Loading...
HomeMy WebLinkAbout3829 APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. JOSEPH H. SAWICKI JAMES DINIZIO, 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 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. 017508Z 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 X]fVII for the same 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 ~6, 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 Southol~ Tow~ Board of Appeals -2- April 27, 1989 Special Meeting (Appl. No. 3829 - BROWERS WOODS/MATT-A-MAR Decision, Continued:) 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 Douglaston 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 -3- April 27, 1989 Special Meeting (Appl. No. 3829 - BROWERS WOODS/MATT-A-MAR Decision, Continued:) 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 (princiDal) 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 from "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 ADDeals 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) on the following grounds: ...Present zoning does not permit storage and repair of boats... Southold Tow~ Board of Appeals -4- April 27, 1989 Special Meeting (Appl. No. 3829 - BROWERS WOODS/MATT-A-MAR Decision, Continued:) 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. 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 $outhold 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 TOW~ Board of Appeals -5- April 27, 1989 Special Meeting (Appl. No. 3829 - BROWERS WOODS/MATT-A-MAR Decision, Continued:) enclosed building since the boats were docked in the water. CHANGE 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 "commercial" 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 -6- April 27, 1989 Special Meeting (Appl. No. 3829 - BROWERS WOODS/MATT-A-MAR Decision, Continued:) 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 Southold Town 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 regulations 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 Southold To~ B6ard of Appeals -7- April 27, 1989 Special Meeting (Appl. No. 3829 BROWERS WOODS/MATT-A-MAR decision, Continued:) 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 same 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. All buildings located on lots upon which a bulkhead, concrete wall, riprap 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 of Appeals-8 - April 27, 1989 Special Meeting (Appl. No. 3829 - BROWERS WOODS/MATT-A-MAR Decision, Continued:) 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)}. Southold Towh Board of Appeals-'9- April 27, 1989 Special Meeting (Appl. No. 3829 - BROWERS WOODS/MATT-A-MAR Decision, Continued:) 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 Southold Tow~ Board of Appeals-10- April 27, 1989 Special Meeting (Appl. No. 3829 - BROWERS WOODS/MATT-A-MAR Decision, Continued:) 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 number 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 T6wh Board of Appeals-il- April 27, 1989 Special Meeting (Appl. No. 3829 - BROWERS WOODS/MATT-A-MAR Decision, Continued: ) zoning district, including but not limited to the applicable requirements in determining height limitations and yard locations under the Zoning Code; and be ~DED 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. lk SOUTHOLD TOWN BOARD OF APPEALS RECEIVED AND FILED BY THE SOUTi{OLD TO\VN CLEHK //.~g~./~ Town Clerk, Town o~ Sou~ho]d