HomeMy WebLinkAboutZBA-04/27/1989 SPECAPPEALS BOARD
MEMBERS
GERARD P. GOERRINGER, CHAIRMAN
CHARLES GRIGONIS, JR.
SERGE DOYEN, JR.
JOSEPH H. SAWlCKI
JAMES DINIZtO, JR.
Southold Town Board of Appeals
MAIN ROAD - STATE ROAD 25 P.O. BOX 1179 SOUTHOLD, L.I., N.Y. 11971
TELEPHONE (516) 765-1809
FAX NO. (516) 765-1823
MINUTES
THURSDAYt APRIL 27t 1989
~PECIAL MEETING
A Special Meeting was held by the Southold Town Board of
Appeals on THURSDAY, APRIL 27, 1989 commencing at 6:30 o'clock
p.m. at the Southold Town Hall, West-End Conference Room, Main
Road, Southold, New York.
Present were: Gerard P. Goehringer, Chairman; Member
Charles Grigonis, Jr.; Member Joseph H. Sawicki; and Member
James Dinizio, Jr. (Absent, as agreed for this Special Meeting,
was Member Serge J. Doyen of Fishers Island.)
The Chairman opened the meeting and proceeded with the
first agenda item, as follows:
DELIBERATIONS/DECISION: Appeal No. 3819:
Upon Application of RUTHANN BARTRA for a Variance to the
Zoning Ordinance, Article III, Section 100-32 for approval of
lot containing insufficient lot area located along the easterly
side of Breakfwater (or Luthers) Road, Hamlet of Mattituck, NY;
identified on the Suffolk County Tax Mapsas District 1000,
Section 106, Block 9, Lot 1.004 (part of 2.1). The premises is
located in the R-80 Zone District.
WHEREAS, a public hearing was held on April 13, 1989 in the
Matter of the Application of RUTHANN BARTRA under Appeal NO.
3819; 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
Southold Town Board of Appeals -2- April 27, 1989 Special Meeting
(Appl. No. 3819 - BARTRA decision, continued:)
WHEREAS, the Board made the following findings of fact:
1. The premises in question is located in the "Low-Density
Residential R-80" Zone District and is referred to as District
1000, Section 106, Block 9, Lot 2.004 on the Suffolk County Tax
Maps, conveyed by Executor's Deed at Liber 10707 page 351 dated
September 1, 1988.
2. The subject premises as exists:
(a) contains a total lot area of 43,560 sq. ft.
150.0 ft. frontage along the east side of Breakwater (or
Luthers) Road;
with
(b) was conveyed to the applicant on September 1,
1988 pursuant to the Last Will and Testament of the predecessor
in title, David W. Cooper, the applicant's father, who died on
October 12, 1983. {Letters Testamentary were issued on
December 13, 1983);
(c) was part of a 26.715 acre parcel described in
deed recorded in Liber 1797 page 512.
3. Article III, Section 100-31, Bulk Schedule, of the R-80
Zone Regulations provide for a minimum lot area of 80,000 sq.
ft. Although the relief requested in relation to the
requirement is substantial, the lot area as proposed is not out
of character with the lots in the immediate vicinity, as
described, infra.
4. In viewing the immediate area of the subject premises,
the following information is noted:
(a) the subject premises immediately abuts the R-40
Low-Density Residential Zone District to the north;
(b) the premises to the west is a Development known
as Captain Kidd Estates which is also located in the R-40
Low-Density Residential Zone District and which consists of lots
generally of 10,000 to 12,000 sq. ft. in area;
(c) premises adjacent and adjoining the northerly
property line of the subject lot contains a lot area of one acre
and is improved with multiple residences (ID#1000-106-9-1 now or
formerly of Gannone);
$outhold Town Board of Appeals -3- April 27, 1989 Special Meeting
(Appl. No. 3819 - BARTRA decision, continued:)
(d) premises adjoining the subject premises to the
south/east is a 26+- acre parcel presently vacant and
undeveloped at this time.
5. For the record it is noted that:
Ia) the predecessor in title died only a few months
after the enactment of Local Law #7-1983 adopted May 13, 1983
which provided for an increase from 40,000 sq. ft. to 80,000 sq.
(b) the evidence does prove the intentions of the
decedent/predecessor in title to convey the land in a manner
permitted under zoning near the time of his death;
(c) the map submitted and pending before the Southold
Town Planning Board does confirm the proposed layout of the
lots, distributed as provided in the Last Will and Testament of
David W. Cooper dated April 2, 1976;
(d) the area of jurisdiction by this Board is the
subject 1.0-acre lot; and the owners of the remaining 26.9+-
acres do agree {see verbatim transcript of hearing} to lay out
the lots without further lot area reductions and as required by
the minimum lot area regulations of the zoning code (and as
deemed proper under the subdivision regulations by authority of
the Planning Board).
6. In considering this application, the Board also finds
and determines: (a) the relief as requested does not in turn
increase the dwelling unit density; (b) the evidence
submitted, and practical difficulties claimed, are sufficient to
warrant a grant of this variance; (c) there will be no
substantial change in the character of the neighborhood or
detriment to adjoining properties for reasons as noted in the
above paragraphs; (d) the difficulties cannot be obviated by
some method feasible to the appellant to pursue, other than a
variance; (e) that the relief requested is not out of
character with those lots generally existing in the immediate
area; (f) that in view of the manner in which the
difficulties arose, and in considering all the above factors,
the interests of justice will be served by granting the
variance, as conditionally noted below.
Accordingly, on motion by Mr. Goehringer, seconded by
Mr. Grigonis, it was
Southold Town Board of Appeals -4- April 27, 1989 Special Meeting
(Appl. No. ~819 - BARTRA decision, continued:)
RESOLVED, to GRANT a variance as to insufficient lot area
of the parcel identified on the Suffolk County Tax Maps as
District 1000, Section 106, Block 9, Lot 2.004, containing 1.0
acreage under Appeal No. 3819 in the Matter of RUTHANN BARTRA,
SUBJECT TO THE FOLLOWING CONDITION:
That the remaining lands, formerly in the ownership of
David W. Cooper, now in the ownership of devisees under the Last
Will and Testament, are subject to authority of the Planning
Board under the s%ubdivision regulations as stipulated b¥ Chapter
106, without lot area reductions to less than the minimum
required under Chapter 100 of the Zoning Code {as agreed).
Vote of the Board: Ayes: Messrs. Goehringer, Grigonis,
Sawicki and Dinizio. (Absent, as agreed for this Special
Meeting, was: Member Doyen of Fishers Island.) This resolution
was duly adopted.
Southold Town Board of Appeals -5- April 27, 1989 Special Meeting
ACTION OF THE BOARD OF APPEALS
Appeal No. 3832:
Upon application of JOHN FORSBERG for a Variance to the
Zoning Ordinance, Article XXIV, Section 100-242 (and Article
III-A, Section 100-30A.31 for permission to construct deck(s) to
existing single-family dwelling structure, maintaining the
nonconforming sideyard setback as exists at the westerly side.
Location of Property: 1310 West Road, Cutchogue, NY; County Tax
Map District 1000, Section 110, Block 5, Lot 12.
WHEREAS, a public hearing was held on April 13, 1989, in the
Matter of the Application of JOHI~ FORSBERG under Appeal No. 3832;
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 in the "Low Density
Residential R-40 Zoning District and is identified on the Suffolk
County Tax Maps as District 1000, Section 110, Block 5, Lot 12.
2. The subject premises as exists:
(a) contains a total lot area of 11,600+- square feet;
(b) has a total frontage (lot width) along the north
side of West Road of 50 feet;
$outhold Town Board of Appeals -6- April 27, 1989 Special Meeting
(Appl. No. 3832 - FORSBERG decision, continued:)
(c) is improved with a single-family dwelling,
one-family cottage, and accessory private garage, all as more
particularly shown on the Map prepared by Alden W. Young, L.S.
dated November 19, 1969, and referenced in Certificate of
Occupancy No. Z6504 dated June 3, 1975.
3. The relief requested by this application is for
permission to construct an open deok addition extending from the
rear of Dwelling #1, 20 feet wide and 25 feet long, in line with
the existing line of the westerly side of the house, and as shown
on the sketched copy of survey submitted with the application.
The setback as requested appears to be at approximately two feet,
or slightly more than the established nonconforming sideyard
setback at 1.7 feet.
4. Article III-A, Section 100-32-A and Column ii of the
Zoning Code (Bulk Schedule) requires minimum sideyards at 15 and
20, for a total of 35 feet for a principal structure.
5. Article XXIV, Section 100-244B permits a side yard
reduction for a principal structure to minimums of 10 and 15, for
a total of 25 feet for lots containing less than 20,000 sq. ft.
in area, which of course is applicable in this case since this
lot contains a lot area of approximately 11,600 and the lot
appears to have been held in single and separate ownership.
6. Referenee was made by Board Members to a prior
determination of the Board of Appeals in the Matter of the
Application of James F. Druck III under Appl. No. 3210 rendered
April 19, 1984, which received similar alternative relief for an
extension of the nonconforming sideyard at four feet (instead of
the requested 1.69 feet).
7. In considering this application, the Board finds and
determines:
(a) that the circumstances of the nonconforming
property and building lend to the uniqueness of this application;
(b that the relief as alternatively granted is a
lesser reasonable variance than that requested;
(c) that the granted of a variance with alternative
relief will not cause a substantial adverse effect of increased
dwelling density thus produced on available governmental
facilities;
(d) the variance as alternatively granted will not in
turn cause a substantial effect on the safety, health, welfare,
comfort, convenience, order of the town;
Southold Town Board of Appeals -7- April 27, 1989 Special Meeting
(Appl. No. 3832 - FORSBERG decision, continued:)
(e) in view of the manner in which the difficulty
arose and in consideration of all the above factors, the
interests of justice will be served by granting this application,
as applied and further noted below.
Accordingly, on motion by Mr. Grigonis, seconded by
Mr. Dinizio, it was
RESOLVED, that the relief as requested maintaining the
existing nonconforming sideyard at 1.7 is hereby DENIED as
applied; and IT WAS FURTHER
RESOLVED, TO GRANT ALTERNATIVE RELIEF FOR THE PROPOSED
OPEN-DECK CONSTRUCTION, SUBJECT TO THE FOLLOWING CONDITIONS:
1. That the setback from the westerly side yard for the
proposed open deck be not closer than three feet;
2. That the deck remain open, unenclosed and unroofed (as
applied);
3. That there be no lighting which will be adverse to
neighboring properties.
Vote of the Board: Ayes: Messrs. Goehringer, Grigonis,
Sawicki and Dinizio. (Member Doyen, of Fishers Island, was
absent as agreed.) This resolution was duly adopted.
.Southold Town Board of Appeals -8- April 27, 1989 Special Meeting
ACTION OF THE BOARD OF APPEALS
Appeal No. 3839:
Upon application of DIANE DUNBAR for a Variance to the
Zoning Ordinance, Article III, Section 100-31 as disapproved,
Article III-A, Section 100-30A.3 and Article X/(IV, Section
100-242B 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 16,423+-
sq. ft. in this R-40 Zone District. Location of Property: 615
Dogwood Lane, East Marion; Map of Gardiners Bay Estates, Section
2, Lot Nos. 98 and 99; County Tax Map District 1000, Section 37,
Block 1, Lot 11.
WHEREAS, a public hearing was held on April 13, 1989, in the
Matter of the Application of DIANE DUNBAR under Appeal No. 3839;
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 in the "Low Density
Residential R-40 Zoning District" and is identified on the
Suffolk County Tax Maps as District 1000, Section 37, Block 1,
Lot 11.
Southold Town Board of Appeals -9- April 27, 1989 Special Meeting
(Appl. No. 3839 - DUNBAR decision, continued:)
2. The subject premises as exists:
(a) contains a total lot area of 16,423+- square feet;
(b) has frontage (lot width) along the easterly and
northerly sides of Dogwood Lane and is a corner lot as defined by
Section 100-13 of the Zoning Code;
(c) is improved with a single-family one-story
dwelling, (livable area approx. 864 sq. ft.), all as more
particularly shown on the Sketch Map prepared by the applicants.
3. The relief requested by this application is for approval
of an open deck platform-type addition of a size with variablesm
length 38 feet, depth at 24 feet from the breezeway area in front
of the house and at 12 feet from the northerly end of the front
of the house, more particularly shown on the sketched copy of
survey and construction sketch submitted under this application.
The setback as ~equested is shown to be 25 feet from the
southerly front'property line along Dogwood Lane.
4. Article III-A, Section 100-32-A and Column ii of the
Zoning Code (Bulk Schedule) requires minimum front yards at 50
for a principal structure. (Article III, Section 100-31, as
disapproved, does not apply to this R-40 Zone District.)
5. Article XXIV, Section 100-244B permits a frontyard
reduction for a principal structure to 35 feet for lots
containing less than 20,000 sq. ft. in area, which of course is
applicable in this case since this lot contains a lot area of
16,423+- sq. ft. and there is no question that the lot has been
held in single and separate ownership (for the purposes of
applying this Section of the statute).
6. In considering this application, the Board finds and
determines:
{a) that the subject platform is close to ground
level, and is more of a "structure" rather than a "building" as
provided under the definitions (Section 100-1~ of the Zoning
Code);
Southold Town Board of Appeals -10- April 27, 1989 Special Meeting
(Appl. No. 3839 - DUNBAR decision, continued:)
(b) circumstances of the nonconforming property and
building setbacks as exist lend to the uniqueness of this
application;
(c) that the structure as proposed is the minimum
necessary to afford relief;
(d) that the grant of this variance does not cause a
increased dwelling density thus produced on available
governmental facilities;
(e) the deck structure will not in turn cause a
substantial effect on the safety, health, welfare, comfort,
convenience, order of the town;
(e) in view of the manner in which the difficulty
arose and in consideration of all the above factors, the
interests of justice will be served by granting this application,
as applied and further noted below.
Accordingly, on motion by Mr. Sawicki, seconded by
Mr. Grigonis, it was
RESOLVED, that the deck-platform structure requested under
Appeal No. 3839 in the Matter of DIANE DUNBAR, BE AND HEREBY IS
APPROVED AS APPLIED AND SUBJECT TO THE FOLLOWING CONDITIONS:
1. The subject deck structure not be physicially attached
(as exists) to the dwelling;
2. The subject deck structure not be elevated higher than
exists (see sketch and photographs in file for reference, if
needed);
3. The subject deck structure not be roofed or enclosed.
Vote of the Board: Ayes: Messrs. Goehringer, Grigonis,
Sawicki and Dinizio. (Member Doyen, of Fishers Island, was
absent as agreed.) This resolution was duly adopted.
lk
Southold Town Board of Appeals -11- April 27, 1989 Special Meeting
ACTION OF THE BOARD OF APPEALS
Appeal No. 3833:
upon application of PETER DESANCTIS for a Variance to the
Zoning Ordinance, Article III-A, Section 100-30A.3 for permission
for approval of open deck addition with an insufficient setback
from the southerly side property line, adjacent to existing fence
enclosure. Lot area of premises is nonconforming at
approximately 26,964 sq. ft. in this R-40 Zone District.
Location of Property: 380 Inlet Lane, Greenport, NY; County Tax
Map District 1000, Section 43, Block 5, Lot 2.
WHEREAS, a public hearing was held on April 13, 1989, in the
Matter of the Application of PETER DESANCTIS under Appeal No.
3833; 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 in the "Low Density
Residential R-40 Zoning District" and is identified on the
Suffolk County Tax Maps as District 1000, Section 43, Block 5,
Lot 2.
2. The subject premises as exists:
(a) contains a total lot area of 26,964 square feet;
(b) has a total frontage (lot width) along the east
side of Inlet Lane of 100 feet;
Southold Town Board of Appeals-12-April 27, 1989 Special Meeting
(Appl. No. 3833 - DESANCTIS decision, continued:)
(c) is improved with a single-family one-story
dwelling, (livable area approx. 936 sq. ft.), attached deck, and
fence enclosure, all as more particularly shown on the Map
prepared by William R. Simmons III, L.S. dated April 20, 1986.
3. The relief requested by this application is for approval
of an open C.C.A. platform addition of a size 12 ft. by 25 ft.
extending from the southerly side of the house and more
particularly shown on the sketched copy of survey and
construction sketch submitted under this application. The
setback as requested is shown to be slightly more than the
established yard setback at 3.2 feet for the existing chainlink
fence shown on the subject survey.
4. Article III-A, Section 100-32-A and Column ii of the
Zoning Code (Bulk Schedule) requires minimum sideyards at 15 and
20, for a total of 35 feet for a principal structure.
5. In considering this application, the Board finds and
determines:
(a) that the subject platform is close to or at ground
level, and is more of a "structure" rather than a "building" as
provided under the definitions (Section 100-13 of the Zoning
Code);
(b) circumstances of the nonconforming property and
building lend to the uniqueness of this application;
(c) that the structure as proposed is the minimum
necessary to afford relief;
(d) that the grant of this variance does not cause a
increased dwelling density thus produced on available
governmental facilities;
(e) the platform structure will not in turn cause a
substantial effect on the safety, health, welfare, comfort,
convenience, order of the town;
Southold Town Board of ADpeals -13- April 27, 1989 Special Meeting
(Appl. No. 3833 - DESANCTIS decision, continued:)
(f) in view of the manner in which the difficulty
arose and in consideration of all the above factors, the
interests of justice will be served by granting this application,
as applied and further noted below.
Accordingly, on motion by Mr. Goehringer, seconded by
Mr. Sawicki, it was
RESOLVED, that the platform structure requested under Appeal
No. 3833 in the Matter of PETER DESANCTIS located between the
southerly side of the house and the existing fence situated 3.2
feet from the southerly property line, BE AND HEREBY IS APPROVED
AS APPLIED.
Vote of the Board: Ayes: Messrs. Goehringer, Grigonis,
Sawicki and Dinizio. (Member Doyen, of Fishers Island, was
absent as agreed.) This resolution was duly adopted.
REQUEST FOR TOWN CAR KEYS: The Board Members agreed to
request a set of keys for Board of Appeals use for one of the
Town cars for inspections and other town business as deemed
necessary. There have been times that the Board Members do
need to do inspections after regular business hours, and Town
car keys are not available. The Chairman indicated we would
send a memo in time for the Board's next inspections (next week).
-Southold Town Board of Appeals -14- April 27, 1989 Spedial Meetin9
DELIBERATIONS/DECISION:
ACTION OF THE BOARD OF APPEALS
Appl. No. 3836:
Matter of ANNA SCHALLER for a Variance to the Zoning
Ordinance, Article III, Section 100-31 as disapproved, Article
III-A, Section 100-30A.3, and Article XXIV, Section 242B for
permission to construct (garage) addition with an insufficient
setback from the north side property line and insufficient total
sideyards. Lot area of premises is nonconforming at
approxinmately 11,718 sq. ft. in this R-40 Zone District.
Location of Property: 115 Parson's Boulevard (Private Road),
East Marion, NY; County Tax Map District 1000, Section 37,
Block 2, Lot 5.
WHEREAS, a public hearing was held on April 13, 1989 under
File No. 3836, filed March 14, 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. The premises in question is located along the easterly
side of Parsons Boulevard (a private road), in the Hamlet of
East Marion, Town of Southold, and is identified on the Suffolk
County Tax Maps as District 1000, Section 37, Block 2, Lot 5.
Southold Town Board of Appeals -15-April 27, 1989 Special Meeting
(Appl. No. 3836 - SCHALLER decision, continued:)
2. The subject premises is known and referred to as
subdivision Lot No. 5 on the Map of Gardiners Bay Estates,
Section Two, Map No. 275, filed with the Office of the County
Clerk on April 24, 1968, and contains a total area of 9,750+-
sq. ft., road frontage of 75 feet, average lot depth of 130.0
feet.
3. The subject premises:
(a) is improved with a single-family, one-story frame
house set back 16 feet from the northerly side property line,
10+- feet from the southerly side property line, 34 feet from
the front property line, and 55 feet from the rear property (at
the closest points), and as more particularly shown on survey
revised October 17, 1988, prepared by Roderick VanTuyl, P.C.,
which is a nonconforming building as defined by Article XXIV,
Section 100-242 of the Zoning Code;
(b) is located in the R-40 Zone District.
4. By this application, appellant requests a variance from
Article III-A, Section 100-32A, (ren~mbered Section 100-30A.4)
for permission to construct a 13'6" wide by 22' deep garage
addition at the northerly side of the existing dwelling which
would reduce the sideyard setback at its closest point to four
feet (see sketched plot plan prepared by Warran A. Sambach
submitted for consideration).
5. Article IIIA, Section 100-30A.2B of the Zoning Code
requires minimum sideyards at 15 and 20 feet, for a total of 35
feet for a principal structure.
6. Article XXIV, Section 100-244-B permits sideyard
reductions to 10 and 15 feet, for a total of 25 feet, for a
principal structure, upon lots containing less than 20,000 sq.
ft. in area.
7. It is personal knowledge of the Board that a one-car
garage at a minimum can be constructed at 11'6" rather than the
requested 13'6".
8. For the record, it is noted that there are Covenants
and Restrictions of record for this subdivision requiring
garages to be physically attached to the dwelling.
Southold Town Board of Appeals -16-April 27, 1989 Special Meeting
(Appl. No. 3836 - SCHALLER decision, continued:)
9. In considering this application, the Board also finds
and determines:
(a) that the grant of alternative relief will not be
adverse to the essential character of the neighborhood and this
major subdivision;
(b) 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;
(c) it is not feasible to locate a garage addition at
the southerly sideyard area which has a lesser setback than the
16' setback at the northerly sideyard area;
(d) considering the substandard size of the property,
the Covenants and Restrictions of record affecting this 1968
subdivision, and the character of the immediate area, there is
no alternative feasible for appellant to pursue.
(e) the grant of the variance will not increase
dwelling unit density affecting available governmental
facilities;
(f) the relief, as alternatively granted, is the
minimum necessary to afford relief and will not in turn cause a
substantial effect on the safety, health, welfare, comfort,
convenience, and order of the town.
Accordingly, on motion by Mr. Goehringer, seconded by
Mr. Grigonis, it was
RESOLVED, to DENY the relief requested under Appeal
No. 3836 in the Matter of ANNA SCHALLER for the location of a
13'6" by 22' garage addition; and IT WAS FURTHER
RESOLVED, to GRANT ALTEI{NATIVE RELIEF for a smaller one-car
garage addition SUBJECT TO THE FOLLOWING CONDITIONS:
1. There be a minimum six-foot setback from this northerly
(side) property line;
2. That the existing area between the proposed attached
garage and the northerly property line/fence remain open and
unobstructed (for emergency access purposes).
Vote of the Board: Ayes: Messrs. Goehringer, Grigonis,
Sawicki, and Dinizio. (Absent, as agreed for this Special
Meeting, was Member Doyen of Fishers Island.) This resolution
was unanimously adopted.
,Southold Town Board of Appeals -17- April 27, 1989 Special Meeting
DELIBERATIONS/DECISION:
ACTION OF THE BOARD OF APPEALS
Appl. No. 3B35:
Matter of the Application of ARTHUR V. JUNGE, INC. -
Amendment to Special Exception Granted under Appl. No. 3705
under Article VIII, Section 100-80B of the prior Zoning
Regulations for this previously zoned C-Light Industrial Zone
District, now re-zoned to Light Industrial, Article XIV, Section
100-141, to include establishment of car repairs with outside
storage and future occupancy of vacant building area at easterly
side of building (said use to be a permitted use in this Zone
District). Location of Property: 22355 C.R. 48, Cutchogue,
NY; County Tax Map District 1000, Section 96, Block 1, Lot 19,
containing 45,589+- sq. ft. in lot area.
At a Meeting of the Zoning Board of Appeals held on
April 27, 1989, the following action was taken:
WHEREAS, a public hearing was held on April 13, 1989, under
File No. 3835, filed March 10, 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, applicant requests an Amendment to
Special Exception Application No. 3705 to include establishment
of car repairs with outside storage and future occupancy of
vacant building (to be occupied with a use permitted in this
Light Industrial Zone District).
Southold Town Board of Appeals -18 -April 27, 1989 Special Meeting
(Appl. No. 3835 - ARTHUR V. JUNGE, INC. decision, continued:)
2. The property in question:
(a) contains a total lot area of 45,589 square feet
and lot width {frontage} along the north side of County Road 48
of 168.17 feet, in the Hamlet of Cutchogue;
(b) is identified on the Suffolk County Tax Maps as
District 1000, Section 96, Block 1, 19;
(c) is located in the Light Industrial Zone District,
as re-designated January 10, 1989 under the new Master Plan
revisions;
(d) is bound on the northerly side by the Southold
Town Landfill, on the west by a single-family dwelling now or
formerly of J. Harris Estate, and on the east by vacant land now
or formerly of Gray, all of which is also located in the Light
Industrial Zone District.
3. For the record, it is also noted that:
(a) an Use Variance was denied without prejudice
under Appeal No. 3635 on August 20, 1987, when the premises was
zoned "A" Residential and Agricultural;
(b) a Change of Zone was granted by the Southold Town
Board on December 15, 1987, re-zoning the premises from "A"
Residential and Agricultural to "C-Light Industrial";
(c) a Special Exception for the construction and
occupancy of a 7,750 sq. ft. building was granted by the Board
of Appeals on March 3, 1988 under Appl. No. 3705;
(d) the occupants of the building on or about
January 1, 1989, are believed to be for the following uses: (1)
contractor's business and shop; (2) vehicle-repair business
and shop; (3) storage, parking and similar uses accessory and
incidental to the established principal uses.
4. By this application, the property owner requests
approval, as an amendment to the 1988 Special Exception
approval:
(a) for the establishment of the vehicle repair
business and shop occupying approximately one-third of the floor
area of the existing building (at the center thereof) and for
Southold Town Board of Appeals -l~-April 27, 1989 Special Meeting
(Appl. No. 3835 - ARTHUR V. JUNGE, INC. decision, continued:)
approval of outside storage of licensed vehicles, parked while
under repair, with proper screening. The area of the proposed
vehicle parking (vehicles for repairs) is that area direetly in
the rear yard, behind the building, with fencing and/or other
screening around the periphery of the rear yard, including that
area close to the northerly and easterly property lines, and
squared off to the northeasterly corner of the rear of the
building (if needed for reference, see subject storage area
depicted in red on Drawing No. P-la dated March 10, 1987,
submitted for consideration);
(b) for occupancy of Bay #3 at the easterly third
section of the building for a Special Exception use only as
permitted under the Light Industrial Zone District regulations.
It should be noted, however, that the Light Industrial (LI) Zone
District provides for certain uses already provided in other
zone districts listed on the previous pages of the Zoning Code
{such as the "LIO" Light-Industrial Office/Park, Section
100-131B{1-11}, "B" General Business, Section 100-101A{3-5} and
B{5,7,10}, which includes warehouses, building material storage
and sales, building contractors yards, cold storage plants,
etc.).
5. Additionally, it is noted that Article XIV, Section
100-141, Subsection B(1) permits by Special Exception and site
plan approval any special exception use set forth in and as
regulated by Section 100-131B(1-11) of the Light Industrial
Park/Planned Office Park Zone District. Subsection 100-131B{2}
thereof provides by special exception and site plan approval:
...Light industrial uses involving the fabrication,
reshaping, reworking, assembly or combining of products
from previously prepared materials and...Such uses may
include industrial operations such as electronic, machine
parts and small component assembly... "
It is the opinion of the Board that based on the precedents
concerning permitted light-industrial uses under the previous
zoning code, and the fact that the vehicle repairs will be minor
or include installation of (small) electronic or mechanic parts
into the vehicles, that the use is similar to other permitted
light industrial uses for the purposes of this Amendment and is
of the same or similar nature of a light-industrial use.
Southold Town Board of Appeals _29 April 27, 1989 Special Meeting
(Appl. No. 3835 - ARTHUR V. JUNGE, INC. decision, continued:)
6. In considering this application, the Board also has:
(a) considered Section 100-262 (General Standards) and Section
263 (Consideration) of the zoning code; (b) determined the
use will not prevent the orderly and reasonable use of adjacent
properties or of properties in adjacent-use districts; (c)
determined the safety, health, welfare, comfort, convenience,
and order of the town will not be adversely affected by the
proposed use and its location; (d) determined that the use is
in harmony with and will promote the general purposes and intent
of zoning since this is a use which was permitted by special
exception application (with the exception of the formality of
requiring a written amendment to the Special Exception in effect
at the time of the filing of this application)
plan); (e) the applicant has had numerous applications before
the Boards, and due to the timeliness during the procedures was
not able to have the same finalized.
Accordingly, on motion by Mr. Dinizio, seconded by
Mr. Grigonis, it was
RESOLVED, to GRANT an Amendment to the Special Exception as
requested (under Application No. 3835) in the Matter of ARTHUR
V. JUNGE, INC., SUBJECT TO THE FOLLOWING CONDITIONS:
1. Vehicles stored outside of the building must be
licensed, in taxt, and located only in this screening-in
rearyard area;
2. Any extended storage area outside of the building will
require re-application for re-consideration by the Board of
Appeals;
3. The types of screening for the enclosure of the
proposed outside vehicle storage area shall be designated at the
discretion of the Planning Board under its site-plan regulations.
Vote of the Board: Ayes: Messrs. Goehringer, Grigonis,
Sawicki and Dinizio. (Absent, as agreed for this Special
Meeting, was: Member Doyen of Fishers Island.) This
resolution was duly adopted.
~Southold Town Board of Appeals-21-April 27, 1989 Special Meeting
DELIBERATIONS/DECISION: Appeal No. 3787:
ACTION OF THE BOARD OF APPEALS
Appeal No. 3787:
Upon application of MARION ROBINS for Variances to the
Zoning Ordinance, Article III, Section 100-32 for approval of
four (proposed) parcels with insufficient lot area in this
pending division of land 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
District 1000, Section 103, Block 10, Lot 2. Total lot area:
6.039 acres. The premises is located in the R-80 Zone District.
WHEREAS, a public hearing was held on April 13, 1989, in the
Matter of the Application of MARION ROBINS under Appeal No. 3787;
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 in the R-80 Low
Density Residential Zoning District and is identified on the
Suffolk County Tax Maps as District 1000, Section 103, Block 10,
Lot 2.
2. The subject premises as exists is vacant, contains a
total lot area of 6.039 acres with minimum frontages (or more)
along three streets: Little Neck Road, Baldwin Place, Strohson
Road.
Southold Town Board of Appeals -22-April 27, 1989 Special Meeting
(Appl. No. 3787 - ROBINS decision, continued:)
3. By this application, appellant requests Variances from
the Zoning Code for approval of insufficient lot area for: (a)
proposed Parcel No. 1 of 69,621 sq. ft., (b) proposed Parcel No.
2 of 62,771 sq. ft., (c) insufficient lot area for proposed
Parcel No. 3 of 66,691 sq. ft., and (d) proposed Parcel No. 4
of 63,993 sq. ft.
4. Article III, Section 100-32, Bulk Schedule, of the
Zoning Code requires a minimum lot area of 80,000 sq. ft. for
parcels in the R-80 Zone District.
5. In viewing the immediate area of the subject property in
Section 103 of the County Tax Maps, the following parcel numbers,
lot sizes, and/or Zone Districts are noted: (a) i~ediately to
the north lot now in the ownership of Doris Bernhard and Lorraine
Dunhuber, 9.9 acres (common ownership of Block 5, Lots 3 & 4 with
Block 10, Lot 1; (b) the westerly, easterly and southerly
boundary lines are each bordered by a street; (c) those lots
opposite the adjacent streets are located in the R-40 Zone
District.
6. In considering this application, the Board finds and
determines:
(a) that it is the burden of the landowner to prove
that the area restrictions as applied to his land imposes
"significant economic injury"; and the burden of proof has not
been substantiated; {Matter of Cowan v. Kern, 41 N.Y. 2d 591
(1977); Matter of Fulling v. Palumbo, 21 N.Y. 2d 30};
(b that the relief requested is substantial in
relation to the requirements, being a variance of approximately
22 percent, or 17,229 sq. ft. {Lot #2} less than the requirement;
(c) that the premises has been located in the minimum
80,000-sq.ft. zoning district since May 1983, and upon
information and belief, has never previously been divided
{particularly prior to May 1983 when the minimum zoning
requirement was 40,000 sq. ft.};
(d) that the difficulties claimed are not sufficient
to warrant a grant of the relief requested;
(e) there will be an adverse effect of increased
dwelling density thus produced on available governmental
facilities by the creation of precedents if the variance were
allowed;
Southold Town Board of Appeals -23- April 27, 1989 Special Meeting
(Appl. No. 3787 - ROBINS decision, continued:)
(f) there will be a change in the character of the
immediate area in this zoning district and a grant of the
variances requested will in effect establish a zone district at
odds with all other zone districts provided for in the Zoning
Code (VanDusen v. Jackson 35 A.D. 2d 58);
(g) the variance if granted will in turn cause a
substantial effect on the safety, health, welfare, comfort,
convenience, order of the town;
(h) in view of the manner in which the difficulty
arose and in consideration of all the above factors, the
interests of justice will be served by denying the applica-
tion as requested.
Accordingly, on motion by Mr. Dinizio, seconded by
Mr. Sawicki, it was
RESOLVED, that the relief requested under Appeal No. 3787 in
the Matter of the Application of MARION ROBINS, BE AND HEREBY IS
DENIED, (without prejudice for consideration of applications of a
different nature, if deemed necessary).
Vote of the Board: Ayes: Messrs. Goehringer, Grigonis,
Sawicki, and Dinizio. (Absent, as agreed, was: Member Doyen of
Fishers Island.) This resolution was duly adopted.
Southold Town Board of Appeals-24-April 27, 1989 Special Meeting
DELIBERATIONS/DECISION:
ACTION OF THE BOARD OF APPEALS
Appl. No. 3829:
Matter of the Application of BROWERS WOODS ASSOCIATION,
INC. and BARBARA REITER for a Reversal of a Determination by
Building Inspector to Grant Building Permit No. 18708Z 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 (M-II). {Previous Zoning
District: B-Light Business}. Application was filed citing the
prior Zoning Code, Article VI, Sections 100-60 and 100-61, and
Article XIV. New Zoning Code citations refer to Sections
100-121 and 100-122 and Article XXVII for the sa~e or similar
provisions for this M-II Zone District.
Location of Property: West Side of Wickham Avenue,
Mattituck, NY; County Tax Map District 1000, Section 114,
Block 3, Lot 1.
At a Meeting of the Zoning Board of Appeals held on
April 27, 1989, the following action was taken:
WHEREAS, a public hearing was held on March 9, 1989 in the
Matter of Application No. 3829;
WHEREAS, at said hearing all those who desired to be heard
were heard and their testimony recorded; and
WHEREAS, the hearing was officially extended until
April 13, 1989, to allow written submissions and certified maps
to be submitted for the record as requested by the Board of
Appeals; 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 and previous
zoning classifications, and the surrounding areas; and
Southold Town Board of Appeals-25-April 27, 1989 Special Meeting
(Decision continued: Appl. No. 3829 - BROWERS WOODS/MATT-A-Mar):
WHEREAS, the Board made the following Findings of Fact:
APPLICANTS AS AGGRIEVED PARTIES
1. One of the first issues at hand is whether or not the
applicant, BROWERS WOODS ASSOCIATION, is an "aggrieved party" in
this application as of its substitution March 3, 1989. It is
the position of this Board that the applicants satisfy the
criteria for standing based upon the size of the Membership in
the Association as owners and residents of real property in the
immediate vicinity of the subject premises, majority 75% vote of
its members to join in this application, proof of incorporation,
etc. In considering the criteria set down by the Court of
Appeals in the Matter of Dou~laston Civic Association, Inc. v.
Galvin, 36 N.Y. 2d 1, the Browers Woods Association is, in the
Board's opinion, a bona fide representative of those members as
residents and property owners being affected by the construction
of the subject building (see affidavits and supporting documents
in the record).
2. It is also through individual knowledge by Board Members
that the property owners in the Browers Woods Association, and
that Mr. Fred Renganesci and Mrs. Barbara Reiter were and still
are property owners, all within the immediate vicinity and
thereby affected by the subject building.
REQUESTS UNDER Z.B.A. APPLICATION
3. By application made under File No. 3829, the following
requests are under consideration:
(a) Reversal of determination of Building Inspector to
grant Building Permit No. 017508Z for the reason that the
subject building is subject to approval by the Planning Board
under the zoning code regulations;
(b) Reversal of determination of Building Inspector to
grant Building Permit No. 017508Z for the reason that the
subject building does not conform to the height requirements of
the zoning code;
(c) Reversal of determination of Building Inspector to
grant Building Permit No. 017508Z for the reason that the
building permit application should have been denied on the basis
Southold Town Board of Appeals-26-April 27, 1989 Special Meeting
(Decision continued: Appl. No. 3829 - BROWERS WOODS/MATT-A-Mar):
that the proposed structure is within 75 feet of the bulkheaded
wetland area.
GENERAL HISTORY PRIOR TO 1977
4. From prior to April 23, 1957 and up until the late 1960's,
the subject premises was located in the "A" Residential-
Agricultural Zoning District and was used as a restaurant with
residential/cottage use, without marina or boat-storage use.
5. A change of zone application was filed and later granted on
on June 11, 1965 by the Southold Town Board for a change in zone
from "A" to "B-2." Under Article IVB, Section 440(1), marinas
for the docking, mooring and accommodation of non-commercial
boats were a listed permitted (principal) use. No provision was
made for upland storage of boats or boat servicing in this B-2
Zone District.
6. On August 13, 1965, Matt-A-Mar, Inc. acquired title to the
subject premises.
7. The principal use as a marina was established some time afer
August 13, 1965, subsequent to the bulkhead construction along
the waterfront areas. No upland storage or boat servicing
existed.
8. On November 23, 1971, the zoning designations for this
property was changed fro~ "B-2" to "B-Light Business." The
zoning regulations in effect at this time also required
Site-Plan Approval and Special Exception approval under Article
VI, Section 600B(1), and Section 500B(2), worded as follows:
...B. Uses Permitted by Special Exception by the Board of
Appeals as hereinafter provided...2. Marinas for the docking,
mooring or accommodation of non-commercial boats .... "
9. No record of a site-plan application or special exception
approval concerning an expansion of the marina or construction
of a new building for marina use or otherwise has been found of
record prior to 1986.
PRIOR ZONING APPEALS RECORD
10. On January 11, 1977, the Town Building Department
disapproved an application to store boats for this property
under Article VI, Section 100-60A (Permitted Principal Uses)
the following grounds:
on
...Present zoning does not permit storage and repair
of boats...
$outhold Town Board of Appeals-2?-April 27, 1989 Special Meeting
(Decision continued: Appl. No. 3829 - BROWERS WOODS/MATT-A-Mar):
11. On January 27, 1977, Use Variance No. 2242, granted under
the provisions of Article VI, Section 100-60A as to a Permitted
Principal Use, was conditioned and limited by the Board of
Appeals for outside storage of boats (which use was added as a
use in addition to the marina use of the boats moored and docked
at the marina).
12. On April 28, 1978, the Board of Appeals received a letter
from the attorney representing Matt-A-Mar Marina, requesting
clarification as to whether it is necessary to obtain a further
variance for retail sales of boats.
13. On May 5, 1978, the Board of Appeals confirmed that a
variance is required because the use of the premises for retail
sales of boats is a permitted use in the C-Light Zone District,
not in the B-Light Business Zone District.
14. On May 8, 1978, an application was made to the Southold
Town Building Department for retail sales of boats; and on
May 12, 1978, the Building Inspector disapproved the application
on the following grounds:
.... Retail Sales of Boats are a non-permitted use in
this zone... "
15. Also, on May 8, 1978, an application for a use variance
under Article VII, Section 100-70 of the Code was applied for
concerning the proposed retail sale of boats in conjunction with
the applicant's present marina business.
16. On June 1, 1978:
(a) Use Variance No. 2419 was granted with limitations for
the retail sale of not more than 15 new boats under Art. VII,
Section 100-71"; (The sale of used boats or other watercraft
or marine items was not specifically authorized in the Board's
decision);
(b) A request was filed under Appeal No. 2420 for the
construction of a substantial boat-storage building in the front
yard area, and a public hearing was held by the Board of Appeals
on June 1, 1978. The record at that time was clear that such
use was permitted in the "...C-Light Industrial, Item 16 (Art.
VIII, Sect. 100-80) for boat buildings, boat servicing, boat
storage facilities .... " (See Pages 28 and 29, Transcript of
Hearing of June 1, 1978 under Appl. No. 2420). The application
appeared to have been filed with the impression that such use
was allowed in this zone by Board of Appeals action and the
application was then withdrawn when this issue was clarified at
the hearing.
17. The primary use was as a marina which was not upland and
did not necessitate occupancy for this use upland (as are
usually common with many other types of uses) or within an
Southold Town Board of Appeals-28-April 27, 1989 Special Meeting
(Decision continued: Appl. No. 3829 - BROWERS WOODS/MATT-A-Mar):
enclosed building since the boats were docked in the water.
C~ANGE OF OWNERSHIP
18. On June 1, 1979 the subject premises was conveyed to F.
Nowak; and on June 2, 1979, conveyed to Mr. Agarabi.
RECENT SITE-PLAN APPLICATION
19. On December 11, 1986, Site Plan Maps were filed by
representative{s) of Matt-A-Mar, and it is known that on several
occasions, the Manager of Matt-A-Mar met with Planning Board
Office personnel concerning a proposed boat-storage building
concerning the general site-plan elements. On January 13, 1987,
site-plan maps were referred by the Southold Town Planning Board
to the Building Department for certification (see Planning Board
resolution adopted January 12, 1987).
20. On October 13, 1987, alternative maps with different
building locations were furnished to the Planning Board.
21. On October 15, 1987, a letter was sent from the Building
Department to the Planning Board Office indicating that the
"proposed building would indicate a change of use from (B) Light
Business to a commercial use, depending on building use. During
1987, the provisions of the "B-Light Business" Zone District for
this property did not include boat storage as a permitted use,
and boat storage was a used permitted in the "C-Light
Industrial" Zone District.
22. Several appropriate steps were taken concerning site-plan
jurisdiction, including presubmission conference(s), and
referral to the Building Inspector for certification in
accordance with Article XIII, Section 100-133, Subsection B of
the Zoning Code concerning the "Site Plan Procedures. In
reviewing the record, no record of certification was found.
However, on October 15, 1987, a letter was sent by the Building
Inspector to the Planner in the Planning Board Office indicating
the "coK~ercial" nature of the use of the property and the type
or nature of boats to be stored.
23. No other action was taken at a meeting of the Planning
Board which might have authorized changes, a withdrawal, a
waiver, or any other modification to the site-plan record.
Southold Town Board of Appeals-29-April 27, 1989 Special Meeting
(Decision continued: Appl. No. 3829 - BROWERS WOODS/MATT-A-Mar):
24. At the time of the issuance of the subject Building Permit
on October 6, 1988, an application for Site Plan approval was
officially on file and pending with the Southotd Tow~ Planning
Board for a (boat) storage building of a similar nature and
size. The applicant did file a letter received by the Office of
the Planning Board on July 6, 1988 indicating his request to
withdraw the application since they were studying other
options. Upon information and belief, this request was never
presented to the Planning Board for a formal vote to accept and
or to declare the application withdrawn, with or without
prejudice. It is apparent that the proper jurisdiction for a
withdrawal, waiver, or other action under the site-plan process,
and general requlations for the site-plan elements under Article
XIII of the Zoning Code, has been and is the Members of the Town
Planning Board (rather than the Building Department). It is the
determination of this Board that the building-permit was not
properly issued, and accordingly action is required by the
Southold Town Planning Board under its site-plan regulations.
25. On February 17, 1989, written confirmation was sent to the
Board of Appeals received from the Southold Town Planning Board
confirming that a determination is required by the Planning
Board concerning the proposed new building.
ERRONEOUS INFORMATION ON PERMIT APPLICATION
26. The (1988) application for the building permit was
erroneous with regard to the Zone District. B-1 was stated
instead of B-Light Business. The maximum height requirement for
a principal building in a B-1 Zone was 35 feet. The maximum
height requirement for a principal building in the B-Light Zone
was 30 feet. Boat storage was a use permitted in the C-Light
Industrial Zone District and was not provided for in the B-Light
Zone District. The height limitation for accessory buildings
occupied by an accessory use is 18 feet.
BUILDING PERMIT/INSPECTIONS
27. On July 21, 1988, an application was filed with the
Building Department for a new "steel storage building for indoor
storage of boats...at the southwest section of 9-acre parcel."
28. On October 6, 1988, Building Permit No. 17508Z was issued
for the construction of "...accessory storage structure and 8'
stockade fencing as applied for... Fee $3675.00 .... " A
foundation plan was submitted 12/88 prepared by Thomas D.
Reilly, P.E. First and Second Foundation Inspections were done
on January 12, 1989 and February 2, 1989, respectively, and an
updated "as-built" foundation survey prior to these inspections
was not a part of the building-permit file as required by
Section 100-141(I) of the Zoning Code "...signed by the person
responsible for said survey, showing the exact location of such
foundation with respect to the street and property lines of the
$outhold Town Board of Appeals -30~pril 27, 1989 Special Meeting
(Decision continued: Appl. No. 3829 - BROWERS WOODS/MATT-A-Mar):
lot," and which continues to provide that "...no further
construction shall be performed until such survey is approved by
the Building Inspector .... "
29. The sketched plan submitted under the building permit
application depicted a proposed storage building 36' from ground
to peak, 100 feet from the west side of sidewalk area along
Wickham Avenue, 75 feet from mean high water mark. The existing
bulkhead was shown, but a setback distance to the sa~e was not
depicted.
BULKHEAD SETBACK/SECTION 100-119.2B
30. At the time of issuance of this building permit, Article
XI, Section 100-119.2 (renumbered by Local Law #3-1989 to
Article XXIII, Section 100-239d) of the Zoning Code was in full
force and effect and reads as follows:
"...B. Ail buildings located on lots upon which a
bulkhead, concrete wall, riDrap or similar structure
exists and which is adjacent to tidal water bodies
other than sounds shall be set back not less than
seventy-five (75) feet from the bulkhead. The
following exceptions will apply:
1. Buildings which are proposed landward of
existing buildings.
Lands which are not bulkheaded and are
subject to a determination by the Board
of Town Trustees under Chapter 97 of the
Code of the Town of Southold.
Docks, wharves, pilings, boardwalks, stairs
promenades, walkways, piers, which are accessory
and separate from existing buildings or accessory
structures .... "
It is noted that the property is bulkheaded, the proposed
building is not landward of existing buildings from the subject
bulkhead (to the south) and is not a structure listed in Item %3
(such as a dock, wharf, piling, boardwalk, stairs, promenade,
etc.). This Board is familiar with the intent of this Section B
since this Department drafted the proposed Local Law at the time
of enactment for legislative consideration.
31. Evidence by way of a certified survey prepared by a
licensed surveyor has been submitted for the appeal record
confirming that the building is set back 65 feet from the
existing bulkhead (rather than the required 75 feet).
Precedents concerning permit applications in the Building
Department and zoning variances before the Board of Appeals show
that the minimum setback under the ruling has always been 75
feet from the bulkhead, regardless of the distance to the
Southold Town Board o~ Appeals-31~pril 27, 1989 Special Meeting
(Decision continued: Appl. No. 3529 - BROWERS WOODS/MATT-A-Mar):
highwater mark below the bulkhead. To date, there has been no
change in this interpretation or change in the wording of the
law.
WETLANDS CODE CH. 97
32. This Board does not believe that it has proper jurisdiction
under Chapter 97 of the Wetlands Ordinance. It is not unusual,
however, for the Town Trustees to either require a wetland
permit or to waive their jurisdiction under the Wetlands
Ordinance (Ch. 97) based on the location of the highwater or
wetland areas and the condition of the bulkhead or similar
barriers, even when jurisdiction is appropriate with the Board
of Appeals. The Trustees jurisdiction or possible waiver of
jurisdiction is not a matter properly to be determined by this
Board under the Zoning Code; however, it is urged that the
practice of requiring applications to the Trustees for their
appropriate action under the Wetlands Code (Ch. 97) should be
continued prior to the issuance of Building Permits.
VALIDITY OF BUILDING PERMIT
33. Article XIV, Section 100-141, now renumbered Article
XXVIII, Section 100-281, provides that no building permit shall
be issued unless the proposed construction is in full conformity
with all the provisions of the zoning codes and all other
applicable laws, ordinances and regulations; and that any
building permit issued in violation of the provisions of this
chapter shall be null and void and of no effect without the
necessity for any proceedings, revocations or nullifications
thereof; and any work undertaken or use established pursuant to
the issuance of a permit in violation of the provisions of the
zoning code shall be invalid (emphasis added).
DETERMINATION
34. It is the position of this Board that the building permit
is hereby determined to be an invalid permit since the permit
was not issued in conformity with certain provisions of the
Zoning Code, including but not limited to the following areas
(as more particularly described in the above findings):
A. Nonconformance concerning the minimum required setback
of buildings at not less than 75 feet from the bulkhead.
B. Nonconformance as final action under Site-Plan review
regulations, parking regulations, and/or other action by the
Southold Town Planning Board.
35. By this determination, the effect of the subject building
permit is null and void, without the necessity for any
proceedings, revocations or nullification thereof {Section
100-281 (100-141)}.
$outhold Town Board of Appeals -32-April 27, 1989 Special Meeting
{Decision continued: Appl. No. 3829 - BROWERS WOODS/MATT-A-Mar):
OTHER CONSIDERATIONS
36. Prior to re-issuance or reinstatement of any Building
Permit for this building, further interpretations must be
formally requested and considered by this Board, for further
clarification as to whether all of the activities in this
proposed building is a permitted principal use or a permitted
accessory use in this zoning district, including but not limited
to the applicable requirements in determining height limitations
and yard locations under the Zoning Code, and shall BE REMANDED
FOR FURTHER HEARING(S) on the above-noted elements, if
necessary, for the following reasons.:
(a) It is the opinion of the attorney representing the
property owner, Wickham Road Marina, Inc., and/or Matt-A-Mar
Marina, Inc., that the subject building is an "accessory
building with an accessory use." Past zoning actions have
provided that an accessory use or accessory building is
permitted only in the required rear yard and at a height not to
exceed 18 feet, except when the criteria for an area variance is
appropriately issued by the Board of Appeals. The subject
building is located in the front yard and is understood to be at
a height greatly in excess of 18 feet. The definition of height
under Section 100-13 is as follows:
"...The vertical distance measured from the average
elevation of the finished grade of the land immediately
adjacent to the building to the highest point of the
roof for flat and mansard roofs and to the mean height
between eave and ridge for other types of roofs .... "
The height distance provided during the hearing is the footage
"from the floor of the building to the top, or to the ridge line
to get 35 feet .... " (Reference: Page 20 of 3/9/89 Z.B.A.
verbatim hearing transcript). Sufficient evidence has not been
submitted in the record as to the finished grade elevations
existing before the start of construction and the proposed final
grade. Without a clear understanding and sufficient information
as to the intended use of the proposed building, either under
the definition of a "principal use" or an "accessory use, a
determination as to the permitted height is premature.
Prior to the enactment of the zoning code amendments on
January 10, 1989, the maximum height requirement for a principal
or primary building was 30 feet. The new zoning code permits a
maximum height at 35 feet for a principal or primary building,
and a maximum height at 18 feet for an accessory building, using
the same height definition.
(b) Additional evidence concerning the activities within
the subject building to be used for boat storage is imperative,
particularly with regard to the basis of the property owner's
position that the building is an accessory building. One of the
~outhold Town Board of Appeals-33-April 27, 1989 Special Meeting
(Decision continued: Appl. No. 3829 - BROWERS WOODS/MATT-A-Mar):
two primary uses of the land included limited outside boat
storage. This Board believes and the record confirms that
certain repairs and maintenance services on the boats will be
undertaken within the building. Activities of this nature do
not fall under the definition of an accessory use. An accessory
use is "...a use customarily incidental and subordinate to the
main use on a lot, whether such "accessory use" is conducted in
a principal or accessory building. The storage of boats in the
proposed building is: (a) income-producing; (b) not
incidental and is not necessary or dependent upon the existing
established uses, either as a marina or outside boat storage
use, and therefore is not ancillary, subordinate or an accessory
use as interpreted under the past or present zoning codes.
(c) Additional information concerning the manner of
storage (such as elevated storage racks) and the nun%ber of boats
to be stored within the building have not been made a part of
the record. The number of boats to be stored will be necessary
to determine not only the parking requirements but also whether
the same is an expansion of the existing outside boat storage
use or whether the same is a reduction of the existing outside
boat storage use.
Accordingly, on motion by Mr. Dinizio, seconded by
Mr. Goehringer, it was
RESOLVED, that the Building Permit in question referred to
as No. 017508Z is HEREBY DETERMINED TO BE AN INVALID PERMIT as
described in paragraph #34, supra, thereby nullifying and
voiding the effects of said permit; and BE IT FURTHER
RESOLVED, to GRANT the request under Appl. No. 3829 for the
REVERSAL OF DETERMINATION by the Building Inspector to grant
BUILDING PERMIT NO. 017508Z; and BE IT FURTHER
RESOLVED, that prior to issuance or reissuance of a
Building Permit for this building, further interpretations be
formally requested of this Board, for clarification as to
whether all of the activities in this proposed building is a
permitted principal use or a permitted accessory use in this
Southold Town Board of Appeals-34-April 27,
1989 Special Meeting
(Decision Continued: Appl. No. 3829 - BROWERS WOODS/MATT-A-MAR):
zoning district, including but not limited to the applicable
requirements in determining height limitations and yard
locations under the Zoning Code; and be REMANDED FOR FURTHER
HEARING(S) on the above-noted elements, if necessary.
Vote of the Board: Ayes: Messrs. Goehringer, Dinizio and
Sawicki. (Absent were: Member Grigonis and Member Doyen.)
This resolution was duly adopted.
POSTPONEMENT OF REGULAR MEETING: The Board Members agreed
to postpone the May 18, 1989 Regular Meeting tentatively for
Thursday, June 15th, fn-o~der to allow training by another
stenographer for the Board of Appeals at that meeting in the
event that there is a change in personnel by July's meeting.
The Chairman declared the meeting adjourned at 7:25
o'clock p.m.
/~..
~ppr0ved - May 31, ~989 /
RECEIVED AND FILED BY
THE SOUTHOLD TOWN Cr.~RK
Town Clerk, Town of Southold
Respectfully submitted,
Tinda F. Kowalski, Secretary
Southold Town Board of Appeals