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HomeMy WebLinkAboutZBA-07/27/2006 Hearing 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TOWN OF SOUTHOLD COUNTY OF SUFFOLK ZONING BOARD OF APPEALS STATE OF NEW YORK ____________________________________________x TOW N o F SOU THO L D :0 0 N I N G BOA R D o F A P PEA L S ____________________________________________x Southold Town Hall 53095 Main Road Southold, New York July 27, 2006 9:30 a.m. Board Members Present RUTH OLIVA, Chairwoman GERARD P. GOEHRINGER, Board Member LESLIE KANES WEISMAN, Board Member JAMES DINIZIO, Board Member MICHAEL SIMON, Board Member LINDA KOWALSKI, Board Secretary KIERAN CORCORAN, Assistant Town Attorney C-ORIGINAlJ COURT REPORTING AND TRANSCRIPTION SERVICE (631) 878-8047 2 1 9 CHAIRWOMAN OLIVA: I'd like to call the meeting to order of the regularly scheduled meeting of the Zoning Board of Appeals of July 27, 2006, and I need a motion declaring all our hearings have a negative declaration. CHAIRWOMAN OLIVA: Our first order is Aliano, this is a work in progress, I think we will discuss this later. And Manos, I believe we will discuss this also later. We have an inspection for the Fishers Island Windswept properties and I believe at least three of us are going over and we will look at it. BOARD MEMBER GOEHRINGER: On the 9th. BOARD SECY. KOWALSKI: August 9th on Fishers Island, Windswept. CHAIRWOMAN OLIVA: Also a resolution to withdraw the application of Ellen Wexler. (See minutes for resolution.) 2 3 4 5 6 7 8 10 11 ------------------------------------------------- 21 CHAIRWOMAN OLIVA: is Joseph Gonzales on Ole Is there someone here who this application? MR. GONZALES: I'm Joseph Gonzales. CHAIRWOMAN OLIVA: Would you like to speak on your application, tell us what you want to do? MR. GONZALES: What I'm trying to do lS I want to close in the front part, where it's injected into the house. I'm trying to make a straight part, and I want to finish the garage ()ff, and this will be an entrance to the garage. BOARD MEMBER WEISMAN: Am I correct that you're moving the entry to your house to the side? MR. GONZALES: It's on the side now, to the front, I'm going to swing it around the other way. BOARD MEMBER WEISMAN: Okay. BOARD MEMBER GOEHRINGER: In reading your application, Mr. Gonzales, it's my understanding that you are utilizing the existing footprint of the house; there is no specific change except for a little jut out of a bay window where the garage Our first hearing then Jule Lane in Mattituck. would like to speak to 12 13 14 15 16 17 18 19 20 22 23 is? 24 MR. GONZALES: It's SlX feet, that's the area. house -- I have a picture. CHAIRWOMAN OLIVA: pictures. three and a half by When they built the 25 Sure. We love July 27, 2006 3 1 9 MR. GONZALES: (Handing.) CHAIRWOMAN OLIVA: You're just going to fill this in? MR. GONZALES: Yes. I'm just going to fill this in. BOARD MEMBER GOEHRINGER: Mr. Gonzales, can I ask one more question? On this bow window you're putting in where the garage door was, how far is that going to extend out into the front yard area? I realize it's not foundation. MR. GONZALES: It's a window, yeah. I don't know, just a regular size, maybe a foot. BOARD MEMBER GOEHRINGER: Maybe you could discuss it with either the builder or the person you're buying the window from so we could lncorporate that into the decision. So you don't C1ave a problem with that later. I f we l3ay in-place/in-kind, squaring off the foundation as we would normally see it. This is referred to as a jut-out, we'd like to know what that is, I'd like to incorporate that into the decision. This is my decision, so I'd like to know what that is. Don't have to tell us today. It's a bow window where the garage door is being replaced by a bow window, we just want to know how far that's gOlng t- 0 protrude into that front yard area. BOARD SECY. KOWALSKI: Whether it's eight inches or 18 inches. CHAIRWOMAN OLIVA: Is there anyone here that would like to speak to this application? If not, I'll make a motion to close the hearing and reserve decision until later. (See minutes for resolution.) 2 3 4 5 6 7 8 10 11 12 13 14 15 16 17 18 25 CHAIRWOMAN OLIVA: Next application is for .',cott and Wendy Albrecht, Main Road in Laurel for in in-ground swimming pool in the front. Is there anyone here to speak on this? MR. ALBRECHT: Good morning, I just wanted to point out, the reason for the placement is six teet into the side yard was I had a grade problem where I wanted to find the most level piece of yround, and we also had some mature trees that would also shade that pool, and that's kind of the reason for the placement. CHAIRWOMAN OLIVA: You're really hidden hack there. MR. ALBRECHT: Is there any questions that 19 20 21 22 23 24 July 27, 2006 4 1 2 you would have for me? 9 BOARD MEMBER WEISMAN: straightforward, we saw it in CHAIRWOMAN OLIVA: Now little road goes to. BOARD MEMBER WEISMAN: You have no neighbors that have any impact. CHAIRWOMAN OLIVA: Jim? BOARD MEMBER DINIZIO: No. CHAIRWOMAN OLIVA: Jerry? BOARD MEMBER GOEHRINGER: No, no problems. CHAIRWOMAN OLIVA: Michael? BOARD MEMBER SIMON: No. CHAIRWOMAN OLIVA: Is there anyone else who would like to comment on this application? If not, I'll make a motion to close the hearing and reserve decision until later. (See minutes for resolution.) No. It's pretty the ground. we know where that 3 4 ,. J 6 7 8 10 11 25 CHAIRWOMAN OLIVA: Off the record. (At which time off-the-record deliberations were held.) CHAIRWOMAN OLIVA: Back on the record. Next application is for John Mazur on Camp Mineola Road in Mattituck. MS. MARTIN: Good morning, Amy Martin, Pairweather-Brown Design, representing Jack and Alice Mazur. As you have the application before you, we wish to add a two-car garage and a mud room extension to the side of this property which by map shows it as having three front yards. It has come to my attention that the Allen Drive "ide, which is the west side of this property, the road actually was denied -- it's not allowed to be called a road by the town. They denied someone nsing it as an access to the property behind theirs because it's 30 feet wide rather than 50 feet wide. Basically as you have the things before you, we have one section of the house that clidn't have a preexisting CO, a prior owner had closed in an existing porch and boxed out the building there, and we're trying to put a second story addition that is recessed from the existing building but still does not meet the setbacks from the Fay Court road, which is actually not a road either. So the asphalt stops half-way through the property and also the setback from that court 1S very consistent or less than the house to the 12 13 14 15 16 17 18 19 20 21 22 23 24 July 27, 2006 5 1 2 I~~dst . 9 So we ask that this be given consideration dB in a normal property, what we're asking for would be a side yard setback for the garage and Illud room, and we have -- the dimensions would be ,t the closest point 15'6" from that side yard, which is really a walk-through path or a LIPA uasement at this point. Then the proposed second story dormers that would not be 20'11" from the property but end up actually -- BOARD MEMBER WEISMAN: 20.9? MS. MARTIN: Actually 27'11" to the dormer tram the property line. CHAIRWOMAN OLIVA: 20.11. MS. MARTIN: The 20'11" is to the existing :)art of the building that was boxed out prior to this ownership, and the second story is 27'11" [rom the property line, and we're asking for relief from both of these determinations. CHAIRWOMAN OLIVA: You're not rebuilding the first floor, that's going to be existing' MS. MARTIN: No, there will be interior changes, it's a total interior renovation. They're not rebuilding the first floor, the only addition to the first floor is a covered walkway ,n the front and the garage room and mud room and " mechanical room, which is part of the mud room. BOARD MEMBER WEISMAN: You're also cequesting an increase in lot coverage to 21 percent; is that correct? MS. MARTIN: Yes. BOARD MEMBER WEISMAN: So in addition to Getbacks there's a lot coverage increase? MS. MARTIN: Yes. CHAIRWOMAN OLIVA: What renovations are you going to make to that first floor? MS. MARTIN: The house is very chopped 3 4 5 6 7 8 10 11 12 13 14 15 16 17 18 19 20 ',lP - 25 CHAIRWOMAN OLIVA: Basically interior? MS. MARTIN: Interior. CHAIRWOMAN OLIVA: You're not going to hange the outside? MS. MARTIN: They're going to re-side it. BOARD SECY. KOWALSKI: All nonstructural? MS. MARTIN: All nonstructural. BOARD MEMBER DINIZIO: You're going to :;ister the boards; are you going to take these hoards, the two by fours the house is built on now 21 22 23 24 July 27, 2006 6 1 5 'lI1d put two by sixes? MS. MARTIN: I believe structurally it will be made more sound from the inside. I don't know that full discovery has been made. I do know that the foundation is adequate. BOARD MEMBER SIMON: I notice on the description the lot coverage area it says 20.124 percent, which is not 21 percent. MS. MARTIN: Somehow in translation it 'ended up 21 percent, it's just so that if there's riny minor infraction on an inch here or there, we don't end up in problems. BOARD SECY. KOWALSKI: 21 would be the 2 3 4 6 7 8 lllClXlmum. 9 BOARD MEMBER SIMON: Generous. MS. MARTIN: Yes. CHAIRWOMAN OLIVA: Jerry? BOARD MEMBER GOEHRINGER: Mrs. Martin, you indicated the garage on the plan is one story, however, when you look at the elevation page we lwtice there's a dog house, actually, there's a reverse gable placed in the garage, which means there will be an upstairs; what will be the utilization? MS. MARTIN: Just storage. It will have a pull-down staircase. BOARD MEMBER GOEHRINGER: For the Board's edification, this is an area where most of these houses do not have basements; is that correct? MS. MARTIN: No, it can't. It's on a flood plain, and it's on a slab. The flood plain is elevation eight and the house property is at plevation 10, so there are no flood plain L[~SUeS . 10 11 12 13 14 15 16 17 18 19 BOARD MEMBER SIMON: proper road? Is Fay Court not a 23 MS. MARTIN: BOARD MEMBER t:hat dead ends. CHAIRWOMAN OLIVA: Jim? MS. MARTIN: I have some photos here dlluding to the similar setbacks from surrounding properties and further explaining, but if anyone was to the site, you know well that the houses that are going in there are considerably larger than what we're asking to do. BOARD MEMBER DINIZIO: I'm wondering, are you going to come back later with a swimming pool? Allen Drive. WEISMAN: Fay is like a lane 20 21 22 24 25 July 27, 2006 7 1 6 MS. MARTIN: I don't believe so. BOARD MEMBER WEISMAN: They wouldn't get it with the lot coverage. BOARD MEMBER GOEHRINGER: Hard to put in, l,he house is right in the middle of the property. MS. MARTIN: Also with the flood plain, I don't think they would ask for. BOARD MEMBER DINIZIO: the groundwater and that's something 2 3 4 5 You said the garage 8 rtocsn't have any stairs to it? MS. MARTIN: To the best of my knowledge, no, it's meant to have a pull-down staircase for Gtorage. I don't have the full plans with me to verify. GOARD MEMBER DINIZIO: You wouldn't be db Ie to from the upstairs walk to it? MS. MARTIN: There isn't enough room to have accessory living quarters. CHAIRWOMAN OLIVA: You're just going to have electric in there? MS. MARTIN: Yes. CHAIRWOMAN OLIVA: No water? MS. MARTIN: No, because the mud room is right next to it and that will maybe have a washer/dryer in it, and the mechanical room is in there because there is no basement, they needed an area to put in a boiler. BOARD MEMBER WEISMAN: And the height to the ridge consistently is 27 feet? MS. MARTIN: Yes. CHAIRWOMAN OLIVA: Anybody else have dnything? If not, I'll make a motion to close the l]earing and reserve decision until later. (See minutes for resolution.) 7 9 10 11 12 13 14 15 16 17 18 19 24 CHAIRWOMAN OLIVA: Next hearing is for Jennifer Gould, Truman's Path in East Marion, who wishes to put an addition on the house. Mr. Bressler, good to see you again. MR. BRESSLER: And you and all the members of the Board on this nice morning. We're here on Jennifer Gould's matter. I will assume the Aoard's usual familiarity with the facts and circumstances of this particular application. To c;ay that this is a diminimus application I think actually overstates the case. This is a classic ~pplication involving one of the myriad of small 20 21 22 23 25 July 27, 2006 8 1 ;.; 3 4 5 6 7 8 9 10 11 12 13 \.... 14 15 16 17 18 19 20 21 22 23 24 25 cuts that dot the north fork, and in particular, in Jennifer's neighborhood, the Board I'm sure is 110t unfamiliar with the neighborhood having been through one of these with the neighbor. What we're seeking is substantially less than what the Board approved over there. We're not playing games with new foundations, we're not tearing down houses, we're not building new houses, we're not moving things one foot or two toot to one side or another. All we're doing is ,dding a very, very modest extension involving 115 ,;quare feet or 1.56 percent. I think that the Goard can see looking at the nature of the lot, 40 feet at its widest, that there are no real alternatives if there is to be any relief at all. It certainly is not going to be out of keeping with the character of the neighborhood, and it lS a very modest proposal, 115 square feet and we think that on the facts and circumstances and IPplying the balancing test that the equities nlainly favor Miss Gould and that she should be !,ermitted to make this modest improvement to her property. I'll leave it at this that because I know the Board has read the papers and if there are any questions, I'd be happy to field them. If there is anything I can't handle, Miss Gould is here and ohe can field them. BOARD MEMBER SIMON: I have a question about the setbacks, according to the notice of iisapproval, it notes a five foot single yard 'ieeback and the plan calls for a six fooe. [ auld not figure out from looking at the property where it was ever five feet. It makes it look as though this project will increase the setback. I wasn't clear whether that's necessary or important ()r true. MR. BRESSLER: Well, we would certainly like to believe it's true and we'd like to increase the setbacks however as to that -- MS. GOULD: Mr. Simon, at the front of the 'louse, which is the bay side, it's five feet hut ,[s you go back it's six feet and that's where the Iddition is, is the back. MR. BRESSLER: So it's true to a certain extent depending on where you measure it, and I think that taking that into account weighs in "avor of our application. July 27, 2006 9 1 5 BOARD MEMBER GOEHRINGER: Mr. Bressler, ['m not interjecting the past hearing, but this 1S a hypothesis or a request of a hypothesis, it's my understanding that the existing garage is not a garage; will that be reconverted back into a 'Tarage or will there be another application Hometime in the future for another garage if this i:c; incorporated into the house? And that's the lf~sue. 2 3 4 6 9 MR. BRESSLER: It is not to be incorporated into the house. I think the Board ,'an see from the plans that it does not call for an actual physician joining of the properties. It does not constitute a separate dwelling unit, and ~here are no current plans at this time for yet ,nother structure on the property, and I dare say given the configuration of the property, I'm not Hure the Board would be amenable to yet another Hcructure. I think that's the answer to the question. BOARD MEMBER GOEHRINGER: Thank you. CHAIRWOMAN OLIVA: Leslie? BOARD MEMBER WEISMAN: We're provided with elevations and a site plan but no floor plans so Lhe new proposed pergola and roof piece, can you Himply explain the intended use for that interior? MS. GOULD: Basically the reason that I am requesting the variance is I would like to ceconfigure the downstairs, the back downstairs of lilY house. My husband is 76 years old this week and he's had five let procedures in the last 15 years, the most recent two months ago, and I think it would be prudent -- and I thought it before his last deal -- to have a bedroom that was livable on the first floor. There is a bedroom there now l~-11at my son used, my son is now out of the house I tmt it wasn't big enough for him, so it's not big onough for the two of us. This is the only way we could do it. The idea is that the bedroom would but up to the garage, then next to the hedroom would be a new bathroom, a hallway where I ,:ould have the washer/dryer in a closet in the hallway. Right now when you open my back door, I have a stack washer/dryer that sticks four inches into the doorway, it's not very gracious. Then I want to make what was my son's room the kitchen, knock down the wall of the stairway is exposed, the stairway goes up between the kitchen and his 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 10 1 5 room, and make what's now the kitchen a place for " dining room table because right now my dining room table is in the living room, because I only have an eat-in kitchen. We have a very, very small house, two little bedrooms upstairs. This ~s the minimum we could do, as you can see, I'm Ilot proposing to fill in the whole amount of space between the garage and the house because, frankly, Lt didn't look nice to me. We did look at a plan like that. I like the idea of having it half "pen, and they're going to do clapboard instead of Ichingles to make it look different, and paint it white and there will be a real entryway rather than -- what we have now is you walk in the back door and you see a lot of coats because it's a back entry, it's an old summer cottage. BOARD MEMBER WEISMAN: I presume you have floor plans for these? MS. GOULD: Here's the plans, if you would 2 3 4 6 7 8 9 10 11 like. 15 BOARD MEMBER WEISMAN: Yes, I'd like to see them. Sometimes it's clear to see what that connecting piece is. Obviously you're discussing interior renovations that will reorganize the rooms and their relationship to sizes and so on. So that's a substantial interior renovation that requires a fairly modest exterior connecting piece lnd that will increase the lot coverage by what? MR. BRESSLER: 1.56 percent. BOARD MEMBER DINIZIO: They will still be 12 13 14 16 17 under. 18 BOARD MEMBER WEISMAN: So this new staircase? MS. GOULD: No, same staircase. BOARD MEMBER WEISMAN: That's an staircase that's going up to your second your existing house? MS. GOULD: Correct. BOARD MEMBER WEISMAN: only plan that we need. BOARD MEMBER DINIZIO: this is the bedroom. BOARD MEMBER WEISMAN: Yes, it makes perfectly good sense. The plans are very clear lbout what you're adding on. They don't draw in walls and existing, they're not really showing specifically what's to be demolished. There's no demo in the existing first floor? This is the demo plan. 19 existing story in 20 21 Really that's the 22 So it looks like 23 24 25 July 27, 2006 11 1 2 3 4 5 6 7 8 9 10 11 12 13 \. 14 15 16 17 18 19 20 21 22 :23 24 2S MS. GOULD: You have to demo that l,athroom, you take the walls out and just continue straight out, and a new bearing wall. I thi~< that's all in the plans. BOARD MEMBER WEISMAN: It's fine. Thank you, it's much clearer. CHAIRWOMAN OLIVA: Is there anyone else that wishes to speak? BOARD MEMBER DINIZIO: I have to write tchis decision, and I hope you don't hold me to plagiarism, it may look familiar if I write it. The 18.33 is the total lot coverage after ~verything is done, right? MR. BRESSLER: Yes. BOARD MEMBER DINIZIO: I had a question on the side yard, the six feet, is just because the .mgle of the lot. MR. BRESSLER: Correct. BOARD MEMBER DINIZIO: The garage that ~xists now you're going to adjoin to, is there qoing to be a door between that house? MR. BRESSLER: No. BOARD MEMBER DINIZIO: You're going to have to go outside the house to get to that part 'Jf the house? MR. BRESSLER: No physical connection. MS. GOULD: There's going to be a new door cut into the garage. BOARD MEMBER there's not going to bedroom and MS. GOULD: That will be where the bed lS and I don't want a door there. BOARD MEMBER DINIZIO: the porch on the east side? MS. GOULD: No. BOARD MEMBER DINIZIO: go home and don't sue me. It the same. CHAIRWOMAN OLIVA: Is there anyone else that wishes to speak on this application? !.lr. Arnoff. MR. ARNOFF: Good morning, I'm Harvey Arnoff, I represent the Bollmans who live next door. Before I start, the documents that were In vour file were unclear because it was indicated to '11,) that the addition was connected to the accessory structure. Could I see the floor plan DINIZIO: I be anything saw that, but going between the The porch either, That's all I have, might look exactly July 27, 2006 12 1 6 that indicates something to the contrary? BOARD MEMBER DINIZIO: It is connected, physically. MR. ARNOFF: It's not a separate building? BOARD MEMBER DINIZIO: It's going to be one building on that piece of property. MR. ARNOFF: If that's the case, I think U,e Board has to ask itself a question, we're talking about playing games, are we going to I "ward someone's wrongdoing? Because in this instance, this garage hasn't been a garage in foreseeable memory. It is a habitable structure in which Mrs. Gould's son resides when he is in residence there and has been seen living there. Upon information and belief there's a bathroom in it. And what this is not merely expansion of 100 feet of living space, what you have here eventually, whether we want to face this today or face it at another time is this whole structure 1S going to be expanded into one living quarters. It's never going to be a garage, and it's never going to be an accessory structure. It hasn't been as long as the Bollman's can recall and I don't see it foreseeably being that way in the 11ear future, nor do I see a methodology where this Goard can control that because no one's going out Lo inspect and no one's filing complaints. There are alternatives. In the application they say there are alternatives to what they're doing, but lhey're choosing not to do it because they don't like the way it looks so they could avoid coming he fore this Board. You have to remember, and this is something that has always stuck in my craw, the word llvariance'l is not something that one gets as o[ right. If it was something one gets as of ~ight, you don't have to be here. So it's a discretionary act by each one of you as to whether we're going to reward Mrs. Gould for what has gone on in the past. Are we going to allow what has been an ongoing violation to now be given the imprimatur of this Board, and say okay, we're going to allow you to connect it, but we'll believe you that this structure is not going to be habitable, it's not going to be used for anyone to ,;Jeep in, live in or anything else, yet that's not what's happened. My clients are concerned about that, and I think that this application is something where 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 13 1 9 rhis Board should take a hard look at exactly how to balance the equities and do you really want to ~llow this based upon past history. You can consider any extrinsic evidence you want in iotermining whether you want to approve an ,'pplication. There are alternatives. This rlifficulty is self-created. She can live in the hcuse the way it is. There's no necessity for :his. She just doesn't want it and wants to "hange it in some manner that makes it more ,cceptable to her current use desirability. ~hat's good, that's a reason but I don't know if it's a good enough reason. I submit that this :'.oard should deny this application. Thank you. CHAIRWOMAN OLIVA: Mr. Bressler? MR. BRESSLER: Thank you very much. I listened with great interest to Mr. Arnoff's comments; they don't seem germane to this ,'pplication here. The application speaks for itself. I think good reasons have been given and think the balance of equities plainly favors l'v1iss Gould. However, I cannot let pass some of the Gtatements that were made and neither can Miss i";ould. They are just untrue. I'm torn between -lignifying them, when I know that they :3hould not 110 because they're not germane to the issues before the Board. Yet when an accusation like that is made, it calls for some sort of response, we'll keep it brief. There are no habitable quarters, no cooking facilities there. It's not Like the project next door. You already heard where the son lives or lived before he moved out. I'm going to have Miss Gould briefly rlddress these things, and then we'll let it rest with the sound discretion of the Board and let the ineri ts of the proj ect speak for themselves. Miss Gould, do you want to address very briefly? MS. GOULD: My son has never lived in the qarage, ever, not a night. The reason that we want not to connect this bedroom with the garage and -- it's not a garage, we don't keep a car in Lt. We never have. For 20 years we've used it tor storage, okay. We have a golden retriever, l'm surprised the Bollmans do not know this, _.ither Jack or I walk this dog every morrllng. And when we come back from the walk, the dog goes into 2 3 4 5 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 14 1 6 the garage for her morning nap, which lasts until 1 :00 or 2:00 when he comes back from doing his volunteer work. So every day the dog, Penny, lS in the garage in a dog bed. You can go look at my qarage at any time. There isn't a bed in there. "here was a bed stored there in an upright ~osition, that bed is now in the house. But that riCK] uses the garage. No one has ever 1 i ved in the 'F'rage. I don't know what else to say. BOARD MEMBER GOEHRINGER: Mrs. Could, does : he garage have a cement floor or a wood floor? MS. GOULD: It has a cement floor. It has ,I ,-;ubf loor over it, wood floor over it. BOARD MEMBER DINIZIO: Can I ask a (juestion, when I'm reading the application, I am ~ooking at probably your footprint, the footprint that exists and the footprint that will be, that you're asking us to grant. As far as I can tell, 'J1lce we grant that, that garage becomes part of the principal structure. BOARD MEMBER WEISMAN: Exactly. BOARD MEMBER DINIZIO: And I have no objection to that whatsoever. I am assumlng that's what we're considering here. Re(Jardless of whether you have a door between the bedroom and 1- he garage doesn't make it, in my opinion - - and I want to know if this is how you felt about it -- a qarage. It's actually going to become part of that principal structure, and I don't know about Inybody else but I never considered that. MS. GOULD: It's still an accessory tmilding. BOARD MEMBER DINIZIO: Once it's joined, the garage, it's attached. MS. GOULD: It has its own wall butting up to it, but if you can't get through what do you want me to do, have a one inch space? BOARD MEMBER DINIZIO: I'm not opposed to the application, I'm merely stating -- MR. BRESSLER: I think what we have to "lake clear here, the addition is going to have its Dwn separate walls. We're not going to use the wall of the garage as the wall of the house. To Lhe extent that they may be abutting, well, 111ey're abutting. But to say that it's a part of Lt, I think we can parse this too finely. That huilding's there and we're adding on and it's (Joing to have its own walls, and there's no door 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 '"..- 15 16 17 18 19 20 21 22 23 24 25 between them, and I think, Mr. Dinizio, you're right. It is what it is, and I don't think that ~ffects the nature of the application. I don't rhink it's going to change the lot coverage. It's Il0t going to change the rationale for why this ~ddition needs to be built. I don't think that we need instead of butting them up, I don't think we need to leave an inch in there. I think it's a ",atter of interest that the Board can ac;k that ~uestion, but I don't know that it's really determinative of an issue. BOARD MEMBER DINIZIO: I want to be clear on that, Eric, quite honestly, what you're opplying for is to make the house the size of the tootprint you're going to create. BOARD MEMBER WEISMAN: The house will all be heated, habitable space. Whether you have an ',xterior connection is not a point, there will be no accessory structure on the property. BOARD MEMBER DINIZIO: You can park your car in there if you want, that doesn't make a Jifference to this board, 1n my opinion. If you want to put a car in there, it's like an attached ~arage as far as I'm concerned, but as far as the :;etbacks are concerned, which is a concern to us lnd lot coverage, it's all going to be basically <me piece, one building that's going to be on that lot. MR. BRESSLER: I don't know that that makes a difference whether the Board characterizes that way or not, the spaces are what they are. It's not habitable space, the dog's gojng to keep living there. CHAIRWOMAN OLIVA: Is the garage heated in any way? MS. GOULD: It has one heat panel because the garage is in there, it has an electric panel. BOARD MEMBER SIMON: I have a question [or Mr. Arnoff. You referred to the reward for a 'Iiolation. MR. ARNOFF: Yes. BOARD MEMBER SIMON: I don't understand what the violation is; has it been identified as a violation? MR. ARNOFF: Well sure, the violation 1S the utilization of an accessory structure, which LS a garage for habitable space. BOARD MEMBER DINIZIO: Who made that July 27, 2006 16 1 2 determination though? MR. ARNOFF: There has been no determination of that, that's correct, there's been no adjudication of that. I'm merely making that statement. BOARD MEMBER DINIZIO: That's your 3 4 6 c)pinion. BOARD MEMBER MR. ARNOFF: SIMON: It's an allegation. That's correct that's what it 5 I ;-; I SlY. 9 BOARD MEMBER DINIZIO: "violation. BOARD MEMBER WEISMAN: It's an allegation. MR. ARNOFF: It may be a violation. The tact that it's not been prosecuted by anyone in t his municipality is another issue. BOARD MEMBER SIMON: Has an allegation been filed? MR. ARNOFF: No. BOARD MEMBER SIMON: We can make an allegation that you have four people living In your garage, that has no legal standing. MR. ARNOFF: Factually, if someone chooses ilot to file a criminal charge or file formal ,'harges -- if five people go down the road at 100 tniles per hour, sir, they're still speeding, whether or not a police officer arrests them, they're violating the law. BOARD MEMBER SIMON: If the allegation lS ~stablished. I mean, allegations are cheap, ('harges are not. MR. ARNOFF: If this Board is prepared, we (::an bring in witnesses. BOARD MEMBER DINIZIO: Honestly, that's ilot our purview. MR. ARNOFF: That's correct. You're right that's why they're not here. One of the things you're correct about is this application is for the conversion of an accessory structure to the oart of the main habitable space of this house. The issues are then is that something this Board wants to address also because then are we not c'onsidering the entire -- CHAIRWOMAN OLIVA: Harvey, that's not part of the application. MR. ARNOFF: But in reality isn't that what the Board's saying is happening here because as Mr. Dinizio said correctly, you are ilot going It's not a 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 17 1 9 10 end up with an accessory structure. You are converting an accessory structure and making it part of the main house. Mr. Goehringer says it's llot a garage; we all recognize it ain't a garage; It hasn't been a garage in 20 years. What it is LS questionable. It's heated, it has a bathroom, It doesn't sound like a storage to me, it's like if it walks like a duck and quacks like a duck, i. t 's a duck. CHAIRWOMAN OLIVA: Mr. Arnoff, who has been in there to see it that you can document Ihis? And it's not part of the application. BOARD MEMBER DINIZIO: I am looking at the :;urvey right now with all the new structure on it, ~nd whether or not it's an accessory structure doesn't make a difference because nowhere except tor the six foot setback that the front yard setback still meets principal. So even if it's loined, it still can be a principal structure. So nothing to my mind that I would say this is an accessory structure, once it's joined, it's principal. There could be a bedroom in there, whatever they want they can have at the end of this. 2 3 4 5 6 7 8 10 11 12 13 15 MR. ARNOFF: Then it's BOARD MEMBER WEISMAN: to look at the floor plan. BOARD MEMBER DINIZIO: And the cloudy thing was it wasn't like you could walk from the kitchen to this part of the house. MR. BRESSLER: I just have one other point and that is, Ms. Gould has indicated if there's :;ome indication on the part of the Board about rhis application and some issue about connecting rhese things, even though they have their own ~eparate walls, they don't have to be. BOARD MEMBER DINIZIO: I don't think so. just wanted to be clear I have a little question ,-lbout the aging part. Aging owners of my property -- MS. GOULD: My MR. BRESSLER: habitable space? That's why I asked 14 16 17 18 19 20 21 22 husband, Jack. Certainly no one in this 23 l-OOffi. 25 BOARD SECY. KOWALSKI: orocedural to mention. CHAIRWOMAN OLIVA: If you convert that 'Idrage to habitable space then you would have to come back to us for a variance as a separate We have something 24 July 27, 2006 18 1 2 lpplication. MR. BRESSLER: Of course. Whether it be ~n attic or whatever to convert nonhabitable to habitable we'd have to come back and meet all the requirements, and we have no intention of doing that. We think putting a dog in there does not rise to the level of habitable space, but I guess I,eople can argue about that. So we take your 'omment and if we intend to convert it, we'll make 11e application, and I guess we'll be back In Lront of you. MR. ARNOFF: I think you said what I was I rying to say, Miss Oliva, that is, this 'pplication if it's approved is doing just that without them coming back to you, it's converting I'onhabi table space by indirection to habi table opace. Mr. Dinizio says it's all one, it's all part of the same structure, it can't be an ,iccessory structure if it's part of the main tructure. CHAIRWOMAN OLIVA: But you have two i3eparate walls. MR. ARNOFF: The buildings are connected, they're one, it takes nothing to create a door, ~nd the whole essence of this application I :;ubmit -- and by the way it may be something that t:his Board wishes to embrace and that's fine, and that's something we can deal with -- but the issue is let's call it what it is, it's the conversion ,f this structure from a detached structure to a tttached structure. It's part of the house, I I hink that's the correct analysis, if it's part of the house then they belong back here for an ,tpplication to convert the accessory structure to habitable space. BOARD MEMBER DINIZIO: No, the moment they Illdke that attachment, that's what it becomes. It has to meet all the building codes, sheet rock, ('eiling heights all that has to happen. MR. ARNOFF: Just I disagree. BOARD MEMBER WEISMAN: Just the roof alone will constitute the elimination of the accessory :;tructure. MR. ARNOFF: It is. BOARD MEMBER WEISMAN: It won't be. BOARD MEMBER SIMON: I think there's an issue of principal here. If you have an accessory :;tructure, which is quite close to the principal 3 4 5 6 '7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 19 1 2 ';tructure and one could imagine subrosa building ~ctivity to convert that, that would be a violation and it could be brought to the Board. Now the fact that there seems to be a possibility (;f that in this case because these are two walls which could illegally be penetrated by a door, lS lIot the grounds for turning down the application. MR. ARNOFF: I don't think it should be turned down based on that. I don't think that's Ihe issue. I think the issue is the application ,;]lOuld be expanded to include this. I think the Hoard should mandate that. Is the neighbor ,"upposed to police and see if they ever poke a 1101e through the wall? How would anyone ever know? This is an invitation to disaster. The word "disaster" is far more dramatic, that came to mind and I just used it, but the realities are that you people should address this as part of the ,'pplication and to do otherwise I think is to not face the realities of the application. BOARD MEMBER WEISMAN: Is there anywhere in code that suggests that an interior connection ()D one structure is essential or not? MR. rIRNOFF: I've never seen that in any code. BOARD MEMBER WEISMAN: There is nothing that mandates an organization of a plan that says one must have every room connected. MR. ARNOFF: Absolutely not. BOARD MEMBER WEISMAN: Well, in a sense it doesn't matter whether it's connected or not "(mnected as long as it has a continuous roof. MR. ARNOFF: It does because it ceases to to be an accessory structure. The reason we have 10 address it is because it has now changed from oomething that it was, an accessory structure that i l~d certain requirements, to something now that has to meet other requirements. BOARD MEMBER DINIZIO: No, that's the point here, the point lS, they are not doing .nything at all until they run into this Walz ,lecision. 3 1 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MR. ARNOFF: I don't know what you mean by 23 Ihat. 24 BOARD MEMBER DINIZIO: Five years ago this dpplication wouldn't even be before us and I'm Haying that because the accessory strucLure meets the principal front yard setback, so that would 110t -- if it were say be an accessory setback 25 July 27, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 '-'-"'-~''''''.~''~-"'''~-'''''--~-''-''- 20 [rant yard, three feet or whatever it would have La be, then, yeah, they'd be before us, they're tiOt increasing any of the four dimensions that the rode dealt with before Walz. They're not going ~ny closer to the property line on the side. They're maintaining that six foot distance; rhey're not going any higher than 35 feet, they're not lncreasing the front yard setback and they're t tot increasing the rear yard setback, and they're tot increasing the total side yards. BOARD MEMBER WEISMAN: Nor the lot 'overage. BOARD MEMBER DINIZIO: So all of that means they wouldn't be before us until Walz came tn. Now the Walz decision, I respect it even . hough I don't like it, but in this case, the Walz decision says that they're increasing the bulk of Ihis home -- and I can tell you I'm not sure if it's written down by the building inspector, but I here is a certain distance that accessory :;;:ructure must be away from a principal structure, I believe it has to do with fire codes. BOARD MEMBER GOEHRINGER: Three feet at Least. BOARD MEMBER DINIZIO: I don't know what il is, but it is something this will not meet that ~equirement in any way. Even if they're abutting, if you could put your hand in between, they're ~ssentially joined by building codes. So it's nart and parcel of an accessory structure, is just -I building at this point, just a bunch of wood, Il1e moment they join to the principal structure, Lt becomes part of the principal structure. Aquin, maybe the window sizes don't meet the state code or the door sizes don't meet the state codes the step sizes, certainly that's not this Board's purview, but certainly the building inspector will want to address that. They're not going to be back before us because they want to put a bedroom .n that particular part of the house. We have Lathing to do with it. We're addressing thosp Lour dimensions. As I read the application, I (lidn't read that we were going to end up with an -Iccessory structure and a principal structure on I his piece of property. I read that we're gOlng to have one principal structure. MR. ARNOFF: That's how I read it. BOARD MEMBER DINIZIO: I want to be clear July 27, 2006 21 1 2 on that. I really have no objection to the fact of what they're doing, and they're really not lncreasing much of it other than fillinq in the :pace. That's all I have. BOARD MEMBER WEISMAN: That's all I have. CHAIRWOMAN OLIVA: Is there anyone else who would like to comment on this application? If !lot, I'll make a motion to close the hearing cmd 'pserve decision until later. (See minutes for resolution.) 3 4 5 6 7 --------------------------------------.--------- 8 CHAIRWOMAN OLIVA: Next hearing is for 8arbara Thermos on Sound Beach Drive, Mattituck. Good morning, how are you today? MS. THERMOS: Good morning. If I may glve i~inda. Well, we're requesting to build a three-story home and it states that the code limitation is two and a half stories. That's basically it. BOARD MEMBER GOEHRINGER: What makes it ,-hree stories? MS. THERMOS: Where the home is located ,md we're unable to go beneath, so I guess it will "e our garage and two floors of living '''pace. BOARD MEMBER GOEHRINGER: What will be in 9 10 11 12 13 14 15 I he garage? MS. THERMOS: A car, my kids' toys. BOARD MEMBER GOEHRINGER: Will there be :tnything in the lower quarters of the house; will there be an exercise room or anything that will constitute a living quarters or a use that will be construed to be a living quarters? MS. THERMOS: No. BOARD MEMBER GOEHRINGER: ',f the garage we're going to see Lhat you will use for storage? MS. THERMOS: Yes. There will be a elevator like the tools -- like the room for that area and that's it. So in the back a vacant space 16 17 18 19 20 21 22 BOARD MEMBER GOEHRINGER: by an elevator? MS. THERMOS: I have my elderly parents. BOARD MEMBER GOEHRINGER: You're goinq to put something in there for them to get to the tirst and second story. BOARD MEMBER WEISMAN: That was already there in the original plans when you sought side yards setbacks in January. I remember the plans, What do you mean 23 24 25 July 27, 2006 22 1 2 I checked them in fact, because you have now only Gubmitted elevations. I went back to my original Get of plans, you not only have an elevator, but what I want to know, you have not increased the r-idge or the median height. MS. THERMOS: No, it was my mistake. BOARD MEMBER WEISMAN: You should have 1pplied then. MS. THERMOS: It was my error, l didn't know how to fill out the application, obviously, ,nd I made a huge error. And delayed us this "ntire time. I would have done it then, because you and I actually discussed that. You said you're not exceeding, and I said no, I Just didn't know, it was stupidity. I had no clue, we're not "xceeding the height. I just didn't realize that that was an issue, three stories instead of two ,']nd a half. CHAIRWOMAN OLIVA: Why did you decide to 'iO to three stories? MS. THERMOS: Just for living space. We're going to eventually move out here. I have three children. I did want a basement. We can't have a basement. I needed storage, I wanted to have the garages. They're huge. We have three children, it's my husband and I, my parents. There's a lots of storage and there's the bedrooms nnd then. BOARD MEMBER SIMON: On one hand it looks GS though because of the physical situation in the qround that the basement must be the first floor; however, not everything on that floor is basement, [or example, the garage is there's a first floor activity. And I was looking at in comparison to other houses, and they all have the similar l)roblem, this would be the only three-story house on Soundview Drive, and one looks at some of the other buildings are either two stories, some are two and a half stories, none are three stories. MS. THERMOS: You also, if I may, take ~nto consideration that aside from my home and lIlaybe two others on that block everyone's basically stayed in the original homes that they wpre built in. No one has really done much renovations. There's a lot of elderly people who ~ive there that have no intentions of modernizing tbe homes, maybe have no need for it. BOARD MEMBER SIMON: If the people who are 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 23 1 2 living in more of those modest houses now do not intend to do so, presumably a successor owner will I Ie able to point to you didn't your house as a 'recedent allowing three story houses. Maybe i'ours will be the only one for a year 0'" two. there is a policy issue that's involved there. will be very difficult for us to turn down the !lext application because of the precedent that we're asked to set on this case. MS. THERMOS. Although I'd like to "cmsider myself a trendsetter, I hate to think you would deny me this for the simple fact that when you do invest so much in purchasing a property and Iluilding a home, you'd like to get the most out of IC. I am restricted on narrow lot size. There's " lot of things that we had, sort of box-like. rou can see the construction, we're not going too crazy. I think the only real luxury would be the elevator, but I'm thinking at this stage of the same, yeah, I can run the steps up and down, but I had my mom at her age she couldn't do it, I'm trying to think ahead. BOARD MEMBER GOEHRINGER: I'm 10 determine why it's three stories, , high level ranch with two stories. BOARD MEMBER WEISMAN: It's not a It's two full stories. BOARD MEMBER GOEHRINGER: it's a front to back colonial. MS. RIVERA: Obviously it's an AE, Zone we cannot dig a basement it has to be at grade level. The other homes are not considered three stories because part of the foundation was hackfilled; in this case they cannot be, so herefore, they're only considered two and a half :;cories, but since Mrs. Thermos cannot backfill dny of the foundation, it's now considered three story and we have to put a sprinkler system in. BOARD MEMBER GOEHRINGER: That's what I'm trying to get the Board to understand is this ,spect of the flood plain situation. What are the utility prohibitions; do they have to be elevated? MS. RIVERA: It will be elevated dpproximately 18 inches. BOARD MEMBER GOEHRINGER: So therefore within the confines of this elevation that's mandated, she cannot backfill, the wall,s will be 'ixisting, but again, my question to her for my So It 3 4 5 6 '7 8 9 10 11 12 13 still trying Meaning it's 14 15 ranch. I understand, 16 17 18 19 20 21 22 23 24 25 July 27, 2006 24 1 2 Interpretation of why it's three stories she's telling me there's no utilization of that basement ~rea in no way except for this elevator shaft that will go down and pick up whomever wants to utilize it, in this particular case it will primarily be n'3ed by her parents to the really first and second :3tory. MS. RIVERA: Right. The Building ncpartment deems it a three-story because we annot backfill the garage or basement. It will he a totally exposed foundation and the reason that the house is even pushed back to 57 feet is ])ecause the water table and the septic :3ystem, normally we only have to go back 35 feet but in 'll'der to fit the septic system that the Board will lYe requiring we have to push it back 57 feet, which is 20 some-odd feet more than the rest of t- he house. And again that's because of the high water table there. Those other houses were 'xpanded prior to the rules and regulations of the three stories and what not. The realization by the Building Department is 50 percent of the foundation has to be backfilled in order not to consider it a story. BOARD MEMBER GOEHRINGER: Which would be the normal case in a high ranch? MS. RIVERA: Correct. And if you look down the block at the other houses, they are partially, I would say a good 50 percent of them cine backfilled because they border the bluff much "loser than Mrs. Thermos' does, her bluff is further back. So we are restricted in that we cannot build the normal foundation. BOARD MEMBER SIMON: The issue is not so much what use is put to that ground floor, but whether it's backfilled or not. MS. RIVERA: Correct. What makes it a three-story is the fact that the foundation cannot he backfilled. I do believe that regardless of Ihis being a three-story building, she had a prinkler system in, she can utilize the space IlClwever she wants to, but it's deemed a I hree-story because you cannot backfill the toundation more than 50 percent. BOARD MEMBER GOEHRINGER: Is that sprinkler system going to encompass the lower :;l:ory? 3 4 5 G 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. RIVERA: It has to. July 27, 2006 25 1 2 BOARD MEMBER GOEHRINGER: What other measures are you going to take to try to take some of that cement out of the view of the contiguous I ieighbors; is there anything you can do? MS, RIVERA: Thinking of either doing ~tucco or cultured stone to cover it, and the front will have a staircase and hoping to maybe do fountain in the landing. MS. THERMOS: It's very pretty. CHAIRWOMAN OLIVA: You're stuck with what /ou have because of the FEMA regulations. MS. RIVERA: Absolutely. BOARD MEMBER SIMON: I'm understanding this better. Now, with regard to the height limit, which is within the code, and, of course, whether it's two and a half stories or three ;;tories, it's still 35 foot limit. Is the height limit there consistent with that of the other neighbors? MS. RIVERA: Absolutely, the median to the -c i dge is 34' 61l . BOARD MEMBER SIMON: It helps me anyway to r;ee that this anomaly is a consequence of FEMA legulations and not that of putting a house that ls going to be 20 feet higher than any other I:ouse. 3 4 5 6 7 8 9 10 11 12 13 11 15 MS. THERMOS: Right. BOARD MEMBER WEISMAN: You intend to :;prinkle? MS. RIVERA: We have no choice. BOARD MEMBER WEISMAN: I didn't see .1l1ything noted on the plans. MS. RIVERA: On the building plans :;ubmi t ted to the Building Department, the notes :;aid we need to have a sprinkler in order to get a imilding permit. BOARD MEMBER GOEHRINGER: In the normal :;ituation of the FEMA regulation, FEMA is very pxplicit about the lowest floor elevation -- I'm ilOt referring to the first floor elevation, I'm oeferring to the lowest floor -- I don't mean to keep pondering this, but we're going to have more (If these, and we're going to be discussing more of these I'm sure with you also because of the ';ituation down there on Sound Beach Road, :;pecifically, FEMA tells you that there is no lltilization of that lowest floor area and that will be the case. 16 17 18 19 20 21 22 23 24 25 July 27, 2006 26 1 2 MS. RIVERA: No. BOARD MEMBER GOEHRINGER: What do they 3 "ay? 4 MS. RIVERA: FEMA is concerned about 'iterally the deck and the elevation facility, et 'etera. She is in an AE zone as opposed to the VE zone. If you look at the house on the corner, she 'only had to go up maybe 30 inches in order to go Iver the AE zone, and that is living space for lier. Their main concern is that you do not have the utilities and any living space below that 'levation. BOARD MEMBER GOEHRINGER: Let me rephrase lhat. Cement floor, ground floor elevation as Clpposed to first floor elevation, are there any l1Johibitions to that lowest cement floor elevation .n reference to utilizing living space? MS. RIVERA: I believe you cannot have living space below the AE elevation. BOARD MEMBER GOEHRINGER: Which is the lowest floor elevation, meaning lowest habitable tloor elevation. Thank you. CHAIRWOMAN OLIVA: Jim? BOARD MEMBER DINIZIO: What height is the 'owest habitable floor elevation on this house' MS. RIVERA: It's the first floor. BOARD MEMBER DINIZIO: How high is that? MS. RIVERA: Nine feet above grade. BOARD MEMBER DINIZIO: There's a slab on I he ground, then cement that goes vertical for Iline feet, then there's some beams that go across, the bottom of that beam is where you can start your living space, anything underneath that they're telling you you got to put your hot water lif,ater, you have to raise it 18 inches above the t- loor -- 5 (; 7 8 9 10 11 12 13 14 15 16 17 18 19 20 MS. RIVERA: The slab. BOARD MEMBER DINIZIO: -- of this lJasement? MS. RIVERA: Correct. BOARD MEMBER DINIZIO: The hot water 21 22 23 heater is -- MS. RIVERA: It could be lower. BOARD MEMBER DINIZIO: I'm saying you're utilizing this for utility, you can't put a couch (lown there, you can put curtains in the window, (loors, you can't put a couch, pool table, anything I hat's considered living space in there, boxes in 24 25 July 27, 2006 27 1 2 there naturally. Okay, I think that's all I have un this. We granted a variance on this. BOARD MEMBER WEISMAN: A side yard, huge adck yard. BOARD MEMBER GOEHRINGER: Mrs. Thermos, I just want you to be aware that my questioning of [,oth you and the builder is that issue of living dYea on the slab, that's what I have been concerned about, and having the Board understand [hat aspect. We have been doing these variances tor years, we just haven't done them recently. That was the reason why it was important for me to ,:uest ion both you and the contractor. MS. THERMOS: I'm actually glad that Chris WdS here and I'm glad she cleared it up. CHAIRWOMAN OLIVA: Is there anyone else who would like to comment on this application? If not, I'll make a motion to close the hearing and ceserve decision until later. (See minutes for resolution.) 3 4 5 6 7 8 9 10 11 12 ------------------------------------------------- 13 CHAIRWOMAN OLIVA: Our next hearing lS For Robert and Betty Fox on Laurelwood Drive in !,aurel. Hi, Aggie. MS. DROZDOWSKA: Good morning, ^gatha Drozdowska, for the applicant. Basically what we're asking for is to add -- we have an existing front stoop out of concrete with two steps leading down into the front entry and we're proposing to put a covered porch protruding about two feet heyond the existing nonconformance of the existing steps. The lot is zoned for a 50 foot setback; we dye proposing 45'6" to the step itself. We have !wo steps leading up to the front poych. That is 'Jur request. CHAIRWOMAN OLIVA: We made an inspection of the house and actually we granted the variance. It's not really out of character with the rest of [he houses. MS. DROZDOWSKA, We're keeping what's hasically there's as much as you saw within the ~xisting home, the home steps back, yeah, and wp're just we have recently done an addition to the home itself, and we're just bringing the ,.haracter of it up a little bit to make it I!rettier. 14 15 16 17 18 19 20 21 22 23 24 25 BOARD MEMBER 11plps out a lot too. GOEHRINGER: The elevation It makes it look more July 27, 2006 28 1 2 palatial. MS. DROZDOWSKA: It breaks up the length of basically. We put a reverse on the front of it, and we do have the continuous shed-like porch. rt breaks it up a bit the lengthiness 1S definitely taken care of. CHAIRWOMAN OLIVA: Leslie? BOARD MEMBER WEISMAN: No, it's very lear. The drawings are clear, it was well staked ,it the site. I have no questions. CHAIRWOMAN OLIVA: Jim? BOARD MEMBER DINIZIO: No. I have no questions. It's what I read, right, you got cement, add a couple more feet to it? MS. DROZDOWSKA: Going a little beyond what's there now. It's basically more in the steps than anything, our porch comes out to pretty much where the existing step ends, and then yes, we still do have additional two steps beyond that. 1 t' s the necessity of that that pushes us beyond the nonconformance as it is. CHAIRWOMAN OLIVA: Michael? BOARD MEMBER SIMON: I have no questions. CHAIRWOMAN OLIVA: Is there anyone else who would like to comment on this application' If not, I'll make a motion to close the hearing and l~eserve decision until later. (See minutes for resolution.) 3 4 5 G 7 8 9 10 11 12 13 14 15 16 ------------------------------------------------ 17 CHAIRWOMAN OLIVA: Next application is for Pamela Smith on Dolphin Drive in Greenport. For dn as-built deck which must have been there for a long time. MS. MESIANO: It's been there for quite a Cew years, I don't know when it was built. CHAIRWOMAN OLIVA: Do they want to sell i_he house? MS. MESIANO: No. She just wants to make "very thing legal. As far as I know Mrs, Smith Lntends to keep the house, but, you know, make things legal if one wants to refinance, sell, et ('etera, it's a better thing to do now than later. Just a few points, the variance that we're !'equest ing is minimal. I think it amounts to 112 ~quare feet. The required front yard setback is is feet, so there is essentially a 6.6 foot by 17 toot section of the existing deck that is nonconforming, which only constitutes 112 square 18 19 20 21 22 23 24 25 July 27, 2006 29 1 2 feet. Doesn't present a sight obstruction or any detriment to any nearby property owners. I don't ,'hink it has any nega t i ve impact on the tleighborhood, the community within any of the tests as far as the tests for a variance. It's a very simple application, if you have any 'Juestions, I'd be glad to answer them. CHAIRWOMAN OLIVA: Jerry? BOARD MEMBER GOEHRINGER: No, as long as it remains open. CHAIRWOMAN OLIVA: Leslie? BOARD MEMBER WEISMAN: No questions. CHAIRWOMAN OLIVA: Jim? BOARD MEMBER DINIZIO: No questions. CHAIRWOMAN OLIVA: Michael? BOARD MEMBER SIMON: I think this is the one I looked at. On April 5, 2002, there was a request noting a violation having to do with this npecific deck, which apparently was built in 2000 dl:; far as I can tell from the record. Then on November 8th of the same year there's another letter from the Building Department saying that you are again, this is months later you are currently in violation of Chapter 45, in other words, there was a violation that was noted at that time, and presumably the applicant has been .lware for some time that this has been essentially cm illegal operation and there were efforts made 10 correct it; apparently nothing has happened. So my first question when I looked at it was why "xactly are they applying for a variance four years later when, in fact, it was very clear in the documents that it was in violation. Nothing I:as changed except that now they want to have the ~uning Board not notice the history of this and give a variance so that will make these previous violations simply wipe them away. MS. SMITH: I can clear that up. I got the violation and realized that I was over the Line. I tried to do this myself. I went to the :'lanning Board. I got my set of plans. I did what I could to facilitate getting the variance, .md it kept slipping by the wayside, not knowing how to proceed. I had to actually spend twice the lmount of money redoing the initial plans, getting new stamps, at that point, two, three years into ('his process I got Cathy to help me out because I :!idn't know what to ask for in the variance. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 " 25 Thi1t's all I can basically tell you. BOARD MEMBER SIMON: What we're seeing is the latest result in four years of struggle with t he Building Department who said you didn't do it Lhe way you were supposed to do it, and now you're Haying it's okay, we're not going to fight that, :Jut we want the blessing of the ZBA to say it's ,kay because you could have done it that way in the first place? MS. SMITH: The deck was built when 1 got t- he violation. BOARD MEMBER SIMON: When was the deck Inlilt? MS. SMITH: Probably early 2001. BOARD MEMBER SIMON: I believe you J1cquired the property in 2000. MS. SMITH: November of 2000. BOARD MEMBER SIMON: Was the deck built without a permit? MS. SMITH: We went over an existing porch, there was an existing porch by the front door and the side of the house and then we ,expanded on it where the apron had been, and I 'luess, due to lack of knowledge, we built too much. BOARD MEMBER SIMON: You didn't get the CO lor the completed deck in 2001; is that correct? MS. SMITH: No, I didn't have a CO. I t ,ought the house without a CO. BOARD MEMBER SIMON: But the deck wasn't there. MS. SMITH: concrete porch. BOARD MEMBER SIMON: nonconforming, did it go out llOW goes? MS. SMITH: There was a covered or a Was the porch as far as the deck No, I think we were six inches over. BOARD MEMBER SIMON: The deck as it stands ];OW lS 12 feet in width. MS. SMITH: Right, it's like a foot past like where the last part of the house comes. BOARD MEMBER SIMON: And the code I believe would have required it to be half that \'Jidth. MS. SMITH: Yes. BOARD MEMBER SIMON: So somehow or other I ~Jess it's kind of disappointing that your efforts July 27, 2006 31 1 8 were unsuccessful to try to address these two letters of violation. MS. SMITH: I went down immediately. BOARD MEMBER SIMON: I'm not saying you didn't try, I'm saying you were unsuccessful. MS. SMITH: Trying to correct what I needed to do and not understanding and trying to proceed. I kept going down to the Town Hall. BOARD MEMBER SIMON: I for one, I don't know how my colleagues feel, I would be interested :0 examine the file to see exactly what they had ~t that time and what they told you if there were .- here was a written record. MS. SMITH: I don't know. I talked to a very nice young fellow and I asked him what do I tleed to do to get these building plans together and submit them and get pictures and what not, and he kept giving me different advice and it was very hZlrd for me to follow- through. It's not the house [ live in. It's a second home. CHAIRWOMAN OLIVA: Is there anyone else who would like to comment on this application? If not, I'll make a motion to close the hearing and reserve decision until later. (See minutes for resolution.) MS. MESIANO: I would like to submit two letters from neighbors in support of the application and photographs. 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 CHAIRWOMAN OLIVA: Next hearing is for ,John Rabkevich on Cedar Drive and Millers Road in Mattituck, the little green house. MR. RABKEVICH: It's a tough spot to find. Here is the affidavit of posting. CHAIRWOMAN OLIVA: What would you like to 18 19 tell us? 20 MR. RAKBEVICH: I would like to say that we're requesting a variance to add to my little qreen ranch that's out of conformity on my front coad setback. It's a two bedroom and we're going '-0 demo one bedroom and add it to the living room ~nd add two bedrooms, so we'll have a three bedroom ranch. The house existing now is 900 square feet, and we have two little boys that are qrowing bigger every day and we're busting out of [-he seams. We have an odd-shaped property, which doesn't help us conform, and I'm adding a front porch onto the house and make it look for 21 22 23 24 25 July 27, 2006 32 1 3 ~rchitecturally correct for the area, break up that front gable. CHAIRWOMAN OLIVA: Did you put a swimming 2 ;-)001 ? 9 MR. RAKBEVICH: Right. We would like to put in a swimming pool, and I was basically told t-hat's my front yard also. CHAIRWOMAN OLIVA: t,roblem. MR. RAKBEVICH: I have two front yards, T'm not sure if I have a side yard and the back yard is our driveway, which totally blew us out of the water because we have been there for 12 years dnd we always considered that our front yard. CHAIRWOMAN OLIVA: Michael? BOARD MEMBER SIMON: The rule about two front yards doesn't really set out to take care of ',ituations like yours. It's set up basically when you have houses on a corner and it isn't clear \"hich is the front yard, it has to do with Hetback. In this case, if you didn't know the rule you'd say, they're putting the pool in their hackyard. And you look at this funny little road clown there and you say, oh, no, no, it's something n the code. This is a long way of saying I don't have any questions. CHAIRWOMAN OLIVA: Good, BOARD MEMBER GOEHRINGER: p'cople are neighbors of mine and !)earing on the situation. I have ')bj ect ion. CHAIRWOMAN OLIVA: Leslie? BOARD MEMBER WEISMAN: I just hope you can kcep your cherry tree. MR. RAKBEVICH) That was the selling point when we bought that house. BOARD MEMBER WEISMAN: You will have a very careful builder. I have no CHAIRWOMAN OLIVA: Jim? BOARD MEMBER DINIZIO: No questions. CHAIRWOMAN OLIVA: Is there anyone else who would like to comment on this application? If not, I'll make a motion to close the hearing and teserve decision until later. (See minutes for resolution.) You really have a 4 5 6 7 8 10 11 12 13 14 15 Jerry? These very nice that has no absolutely no 16 17 18 19 20 have to questions. 21 22 23 24 25 CHAIRWOMAN OLIVA: Next hearing lS for Alfred Frodella at 40735 County Road 48 in July 27, 2006 33 1 3 Southold. You also have -- MS. FRODELLA: Everyone always wonders what's behind those columns. Basically we're asking for a variance for ~n as-built structure. During construction, the "ccess to the basement was changed from outside Gilco doors to the stair down to the basement for lnside stairs and that change resulted in just ~quaring off the corner of the house it's probably like a seven by nine space to accommodate the stairs to the basement. Since that change was (1111y extending the line to the house that was there, we didn't think that there waS any type of Lcsue with that. The house I guess was originally lmilt nonconforming, which we really didn't know dbout so basically that's why we're asking for a "Iariance. 2 4 5 h 7 fJ 9 10 IfJ BOARD MEMBER GOEHRINGER: Since this is my dpplication the seven by nine, is that issue, it's his issue right here, this one right here? MS. FRODELLA: This is the old house; [:" the old footprint, correct? This area was "losed in here for stairs to the basement. BOARD MEMBER WEISMAN: I'm dieing of ,curiosity what are all those buckets? MS. FRODELLA: When they put the crushed stones in we had a huge sink hole. No swimming pool on the right of way. That was crushed stone ('hat sunk. BOARD MEMBER WEISMAN: I'm glad you clarified it, I found it very difficult to figure out what you were applying for. MS. FRODELLA: We didn't imagine that it was something -- we were just enclosing it. BOARD MEMBER WEISMAN: How did you find out that you had to get a variance? MS. FRODELLA: Had we submitted the changes to move the stairs, I got a call, last :c;ummer, saying, sorry; I said what? It's done ,!lready, it's built. BOARD MEMBER WEISMAN: Ilepartment notified you. BOARD MEMBER DINIZIO: Rightly so. They were right in doing what they did. It's just a ,:uestion you have to travel that long, winding ('oad. this just 11 12 13 14 15 16 17 19 20 21 22 The Building 23 24 25 MS. FRODELLA: And a lot of money, surveys :md - July 27, 2006 34 1 2 CHAIRWOMAN OLIVA: Is there anyone else who would like to comment on this application? If not, I'll make a motion to close the hearing and reserve decision until later. (See minutes for resolution.) 3 4 5 CHAIRWOMAN OLIVA: Next application is for ,':tephan Sequoin on Lighthouse Road in Southold. MR. RUBIN: I'm seeking a variance because 'very thing built that would be built on this site would be nonconforming. CHAIRWOMAN OLIVA: We know. MR. RUBIN: There are some complications h'cre and I brought along a complete set of ~rawings to distribute to everyone. BOARD MEMBER GOEHRINGER: Could you state your name for the record, please? MR. RUBIN: Michael Rubin. To try and l!lake things a little easier for what I'm doing, I ~id a little sketch and these are the construction drawings. Part of the reason I'm distributing Lhese plans again I understand you didn't have a ('omplete set, and the other reason was a carport was proposed and a neighbor objected, and I .'onvinced my clients to get rid of the carport, so the new drawings will not have a carport at dll. The reason the neighbor objected was the .'arport extended right to the property line. BOARD MEMBER GOEHRINGER: Mr. Rubin, I'm ;oing to take the lead on this because this is mine. I don't particularly have any maJor concern with this application. However, with the fact that we're utilizing somewhat if not the entire I:ootprint, which makes me happy, because we have major problems there with the way this house is :.:andwiched onto this small little postage stamp on top, I just wanted to say that we have a huge, brand new roof line which is a contemporary roof Line, which I have before me, and before the Board, and we have a problem of water runoff. That is one of the most tantamount issues that we have to deal with at this point. We have to use ldrge gutters, appropriate down spouts to capture that water so it doeSn't run down the cliff and I am incorporating that in my decision. And I think .il1d I'm happy that the prudent aspect of not having the carport is there because I think that's Lhe part where some drainage has to be put in to 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 35 1 5 retain holding tanks or dry wells that accommodating enough to run that water back of the dwelling. It's not really MR. RUBIN: The street side. BOARD MEMBER GOEHRINGER: Referring to the neighbor side, southeast side whatever you want to "Dll it. Those are the issues that I think of are 'nost tantamount in this particular design. I have I 0 tell you from the standpoint of being on this IJoard for a very long time, this is a very nice uesture giving us all of this so we can 'mderstand. It was very diff icul t for me to understand. And I was over there, and I've seen this property several times. Prior to Mr. Hurtado's application, which he's sitting in the audience, which he has the house next door, your client had certain concerns when he built that house, and last week when I was back to the house. So that's just my opinion. CHAIRWOMAN OLIVA: I'm also just a bit worried about the 3.9 foot on your side yard for ~mergency access because you don't really have \ hat much room on the other side. I don't see a lIlark here, what is the distance between the :lClrtheast corner of the house? MR. RUBIN: I think you're referring to S'BII on the other side? BOARD MEMBER WEISMAN: :; ide by the road. CHAIRWOMAN OLIVA: I know that, how about the other side of the house? MR. RUBIN: 5' 8". CHAIRWOMAN OLIVA: may not back to back ot be the 2 3 4 6 7 8 9 10 11 12 13 14 15 It's 3'9" on the 16 17 18 How about the other c;ide? 19 MR. RUBIN: I'd have to measure it, it's IJOt been recorded, it's obviously larger. BOARD SECY. KOWALSKI: If you would like ~"u could confirm it by letter to us. MR. RUBIN: Sure. CHAIRWOMAN OLIVA: It's so tight for (~Tnergency access. BOARD MEMBER WEISMAN: That's absolutely true but this addition, modest in scale, is not "Cling to change those dimensions. MR. RUBIN: No. There's already a mud ~oom on that side. If it's any consolation, we'd tend to rebuild that fence and that walkway would become more open than it is now. It's just junk 20 21 22 23 24 25 July 27, 2006 36 1 3 things that parade along that side. BOARD MEMBER SIMON: I was having trouble what was happening and when. When you get to the ],l uff side, it looks as though that first floor there was either new or redone. Was thilt a first : loor there; what was that to be" MR. RUBIN: The existing condition on the luff side is the previous owner built ~ kind of !lilY or bowed condition on the building that extend (Jut past the present roof line and we're cutting that all back. We're actually making a smaller huilding of it altogether. BOARD MEMBER SIMON: How far back? MR. RUBIN: If it bows like that, we're it back to the minimum condition. rid of the bow altogether. BOARD MEMBER WEISMAN: That as-built deck done on the top of the bluff was demolished now? MR. RUBIN: Yes. BOARD MEMBER SIMON: free-standing deck? MR. RUBIN: hulkhead. CHAIRWOMAN OLIVA: Anything else? BOARD MEMBER GOEHRINGER: No. I don't know if I'm going to mention this bowing in the decision because it's rather diminimus. BOARD MEMBER WEISMAN: It's here, it's to <cutting (l(~tting We're 2 4 _5 G 7 8 9 10 11 That was a 12 No, actually it was tied to a 13 14 15 16 he removed. BOARD MEMBER GOEHRINGER: I understand. ft's hard to describe in the decision. I'm going to say we're going to use the original existing footprint. If you were going out to the bow I would have to mention it. But if you1re withdrawing back to the original footprint. MR. RUBIN: It's partly because it's so hadly built that condition, and we would like to put in French doors on that side so it makes a ;impler elevation. 17 18 19 20 21 23 BOARD MEMBER WEISMAN: MR. RUBIN: My thought BOARD MEMBER WEISMAN: questions. Thank you for this CHAIRWOMAN OLIVA: Jim? BOARD MEMBER DINIZIO: No. ('onfused here. On the new set of (lS, there's A4 the page I'm on. MR. RUBIN: Yes. More appropriilte. too. I have no further full documentation. 22 24 I'm a little drawings he gave 25 July 27, 2006 37 1 3 BOARD MEMBER DINIZIO: There's a 3.9 ~etback right there near the driveway, what is the .xisting setback there now or is that existing . .lready? MR. RUBIN: No. The light and dark shaded .':rea represents new construction, going to the ::ark dotted line, that's the existing. .so we're :ctually adding another three feet. BOARD MEMBER DINIZIO: On that ;"ide, lhat's a front yard setback, what is the existing setback right now? MR. RUB IN: 6 I 9 II . BOARD MEMBER DINIZIO: So seven feet, six 2 4 5 6 7 8 ::eet? 9 MR. RUBIN: Something like that. BOARD SECY. KOWALSKI: On one of the .c;urveys it shows it as seven feet? MR. RUBIN: It gets confusing, it's seven reet measured from the actual building, then some :if them are measured from the fireplace and some are inside dimensions. On our drawing seven feet picks up the surveyor's information it's a five root actual piece of building added to the fireplace. BOARD MEMBER DINIZIO: The notice of disapproval said the existing I'm sorry, I'm in [, he wrong one BOARD MEMBER GOEHRINGER: June 16, 2006. BOARD MEMBER DINIZIO: That thE: existing ;;etback is 3.9. BOARD SECY. KOWALSKI: It should be seven. There was an error on the Building Jepartment's disapproval. BOARD MEMBER WEISMAN: So the existincJ etback as-built now is seven, didn't feel like it. 10 11 12 13 14 15 16 17 18 19 20 BOARD MEMBER DINIZIO: So he's being denied. He never was denied for that. MR. RUBIN: That is to say he never .irticulated what needed to be said. BOARD MEMBER DINIZIO: Right. I was looking at the 3.9 thinking that was your existing :ctback. MR. RUBIN: Then I would be building within the envelope, I wouldn't have to come for a varlance. 21 22 23 24 25 BOARD MEMBER DINIZIO: come for a variance. You would have to July 27, 2006 38 1 2 MR. RUBIN: No. We wouldn't be lncreasing 5 the envelope. BOARD MEMBER DINIZIO: You're increasing the degree of nonconformity. BOARD MEMBER GOEHRINGER: You have to come hoth ways. BOARD MEMBER DINIZIO: IJc1Ve to be denied for that. CHAIRWOMAN OLIVA: I 110tice of disapproval saying foot back. BOARD SECY. KOWALSKI: I'm thinking you 3 4 6 think you need a new the existing is seven 7 You have to get a 8 new set of plans. MR. RUBIN: always known it. CHAIRWOMAN I mean, you know it and I've 9 OLIVA: It goes into our the line we could get 10 ecords and somewhere down I:ome sort of a mix-up. BOARD MEMBER DINIZIO: Here's my problem with it, this was published in the paper. MR. RUBIN: I appreciate that and it has to be published again. BOARD MEMBER DINIZIO: Honestly, everybody C:;]1ould comply with that because someone might say they're close to the property line, I want to do Gomething about it. BOARD SECY. KOWALSKI: If I may, Jim, when [ advertised it, I advertised it generically without the numbers in there, and I did say the increase in nonconformance, the legal notice would cover it, but he should still get a new disapproval to bring the file up to date. BOARD MEMBER GOEHRINGER: That's good. BOARD SECY. KOWALSKI: If that':3 all 11 12 13 14 15 16 17 18 19 eight. 20 BOARD MEMBER DINIZIO: Somewhere along the line it needs to be clear because it wasn't clear at all. When I looked at this, if the gray line i.CJ where you're building and the dashed line is where the existing building is, you're increasing the degree of nonconformity there by 50 percent. BOARD SECY. KOWALSKI: Actually I knew it was seven foot existing, it's just on the disapproval I took it as more of a typo. BOARD MEMBER DINIZIO: I would like that cleared up. BOARD SECY. KOWALSKI: BOARD MEMBER DINIZIO: Sure. In that vein then, 21 22 23 24 25 July 27, 2006 39 1 3 I'm trying to probably not inclined to grant that part of the extension that seems to me that your ':ide yards are definitely closed in enough. We ~lways have trouble with access and this is just exasperating an already tight situation. So, I lust want, to be fair to you, I would not be Inclined to give you the 3.9. I would prefer you Htay at the seven feet on that side. MR. RUBIN: That shoots the whole desrgn then I think. The purpose of requesting it was I wanted to move an interior stair. If you look at I he plans, you'll sort of see why. The secondary ccason for that stair was it was such a bad stair it actually had a riser and tread 8'6" by 8'6". It was an incredible stair. BOARD MEMBER WEISMAN: That wouldn't even he allowed. MR. RUBIN: That's an OSHA thing. That was where I got the idea it would be nice to incorporate it into the mudroom, the mud room is only a certain portion of that bump anyway, and bring it outboard of the house so I don't have to I,ave it as part of the interior space. BOARD MEMBER DINIZIO: I understand architecturally, and probably the way it fits, but honestly, that's not what this Board considers, not really so much concerned about aesthetics as we are about setbacks and property lines and access to the side yards by the fire department. MR. RUBIN: My question then is, is it possible to consider making out of the fence that 1S on the property line a wider condition even wider than seven feet? BOARD MEMBER DINIZIO: Honestly, I'm worried about the seven feet. I think you're already over the codes, you're already Ilcmconforming and you want to increase that nonconformity by about seven percent. I see no compelling evidence here that says that that has to be done. CHAIRWOMAN OLIVA: Michael? BOARD MEMBER SIMON: Yes, I have some Hympathy with Jim's remarks. I realize it's "ffecting the design and if there is a problem lL's that there is this wonderfully large kitchen, which is a nice thing to have, and whether you can have a kitchen that large when the consequence is to push the front yard setback back to 3.9 feet, 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 40 1 2 that I think is the nut of the problem. MR. RUBIN: It's got the whole utility thing there. Everything, utilities, the washer, dryer, the hot water heater is all in that kitchen. 3 4 BOARD MEMBER WEISMAN: It's not that large 5 ither. 6 BOARD MEMBER GOEHRINGER: Can I ask a . !uestion"? Is there any possibility of rc;hrinking I hat area a little bit and kind of incorporating t a little more in the kitchen but maybe not lotal of seven feet. MR. RUBIN: I think the answer has to be yes. Although I can't tell you how because I haven't had a chance to study it and I can't tell you how much either. BOARD MEMBER WEISMAN: You have to put a header, you have to put a bearing wall. MR. RUBIN: I'd rather not do that. BOARD MEMBER WEISMAN: Not my fault, just lose the closet. It is where it ought to be, the entry and the stairs. BOARD MEMBER GOEHRINGER: Why don't you Rtudy that and we'll discuss it; is that all ~'ight, Ruth? MR. RUBIN: Before I resubmit anything I Rhould get a ruling, right? BOARD MEMBER WEISMAN: Do we necd to get rhe appropriate disapproval, first? BOARD SECY. KOWALSKI: Submit the plans to the Building Department, have them issue a new disapproval and then you can submit that to us ln writing. MR. RUBIN: I know I have to submit that to the Building Department. BOARD MEMBER WEISMAN: These plans you gave us and then they will say there's not a ilonconformance. MR. RUBIN: What would be the next step ln dealing with you folks? BOARD MEMBER WEISMAN: It's like the same (:onversation we're having now. It's almost impossible to have any kind of emergency -- you 'an't with 3.9, you can barely do it with seven, you could, but with 3.9 there's potential hazards for firefighters to access the property. CHAIRWOMAN OLIVA: Especially your :ocation on the bluff. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 41 1 2 BOARD MEMBER SIMON: , I think we're talking .bout it would be useful for all concerned, a Plan ~, were at least outlined. So, if this is going to be denied as written, we often give approval tor alternative, but we can't construct the llternative without some kind of guidance, irresponsible for us because we're not all iHlilders. So what would it look like if there were, if something had to be submitted rather than having to go all the way back, there may be an "lternative form that we could approve, and then ~)u could be on your way. BOARD SECY. KOWALSKI: You have a choice, you can either ask for more time and adJourn the hearing for another month so you have time to submit the new plans, or you allow the Board to close the hearing and you submit that in writing anyway and let the Board make a decision, it ,ioesn't mean they would have to approve that plan. MR. RUBIN: Which makes the most sense. BOARD MEMBER WEISMAN: Mr. Rubin, if lhere's a way that you can incorporate a five foot ~ide yard, rather than 3.9. MR. RUBIN: Thank you, that's my next question. BOARD MEMBER WEISMAN: That is quideline. BOARD MEMBER GOEHRINGER: There's another little problem from a fire standpoint, and that lS t's a very difficult house to get around. Conceivably through the reconstruction of this, I was hoping that the applicant would not leave that harrier up along the road, and that he would come up with a specific plan to create that aspect of privacy but yet have the ability to get through that privacy either through gates or some other manner. 3 1 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 MR. RUBIN: t:he fence? BOARD MEMBER GOEHRINGER: I'm asking you ro rip all that junk down. Because I want to tell you it inhibits anybody from getting anywhere. It is the biggest prohibition I've ever seen on a small piece of property. MR. RUBIN: I know it's a major slum on a "mall piece of property. BOARD MEMBER GOEHRINGER: If that could be ripped down with a very nice fence or landscaping, 0ven if it requires a variance. I don't see it You're asking me to restudy 21 22 23 24 25 July 27, 2006 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 '<" 15 16 17 18 19 20 21 22 23 24 25 hc,ing a problem with this Board, so we can at least get into this thing with another ,'pplication, if it requires a fixed situation" MR" RUBIN: The two issues are the access to the properties in time of need and also just the look of it from the road" BOARD MEMBER GOEHRINGER: The ability of ,mapping a lock and getting in is what we need from an emergency standpoint" MR" RUBIN: Would something like a large rolling gate that could actually open up the whole property twice as wide as it now is serve your !)l.1rpOses? BOARD MEMBER GOEHRINGER: That's fine" MR" RUBIN: That way you snap a lock and push this large wall away" Obviously, everybody wants privacy" The Lighthouse wants privacy from the building, and the house owner wants privacy too" We were planning on planting, some of these things are dead, and replanting all that with shed glow, which is a nice local and beautiful plant ~nd it's also low maintenance, and is local" That was the idea to make a sort of hedge row of those plans" Thank you, folks, I have my work cut out tor me. BOARD MEMBER WEISMAN: interest to have safety" CHAIRWOMAN OLIVA: And "tuff that's flammable, it's a to happen" MR" RUBIN: It's terribly flammable, the (lId wood floor that's down there is something I've never seen in my life, it's a compressed board that almost explodes into fire" CHAIRWOMAN OLIVA: Is this going to be a (:omplete demo? MR" RUBIN: No" It's going to be completely reworked" The envelope will stay xactly the same, the structural frame stays the l~amel we're insulating, new siding, all new windows, what you might expect from a complete renovation. We're still not decided whether we want shake shingles or clapboard. Have any opinion? BOARD MEMBER GOEHRINGER: I wouldn't put shakes on the sound, unless they were plastic" I'm talking about the way it gets battered" MR" RUBIN: We were thinking of the wide It's In the owner's to keep all that brush fire waiting July 27, 2006 43 1 2 rlapboard. Thanks, folks. CHAIRWOMAN OLIVA: Mr. Hurtado, do you llave something you want to add? MR. HURTADO: Yes. I'd like to thank the applicant very much for taking the carport down, I didn't know that, I appreciate that very much. I also had the same concerns that was brought up about the nine feet, and I just have a letter that I didn't have a chance to do. I have Geven copies (handing), and it just reiterated everything you said so that's fine. I'm still having a little bit of a difficult time -- I haven't seen the architectural drawings because they were not in the folder, so I will look at them when they get in the folder, but I'm still concerned about the nonconformity being increased because the front from seven feet to 1 .9. 3 4 5 6 7 8 9 10 11 CHAIRWOMAN OLIVA: That's what we were talking about. MR. HURTADO: I know you were I just want to tell you I object to that. I'm sure there could be another design using the same footprint t hat's there now, and I would like to see the applicant work on that using the same footprint. A good architect should be able to accomplish that because just based on the building in relationship to the lot, it's so small how much can a lot like i:hat sustain in the size of a building. That's <,II I would really want to say. And I'm sure a crood architect, and I'm sure Mr. Rubin is, can design it and stay on the footprint. BOARD MEMBER DINIZIO: Your concern is that front yard, right? MR. HURTADO: Absolutely, it's so close now and I was a little concerned when you were talking about taking the fence down and all that hre -- 12 13 14 15 16 17 18 19 20 21 CHAIRWOMAN OLIVA: Brush? MR. HURTADO: Brush -- because that kind of shields the building. Right now to my way of thinking the building is not attractive and if you t.ake that down -- BOARD MEMBER GOEHRINGER: We want it 22 23 24 i-edone. 25 MR. HURTADO: But it's still so close, 3.9, for a front yard. I mean, my front yard lS 10 feet, so 3.9 is awfully close to the road, ,July 27, 2006 44 1 2 l~hat' s my concern, that should be all the neighbors' concerns is the front yard, that's what you see. I'm so happy he took the carport down, I hat makes me very happy. I think he can come up with a design, I'm sure he can. Thank you. BOARD MEMBER DINIZIO: Which is my point xactly, we've got I think it's 35 feet. We have ,I house that's well advanced of that already and Ihey're asking us to go further. I don't think it would be fair to you when we meet next week and you're not here and we're bantering back, and I convince them that you are not getting that setback increased any more, because I am dead set "Jainst that. MR. RUBIN: So five feet is no longer? BOARD MEMBER DINIZIO: Wee, no, that was a onsideration by one of our Board members, they I hrew that out, but I think quite honestly, you're ~co close to it already. MR. RUBIN: We know everything on that property is nonconforming. BOARD MEMBER DINIZIO: I agree and I am not going to exasperate that particular situation with a variance to an already nonconforming ,'Jetback and increase it. I mean that's only my upinion is and everybody else has their opinion. Gut I think you can know next week that that's what I'm going to be saying, and I'm going to try to convince my Board members that this is not a good precedent to set. I realize they all stand 1m their own. We have people t.hat want t.o build I1rand new houses that we t.urn down, or people who want to put a porch on their house, 35 feet and it was supposed to be 40 feet and they were turned down, and suddenly we're going to have a house that's seven feet front yard, and we're going to make it four feet. Honestly, that makes no sense 10 me whatsoever. MR. RUBIN: That. was my suggestion, one possible trade-off would be completely recontigure how t.he driveway and access gate works so that we would fashion an access gate t.hat would be twice ,IS wide as it is now moving down towards t.he bluff, that way t.he fire department. or if anyone had to get onto the property, it would be much easier because I could increase the access dimension more than seven feet. BOARD MEMBER DINIZIO: I understand but 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ',-,. 2 .5 -,._.._~_.-.-~"~~--,..-...,-_..._~--",,~~<,-,,...>,~"--> . 45 Ihe standard for this town is 35 feet. So you're ,lready well over that. MR. RUBIN: There isn't 35 feet from the front to the back. BOARD MEMBER DINIZIO: I couldn't agree ",ore. MR. RUBIN: For meetings like this I ,nderstand is a case by case basis is because we IJave such a terrible nonconforming situation ~lready. I'm actually trying to propose something Ihat would help the particular situation, not a Icneral situation but this particular one, making better going forward, so you're happy in terms "t access and safety and aesthetics, and my client IS happy because his house is more livable than it was a minute ago. BOARD MEMBER DINIZIO: Honestly, you haven't convinced me. MR. RUBIN: That's why I brought up the thing about the stair, the stair is not a conforming stair. Try and understand that that Rtair with an 8'6" riser tread wouldn't pass 1I11lster with anyone, and it's how the house happens 10 work at the moment. And I tried to reconfigure it. It just seemed it was easier to think of it -I.S an outboard position than try to wrap it inside. I obviously could put it inboard if you tolks say that's where it has to be, it has to 1.-.'. I was just thinking that it has to be a :ittle bit of space on the outside for us is a big deal in terms of the development of the interior ';pace of the house. I'm certainly sympathetic with everything you're saying. I just have a little confusion as to whether I should even go forward with a plan that attempts to rethink this as a five foot yard setback instead of abandoning I L altogether. BOARD MEMBER WEISMAN: I think Lhe intent here is not to tell you how to design something, but to present to you the concerns, and I think you understand. The wider that, the bigger that front yard is, the closest you can get it to the existing is the most desirable. In addition to which recreating that privacy condition along the lront that also provides access, all of that will Lmprove both bringing things up to code, continuing the privacy, dealing with the lleighbor's concerns it's a whole jigsaw puzzle. I July 27, 2006 46 1 2 [hink the intent is to try and create a design [hat has the least change in the degree of :lOnconformity that you can. Keep that front yard as close to the seven feet as you possibly can. If you say you can do it, fine, if you say (an't, you have to explain why you can't, so we (an evaluate it; that's up to you. I think it's pJaced appropriately, but I am concerned. CHAIRWOMAN OLIVA: Mr. Rubin, maybe it would be better if we just adjourned this until ^ugust 31st. I think that would be eaSler than if we have a little disagreement here, if you show us ::ome more plans. MR. RUBIN: Sure, can I send them to you beforehand? CHAIRWOMAN OLIVA: That would be wonderful. I'll make a motion to adjourn this hearing until 9:30 on August 31st. (See minutes for resolution.) 3 4 '" ., 6 7 8 9 10 11 -.----------------------------------------------- 12 CHAIRWOMAN OLIVA: Our next hearing is for Steven Matteini and Stenda Realty, LLC on Willow Terrace in Orient. Hi, Mark. MR. SCHWARTZ: Mark Schwartz, architect l'or the proj ect. I have some photographs (handing) . BOARD MEMBER GOEHRINGER: What exactly happened here? MR. SCHWARTZ: It's my understanding that the code allows you a five by six platform in the tront yard, I had designed something too big. We were going to get a variance, Jim Fitzgerald was doing that work, and I guess he didn't realize that it was already built and Don is the builder here. He had the plans and it just got really built by mistake. We were planning to wait, obviously until we got the variance and hopefully [he approval to build the roof. I think the roof c a problem, the platform I think is okay code-wise. MR. CONNELLY: My name is Donald R. Connelly, the builder. The platform I think I made it four foot out and like six foot, and when [ was doing the roof, the way it was designed, I think the roof encroaches maybe a foot or so. BOARD MEMBER GOEHRINGER: Nice job on the 13 14 15 16 17 18 19 20 21 22 23 24 25 llOuse. BOARD MEMBER WEISMAN: So that's why you July 27, 2006 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 I" .) 16 17 18 19 20 21 22 23 24 25 "'-0 ,,_ didn't request this variance before it was i )uil t. MR. SCHWARTZ: Exactly, he was building it, I designed the house, I'm not on the job on Ihis particular project. MR. CONNELLY: It was a miscommunication, [ didn't realize the roof was also I thought the platform so I made the platform a littlce smaller, instead of five by six I made it four by six and I didn't realize that the roof was part of it. lle ~lled me up telling me the roof is encroaching. BOARD MEMBER WEISMAN: What are the dimensions of the roof? MR. CONNELLY: I believe off the house it I S 6' 8 11 . MR. SCHWARTZ: 6' 8" . BOARD MEMBER WEISMAN: So it's eight i.nches I 5' 6 II is for an open platform? BOARD MEMBER DINIZIO: Covering that porch is what the problem is, and it's 28 feet to the Eront yard, that's basically what it is. MR. SCHWARTZ: Based on my measurements 'hat we took 29. BOARD MEMBER DINIZIO: As long uS you're within. BOARD il as 29. BOARD SECY. KOWALSKI: The surveyor shows MEMBER that's to the bottom uverhang? MR. CONNELLY: You can see on the drawings, on the steps, the columns come down and they're built into the steps, that's where the Little overhang is. BOARD MEMBER DINIZIO: DINIZIO: It of the step; does. But does Ihe porch That's what they're :-;aying. MR. CONNELLY: And I didn't realize it. I i: igured we were good. BOARD MEMBER WEISMAN: It's the soffit ["'yond the column? MR. CONNELLY: Correct. BOARD MEMBER GOEHRINGER: So it's actually :!8 then? BOARD MEMBER WEISMAN: That's with the roof overhang. I have to write this, but weren't we going to keep this hearing open? Did Jim n:::quest BOARD SECY. KOWALSKI: The owner July 27, 2006 48 1 2 luthorized the architect and builder here instead. MR. SCHWARTZ: Jim's on vacation. BOARD SECY. KOWALSKI: We did get the ()wner's consent on that. CHAIRWOMAN OLIVA: Is there anyone else who \'iclUld like to comment on this application? If "ct, I'll make a motion to close the hearing and ,Pserve decision until later. (See minutes for resolution.) (Lunch recess: 12:25 p.m. to 1:00 p.m.) 3 4 ') 6 7 8 CHAIRWOMAN OLIVA: We are back on the cecord. I'll reconvene our meeting of July 27th. We have a request for a Town-wide interpretation of Zoning Code Section 280-241 regarding the Following question: Where a legal nonconforming, oreexisting dock/marina use is issued a wetlands permit that requires docks to be relocated in the "ame general area and reduced to both and number, would compliance with those conditions cause the (locks/marina to lose their legal nonconforming :;tatus under Section 100-241? Who would like to go first? Mr. Samuels? MR. SAMUELS: I've given Linda some copies For each and all of you and also for tho Town Rttorney. I honestly believe -- and I'm not Rn ,Ittorney - - but I honestly believe that there is a 'lory simple solution to your problems and to t,he I)roblems of the Trustees. The principa 1 reason ['m optimistic is that now the Office of the Inspector General of the State of New York, who was referred this case by the Attorney General, was doing an investigation of the selective nforcement of the Tidal Wetlands Law by Region 1 personnel. I've always been puzzled by the inaction of the DEC in not issuing violation for unpermitted structures, the base of which is on IJrivate property, and this is, quite frankly, ,i(Jainst Article 25 of the DEC's law. I think most ot you who know me -- by the way, my name is Tom ~amuels and I'm from Cutchogue, and I am president "I James H. Rambo Corporation" a marine contractor with offices in Southampton and Cutchogue. So I I'robably know as much about Article 25 as anyone in this room because I've been dealing with them :,ince 1973 when the moratorium went into effect. Now I know, as I matter of absolute tact, that the DEC cannot issue permits for property 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 49 1 2 that the applicant does not own -- does not own. Now, whatever the reasons for the DEC not doing this will of course come out in the Inspector General's final report, how long that will take, I don't know. But I'm absolutely certain that that part of the Article 25, which was adopted by the legislature is a true fact. In point of fact, you "annot get a dock permit for a legal riqht of way from the DEC. There may have been in the past some docks off right of ways issued by the Town, t'lIl not aware of any, however, so what is the olution? The Paradise Point Association, wants Illd must have dockage in their opinion. And the owner of the property is not willing to give them that right. So what they have proposed is deeding to the association a piece of property 75 feet by 75 feet at the present terminus of the dock. It would be deeded to the association; the association right now has very little option because they don't own anything on the basin that I am aware of, nothing. The corporation, Paradise Point Corporation may still own a parcel, I'm not ,lware of one that's sui table for docks. Now, what does this do? This allows the DEC to entertain an application for docks, the configuration of which, they will have a hand in. The Trustees, who illways have had the waters under the basin and in the channel in their jurisdiction according my interpretation of the patens. Very few people know as much about the patens or admire the Trustees more than I do. In my mind they're the IIlOSt highly respected body in the Town. They were placed in the terrible !-iosition, which is yet to be resolved, and the legal fight has gone on for some time now. The Town has spent huge quantities of money in legal ~ces. Paradise Point Association has spent huge quantities in legal fees, which they really need '0 maintain the infrastructure of Paradise Point, which is in terrible shape. The Trustees issued a permit for a new dock at its present location, but I believe they were not entitled to do so or had a right to do so because it's a privately owned piece of property. The owners of the property, of course, are making what I consider a generous solution to the Paradise Point Association problem. The claim has been made that a dock is worth $300,000 to each 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 50 1 2 "wner of a piece of property on Paradise Point. That's probably a little excessive but certainly ! he right to dock a boat has value. Mary Zupa just wants a building permit to Guild her house, which does not require any v~riances. It's a legal lot, it has the best 0ulkheads on Paradise Point. I have been working '11 Paradise Point since 1971. I have built 'J') percent of the bulkheads on Paradise Point. I Ilave built bulkheads in the basin alway[; with a Town Trustees permit. So when the issue came up that did they really own it, and they had to go to court and Judge Cahalan ruled that the Trustees did, in fact, own the bottom, I knew it was a fact and I've known it for years and I was astounded by the contention that the Paradise Point Association ,)wned the basin, they don't. So, that is why I'm Ilere, the problem was selective law enforcement by the DEC, there would not have been a problem here. Now, I don't know how or why the DEC acted "s they did. I have no idea. There's been a ~reat many suspicions, I'm not going to get into it because it has nothing to do with the solution, l am presenting a solution, the final solution for the Paradise Point Association as far as this parcel is concerned. That other parcel that 1S 1n litigation, I don't know anything about. I lTIllkheaded the Zupa's property for the Association -- for the corporation, excuse me, [ hey wanted to sell it, this was in '81 when the ['lanning Board said, yeah, these are building lots. It was paid for by the corporation. It's he en a long time since '81, and we had to replace the bulkhead on the bay side of Mrs. Zupa's property. We also had to replace the bulkhead on the entrance of the property at the Zupa's xpense. It was in terrible shape. During the i"eriod we worked there we were harassed on various occasions by various people for various reasons. There was somebody always complaining, but we qat rhe job done, and I think this is the way to go. [ think the association docks need a lot of work the way it is. They can be rebuilt in a 'onforming way. The ZBA does not have to invent ~nythinq to make it legal because you can't -- in my opinion, you can't make it legal. You cannot make it legal, and you're not going to get a zone .'hange to make it anything but what it is, 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 51 1 9 residential property. You will not get a zone change. It will be literally impossible. I can't see you issuing a use variance on property that's owned by Mrs. Zupa. That's my solution. I think it's a common Dense solution. I am grateful to the Zupas for offering to give 75 by 75 feet, what is that worth on Paradise Point? I would say a lot of money. I Ililve built docks for people that buy a parcel just tor a dock, just so they can have a dock and have ~ boat that's fairly close to home so they can jump out and go fishing or whatever they want to do. It's not uncommon, but they buy the property. In this case they're going to be given the property. There is not complete uniformity in the :;ssociation members' idea about this whole Imsiness business. There are some that support It, there are some that don't support it. It's unfortunate, it's been a terrible mess. People "Jho I have known for years don't wave to me when I ~o down there because I'm working for the Zupas. 'rhe gentleman who was at the forefront of all this called me and said don't work for the Zupas, you'll never get another job on Paradise Point. I "aid, I've done all the work, it's done. I got them the only groin field in Southold town, new Ime, and they have all those people have beaches (m the bay side facing Jessup's Neck. So I'm familiar with all the problems. This is the solution, make it legal, Mr. Hamilton's problems with the Inspector c;eneral, I ,ion't know what's going to happen, I can be almost certain of something, someone else will be ~ssigned to the matter because you cannot -- he ('aIls himself the chief law enforcement officer of the DEC, maybe he is, he has many titles, but I can't conceive of the state not enforcing its own I~w, I can't conceive of it, it's never happened that I know of. Was it political? I don't know, I can't figure it out and I'm reluctant to ask. I'm open to any question you might have but ossentially that's what I have to say, you have an lllegal set of docks, they can be made legal by Mary Zupa. The DEe can issue permits. The Trustees can reexamine the whole thing, which I am sure they're willing to do, and come up with a new design, not the one that was essentially forced on them because they had to do something, hut they're 2 3 4 5 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 52 1 8 en a box. The north jetty at Paradise Point is Ilonfunctional. It will not hold fill, i.t has to lie completely rebuilt, and I'm not looking for the job. But it's almost impossible to hold the 'hannel with a leaking box jetty on one side. It lappens to be the updrift side, and that's a problem. The jetties are not owned by ~1r. Zupa or 11Y the association, they're on New York state 'IJottom. They're there with the permission of New York state. Mr. Zupa has very successfully tied :n his bay bulkhead into the south jetty, I say :;uccessfully because it wasn't easy given its states of repair and its low elevation, but I 0uess that's about all I am saying. I know you have spent hours on this. There's been tremendous !ancor, tremendous ill feelings. This is not the Southold I moved into in 1959. It's changed a heck of a lot. But there are still good people here and there are still good people in Paradise Point. And I think this, what I would say is a voice of reason allowed by Mary Zupa, should glve you pause. Now I have given you each -- I'm not expecting you to read all this stuff now, I'vo 'liven it to you, and you can at length discuss it among yourselves. I'll be glad to attend any work lcssions you have or anything else. I Just want ro allow Mrs. Zupa to have her house, and I think che should. I personally am tremendously fond of her, she's a wonderful, wonderful woman. That caid, ask me any questions you like. CHAIRWOMAN OLIVA: Anyone? BOARD MEMBER GOEHRINGER: Nothing at this 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 [ioint. 20 BOARD MEMBER DINIZIO: I have a question ],ut probably not concerning this in particular, IJut the Trustees are asking us a question and t'.hat's why we're here, it's come to my attention t'hat docks don't require building permits; is that correct? 21 22 25 MR. SAMUELS: Never has been in Southold. thverhead is now doing that. BOARD MEMBER DINIZIO: In other words they '10 before the building inspector? MR. SAMUELS: It's relatively easy for the ,uilding inspector to give a permit because the onservation board in Riverhead really is the one 23 24 July 27, 2006 53 1 6 I hat determines what is done, whether a dock'ie' I,uilt or et cetera. BOARD MEMBER DINIZIO: Ours is the Trustees do that? MR. SAMUELS: Just the Trustees. BOARD MEMBER DINIZIO: So if the Trustees "~ay you can have a dock, they can construct that dock without the benefit of a permit? MR. SAMUELS: That's the way it has always 2 3 4 5 I).-en. 9 BOARD MEMBER DINIZIO: Any reason why it's ,.pen that way? I know it's attached to the i lerson' s lane and then at some point then it goes lnto the town lane. MR. SAMUELS: The town has guidelines [or length of docks, location of docks, et cetera and so on and so forth and the DEC does, they 'requently clash as to what's acceptable and what's not acceptable, there have been some knock-down drag-out arguments. BOARD MEMBER DINIZIO: On the length. MR. SAMUELS: On the length. BOARD MEMBER DINIZIO: I'm more concerned "bout the nuts and bolts and size of wood, the ,;tructure. Any building in the town has to be huilt to a certain specification, and we inspect that, except docks. MR. SAMUELS: Yes, and let me add to what yml're saying, there has been a concerted effort by the DEC and the Trustees in the five eastern towns to downgrade the specifications of docks for ')arious reasons. In Southampton and East Hampton, we have to use tropical hardwoods, which makes a qreat deal of sense we cut down the rain forests to build docks. It's increased the cost of the <'tructures by about 38 percent. The DEe is trying to get all docks built with four by four pilings, which are totally inadequate, which give us great nusiness in the spring after the ice has destroyed t.he docks, it's wonderful, sometimes it takes foix lIlonths to restore them all. The DEC would also Like to eliminate floating docks, they shade the ,)()ttom, the little fishies and so on anel so forth, "enthic organisms. We resist it wherever we can, we make every effort to increase the specifications so these are well built structures. He do not like to walk away from junk that we know Is going to fail. But our hands are tied. He've 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 54 1 9 got four agencies to deal with. The Corps of I~ngineers to their credit want things built right. They don't want to see docks floating around the bay after a bad storm or a bad winter. So I would not be adverse to giving ,Jimmy King the right to telling me I can use 12 inch pilings on docks or eight inch or ten inch and 4 hy 6 girders and two inch decking or three inch (lecking, I would not be adverse to that if the town would want to make specifications Eor typical cesidential docks. CHAIRWOMAN OLIVA: Mr. Samuels, thank you lor your presentation, we need to get on with ,J immy King, ask him what his interpretation is, hear his remarks. MR. SAMUELS: Fine, thank you. Tom. CHAIRWOMAN OLIVA: Tom, thank you. MR. KING: Jim King, Town Trustee. This has been an ongoing saga for us over these docks, and we had some confusion as to if we issued a permit for a dock we downsized it, because this docking arrangement didn't meet some of the 8pecifications we need to see, the question is, does it affect to be able to have a dock there. CHAIRWOMAN OLIVA: The nonconformity in other words? MR. KING: Yes. One other issue that I'irobably won't be talked about, I think we need to talk about, but I think we need to look at the ('ode because there's two different definitions in Ihc code for marina. 2 3 4 5 6 7 8 10 11 12 13 14 15 16 17 18 CHAIRWOMAN OLIVA: G1arine 2? MR. KING: No, the definition of "marina" Illoder definitions. You mean Marine 1 and 19 BOARD MEMBER GOEHRINGER: That's what I've 21 been saying? MR. KING: It's very confusing. You have I definition, and I think there's a definition in ('hapter 32. Any questions? BOARD MEMBER DINIZIO: Yes, don't go away. Quite honestly, I'm going specifically to the ~lestion you asked us, which is building docks on rrustee land, there's no dispute on that. Whether ()r not you're saying if you change it or you tell them to tear it up, put it someplace else, then I' hat because it's nonconforming and most marinas oIre nonconforming -- 20 22 23 24 25 July 27, 2006 55 1 8 MR. KING: I don't know. BOARD MEMBER DINIZIO: In particular, if we're saying it's a nonconforming marina, does it ,hen require them to either become conforming or ,lsk for a variance if from this Board? Is that kind of the gist of what we're talking about here? i low did you get to this point? I mean, it seems 10 me like if a building permit is not required by this Town then this Board doesn't see any ~pplication that concerns that unless we have ,riginal jurisdiction. We take our cue from the i"lilding inspector. If the building inspector ':~ys it doesn't need a building permit, there's no way for him to deny that a building permit, for them to come to us, that's what we see. MR. KING: I never understood how the Zoning Board got in this, in the dock business. ASST. TOWN ATTY. CORCORAN: Maybe I can help a tiny bit. As I understand it, and, Jim, you were there, I think the association came for a ucrmit for this set of docks, and the Trustees worked with them and came up with a configuration, reconstruction/reconfiguration whatever, we all have different words for it that they wanted to Hee built, trustees preferred that they were willing to permit. As I understand it then the association -- and that is also subject to challenge by various parties and courts the issuance of the permit and whether it's the good ~nd right thing to do. However, the association I hen had some concerns arising from ZBA's prior decisions because there is an existing cjroup of docks, that is an existing nonconforminq use, eight or wrong, and they feared that if they went and changed those that they would then lose their nonconforming use and have no right to use it at ,Ill. 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 25 MR. KING: Right. ASST. TOWN ATTY. CORCORAN: So in order lor the Trustees to get their permit blessed by I his Board, they asked the question before us ',- oday? BOARD MEMBER DINIZIO: I'm a little unclear still how you get to that point when I,hey're not changing the use. We're talking about nse here as opposed to actual structure, which is we very rarely grant a use variance and if they're not changing the use and not increasing or 21 22 23 24 July 27, 2006 56 1 9 decreasing the nonconformity, maybe Walz comes into effect here? CHAIRWOMAN OLIVA: No. BOARD MEMBER DINIZIO: That's a good rhing. Then I don't know how the question gets sked, how we can answer this question but to say i hat I no lit does not require a variance, and I want to hear everybody's story, but -- MR. KING: I personally didn't see how they could lose it, you're making it a better, more efficient marina. CHAIRWOMAN OLIVA: You're the one that's directing them to change it because it':; a more lppropriate use. So therefore it was not the association or the Zupas that asked to have the docks moved. It was the Trustees that asked the docks to be moved? BOARD MEMBER DINIZIO: We have no jurisdiction over those docks whatsoever. MR. KING: The argument to use was we can't move it because if we do, we're going to lose our nonconforming use. BOARD MEMBER GOEHRINGER: Jim, is the lineal footage of the docks similar to the lineal tootage of the docks that were scrapped or going teo be scrapped? BOARD MEMBER DINIZIO: Again, I don't see 2 3 4 5 6 7 8 10 11 12 13 14 15 I-hat. 16 BOARD MEMBER GOEHRINGER: I'm just asking. 18 BOARD MEMBER GOEHRINGER: One of the issues is we have a policy you cannot exceed more ! han one-third of the way across the waterway with d structure, that's so if someone on thp opposite shore, you still have room for navigation. This present configuration exceeded that. So we backed It up to conform with that. BOARD MEMBER WEISMAN: You're trying to 'reate more conformity. MR. KING: Size-wise it's not a lot different, if you total it up. BOARD MEMBER DINIZIO: A marina lS 17 19 20 21 22 23 marlna. 24 MR. KING: That's the problem I have with U,e definition of marina. I consider that more of d community dock than a marina. A marina to me is open to the public for a fee to tie boats up to, this isn't. 25 July 27, 2006 57 1 9 BOARD MEMBER DINIZIO: Our code doesn't '~:i1Y that. BOARD MEMBER GOEHRINGER: I think what we Ileed to do, and unfortunately we didn't do in this lnterpretation, is the ability to direct the words, let's just take the code out of 100-13 where it says marina or private boat basin as Ruth and I just discussed. We need to differentiate between a marina and never call this a marina. It never should have been called a marina, it should w,ver be called a marina. It is a private boat :Jocking area in a private boat basin, and that's ,t~ I think we need to differentiate between that. If not in this interpretation but in il tuture interpretation, and then whatever the code committee intend to limit that to, is coming up with an actual phrase to say what that is is what we have to do. MR. KING: When I looked at 100-13, that definition, almost any residential dock with a :lock and a couple of floats could be a marina. BOARD MEMBER GOEHRINGER: Jim, what happened to us here on Mill Creek, a person had three boats docked, and he rented one of those slips, which he was not allowed to do. He left this town hall and had a heart attack just as he rounded the corner going out the door. :'ortunately we saved him, but it had become such a I_:ituation everybody gets so upset and so worked up over these things, it's come to the point where we have to differentiate between those two. MR. KING: My big thing is this thing has ~one on and on and on. We just want to reach c-Iosure on it, get the new dock where it_ belongs and people just get on with their lives. BOARD MEMBER DINIZIO: Who is actually asking this question; did the question come from you or did it come from the applicant to you' MR. KING: It came from through the Board ileom us. They told us we cannot move the dock hecause we'll lose our nonconformity if we do chis. That's why we asked you will they lose it 'Jr won't they? BOARD MEMBER DINIZIO: That's pretty 2 3 4 5 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Inmple. 25 MR. KING: I didn't think it would be this complicated. MR. SAMUELS: Can I ask Jimmy one July 27, 2006 58 1 3 CjlJestion? don't own located? recall. Do you issue docks to applicants who the property where the dock is to be Have you ever done that? I don't 2 8 MR. KING: We usually issue to the owner )f the property. MR. SAMUELS: It has to be the owner of the property is the applicant. MR. KING: But in this case they had a ,'ight of way. We try to work with people and reach neighborly solutions. We beat ourselves up "clmetimes over it. We try to help people out, and a lot of times it comes back and it bites us. CHAIRWOMAN OLIVA: Yes, sir. MR. PASCA, My name is Anthony Pasca, j':Gseks, Hefter and Angel. We represent the t'aradise Point Association. I want to try to refocus this a little bit because what't; been presented to you is a generic question, a Town-wide interpretation. We're not the applicants. The Trustees have asked a question, which they're entitled to do under certain l:rovision of the zoning codes at our request, and [ want to give you a little bit of background why we're here and -- 4 5 6 7 9 10 11 12 13 14 CHAIRWOMAN OLIVA: You asked the Trustees 15 lor this interpretation? MR. PASCA, Let me explain. CHAIRWOMAN OLIVA: Please do. MR. PASCA, This isn't the first time that this Board has dealt with the association's marina -- I'm going to call it a marina for lack ,)[ another term, but I do agree with you, ~r. Goehringer -- BOARD MEMBER GOEHRINGER: I really wish ,/ou wouldn't do that. MR. PASCA, All right, let me call it the IHHociation's docks. Back in 2004, this Board on an application by the Zupas said the association's nocks are legal preexisting, nonconforming use in terms of zoning, and that's been through the court cystem, your decision's been upheld, and we're not here to relitigate that decision. After that point, the association wanted to do some repairs to their docks, in-kind/in-place. We weren't proposing to reconfigure them at all. And under i he Wetland Code Chapter 97, the Trustees had jurisdiction over this, and they had to perform a 16 17 18 19 20 21 22 23 24 25 July 27, 2006 59 1 9 lull review. As part of the review process, they ~aid we want to look at other configurations and we showed them some configurations, some ;~J.ternatives, it wasn't what we were asking for but we did it at their request. And after many, ,"any months in September of last year, the Trustees came down with a decision that said, w0'11 let you rebuild your docks but we want it configured in a certain way. What they came up with, it wasn't ideal for us because we were losing about three or four boat slips, but we were willing to go along with it. You guys should have copies of the surveys, it shows the existing configuration of three docks with the Trustees' ,'pproved configuration. You can see what the Trustees did, they tried to bring the docks into conformance with their regulations, Instead of three docks, we now have one dock. It's in the Harne area as the other docks, instead of spanning LOO foot shoreline, it covers a lot less of the horeline. It doesn't extend out as far into it IS basin and it cuts down about 20 percent of the linear footage of actual dock space. It's just a cough guess but that's probably pretty accurate. Like I said, we're going to lose about three or .our boat slips out of it. We're willing to go "long with, but when the Trustees' decision was challenged in court, the neighbors raised an "rgument that the Trustees' decision is illegal because of the zoning code because since it's a IlcJDconforming use under zoning if it's moved even lightly in the way the Trustees asked us, it would violate this section of the zoning code. We don't agree with that, and I don't chink the Trustees agree with it otherwise they wouldn't have asked us to do with what they did, hut you have to understand, we have been sued :;;any, many times, and we're sued on every little thing that happens and before we take a chance of complying with their decision, we said we want to ~ind out whether the zoning Board, which is the luly board that has the jurisdiction to interpret :he zoning code, whether you guys agree with our Lnterpretation and I presume the Trustees' interpretation. Now, we couldn't make an application to you guys directly because as you pointed out, there's no way to get here. BOARD MEMBER GOEHRINGER: Mechanism. 2 3 4 5 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 60 1 9 MR. PASCA, We can't get a building permit. I don't think you can get a denial from the Building Department since they don't have jurisdiction over the docks. So we made a request 1.0 the Trustees to make the request to you because ! he Trustees did have the power under the code to ,-efer to you a question of Town-wide Interpretation. So that's why we're here and the '{uestion you read at the beginning of the meeting, it doesn't say Paradise Point anywhere in it, it doesn't ask whether the Paradise Point Association's docks are legal or not, it just says where there is a legal preexisting, nonconforming !Ise and the Trustees have asked to reconfigure and make it smaller in the same general area, does 'hat violate the zoning code, that's the only 'Jdestion that I'm aware of that we're here to lmswer. We support the Trustees -- I presume the Trustees' position is that it shouldn't violate the zoning code. Again, that's your call, that's why you guys have the power of interpretation. Just briefly though, to actually look at Ihe zoning code because that's why we're here, '-eally the question is do we violate I presume dubsection A, 241, which says a nonconforming use : lilall not be enlarged, altered, extended, reconstructed, restored or placed on a different portion of the lot or parcel of land occupied by such use on the effective date of this chapter, llor shall any external evidence of such use be increased by any means whatsoever. So, given the reduction of the size of the jocks, the reduction of the intensity of the use, L'd say we're losing three or four boat slips, yiven the physical shrinking of the entire area of : he basin that's being taken up by these docks, I don't know how the question could be answered any other way that they should be allowed to have some flexibility in their design, the Trustees that L .'~; . 2 3 4 s 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 23 The only thing I'd like to say at the end is again, we're not the applicants but I assume Lhat there are other docking facilities, community Docks, probably some marinas that might be impacted by this question, and I think that as a matter of policy, the idea is to shrink llOnconforming uses, and that's certainly reflected in your code. And when the Trustees and when the 22 24 25 July 27, 2006 61 1 9 :mc are presented with these types of situations, ,;houldn't they have the ability to do what they think is right environmentally and within their jurisdiction since they have the principal jurisdiction over this as long as the end result ,,; not an expansion of the nonconforming use hut [ anything a reduction of it. That's our rosition, if you guys have any questions, I'd be happy to address them. CHAIRWOMAN OLIVA: No. BOARD MEMBER DINIZIO: I want to ask questions, I'm sorry. I need to understand this. T don't know that the town wants to shrink nonconforming uses, they want to eliminate them. MR. PASCA: That is a policy, but lIonconforming uses are tolerated. BOARD MEMBER DINIZIO: I think you either have a nonconforming use or you don't have it. '!'he use isn't the size. Nonconforming setbacks are sizes we always want to try to reduce that. nut a use is completely different. If we define 'vhat a marina is, and we have no control over the size of that marina, I'm talking about the Zoning IJoard, then we have no jurisdiction -- this is only my opinion as to whether or not the size of Ihe docks or the location of the docks, or even the elimination and putting back up of the docks ';ays that you have now lost your nonconforming. MR. PASCA: I'm not saying you do have lurisdiction over that question, but you have jurisdiction over interpretations of the zoning ,ode and that's why I'm trying to refocus this on, it's not a specific question of whether our particular docking facility does or doesn't, should or shouldn't do what the Trustees say, but what the question is is that there's an interplay between the zoning code, which has its own nonconforming use provisions and says Ilonconforming uses shouldn't be expanded. They're "llowed to be reconstructed to a certain extent, :md they're allowed certain flexibility, but they're not to be expanded. And one of the things t says is they're not to be relocated, a 11Onconforming use. BOARD MEMBER DINIZIO: A use. MR. PASCA: Yes, this Board has found, Ihis is a preexisting, nonconforming use under the ~oning code. Because if you went in today to 2 3 4 '" .J 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 62 1 2 create a community docking facility, you couldn't do that in a residential district as a matter of eight, you would need permission from this Board. So the Board back in '95, then again in 2004, this Eoard said okay, but it's a preexisting, llonconforming use. So that's why the llclllconforming use provisions in 241 come into iJ1ay. That was the argument made by the neighbors that because of 241 you can't move this over. CHAIRWOMAN OLIVA: Can I interrupt you? It's not that the neighbor, that you want to move these; it is another entity, an elected body, the Trustees, that have come in and said, the original emes are too far out in the basin, you're being ,letrimental to the bot tom. So therefore we were ,oing to shrink your dock and floating docks, and It's the Trustees that have told you to do this. it's not an applicant. MR. PASCA, I agree, but I'm jW3t telling want to comply with what the Trustees are We're going to lose our nonconforming because it violates zoning. So we're just to find out H CHAIRWOMAN OLIVA: I think your definition e)f nonconformity in this instance is a little bit ~kewed because it's the Trustees that are telling yoU, it's not you that's saying I want to reduce 3 1 5 6 7 8 9 10 11 12 you we doing. ri.ghts Irying 13 14 15 i 1_ 16 MR. PASCA, I agree it is two different W3es. But there are zoning questions and there <ire Chapter 97 wetlands questions. And it's ]'ometimes hard to keep them separate because ~oning can say a use is legal, a use is not legal. Tbe Trustees have their own jurisdiction to regulate docks. Right now we're at what could be llothing or it could be a collision course _ If the Joard were to say that Trustees under zoning you don't have any power to reconfigure a nonconforming docking facility or nonconforming ::larina, then the Trustees' ability to do what they have to do is going to be limited. If you say as iong as the nonconforming use is not expanded or enlarged or any physical signs are exceeded the way the code's written, then they have the Clexibility to do what they have to do. The only )"cason we're here is to see whether under zoning I here's a collision course or not, and we don't hink there is. We're in a little bit of an odd 17 18 19 20 21 22 23 24 25 July 27, 2006 63 1 2 ~ituation being before you but under the ,ircumstances where we get sued for doing _my thing , dropping something in the bay, we're yoing to get sued for it. So we have to know before giving up or losing some nonconforming light whether you agree with the interpretation that we have and that we think the Trustees have. That's the only reason we're here. ASST. TOWN ATTY. CORCORAN: Tony, do you (lave a view as to whether Section 246 is mplicated at all? MR. PASCA, Is that the involunt.ary move? think it.'s an alt.ernat.ive way of looking at. It. To the ext.ent. t.hat we didn't. ask for t.he ceconfigurat.ion and t.hat it. was put. upon us by the Trust.ees. ASST. TOWN ATTY. CORCORAN: Here's what )16 says so t.he Board can consider it. and anyone else who want.s t.o speak t.o it. can consider it.. hnd I'm not. expressing an opinion on it.. 246, ,lays Sections 100-241 (a) and (bl -- and (a) is what. we've been dealing wit.h here t.oday -- and 243 herein are not. int.ended t.o apply t.o involunt.ary I!lovement.s of uses or st.ruct.ures as a result. of 'ondemnat.ion actions or other litigation. It's olearly not condemnation action, I guess the '1llestion would arise is it. other litigat.ion. MR. PASCA, Or are t.hose illust.rative (~xamples of an involunt.arily move? Again, that.' s a zoning quest.ion. ASST. TOWN ATTY. CORCORAN: What is your point of view? MR. PASCA, I think an involunt.ary move 18 long as it doesn't enlarge a nonconforming use, it should be allowed. It would certainly be within t.he policy of t.he zoning code. There's no question that zoning allows nonconforming uses to ontinue, but. it. doesn't want them to expand. BOARD MEMBER WEISMAN: May I ask a '1uest.ion? I just. want. to clarify what.'s act.ually lequested here is that the Trustees by their ("equirements are attempting to mitigate the :;cverit.y of environmental impact, reduce it substantially and to bring the reconstruction of rlocks into closer conformity to what would be lequired should they be built anew; is that right? MR. PASCA, I think so. BOARD MEMBER WEISMAN: I just wanted to be 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2" ~() July 27, 2006 64 1 2 :mre I understood, and now I understand the two codes. 3 ASST. TOWN ATTY. CORCORAN: We have another presentation coming. BOARD MEMBER DINIZIO: I'm sorry, I must cick your brain and I think we have to. I still j-llink we're confusing uses, a marina use with :;tructure. 4 5 6 MR. PASCA: There is a difference, no 7 question but -- BOARD MEMBER DINIZIO: If those docks didn't exist it would still be a marina. If boats could pull up there and do their thing and hop onto the land, in our definition of our code it would still be a marina. MR. PASCA: It might be, I don't know. I ilaven't thought that through. But the difference between nonconforming structures and nonconforming Ilses and nonconforming building, they're very c:ubtle differences, but they're each dealt with ln d different section of the code; 241 deals with nonconforming uses. BOARD MEMBER DINIZIO: .-;aying by increasing the size increasing the use. MR. PASCA: I never said lncrease, I said we're decreasing it. BOARD MEMBER DINIZIO: You're saying rlecreasing the size of the dock decreases the use. MR. PASCA: It deintensifies. BOARD MEMBER WEISMAN: The intensity, not Right, but you're of the dock you're 8 9 10 11 12 13 14 15 16 17 t he use. 18 MR. PASCA: It's not a building so you can't measure in terms of floor area liJ(e you could a nonconforming nightclub in a residential :listrict. That would be an easy way to say 1'111 reducing the size of this nightclub by shrinking the building down. It's not a building, we're working with -- zoning codes are never perfect, !.hat's why we have zoning Board because they work through the imperfection. BOARD MEMBER SIMON: Part of the problem is the ambiguity of the word "use." Use ()rdinarily refers to the use that preexists, but here we're talking about uses which sort. of live ()J1 their own, and that is t.he use of the bay, the lne of a dock is something which involves subtle :'hanges in t.he meaning of the word use. I t.hink 19 20 21 22 23 24 25 July 27, 2006 65 1 2 ~he quarrel between Jim you -- MR. PASCA: I didn't know there was a 3 quarrel. BOARD MEMBER SIMON: I mean the point of focus has to do with this particular ambiguity. [s it changing the use of something if you do the ';rime thing someplace else. Under some people's interpretation of the code, it is a change of use; 1ll1der somebody else's, it has nothing to do with "ue. I think it has to get past and not worry "bout whether it is a use or not or whether it's a ';Lructure because in these cases it's so intertwined, that it's not useful to try to take the echo strands apart. BOARD MEMBER WEISMAN: I think the issue LS not about use particularly, use remains consistent. It may have to do with intensity of use and its reduction. The Trustees are dttempting to do something that is environmentally responsible and that essentially improves failing nfrastructure. So the question here is, what's ilccfore us is whether or not in so doing the ZBA will uphold their right to do that without cTeating an illegality, or, if so, under what circumstances will it remain, will it continue to be a nonconformity, and just that the degree of nonconformity will be mitigated. ASST. TOWN ATTY. CORCORAN: I think ~veryone is right, our struggle is that we have to deal with the words that are in the code. BOARD MEMBER DINIZIO: Use. ASST. TOWN ATTY. CORCORAN: The code says 'iuch building or use, meaning a nonconforming building or use, all these things may not be done to it: Alter, relocate, reconstruct, et cetera, dnd that leads to the confusion because how do you i'econstruct a use? I don't know that you can '-econstruct a use. You can reconstruct a building. MR. PASCA: We're not a building. BOARD MEMBER WEISMAN: But a dock is a different structure. MR. PASCA: Absolutely. ASST. TOWN ATTY. CORCORAN: But the words don't match up exactly. MR. PASCA: Some words seem to match what you would do to a building: You could l!nlarge a use, you could alter a use, you could extend a 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 66 1 2 II03e, you can't really reconstruct a use; so that's why I agree with you. ASST. TOWN ATTY. CORCORAN: You could reconstruct a dock. MR. PASCA, You can reconstruct a dock, !,ut then we're getting into parcel and use or ::tructure. BOARD MEMBER SIMON: You can't move a use, think Kieran is absolutely right. BOARD MEMBER WEISMAN: I get it. BOARD MEMBER SIMON: We can build a dock 'omeplace else and give it the same use it had :.Iomeplace else, that's maybe shorthand to say that's moving the use, but use isn't the kind of thing you can move. CHAIRWOMAN OLIVA: Mr. Bressler? MR. BRESSLER: I represent Vic and Mary 6upa. Mary Zupa is the owner of the property in lssue. I think we have to focus a little more closely on what's actually going on here, and that is 100-241. Contrary to some assertions it's not iDO-246; it's not before the Board. It wasn't odvertised and no interpretation was sought with respect to 246 or any other section other than 100-241. So that's what's before the Board, that's Point l. Point 2, there's been a lot of talk about docks or building permits. I defy the Board to read the code and tell me if you think that you don't need a building permit for a dock. Now the l10ard is faced with a similar situation with respect to Walz. Twenty-five years of practice was overturned with the stroke of a pen and a decision. We know what you've been doing down there and it's not right. Now it seems to me that o dock plainly is subject to the requirements of a iluilding permit. You just have to read the code and look at the definitions. The fact that the inspectors don't do it means nothing. This Board has the power to say, dock's a structure, a lruilding, whatever you think it is, but it's :;omething under there and you better go get a building permit. And if these people are really worried about what's going to happen, go to apply [or a building permit. And if they don't give you one, take an appeal. This is not a generic application. What Lhis 1S 1S a pernicious application that has 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 67 1 2 lnvited this Board to at the same time to legislate, which is the purview of the Town Board, ~nd at the same time throw the barn doors open. I'm going to expand on both of those ~hemes. This is an application that should be deep-sixed and deep-sixed right away before . lomething terrible happens in this town. Why do I say that? It purports to be Town-wide generic interpretation. It plainly lS IlOt Town-wide generic interpretation. You only I:.lve to listen to your own comments to ,;ee that that's true. Well, we're not expanding it, maybe we're getting a boat slip less, and maybe we're moving it 10 feet one way or another, that's the frurview of the Town Board. Section 241 is clear .md unequivocal on its face. You can't reconstruct and you can't move. And let's not parcel too finely, the use is tied to the dock. Mr. Dinizio added an interesting possibility of having a marina without docks, I don't think that's the case here. These two things are inexplicably intertwined. The docks are being leconstructed in another place and they are being torn out completely and reconstructed. As was noted, the purpose of the code is the elimination (Jf nonconforming uses, not moving them from one pluce to another on a lot, not taking a lot with two houses and tearing one down and building up 10 feet away just because it's a little bit smaller. r could sit up here for hours and go through the variations that could result of the decision that '41 does not mean what it says, which is you got a flonconforming use, the law is clear, YOl] can't [lleSS with it. If you do, you lose it because we w~nt to eliminate nonconforming uses, that's 100-10 says, that's the purpose of the codes. Now, if some other application is sought 'or some sort of relief, which I don't hear hecause that's not why we're here, from the ~trictures of 100-241, that's another question, hut that's not before you. 241 is clear and '111equi vocal on its face. What we have here i'3 a complete reconstruction of a project in a new 'ocation on the lot. That's what you're dealing with, and what you're being asked to do is make a ,uling saying some way or another those words can he read to say it's okay. But now I ask you, does 'hat mean moving it 10 feet away is okay? Is 15 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 68 1 2 "eet okay? Is five feet okay? How are you going to handle that? That's why that's a legislative I,"at ter. The Board, the Town Board when it passed his law said you can't do it at all, but maybe ,his Board has power to grant relief from that In ,i different context, but maybe it doesn't, but is ~ generic Town-wide interpretation you're now going to rule that it doesn't mean what it says, ~nd on this specific project we're goinq to now 'stablish a 10 foot rule? Or because the Trustees think it's better, we're going to allow you to place it in a new location and rebuild it 'ompletely, when under the law as promulgated by t lIe Town Board, you're not supposed to be doing that? The answer is you can't do it without some other kind of relief. You can't do it. It's not ~ qeneric interpretation because if it were we wouldn't be arguing about whether this is the same :;i.ze, whether it's three slips less, two slips Inore, whether it's 10 feet away, 15 feet away; that doesn't come before you, because that's fact 'pecific, and the fact that the association came before the Trustees and asked we want to rebuild in-place/in-kind, that's what they asked for, that's what they wanted. As a result of various qyrations, a permit was granted. They don't have to build that. They don't have to do it. If the determination that it's preexisting nonconforming stands, they have every right to keep it there, they don't have to build a new configuration. Nobody's forcing them to do it, and they would take the position that any order by the Trustees ordering them to remove it is illegal because it's 0]-eexisting, nonconforming because you said so. This is a very peculiar procedural I)osi tion they f ind themselves in. They want their -ake and they want to eat it too. Now, I will note on another matter, the matter of whether or not this is preexisting, uonconforming did go to the appellate division and they issued a decision, and they declined to pass 'JIl whether those docks are legal, and sent the matter back, said it's in front of Judge Weber for determination on that issue. To that extent, that It;SUe remains open and we're going to bre litigating the legality of the docks and I have lttached a copy of that decision for your "cms idera t ion. 3 4 5 6 "7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 69 1 2 So, again, factually, there are a lot of issues as to whether or not those docks ultimately ,Ire going to remain. But the gist of the first ~oint is, this is not a generic application. This deals with this particular case. Trustees were ~orthright enough to note, we're not aware of ~nything else like this, never had an application !ike this before. But if you make this ,',pplication and you grant it then it's not just clocks, it's houses, it's everything because you ~n't read the language of 241 to apply to docks ..nly, it's a Town-wide application, that's the ~roblem with an application like this. You're 'ICl.l.ng to end up legislating, and then you're going 10 end up having so many cases involving what's ~reexisting nonconforming and what isn't and what you can do and what you can't do, and maybe if you cut it down that's okay, because you're trying to minimize the environmental impact. If the Town ~oard had said that that's one thing but they .:jidn' t. 3 4 5 6 7 8 9 10 11 12 13 The second point is the generic interpretation your forms require that it be disclosed where is the vagueness or uncertainty or the lack of clarity. There is no vagueness or none is alleged in the application and none is set I-orth. This is simply a case of people asking for what they want, 241 it is clear and unambiguous; you can't reconstruct a nonconforming use. That i:; exactly what the Trustees said was going to I :coppen. In fact, they called it new construction. That you cannot do. And for this Board to enqraft lrl exception and say, well, yeah, except the code '~-lYS you can do it in a certain circumstance ,it -lust doesn't say that, and I don't think any of you would take the position that that is ambiguous Dr unclear, nor is moving it to a different location, the use is tied to the docks. They're moving them, someone's qoing to have to bless that ,md not in a generic Town-wide application. The IHlrposc of the law is when those docks exceed t heir useful life like any other nonconforming I ::oc, they fade away because that's what the town wants to happen here. Why this should be different from any other nonconforming use that I~des away when its useful life is expended, we Ildve heard nothing. BOARD MEMBER SIMON: I would like to ask 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 70 1 2 is your interpretation that you should not be ~llowed to repair a nonconforming dock? MR. BRESSLER: That's a fair question, my position that Section 241 is, if you turn to 241, ls very clear you can't enlarge it, you can't d-iter it, you can't extend it, you can't ceconstruct it, you can't restore it or place it 1m a different portion of the lot or parcel of land to occupy the use. Nor can you move to ~nother location your use would be nonconforming. 'rhen you go to F, shall not be repaired or rebuilt nnless the use is changed to a conforming use if ~he nonconforming use is damaged by fire or other I~nses to the extent of 50 percent of iLs fair value. Those provisions address your question and whichever one your question falls into is where j-lle answer is. BOARD MEMBER SIMON: You're saying there Ire serious limitations on repair, reconstruction and repair? MR. BRESSLER: Absolutely. BOARD MEMBER SIMON: To use your analogy with other structures -- houses, presumably you would say the same thing, that you shouldn't be ,ble to reconstruct or repair a nonconforming house if it's more than 50 percent. MR. BRESSLER: If it's damaged by fire, if it otherwise falls within the code. But what you have here, they're going to tear it out completely ~nd put it someplace else. That is not what is oontemplated by that section because that's not what it says. If they had come and said, we want to repair it in-place, I guess we'd have a different application, and we'd be arguing about ~o percent, but that's not before you, we want to "proot it build it anew and put it someplace else. BOARD MEMBER SIMON: Would it be different if it were moved as houses sometimes are moved llhysically? MR. BRESSLER: I don't think you could do 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 It. 23 done, code. BOARD MEMBER SIMON: just as a matter of how I mean if it could to interpret the be 24 MR. BRESSLER: I mean legally, don't think you can do it because it says you can't put it on ,mother location that's not conforming. BOARD MEMBER GOEHRINGER: Mr. Bressler, 25 July 27, 2006 71 1 2 we've done it for a long time. It's been done. rlon't think you have to continue this debate, and [ 'm trying to tell you that it's been done. If you have a house that's on a cliff and it's taIling off the cliff, and they come before the Zoning Board, we've done it, we've done "very thing , everything that has encompaclsed that (;ntire section. MR. BRESSLER: And my question would be "pon what basis have you done that? BOARD MEMBER GOEHRINGER: Because more than 50 percent of it was still existing. MR. BRESSLER: Have they come before you "jj a Town-wide generic interpretation? BOARD MEMBER GOEHRINGER: Absolutely not. MR. BRESSLER: Absolutely not, and that's illY point here today. On a Town-wide, generic interpretation you and the Board would not have the ability to do what you did have the ability to (10 in any individual case. That's one of the evils with this application before you. You ubviously want the ability to look at any particular instance on its facts, which is not what's presented to you today. What is presented to you today is something Town-wide, far-reaching that will encompass everything under every ircumstance and that's not appropriate. I'm i tying to answer Mr. Simon's questions, I'm trying to focus on that very fundamental and distinct difference that flows between what you, Mr. Goehringer, posited, which is obviously true there are cases like that, but this case is not that case. The case that's before you is for the Town Board to legislate and to say, okay, we're going to change the rules. The rules are you clon't need to come into the Zoning Board on an individual basis if you're looking for relief. The rule is as long as you're within 10 percent we're going to let you do it or so many feet or whatever. What you're being asked to do goes far heyond that, and that I think is the point of the application. The implications, as I said, are just legion. The proximity, the distance away, the reconstruction, all these issues are not appropriate under this particular application. They're essentially asking you to legislate and I"ewrite the law rather than deal with a particular case on whatever merits it may have. And, of I 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 72 1 2 -ourse, in the cases that you posited Mr. Goehringer, there were specific facts set forth, the economics were given to you and the Soard made a decision after reviewing the nature "f everything specific on that proj ect that came ro bear. If it would be a use variance, they would have to meet the use variance standards, for _.'xample, and area variance, they'd have to meet area variance, none of that's before you today. You don't have that ability or opportunity to cashion anything on a Town-wide basis, That is I he problem, As far as the preexisting, nonconforming, the already mentioned what the status of that is, Ihat's still up in the air, it's being litigated :1J front of Judge Weber. As far as the lnvoluntary move goes, that was not advertised, rhat's not before the Board. I would say this move is not involuntary, it's not a condemnation. They have not been ordered to move the docks. They were given a permit to put the docks someplace else, they can leave the docks right where they are. You say then we can't dredge, well, then challenge that determination. Zupa went in to try to dredge got a DEC permit, the IRRociation said, no, we don't want you to dredge, ':'rustees wouldn't give us a permit, so guess what, we didn't dredge. This is not involuntary. They haven't been ordered to do it. In fact, Trustees can't. They have every right to maintain if this 110ard is correct that it's preexisting, llonconforming, they have every right to maintain it, and there's nothing anybody can do about it. ASST. TOWN ATTY. CORCORAN: The Trustees ilave expressed an intention to issue a violation i_I this is not conducted; isn't that right? MR. BRESSLER: I don't know what they're qoing to do, but if someone has a preexisting, nonconforming dock, then my position would be if I were wearing their hat, go ahead, violate me, you're going -- ASST. TOWN ATTY. CORCORAN: Not to complicate the issue, but something can be preexisting, nonconforming as to zoning, but not I'reexisting and nonconforming as to the Trustees. MR. BRESSLER: Trustees? The claim was made that they were preexisting, nonconforming, rhey made it to the Trustees. If there's a 3 1 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 21 25 July 27, 2006 73 1 2 concession that they're not preexisting, nonconforming as to the Trustees, then I guess we rlon't need to go any further, they better take these things out. ASST. TOWN ATTY. CORCORAN: I don't think 'iou or we can concede anything on behalf of : :omebody else, but I think the Trustees have :,sued a permit and they have expressed a willingness to have the applicants comply with I hat permit and reserving their rights to seek nforcement of that. My question is geared at, i:laybe you don't concede that that's the case, but would those circumstances qualify as an involuntary move under 246? MR. BRESSLER: Absolutely not. That I )prmi t was not challenged in any way, shape or form. The association had every intention of trying to do what they had to do until Mr. Pasca ::oid that they found out that maybe they couldn't : 10 it. Well, that's not this Board's problem. What this Board has before it is an application tor a Town-wide interpretation of 241, not 246. ASST. TOWN ATTY. CORCORAN: I understand but the Board in looking at 241 can be guided by the relevant sections, which 246 speaks directly lowhat-- MR. BRESSLER: No, that calls for a separate interpretation. ASST. TOWN ATTY. CORCORAN: I don't know "bout that. MR. BRESSLER: If there's an interpretation of what has happened here falls within 246, which was not advertised -- ASST. TOWN ATTY. CORCORAN: We're asking your position right here today on it. MR. BRESSLER: No. That is inadequate as d matter of law and you know that. ASST. TOWN ATTY. CORCORAN: You can make that argument, but I'm asking what's your position. MR. BRESSLER: This was advertised as an interpretation of 241 and we're here. If the Board examines the permits, and looks at them, there was a permit issued for something, and they ('hoose not to do that, and they have taken the position that they predate everything, I-.hen they ::hould be stuck with that position. But the relief they're requesting from this Board is far 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 74 1 2 too broad, and it's in the wrong context. And the upshot of all this is if this Board says, yes, this can be moved to another part of the property, that's what 241 says, yes, they can reconstruct the entire thing, that is going to have the effect of depriving Mary Zupa from now until forever of I he ability to use that property. The preexisting use will never expire. That's the pract.ical effect. of this. If this Board rules that )'econstruction is fine in any location then this I,reexisting use would never expire. Nor will it ,~ver expire in any preexisting circumstance when somebody comes back in and quotes this rule. ':'hat's the problem of what's before you today. : 'm not going to speak of what may come before you in some other context in some other way. Mr. Goehringer points out that lots of things come hefore the Board in lots of different ways, but to rio what you're being asked to do today, being ,] sked to do, is not the right way to go on this particular application. Unless and until there's something before you that reflects all the facts ond lays out the basis for this determination, we Ilrqe the Board in the first instance to just reject it out of hand, it's not qeneric, and if he (:hooses not to do that, to deny this and say it's I'lain on its face, and if there's relief to be had the relief has to and from someplace else because we're not going to mess with 241, that's for r;omeone else. CHAIRWOMAN OLIVA: Is there anyone else that would like to speak? MR. BRESSLER: I'm handing up t.o t.he Board )') copy of my argument. MS. MESIANO: My name is Cat.herine Mesiano, and I'm appearing on behalf of Mary and Vie Zupa. The package that. I have just. present.ed you I hope will add a lit.tle clarit.y, if not. give you more food for thought.. I would like to focus very specifically on "ne of t.he most basic issues of t.he quest.ion t.hat. was present.ed t.o the Board, and I think t.he second or third word in t.he sentence refers to a legal oreexist.ing, nonconforming use. In st.udying the 'ode, and then going back and carefully studying Ilist.oric documents, aerial phot.oqraphs, which I I,ave handed t.he Board, I have a series of I)Jwtographs, the earliest being 1954 and the most 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 75 1 2 recent being 2000, and along with my letter, I Ilove included a synopsis of the photographs that you have in your possession. And very basically, T think these photographs demonstrate that the docks that are being discussed were not in existence at the time of the implementation and the effective dates of the code. If the I)hotographs and my explanation and the documents [urther go to demonstrate the genesis of the dock tructures, the later disappearance of part of the ;Lructures, removal of structures, reconstruction. There's documentation that talks ,Ibout structures being completely rebuilt, there's tillk about the main dock having been ,'a tastrophically damaged in an ice storm, which Icsulted in its being totally gone from the pictures. I have attempted to attach to each photograph the documentation that predated that photograph that explains what was intended to happen and the photograph then illustrates thilt which was earlier intended. The documents of rCinancial records that refer to payment of certain orticles of work, the documents contain board of directors minutes and reports from various committees, the basin committee in particular that refer to plans to build, reconstruct, add new tloats, et cetera. There's a lot of information ond I don't expect you to absorb it all in a first glance, but one of the most important issues I would like to point out is that it's not until the _962 aerial photograph that for the first time ,here appears to be a dock structure attached to the property that's now known as 580 Basin Road. In 1962 that lot as we have today did not exist. All of the land around the basin was commonly owned by an entity. So neither the dock wasn't Ilor was the lot in existence prior to that. There were no docks at the implementation of your code. r won't expound on this because there's ample il1formation and if you have any questions, I'll be "cry happy to answer them in any manner that you would like. A couple other points I'd like to make to the Board, during the course of the opplication before the Trustees when the ,uosociation applied for in-kindjin-place leplacement of the docks, the outcome being the frustees issuance of a permit for an alternative ccnfiguration did not result in a lessening of the 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 76 1 2 environment impact because the square footage of hottom coverage remained essentially the same. ~]e only thing that changed was the overall length ,)t the structure so that it did not protrude into the basin two-thirds of the way across. The :;tructure was 180 feet in length, and now I helieve it's been brought back to 80 or 90 feet. Uut the square footage of the structure is ssentially the same as it was earlier. So there ,]as not been a diminishing of t.he intensity. Mr. Pasca referred to the lack or the loss of a :;ouple of slips. It should be noted as well that I he association was looking for permits of 15 or IG slips when is historically there have only been :;ix to eight boats kept at those docks over the years and that's been documented. On one appearance, it could take on t.he face of being an 0nvironment.ally sound, environmentally conservative thing to do, essentially there was no ('hange in t.he environmental impact, and the only ,",cason that t.he number of the slips was reduced was because the configuration was not a well-designed plan, and it was for practical Icasons that the number of slips was diminished Ilot because there was going to be less boats hecause it was going to be more environmentally iriendly. I can't. stress strongly enough that I have ro go back to the most basic issue in this (]uestion because in my mind the question before you is a hypothetical question because nowhere has anyone said I can prove to you, I can show you that those docks have been there since the Implementation of zoning and that dock has )"cmained t.here ever since. There is ample evidence in the package I've given you that they were built, they were completely moved, they were re-moved, reconstructed. Furthermore, there has never been a permit issued by any agency for c::onstruction, reconstruction, repair, replacement of any portion of t.he dock structures. The Trustees were never asked for a permit nor granted. The DEC was never asked for a permit nor granted. I am dealing with the DEC at this point in time. They have asked me for any documentation can provide them, which I am providing to thcm as freely as I'm providing to you. The DEe does not issue ret.roactive permits as the Trust.ees 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 77 1 2 might come upon with a violation and give them a oermit to legalize that structure, that's not how the DEe works. And a couple other minor points I would lust like to say, I have been dealing with this project since its inception. As early as July 17, 7002, the Trustees have made the comment on more than one occasion these docks are illegal, they 'H'Ced to be out of here. That statement's been I!lade in my presence at numerous times at numerous inspections before the Board. There's no doubt ,bout it, this has been a contentious issue. All Vic and Mary Zupa want to do is build a house. They are very willing to enter into negotiations with the association to come up with a solution Inat gives everyone what they want. It was never their intention at the onset to go in and eliminate the docks. That was never their intention. And just to set the record straight, I heirs was not the first shot fired. That should l,c kept in perspective as well. They are open to discussion. I think that there are some simpler ways that this could be handled where everyone goes away somewhat satisfied and equally hungry, which I consider to II'" a successful negotiation, and I, Mr. Bressler, Mr. Zupa, Mrs. Zupa, are open to anyone who would Like to discuss the issue, but I urge you to ':onsider the fact that these are not legal Dr",existing, nonconforming docks under any sense ot the word. If there are any questions, I'll be Jlappy to answer them. Another point, too, the existence of the ~ssociation docks has caused a situation where Mary Zupa, the owner of 580 Basin Road cannot nJoy a dock of her own because there ie; not a ~lace in which to put a reasonably constructed, Donforming dock structure that will not impede navigation and will maintain satisfactory depths lor reasonable I safe and environmentally SOUlld use 'If a motor vessel. That needs to be taken into Donsideration also. I won't expound on that, but Ihat is another point. If I do nothing else but leave this Board ,mcl any other board that I might appear before with the sense that I am a property rights :>dvocate, and over the past four years, I have heen quite surprised to see the diminishing of 3 I[ 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 78 1 2 Mrs. Zupa's rights. She has the right to pay taxes; she has the right to the spend money to Rave the property; she has no other rights. This iRsue has nothing to do with the construction of her house. She never came to this Board for a variance for a setback. There is no area variance required, and it's the issue of these docks. If it is the issue of these docks, then consider the fact that they are not legal preexisting, nonconforming structures. They have never been pormitted by any agency. They have been worked on hlatantly over the past 50 years, 40 years and if ',TOll have any questions. CHAIRWOMAN OLIVA: Thank you. MS. MESIANO: Thank you. CHAIRWOMAN OLIVA: Jim? MR. KING: Just a couple of quick comments. It was my understanding that this, the question asked was brought to you folks pertaining to the dock not to every nonconforming thing that cexists in town. And part of our permit we issued [or the new dock was the removal of an existing tixed dock, it was supposed to be and we issued a permit to Mrs. Zupa for a new dock because that "id dock was supposed to be removed. Maybe you're starting to get a feel for what we have been going through for the last four 'JTears. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 MR. ZUPA: I would like to speak also. My :lame lS Victor Zupa, I am Mary Zupa's husband. r;he's the property owner. We both bought the property, we wanted to make sure the piece of property didn't merge with our present residence, which is immediately adjacent to it, so we put the property in her name only. Mary and I since the very get-go just wanted to build a house on this property and we told the association from the beginning that we did not want to remove their docks, we didn't want 1.0 have a big hassle, we didn't want to get before the Town Board, we didn't want this to be another i'li ller fiasco. And prior to purchasing the property I did what I thought was a due diligence. I looked at the Town Board records. I saw a Planning Board resolution that said this, along with the Hermann's lot, which has since been built on, was set off in 1981 as legal lots. I looked at the correspondence when Dan Smith did this. I 17 18 19 20 21 22 23 24 25 July 27, 2006 79 1 2 looked at the fact that Rudy Brewer represented the present owners, and I thought this was a legitimate reason to apply for a building permit. T saw no possible impediment to that. I also looked thoroughly at the ZBA's files. I went ~hrough the whole thing, went through Miller's ~pplication, I felt it was somewhat bizarre and rhe only thing I could figure out is because of '1eighbors complaining and because he wanted a :etback variance, we wanted to build closer Lo the water than we want to, we remain within all 'etback requirements, we thought that the basic denial was based on that with some mention of a marina. Nowhere in that decision did I ever :lee - - and I defy anybody to find the words in that decision that there is a preexisting, legal nonconforming use. It was not there, that was not .m issue. That decision mentioned a marina. It did not mention a preexisting, nonconforming use. ~or have I heard of what the contention is of the d~te of the so-called marina or the docks or the :;pecific date of the code being relied on by the ~oning Board or anybody else. I went to the Town and looked at the zoning code when it was first lmplemented in 1957 and '58 and saw that a marina was not allowed in a residential area. Also, I must mention, when Mary and I had purchased our present residence, when I went down imd looked at the property -- we love it in that lrea, we love where we live now -- I saw a dock '~lt there, and I said what's there. And the Inoker said that's the association dock on the lagoon. I never heard about the marina. I said i~ there other land for sale here? What about that parcel behind where the dock is? Ile said, well, that's a residential lot for sale. That's what I was told. Out of an abundance of caution before I signed the contract, I then went to the I~lilding inspector and looked at the zoning map Ind I said is there some kind of anomaly with ~espect to the fact that there is an association dock; is this some kind of different zone or different than residential? And he said ~bsolutely not. It's a residential parcel, a lesidential area, residential district. That's "ome of the background to this in looking into whether or not we were going to buy this parcel. Mary and I never expected the adversarial 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 80 1 9 nature of this proceeding. We never wanted to be involved in the litigation and the disputes and the somewhat offensive reputation that is lpparently being spread throughout the town. The application that the association is IIlaking has the effect of destroying the feel on Ihis property forever. If they can rebuild the docks, if they can relocate them, then Ichere will I ever be an end to marina use. And I believe that yuu don't have a marina use without a dock. So Ihat's part of the use. That's the structure. If It's being allowed to be rebuilt, replaced, 'clocated, then that will last forever on the l'roperty. We will never be able to get a permit in accordance with the ZBA's determination that we ither remove the docks or get a variance. I don't know how you get a variance with respect to :;omebody else's use. Now the Appellate Division very carefully I believe said we believe that this is really a Town matter, despite the fact that I may disagree with the interpretation made of 241 (g) as to whether or not variance was required in this 'ii tuation, whether or not that was applicable here. I believe what the Appellate Division was saying was this is really a Town matter. It's up to the ZBA to determine under what circumstances it would like a marina use or any other nonconforming use to continue. So we're not going to approach that. They're right, we affirm that. liut if you want to remove the docks we're not passing on that issue because the legality of the docks, i.e. whether there is a legal preexisting ] ;onconforming use is before Judge Weber in another lase, continuing litigation. 1 don't want to continue -- I know my wife doesn't want to "cmtinue any more litigation, I don't. And my wife and I have made repeated settlement offers to Ihe association with no reply. There were meetings set up where we asked for another person 10 be present, and they didn't want somebody else present. We did that out of an abundance of 'dution to make sure what we said was accurately "eported to others because our first experience with that turned out it was reported different than what we actually discussed during the meeting. Mary and I even went out and hired a 2 3 4 5 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 81 1 2 different attorney, Tony Tohill, to try and settle Ihis with the association. For two months I hired him to try to talk with the association attorneys to try and settle it. We came up with what we thought was a reasonable solution. We'll give them a 75 by 75 tract of land at the besinning to which the long dock is attached, they own it, the '"dsements go away on our property. They bui ld t heir own turnaround on that piece of property, md can have their own parking. Apparently it was ~ejected. I don't understand how we can reach a o;ettlement. I guess where we came out, I'm ncquesting help from the Zoning Board. The Appellate Division has obviously said, this is a '~own matter, and I don't know where to So with this except to go continue with litigation in the Supreme Court in Riverhead to remove the docks, t ,ring more photographs, bring expert witnesses in, "ring neighbors in and bring documents in and continue this ad infinitum. You already had another case with respect to the docks. The litigation that was mentioned is not our option to do willy-nilly. We're not grabbing out and trying to create litigation. ~t's all as a result of the fact of a situation where it has been told to us that either get rid "f the docks or you don't get a permit. I ask if there's no variance required, Mr. Dinizio, in this ase or they can continue just the use, then how we even get to one of the original alternatives t hat was expressed in the original ZBA decision to get a variance. I'm kind of confused. To me you don't have a marina use without having )";tructurcs CJr docks. I'd be willing to answer any questions you hi:lve of me. I've willingly become somewhat of an (.xpert in zoning in particular zoning of Southold. BOARD MEMBER DINIZIO: You mentioned my )Jinne so I'll - - the very beginning of my statement is I don't believe this application should be lJcfore us. I don't believe we have jurisdiction 'n making this decision. Beyond that, the rest is trying to figure out what the other side is saying i 0 us, trying to make sense of their request. I'm uot seeing it other than the fact that you could i1rgue use is not the structure, the actual use 'Joing on on the property, and the structure is setback. But in anyone of those cases, it seems 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 82 1 5 to me like we get our direction from the Building Inspector, if the Building Inspector can't deny these people or hasn't because these people have [lot applied for a dock. They have no reason to dPply for a dock permit because it's not required by the Town, I say we don't have jurisdiction over ,my of it. That's my point from the very beginning. ['he rest of it is, hey, I'll give you an opportunity to make your explanation. MR. ZUPA: My opinion may not be accurate, md probably is in conflict with Mr. Bressler's, [lUt this is an Andros lands, this is Town bottom, the Town owns it, so a tremendous amount of 'iuthority has been given to the Trustees with ~espect to the docks in the bay and that may be different, but if you look at the code, the code gives the right to the construct a dock accessory to primary use, which in the case of a residential district, it's a residence, you can have a six by )0 dock. I don't know if you wanted to have a six by 40 dock, do you have to apply for a variance? r would think you would. I would think you have : 0 apply for a permit. BOARD MEMBER DINIZIO: No, you don't, the Trustees take care of all of that. MR. ZUPA: But that would be the Trustees 2 3 4 6 7 8 9 10 11 12 13 14 15 pc;rmlt. 16 MR. BRESSLER: Let me address that because I did it before, Mr. Dinizio, and that is if you ~ead the code and you look for something that says docks are exempt from the Building Department and building permits, you won't find it, you won't I-illd it. Just because somebody stands IIp and soys lOU don't have to do it, and that's the way we do it, that doesn't make it so. Like I said before, 25 years of past practice were gone with a stroke "f a pen and this Board went shy with that, If ''C,mething is not being done in accordance with the oode, it seems to me if your dock touches and ,'Cll1cerns the upland, which it does, is it a silfc ,-;tructure; does it comply with code? Trustees 'lave nothing in terms of building code, in terms of safety, and suppose that there is a walkwilY 'Itached to this and it goes over some wetlands ,il1d who is to say, if not the building inspector in the first instance, whether or not you arc ~ntitled to have this structure on your property? 17 18 19 20 21 22 23 24 25 July 27, 2006 83 1 6 There is no exemption. BOARD MEMBER DINIZIO: Exactly my concern dS is Walz with you. If we make a decision on this, we are open up, we are legislating. MR. BRESSLER: No, you're not legislating hecause the code says you are not to do certain things without a building permit, and the building (jf a dock falls within those certain things. And ['Ill not even going to characterize why Lhe I',uilding Department mayor may not do something, hut for whatever reason they don't do it, that doesn't make it right, and if there is to be a withdrawal -- to turn your question around, you're not legislating, if the legislators don't want docks subject to building permits, then they have to say so because they haven't said that. Clearly it's a structure and structures require building oermits, so take from there. If this Board were to say that somewhere in its deliberations or its decision that that appears to be the case and the Town Board doesn't like it, let them do something dbout it. But I think to turn it around, like I said before, this Board is stuck with the language "f 241, well, it's similarly stuck with the Idnguage of former Article 100 and former Article 1'0 as to who does what and what their responsibilities are in the town. If you see they're supposed to be doing it and they're not, well, then they're not and let the chips fall where they may. BOARD MEMBER DINIZIO: The nonconformity part of this is what we can make a decision on. IJur code -- 241 says you can't increase the size, :nove it I the whole nine yard and we rece i ve t_ hose lPplications all the time, we receive them all the time for relief. MR. BRESSLER: On an individual basis and lJ.'::;ually an area variance not a use varlance. BOARD MEMBER DINIZIO: That's what I was 'letting to with use, the point comes to and if we made a decision, and the only decision I think we can make is to say that, yes, the code applies. MR. BRESSLER: The code says what it says itrld if you have a problem on an individual basis, dpply for -- I agree with you 100 percent, it's a urisdictional problem, and I'm not going to say t again. BOARD MEMBER DINIZIO: Thank you. 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 84 1 2 CHAIRWOMAN OLIVA: Two minutes, Tom. MR. SAMUELS: The 75 by 75 feet donation )[ property to Paradise Association eliminates all ~his. It will drastically affect the economy of ~ttorneys on the east end. If they don't accept rhe 75 by 75 feet piece of land, legalizing the .;r.ructures and all this nonsense that has gone on here, then I fear for their stupidity because no ommon sense in them not letting this go ~head. It's up to you to accept it and get it off your plates. Thank you very much. ASST. TOWN ATTY. CORCORAN: I dare to . ;peak for the Board when I say the Board would love for this to go away, but we force the parties Lo give away or force parties to give away or ~ccept property and settle their disputes. MR. BRESSLER: No. You can only make rlecisions based on what's before you. MRS. ZUPA: Good afternoon, Members of the I'.oard, I'm Mary Zupa. I wrote out something because I'm always very nervous before you, so I will read it. However, before I do read what I have, I wanted to let Mr. King know that, yes, ndeed the Trustees did issue a dock permit along with Paradise Point Association to Mary Zupa on 580 Basin Road, however the DEC told me it was not ~cceptable because it's four feet of water and there's no place for the boat to go. So in other words, I have a beautiful piece of property which we fully bulkheaded. We pay the taxes and I have ~ero use. So a lot of other people seem to enjoy It, though. My husband and I checked with the Town J-ecords before we purchased it. Those records ;.;tated it was approved by the Planning Isoard "long with the Hermantz property as a residential lot in 1981, in a residential zone and is it taxed as a residential lot. The Millers were denied a setback variance by the ZBA and the denial said nothing about the words legal nonconforming in it, which is what Mr. Pasca said about the 1995 decision. The first time legal nonconforming is mentioned is in your decision to me in 2004. The ZBA has denied me a building permit :leating I have to remove the marina. I have been .i(lvised by my attorney that obtaining a vari"nce nn someone else's use is not feasible. The issociation in its request to rebuild and relocate 3 4 5 6 7 8 9 10 11 12 13 11 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 85 1 2 its docks appears to me to have been a request for ,'] variance on my property. And I never signed where says property owner's permission to apply cor permits before Trustees, it's not my signature. I never signed anything to even go hefore the Trustees. The Appellate Division stated that it is appropriate for the ZBA Ic' direct the removal of the association's marinas k,fore it will grant me a permit the Appellate uivision has given me its direction to litigate this in a pending lawsuit before Judge Weber, two "entence decision by them. They would not entertain it, they have given it back to the Town. They want you to act on it. I have been in litigation for four years on issues I have tried 10 settle with the association four years. Miss Mesiano said I did not fire the first shot, they ,_cued me first. The Association could have continued use c-)f the docks wi thin reasonable use with my hlessings, if they had not objected to my house. I have made repeated proposals, many of them in writing, but I never received a response cram them. I even tried a separate attorney, Mr. Tohill, to see if he could resolve this matter. The offer made in writing in a letter before you was given to the association to give Ihem by the 75 by 75 tract of land at the i,eginning of my property to which their large dock is attached. This can be used as a turnaround, access to the basin and docks and for parking. The association can then apply for a variance, permits or whatever else it wants based on the ownership of this property. Everyone appears to it think that this solution was a generous offer, however, I hear nothing from the association and litigation I guess will continue. I am asking for the ZBA's help to resolve ~his matter, and I'm not leaving. We're not I'loving. We're not selling the property. we're not 'loing anyplace. Thank you very much for your Lime. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 CHAIRWOMAN OLIVA: Mr. Pasca. MR. PASCA: I just want to say for the Iccord that a lot has been brought to you in the last hour or so that has nothing whatsoever to do with the question that is before you, and I don't want our silence -- because I could go on for two 24 25 July 27, 2006 86 1 2 3 4 5 6 7 8 9 10 11 12 13 ''''<.:t. 14 15 16 17 18 19 20 21 22 23 24 25 or three hours giving you the other side to it -- [ don't want you to think that our silence is any 'ype of concession that, oh, yes our docks arc illegal, or their interpretation of this court's decision is correct. We disagree with pretty much '00 percent of what you've heard, but since none of it is relevant to the question before you, T'm llot going to go there, unless you want me to. ASST. TOWN ATTY. CORCORAN: Can I ask one 'J'lestion? What is your position on whether the Ilature of the preexisting, nonconforming use has he en established? MR. PASCA: The decision was made by this ['.oard in 2004 that it was a legal, nonconforming use. Judge Loughlin upheld this Board's decision .Ln its entirety, as did the Appellate Division. I know they have a different view of a line in the decision, but you guys have the attorney who ropresented you on that case, you can ask him what ilis oplnlon is. You can ask the Town atctorney what their opinion is. Don't take my word for it or Mr. Bressler's or Mr. Zupa's, you have your own attorney in that case, you can decide what it 11lCans. ASST. TOWN ATTY. CORCORAN: You're telling me to answer my own question; is that what you're telling me? MR. PASCA: Well, I told you what I think. ASST. TOWN ATTY. CORCORAN: I know. MR. PASCA: We think it's been stablished. But on top of that, look at the way the question was posed to you by the Trustees, I didn't word this question. I didn't make the Icquest. It says "where there is a legal 11onconforming use I 11 et cetera, et cetera. It doesn't ask you was there a legal nonconforming use. The question presupposes that there was. So I hat's why we didn't come here to relitigate the whole thing. We were before -- at least a couple of you were on the Board back then when we went i hrough the history of the zoning code from day (Jne to present. We have been there before. We don't think it's appropriate to relitigate it when it's not the question that's posed to you. So I think I answered your question. ASST. TOWN ATTY. CORCORAN: You did. MS. COLLIER: Andrea Collier, I live In ['oradise Point on the basin, I'm two lot.s adjocent July 27, 2006 87 1 2 3 4 5 6 7 8 9 10 11 12 13 11 15 16 17 18 19 20 21 22 23 24 25 '10",.....-, 10 their home lots. I'm very happy to hear today tor the first time in five years somebody saying that they were just redefining the situation as ommunity docks because myself, my husband and other people on the basin were a little shocked when it went from association docks to ~ marina. r don't know where that came from, and T'm happy 1.0 hear that it's being discussed as community locks separately from a marina because we never had any notice that it was being becoming a marina in a residential neighborhood. BOARD MEMBER GOEHRINGER: It never will (.ither. MS. COLLIER: I'm happy to hear that, it hrings a lot of relief because without any notice 10 the people that live there it didn't make any ;";ense. And the other thing - - now I'm nervous 1"00, so I am forgetting what I need to say. I want to ask a question just from reading your Zupa decision, if the Zupas get a variance for the community docks, can they build? CHAIRWOMAN OLIVA: Build what? MS. COLLIER: Can they build their home? l1ecause it doesn't really say that they'll get Iheir variance. If they get a variance for their docks, will they get a variance -- ASST. TOWN ATTY. CORCORAN: They're not eeking a variance for the docks. I think the I'rior ZBA decision stated that either one of two I i1ings needed to happen, the docks needed to be removed as a use or I think implicit was that the rarties would apply together for a variance so there could be two uses on the one property MS. COLLIER: Apply together? ASST. TOWN ATTY. CORCORAN: That's the way I could see that it could happen. But if you have other solutions. To me if both parties agree and ame in and applied for a variance to allow two ''';es on the property, a home and the docks, that I his Board would entertain it. And that was what the Board posited as one of the solutions. MS. COLLIER: And just as a property rights advocate, I'm not taking sides on this comment, but I think if there were conditions Cllven on their building application, one shouldn't ,:e taken away, that makes me really nervous as a property owner. I just really need to say that. I know I'm going to make people angry, but if you July 27, 2006 ~'---__'~_'__'_'_'_",__,< _._.__.'-....w._,,___ 88 1 2 q1ve them a condition it can't be fake. 'jou. Thank 3 MS. MESIANO: I have one very brief final ~omment. Your decision, your last decision, if I recall correctly, said that you would issue a building permit on the condition that the docks were either removed or made legal; please tell me what is the mechanism for Mary Zupa to remove the clocks if all else fails and they cannot be deemed leqal? ASST. TOWN ATTY. CORCORAN: It's up to you quys to figure out who has the ability to remove [he docks or whether they will stay. That's what you're fighting over I understand in the courts, in several different courts. MS. MESIANO: It was this Board's '~:ondi tion. ASST. TOWN ATTY. CORCORAN: This Board I [~hink decided one of two things had to happen, you either had to get a variance for a second use or in order to build the second use either get a variance or eliminate the first use. If you don't helve the ability to eliminate the first use then )'Dll can't have a second one. MS. MESIANO: That's not what it said. MS. COLLIER: Can we hear an interpretation of the appeal from Mr. Ifller? ASST. TOWN ATTY. CORCORAN: That's not what we're here to discuss for today. MS. COLLIER: It's just confusing. MS. MORTIMER: Hi, I'm Donna Mortimer, property owner at Paradise Point. MR. MORTIMER: Just very briefly, there's [,cen a couple of allegations brought forth about I lIe value that's enhanced the property because of [he docks, and it's certainly untrue because historically there's only been about eiqht boats ever at the docks. Anybody that owns a dock in I hat basin is certainly harmed by that dock. So if there are over 20 people that live at Paradise ['oint and only eight boats ever there, one-third or so can only be enhanced. And certainly other people are harmed. There's also been statements made about the docks being reduced in size, I don't think you can take much effort to look at [hat drawing and say that this dock has not been reduced 1n size at all. You may say it's been ,oduced in square footage because a finger went 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 89 1 2 trom six feet wide to three feet wide, but it also went to 20 feet long. We -- I also feel that this dock as proposed by the Trustees doesn't really lonform to the one - third rule. I believe the one-third rule includes the vessel dimensions, which are in no way indicated on that drawing. I llso believe that it also extends further than llle-third, as it is indicated on the drawing. I'm IloL saying that somebody shouldn't have a dock 'liere, but I think it should conform, and I am lurprised that this whole discussion has been "bout Paradise Point when you're commissioned only to discuss a Town-wide decision. So it shouldn't liave anything to do with this specific case unless you're going to discuss 20 other cases, and I'm surprised at that. I don't think any decision ,'Ihould be made. Thank you. CHAIRWOMAN OLIVA: Thank you. Is there inyone else who would like to comment on this application? If not, I'll make a motion to close the hearing and reserve decision until later. (See minutes for resolution.) (Time ended: 3:10 p.m.) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 90 1 2 3 4 c ~~ 6 7 8 9 10 11 12 13 ."-.. , 14 15 16 17 18 19 20 21 22 23 24 - 25 ~.J C E R T I FIe A T ION I, Florence V. Wiles, Notary Public for the .';tate of New York, do hereby certify: THAT the within transcript is a true record of rhe testimony given. I further certify that I am not related by nlood or marriage, to any of the parties to this dction; and THAT I am In no way interested in the outcome of this matter. IN WITNESS WHEREOF, I have hereunto set my hand this 27th day of July, 2006. // ~/fuU( (, J Ill; JJ L.~F16rence V. Wiles July 27, 2006