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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