, the Planning Board responded with the position that it does not have an application pending before it and would like additional information pertaining to landscaping, screening, parking, etc. Mr. Morchel previously informed the Z.B.A. office that he tried to file an application for site plan with the Planning Board, but their office refused to accept the papers because he needed a variance. The Board's Secretary was directed to ask Mr. Morchel to try once again to provide information to the Planning Board Office which they may deem necessary for a response under this coordination procedure. UPDATE: Applo No. 3542 - TIDE MARK/CLIFFSIDE ASSOCIATES. Pending Special Exception for mote units. The Planning Board, as Lead Agency under SEQRA, has extended its comment period until February 27, 1989. The Board Members indicated they would like to review the FEIS recently coordinated with our office, but indicated their acquiescence in the following: 1. setting a tentative hearing date for the first available meeting following submission by applicant of four site plans (revised to comply with FEIS or as recommended by the Town Attorney and the Planning Board); 2. one set of floor plans of the units is required prior to advertising by the Board of Appeals from the applicant 3. request authorization to update application for this RR Zone District, or other at applicant's preference, for the same or similar Special Exception review. (Any variances which may be needed in the future must be applied by separate application, separate neighbors notices, filing fee, etc.) UPDATE: Appl. No. 3798 - ELIZABETH F. McCANCE. 1000-6-5-5.1, 3 (& 12). The Board authorized and directed that a letter be sent to the Town Attorney explaining the present merger of lots in the immediate vicinity of this application and requesting his legal opinion as to whether or not the Z.B.A. Department is correct in requesting updated, corrected maps showing all the "merger," regardless of the basis for the Building Department's issuance of two separate Pre-C.O.'s. (Mr. Lark feels that the issuance this month of two separate Pre-C.O.'s assures he has two separate valid parcels, and the Z.B.A. Department does not agree.) Southold Town Board of Appeals -10- February 9, 1989 Special Meeting APPROVAL OF MINUTES: On motion by Mr. Goehringer, seconded by Mr. Grigonis, it was RESOLVED, to approve the Minutes of the following Board of Appeals meetings: January 23, 1989 Special Meeting January 12, 1989 Regular Meeting. Vote of the Board: Ayes: Messrs. Goehringer, Grigonis and Dinizio. (Absent were: Member Serge J. Doyen due to serious family illness and Member Joseph H. Sawicki {out-of-state}.) This resolution was duly adopted. NEW APPLICATION REVIEWS: Application filed in behalf of BROWERS WOODS ASSOCIATION concerning premises now or formerly Wickham Road Marina, Inc. or Matt-A-Mar, Inc. located along the west side of Wickham Road, Mattituck; 1000-114-3-1. The Board Members were updated concerning the subject application received by the Board of Appeals Office on February 1, 1989. The Chairman indicated that a letter has been referred to the Town Attorney providing his office with copies of the application and related documents and requesting his legal opinion and guidance as to any and all appropriate steps necessary to complete the Z.B.A. record for a thorough review and consideration, prior to advertising the same for a public hearing, particularly since there are at least two other departments involved in this project. It was also noted that at this time only sections of the foundation had been constructed and that the Town Attorney has been asked as to whether or not a stay on further construction is in order. The Town Attorney's Office response in its February 2, 1989 memorandum was as follows: "...First, Section 267(3) of the Town Law requires a notice of appeal be filed with the officer form whom the appeal is taken as well as with the Board of Appeals. I do not see that this was done in the instant application. With regard to the change over to the amended zoning code, I refer you to Jay's memo dated 2/2/89 (concerning pending applications under the Southold Town Board of Appeals -11- February 9, 1989 Special Meeting (BROWERS WOODS/MATT-A-MAR, continued:) new zoning code)... Your second question refers to a stay on further con- struction. Section 267(4) of the Town Law states an appeal stays all proceedings in furtherance of the action appealed from. However, the stay is not for the use or construction which is the subject of the contro- versy. See Anderson, New York Zoning Law and Practice, Third Edition, Section 22.41 .... " Also provided under separate cover from the Town Attorney's Office was a copy of Court of Appeals citation in the Matter of Douglaston Civic Association, Inc. v. Galvin, et al., 36 NY 2d 1 (1974) concerning aggrieved parties. The Board requested input from the Planning Board under its site-plan regulations and policies in the past (and current), and whether or not a waiver or other action has been taken relevant to this construction project before the Planning Board. Also, the Z.B.A. Secretary indicated that the attorney for the applicants, Daniel C. Ross, Esq. left the application "as is" at this time due to the early stage of the construction activities and that he was cognizant of the fact that the new zoning code and master plan amendments were very near to being implemented. Mr. Ross agreed to submit under separate cover proof of notice by certified mail to the adjacent landowners as shown on the current assessment records (Section 100-125 of the Zoning Code), and any other documentation that would be deemed necessary. Mr. Ross urged that this application be held for a public hearing as early as possible since activities were taking place under the building permit. The Secretary was authorized to send a letter to Daniel C. Ross, Esq. requesting proof of notices to be submitted prior to February 20, 1989 for the early March hearings calendar, and requesting input from the Planning Board concerning the site-plan issue(s). 280-A INSPECTION UPDATE: Appl. No. 3317 - THOMAS PERILLO. 1000-114-1-7. Pursuant to a recent request by Raymond Nine, Contractor performing the improvements to the subject right-of-way, extending from Westphalia Road to the Perillo premises, inspections were recently done by Member Dinizio and Chairman Goehringer. Upon recommendation by the two Board members, the following action was taken: Southold Town Board of Appeals -12- February 9, 1989 Special Meeting (Perillo 280-a Update, continued:) On motion by Mr. Goehringer, seconded by Mr. Grigonis, it was RESOLVED, Goehringer and extending from Thomas Perillo ACCEPTED TO BE Conditions No. February 14, that the improvements as inspected by Chairman Member Dinizio, to the existing right-of-way Westphalia Road to the premises of the applicant, (1000-114-1-7), BE AND HEREBY ARE APPROVED AND IN COMPLIANCE with this Board's decision, 2(a) through (d) under Appeal No. 3317 rendered 1985. Vote of the Board: Ayes: Messrs. Goehringer, Grigonis and Dinizio. (Absent were: Member Serge J. Doyen due to serious family illness and Member Joseph H. Sawicki {out-of-state}.) This resolution was duly adopted. REQUEST FOR P.B. INPUT: Appl. No. 3819 - RLFIS~kNN BARTRA. The Board was updated and input was expected to be received from the Planning Board concerning the general lot-line configuration under the set-off subdivision regulations within the next 45-50 days. The Board agreed to tentatively place this matter on the next available hearings calendar (to wit: April 13, 1989). UPDATE: Appl. No. 3783SE and 3782V - Matters of JOSEPH STOCKEN/M & N AtFfO. A letter was received (1/17/89) from Joseph Stocken concerning a restriction by the Board of Appeals as to no parking within 10 feet of the property line along the west side of the property. The Secretary was asked to check with the applicant's attorney, J. Kevin McLaughlin, Esq. as to his recent communications with the Planning Board to ascertain the problem and if possible what the Planning Board's preference was for a parking arrangement. It was unclear as to why the Planning Board wouldn't have jurisdiction when Condition No. 4 of the Z.B.A. decision reads: "...The parking areas shall be as designated by the Planning Board .... " Approved - ~/ , 1989 Respectfully submitted, r¥ Southold Town Board of Appeals