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HomeMy WebLinkAbout1000-27.-2-3 - -- ._ Approved in accordance s APP rith H 31 ferirw determination dated k ' r 1Rre. L�/ X91 W� / J s SUFFOLK COUNTY DCPABT6':C7T OF HEALTH SERVICES J 1, 121986 — W h; W (t � W HauPPauae,I:ew 5'o'k NOV ¢ This is to certify That Ih, pre a<ed ercan3enxnts far water supply tic Q I O _ -_ j �,Ao4111UEGS a'i U o N 1111 U m Q and sewa9ea fur Q FI _ � W U) Q im - 2- lots ;li m /� —_wifhctatcl of I— 2 ( ¢ I,aha were appiotcd co u.o above dote. G — __ _ tl - ti } Conseni is hereby elven far The filing of the map on which this �.� � ' a ears in the Office of the County Clerk in acrmrdance j o F J Wdhrprovisions. of like Public Health Law and the Suffolk Coun _ SM11,9rY Code,,, Lu M' rl)P OF" ,'I a; f1cs1 � - 1-01'. -r of oast-, .arr.i; `r . .2 .r,i r Cash 1' .k c } Carl _ � �Ig` R. 9L. ��. of ' Li ! li V) SE.r '0/4 Count' Tdx Gae^ee llr,r. tn,�u, ,a.:C.a27 r1. 21.a. 3 - o 8'2300 T6. � a 170' t4. � f iH elr.'V/ F're,•rrises ore rn E;uiP�in<? �:ar:e tl• � i r� _, �a�aa -,t .I i .' ti , s. .• .. C7/0 CIS XorVe '47'�G-4ia) CJ_ ' !, —.: 9•,�� @ " APPROVED QY of e an ;s* ,_U ` ' ry - ruri'xr-sc/f E,l .rnd sear a3ae - !/'s�oarfl sysferus '. 3 y to rnaef cou'nfiy Neolfh dept sl'ancY4rGs ;' pLANN1NG BOA 34o ', /'l'o 102" 7o be furfher' �arL�iv o1r %. TOWN OF 50 C —j r5• (� �Q Z, ; '� i1� , dd ii11ryIy (_ •,2.( DATE UtVwd�er3 i 1> ,�•I`' ,'fi, ,�� O' of, .., r 1, � N 1' 41/ ke1' • , C�rnyH'Y'+.r vrr•.h l u rtrJfa C.,. ., 'b b' �[ h 'fop .•.sJ-{�7: IriLy !c iYrs�lr � t•t tDd " ' � %' H�'lf Rst>)M i gp:u and nrr i-jr 9�tz lnw ( l- .r -rs'11.17 , .� VG GO G'H Tl4 .rt Zn- c5•?'s q- o e �„ �; sc. Soo r ` VAN T!l',%, J% rFN a`1�t}'- r!<'fe:� .1 ift/ r1,,.d r .:irnt..r:de+e'1 Sar/. 3U, 1986 �Iv_r�;L,c 'r�M+;�rai\:.. •--t '. j �I b �PA'�LGH Vyry Yp Nov. .J 1-) h! o'�a ey7 � �. �errsed� Lan a' .5✓rvt yors , - ° •' �P. I I j y;a' � r Gre Btr.�i'AYY • Y. Darr. 2'9, 198!7, c m �-r � Jen f7, 198�6 PLA Ni TO -S LD SL`_ FTy Southold, N.Y. 11971 (516) 765-1938 July 28, 1987 Mr. Stephen R. Angel Esseks, Hefter, Cuddy and Angel Counselors at Law P.O. Box 279 Riverhead, NY 11901 Re: Thomas Samuels Dear Mr. Angel: Enclosed is a survey endorsed by the Chairman for the above mentioned proposal. If you have any questions, please don't hesitate to contact our office. Very truly yours, BENNETT ORLOWSKI, JR. , CHAIRMAN u SOUTHOLD TOWN PLANNING BOARD _ By Joan Davis LD Southold, N.Y. 11971 (516) 765-1938 December 23 , 1986 Mr. Stephen R. Angel Esseks, Hefter, Cuddy and Angel Counselors at Law P.O. Box 279 Riverhead, NY 11901 Re: Thomas Samuels Dear Mr. Angel: The following action was taken by the Southold Town Planning Board, Monday, December 22, 1986. RESOLVED that whereas a formal application for the approval of a subdivision plat entitled "Thomas Samuels" located at Orient was submitted to the Planning Board on January 7, 1985, and filing fee was paid, and, WHEREAS, a public hearing was held on said subdivision application and plat at the Town Hall, Southold, New York, on December 8 , 1986 at 8: 00 p.m. , and WHEREAS, the requirements of the Subdivision Regulations of the Town of Southold have been met by said subdivision plat and application, I NOW, therefore, be it RESOLVED that the application of Thomas Samuels for approval of said subdivision plat prepared by Rod Van Tuyl dated as last amended September 30, 1986 be approved and the Chairman be authorized to endorse approval on said subdivision plat, subject to the following conditions : 1. No lot shall be subdivided or its lot lines changed in any manner at any future date unless authorized by the Town of Southold Planning Board. 2. No sanitary disposal facility shall be constructed or otherwise located within 100 feet of the upland edge of the tidal wetlands along the shoreline of Hallocks Bay. Stephen R. Angel Page 2 12/23/86 ----------------------------------------------------------- 3. No stormwater runoff resulting from the development and improvement of the subdivision or any of its lots shall be discharedged donw the face of the bluff in any manner into the adjoining body of water and the tidal wetlands bordering the parcel. 4. A conservation or scenic easement having aminimum width of 50 feet shall be established along the shoreline of Hallocks Bay to insure that no development adverse to the aesthetic quality of the shoreline will take place along the shoreline. 5 . Conditions 1-4, inclusive, shall be filed as covenants and restrictions in the office of the County Clerk on or prior to the granting of approval to this subdivision. Upon receipt of certified copy of covenants and restrictions from the county clerk' s office, we will endorse the subdivision maps. If you have any questions , please don' t hesitate to contact our office. Very truly yours, BENNETT ORLOWSKI, JR. , CHAIRMAN I SOUTHOLD TOWN PLANNING BOARD By Diane M. Schultze, Secretary I I 1 i i DECLARATION OF COVENANTS AND RESTRICTIONS This declaration made the 30thday of January, 1987 by Thomas F. Samuels a/k/a Thomas Samuels, (No#) Haywater Road, Cutchoque , New York 11935, hereinafter referred to as "Declarant". ST . 00 WHF.RFAS , declarant is the owner of certain real property C. which is situate in the Town of Southold, County of Suffolk and 700 Qtate of New York , more particularly bounded and described as set OCK forth in Schedule "A" annexed hereto ( the "property" ) and made a 00 part hereof ; and T WHERFAS , declarant applied to the Planning Board of the si100 Town of Southold for minor subdivision approval to sub-divide the ;)roiiorty into two lots for residential purposes, which lots are nr. ied and described on Schedule "B" annexed hereto; and WHFRFAS , on December 22, 1986 the Planning Board of the 'tOwr. of Southold adopted a resolution approving the subdivision of the property into said two lots subject, however, to the conditions contained in this Declaration of Covenants and Restrictions ; and WHFRFAS , declarant desires to restrict the use and enjoyment of said property and has for such purposes determined to impose on said property covenants and restrictions and does hereby declare that said property shall. he held and shall be conveyed subject to the followinn covenants and restrictions. NOW, THEREFORE, this declaration witnesseth: 1 . Neither of the lots described on Schedule "n" annexed and referred to above shall be subdivided or have its lot lines changed in any manner at any future date unless authorized `v the Planning Board of the Town of Southold. 2. No sanitary disposal facility shall be constructed -,r otherwise located within 100 feet of the edge of the tidal wetlands along the shoreline of Hallocks nay. 3. No stormwater runoff resulting from the development . and improvement of the subdivision or any of its lots shall be discharged down the face of the bluff in any manner into the adjoininq body of water and the tidal wetlands bordering the ,)roperty. 4 , The declarant does hereby donate, grant, transfer c;d convey on to the Town of Southold in perpetuity a scenic and c,n:servation easemenf of the nature, character and to the extent hk•rein.after set forth, over and upon the property within 50 feet of the shoreline of Hallocks nay (hereinafter sometimes referred < < as the "burdened premises" ) : a. No building or structure of any description shall he erected on the burdened premises, except that one ( 1 ) catwalk no wider than five ( 5) feet and floatinq dock may be constructed nn each lot over the burdened premises so long as such catwalk and j floating dock are approved by all applicable governmental agencies i having jurisdiction, including but not limited to the Trustees of the Town of Southold, the New York State Department of Environmental Conservation and the United States Army Corps of Engineers. b. No topsoil shall he removed from the burdened premises nor shall sand, qravel, peat or other minerals be excavated therefrom or deposited thereon for any purpose. C. The burdened premises, to maintain its present -:pnearance , shall remain in its natural state, and for this ;,urpose, declarant., his heirs and assiqns reserve the exclusive right to use anti enjov said burdened premises. d. The burdened premises shall not be open or available to the puhlic for general or park use, but shall remain : r all time, in the exclusive possession of the declarant, his teirs and assigns. e, All rights, interests and privileqes of declar:,nt ir, tho burdened nrt•inises not herein specifically donated, granLod, ttansferred and conveyed , remain and reside wi-th declarant , his h- irs and assigns. 5. These covenants and restrictions shall run with the Itnd and shall be hinding upon declarant, his heirs and assigns, ird upon all persons or entities claiming under them and may be t-rrnirated, revoked or amended by the owner of the property only with the authorization of the Planning Board of the Town of Southold. IN WITNESS WHEREOF, the declarant above named has executed the foregoing instrument the day and year first above written. 4� Thomas E. Samuels a/k/a Thomas Samuels STATE OF NEW YORK ) SS. . (')UNTY OF SUFFOLK ) On this 3D a day of January, 1987 , before me personally came THOMAS F. SAMJIFLS a/k/a THOMAS SAMUELS, to me known and known fn me to be the individual described in and who executed the foregoing instrument and he duly acknowledged to me that he executed the same. _ STEPHEN R.ANGEL Natny Putft State of New York No.4803748 OusI ied In Suffdk County Commission Expires September 30.1988 i i SCHEDULE A BEGINNING at the intersection of the northerly line of Orchard Street and the easterly line of Narrow River Road; RUNNING THENCE along said easterly line of Narrow River Road, two courses : 1 . North 15 degrees 44 minutes 40 seconds east, 311 . 32 feet; thence 2. North 39 degrees 12 minutes 30 seconds west, 328. 57 feet to land of Pluschau; THENCE along said land of Pluschau, two courses: 1 . North 42 degrees 29 minutes 50 seconds east, 221 . 79 feet ; thence 2. North 36 degrees 14 minutes 00 seconds east, 80. 00 feet to the ordinary high water mark of Hallock 's Bay; THENCE along said ordinary high water mark and the following tie lines: 1 . North 87 degrees 41 minutes 00 seconds east, 114. 07 feet ; thence 2 . South 34 degrees 49 minutes 30 seconds east, 84 . 05 feet; thence 3. South 61 degrees 45 minutes 50 seconds east, 61 . 29 feet ; thence 4. South 5 degrees 49 minutes 30 seconds east , 49. 25 feet; thence 5. South 21 degrees 41 minutes 40 seconds west, 100. 09 feet ; thence 6. South 34 degrees 53 minutes 30 seconds west , 92. 66 feet ; thence 7. South 3 degrees 56 minutes 00 seconds west, 160. 38 feet ; thence B. South 19 degrees 48 minutes 00 seconds east, 53. 14 feet ; thence 9. South 27 degrees 23 minutes 00 seconds west, 281 . 72 feet to the northerly line of Orchard Street; THENCE along said Line, south 82 degrees 33 minutes 20 seconds west , 83. 0 feet to the point of BEGINNING. SCHEDULE B Lot One BEGINNING at a point located on the easterly line of Narrow River Road, which point is located the following two courses and distances from the intersection of the northerly line of Orchard Street and the easterly line of Narrow River Road; 1 . North 15 degrees 44 minutes 40 seconds east, 311 . 32 feet; thence 2. North 39 degrees 12 minutes 30 seconds west, 153. 57 feet and from said point of beginning RUNNING THENCE along the easterly line of Narrow River Road north 39 degrees 12 minutes 30 seconds west 175.0 feet to land of Pluschau; THENCE along said land of Pluschau two courses: 1 . North 42 degrees 29 minutes 50 seconds east, 221 . 79 feet ; thence 2. North 36 degrees 14 minutes 00 seconds east, 80.0 feet to the ordinary high water mark of Hallock 's Bay; THENCE along said ordinary high water mark and the following tie lines: 1 . North 87 degrees 41 minutes 00 seconds east, 114 . 07 feet ; thence 2. South 34 degrees 49 minutes 30 seconds east, 84. 05 feet; thence 3. South 61 degrees 45 minutes 50 seconds east, 61 . 29 feet; thence 4. South 5 degrees 49 minutes 30 seconds east, 49. 25 feet; thence 5. South 21 degrees 41 minutes 40 seconds west, 56.09 feet; THENCE along the dividing line between lots one and two of the proposed minor subdivision, map of property Thomas Samuels, the following two courses : 1 . South 72 degrees 40 minutes 40 seconds west , 137. 27 feet ; thence 2. South 50 degrees 47 minutes 30 seconds west, 200. 0 feet to the easterly line of Narrow River Road and the point or place of BEGINNING. SCHEDULE A Lot Two BEGINNING at the intersection of the northerly line of Orchard Street and the easterly line of Narrow River Road; RUNNING THENCE along said easterly line of Narrow River Road, two courses: 1 . North 15 degrees 44 minutes 40 seconds east, 311 . 32 feet ; thence 2. North 39 degrees 12 minutes 30 seconds west, 153. 57 feet to a point on the division line between lots one and two of the proposed minor subdivision map of property Thomas Samuels; THENCE the following two courses along said division line: 1 . North 50 degrees 47 minutes 30 seconds east, 200.0 feet; thence 2. North 72 degrees 40 minutes 40 seconds east, 137. 27 feet to the ordinary high water mark of Hallock 's Bay; THENCE along said ordinary high water mark and the following tie lines: 1 . South 21 degrees 41 minute., 40 seconds west, 42.0 feet; thence 2. South 34 degrees 53 minutes 30 seconds west, 92. 66 feet ; thence 3. South 3 degrees 56 minutes 00 seconds west, 160. 38 feet ; thence 4 . South 19 degrees 48 minutes 00 seconds east , 53. 14 feet ; thence 5. South 27 degrees 23 minutes 00 seconds west, 281 . 72 feet to the northerly line of Orchard Street; THENCE along said line, south 82 degrees 33 minutes 20 seconds west , 83. 0 feet to the point of BEGINNING. DECLARATION OF COVENANTS AND RESTRICTIONS This declaration made the tt' day of January, 1987 by Thomas E. Samuels a/k/a Thomas Samuels, (No# ) Haywater Road, Cutchogue, New York 11935, hereinafter referred to as "Declarant". WHEREAS, declarant is the owner of certain real property which is situate in the Town of Southold, County of Suffolk and State of New York, more particularly bounded and described as set forth in Schedule "A" annexed hereto (the "property" ) and made a part hereof; and WHEREAS, declarant applied to the Planning Board of the Town of Southold for minor subdivision approval to sub-divide the property into two lots for residential purposes, which lots are bounded and described on Schedule "B" annexed hereto; and WHEREAS , on December 22, 1986 the Planning Board of the Town of Southold adopted a resolution approving the subdivision of the property into said two lots subject, however, to the conditions contained in this Declaration of Covenants and Restrictions; and WHEREAS, declarant desires to restrict the use and enjoyment of said property and has for such purposes determined to impose on said property covenants and restrictions and does hereby declare that said property shall be held and shall be conveyed subject to the following covenants and restrictions. NOW, THEREFORE, this declaration witnesseth: 1 . Neither of the lots described on Schedule "B" annexed and referred to above shall be subdivided or have its lot lines changed in any manner at any future date unless authorized by the Planning Board of the Town of Southold. 2. No sanitary disposal facility shall be constructed or otherwise located within 100 feet of the edge of the tidal wetlands along the shoreline of Hallocks Bay. 3. No stormwater runoff resulting from the development and improvement of the subdivision or any of its lots shall be discharged down the face of the bluff in any manner into the adjoining body of water and the tidal wetlands bordering the property. 4. The declarant does hereby donate, grant, transfer and convey on to the Town of Southold in perpetuity a scenic and conservation easement of the nature, character and to the extent hereinafter set forth, over and upon the property within 50 feet of the shoreline of Hallocks Bay (hereinafter sometimes referred to as the "burdened premises" ) : a. No building or structure of any description shall be errected on the burdened premises, except that one ( 1 ) catwalk no wider than five (5) feet and floating dock may be constructed on each lot over the burdened premises so long as such catwalk and floating dock are approved by all applicable governmental agencies having jurisdiction, including but not limited to the Trustees of i I f i t the Commonalty of the Town of Southold, the New York State Department of Environmental Conservation and the United States Army Corps of Engineers. b. No topsoil shall be removed from the burdened premises nor shall sand, gravel, peat or other minerals be excavated therefrom for any purpose. c. The burdened premises, to maintain its present appearance, shall remain in its natural state, and for this purpose, declarant, his heirs and assigns reserve the exclusive right to use and enjoy said burdened premises. d. The burdened premises shall not be open or available to the public for general or park use, but shall remain at all times in the exclusive possession of the declarant, his heirs and assigns. e. All rights, interests and privleges of declarant in the burdened premises not herein specifically donated, granted, transferred and conveyed, remain and reside with declarant, his heirs and assigns. 5. These covenants and restrictions shall run with the land and shall be binding upon declarant, his heirs and assigns, and upon all persons or entities claiming under them and may be terminated, revoked or amended by the owner of the property only with the authorization of the Planning Board of the Town of Southold. IN WITNESS WHEREOF, the declarant above named has i executed the foregoing instrument the day and year first above written. i Thomas E. Samuels a/k/a Thomas Samuels I i STATE OF NEW YORK) ss. . COUNTY OF SUFFOLK) On this 66t day of January, 1987, before me personally came THOMAS E. SAMUELS a/k/a THOMAS SAMUELS, to me known and known to me to be the individual described in and who executed the foregoing instrument and he duly acknowledged to me that he executed the same. Notd-* Public N00111r RIKIC.��� N0 liyb��1Y �7 SCHEDULE A BEGINNING at the intersection of the northerly line of Orchard Street and the easterly line of Narrow River Road; RUNNING THENCE along said easterly line of Narrow River Road, two courses: 1 . North 15 degrees 44 minutes 40 seconds east, 311 .32 feet; thence 2. North 39 degrees 12 minutes 30 seconds west, 328. 57 feet to land of Pluschau; THENCE along said land of Pluschau, two courses: 1 . North 42 degrees 29 minutes 50 seconds east, 221 .79 feet; thence 2. North 36 degrees 14 minutes 00 seconds east, 80. 00 feet to the ordinary high water mark of Hallock's Bay; THENCE along said ordinary high water mark and the following tie lines: 1 . North 87 degrees 41 minutes 00 seconds east, 114. 07 feet; thence 2. South 34 degrees 49 minutes 30 seconds east, 84. 05 feet; thence 3. South 61 degrees 45 minutes 50 seconds east, 61 . 29 feet; thence 4. South 5 degrees 49 minutes 30 seconds east, 49. 25 ' feet; thence 5. South 21 degrees 41 minutes 40 seconds west, 100. 09 feet; thence 6. South 34 degrees 53 minutes 30 seconds west, 92.66 feet; thence 7. South 3 degrees 56 minutes 00 seconds west, 160. 38 feet; thence 8. South 19 degrees 48 minutes 00 seconds east, 53. 14 feet ; thence 9. South 27 degrees 23 minutes 00 seconds west, 281 .72 feet to the northerly line of Orchard Street; THENCE along said line, south 82 degrees 33 minutes 20 seconds west, 83.0 feet to the point of BEGINNING. SCHEDULE B Lot One BEGINNING at a point located on the easterly line of Narrow River Road, which point is located the following two courses and distances from the intersection of the northerly line of Orchard Street and the easterly line of Narrow River Road; 1 . North 15 degrees 44 minutes 40 seconds east, 311 .32 feet; thence 2. North 39 degrees 12 minutes 30 seconds west, 153. 57 feet and from said point of beginning RUNNING THENCE along the easterly line of Narrow River Road north 39 degrees 12 minutes 30 seconds west 175. 0 feet to land of Pluschau; THENCE along said land of Pluschau two courses: 1 . North 42 degrees 29 minutes 50 seconds east, 221 . 79 feet; thence 2. North 36 degrees 14 minutes 00 seconds east, 80.0 feet to the ordinary high water mark of Hallock 's Bay; THENCE along said ordinary high water mark and the following tie lines: 1 . North 87 degrees 41 minutes 00 seconds east, 114.07 feet; thence 2. South 34 degrees 49 minutes 30 seconds east, 84.05 feet; thence 3. South 61 degrees 45 minutes 50 seconds east, 61 . 29 feet; thence 4. South 5 degrees 49 minutes 30 seconds east, 49. 25 feet; thence 5. South 21 degrees 41 minutes 40 seconds west, 58.09 feet; THENCE along the dividing line between lots one and two of the proposed minor subdivision, map of property Thomas Samuels, the following two courses: 1 . South 72 degrees 40 minutes 40 seconds west, 137. 27 feet; thence 2. South 50 degrees 47 minutes 30 seconds west, 200. 0 feet to the easterly line of Narrow River Road and the point or place of BEGINNING. SCHEDULE A Lot Two BEGINNING at the intersection of the northerly line of Orchard Street and the easterly line of Narrow River Road; RUNNING THENCE along said easterly line of Narrow River Road, two courses: 1 . North 15 degrees 44 minutes 40 seconds east, 311 .32 feet; thence 2. North 39 degrees 12 minutes 30 seconds west, 153. 57 feet to a point on the division line between lots one and two of the proposed minor subdivision map of property Thomas Samuels; THENCE the following two courses along said division line: 1 . North 50 degrees 47 minutes 30 seconds east, 200.0 feet; thence 2. North 72 degrees 40 minutes 40 seconds east, 137. 27 feet to the ordinary high water mark of Hallock 's Bay; THENCE along said ordinary high water mark and the following tie lines: 1 . South 21 degrees 41 minutes 40 seconds west, 42. 0 feet; thence 2. South 34 degrees 53 minutes 30 seconds west, 92.66 feet ; thence 3. South 3 degrees 56 minutes 00 seconds west, 160. 38 feet; thence 4. South 19 degrees 48 minutes 00 seconds east, 53. 14 feet; thence S. South 27 degrees 23 minutes 00 seconds west, 281 .72 j feet to the northerly line of Orchard Street; THENCE along said line, south 82 degrees 33 minutes 20 seconds west, 83. 0 feet to the point of BEGINNING. I I i ti*cnw ;4 �Jtes : 2/2/79 & 3/29/79 ••' 1�af" l ickio am 177-3440 & 79-857 SUPREME COURT, SUFFOLKaUNTY SPECIAL TERM PART I ARTHUR ASHMAN, By GEORGE J• ASRLAN Petitioner, vs. DATED OCT '6 tD31 19 THE PLANNING BOARD OF THE TOWN '• OF EAST HAMPTON, Respondent. , In the M.itter of the Application of ARTHUR ASHMAN, Petitioner, For a Judgment Pursuant to Article 78 of the CPLR vs. ELBERT T. EDWARDS, NANCY H. McCAFFREY, DAVID A. WEBB, JAMES CUOMO, and KENNETH S. EDWARDS, JR. , Constituting the ZONING BOARD OF APPEALS OF THE TOWN OF EAST HAMPTON, Respondents. LEONARD I. ACKERMAN, ESQ. SMITH, FINKELSTEIN, LUNDBERG & Attorney for Petitioner YAKABOSKI , ESQS . 34 Pantigo Road Attorneys for Respondent Planning East Hampton, New York 11937 Board 456 Griffing Avenue GEORGE BIONDO, ESQ. P.O. Box 389 Attorney for Respondent Zoning Board Riverhead , New York 11901 Old Montauk Highway Montauk, New York 11954 There are two consolidated Article 78 proceedings before the court. One is to review a denial by the Planning Board of an application for a subdivision waiver, the other to review a determination by the Zoning Board of Appeals which failed to interpret the Town Zoning Ordinance in such a manner as to allow for the inclusion as part of petitioner' s property, suf- ficient square footage to permit a legal subdivision, and rejected a request for a variance permitting the subdivision to consist of sub-standard lots. The last papers submitted herein were received by the court on August 28 , 1981 from petitioner. Nothing of an evidentiary nature therein has been considered in the rendering of this decision. Iaw tli ' Fel t es • 2/2/79 6 3/29/79 l -MORANDLO s deT;77-3340 a 79-857 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I BY GEORGE J•ASPLAP4 VS. DATeD OCT 61981 19 Facts The subject property is situate in Wainscott, a part of the Town of East Hampton, and borders on the Atlantic Ocean. Petitioner's deed reads to the high water line, and his title company insures title thereto, subject to the "right of the public in , to and over the beaches as adjoin the Atlantic Ocean" . There is an 84,000 square foot lot area requirement in an "AA" zone, in which petitioner' s property lies, and unless he can count the square feet between a 15 foot high dune and the mean high water mark as drawn by his surveyor, the proposed subdivided lots each fall short of the requisite 84,000 square feet. The distance between the dunes and the high water mark is such as to create an area about double the size of the balance of petitioner' s plot. The Planning Board's denial was based on its lack of recogni- tion of "private ownership of the beach of the Atlantic Ocean" ; on findings that applicant did not satisfy the 84, 000 square foot requirement; and that the property has a long history of erosion. The Zoning Board of Appeals denied the application for an interpretation favorable to petitioner, on these grounds: •s) The land is unbuildable; b) It can not support any type of vegetation; C) Its size and shape are no more predictable than the wind, tide and waves which have created it; - 2 - I "U14b wl ivU 4- �;U.YU rua� �r! I 4f `MORANDUM lhd#f:77-3340 s 79-8573 SUPREME COURT, SUFFOLK COUNTY SPECIAL TERRA PART I 6r GEORGE J• ASPIAUP S C VS. , DATED OCT •6 IRI 19 d) It is subject to public easements; e) It has historically been used by the public as if it were public property; ' f) It provides the community with a place for passage along the ocean, a place for fishermen to engage in work or sport and for families to gather and to enjoy the gifts of their Town's natural beauty, and it serves as the first line of defense against the destructive forces of the Atlantic Ocean; and g) The applicant benefits from each of these uses along with his neighbors and the public, and so he can not claim that this property is rendered useless by the decision to exclude it from minimum lot area computations. " The foregoing was prefaced by the following statement : "Althou h thea licant ma own that ortion of Ian w is es to the seaward side of the vegeta t e etat on line, that area, commonly known as the beach o�t�ie Atlantic Ocean' is of such a unique nature that it can not be included in the meaning of the word ' lot' as used in Section 153-28 of the Zoning Ordinance . . . :" (Underscoring supplied. ) In explanation, the term "vegetation line" (or contour line) is the growth of grass along the dune, and it is the contention of respondents that seaward , beyond such a line, no one can include the area to the ocean itself as square footage to enable the formation of a lot of legal size. It would appear from the quoted preface that the -Zoning Board does not dispute ownership to the high water mark as claimed by petitioner, indeed, its formal answer contains this paragraph: "ELEVENTH: That petitioner at best has a bare, naked title to the afore-described 'beach' which 3 - '°"m °w • r"-MORANDLO i d�)( 77-3340 & 79-6579 SUPREME COURT, SUFFOLK COUNTY SPECIAL TERM PART I 0Y GEORGE J• ASPLA . JND S. C. VS. OAYHD OCT 16 1393 19 petitioner, as fee owner thereof, is permitted to enjoy in the same manner as any other member of the public. " The Planning Board too, holds this view, thus a reading of an affirmation by its counsel , dated March 30, 1977 (Page 2) shows : "Perhaps it was inartful for the respondent to suggest that it does not acknowledge private ownership on the beach below the dunes. " The pertinent Town Ordinance section on the subject of lot area is : "S 153-28. Minimum lot area [Amended 8-7-59] Minimum lot area (square feet) , minimum lot width at the building line (in feet, being the shortest distance across the lot drawn at the building line) , and maximum coverage of lot requirements are as follows: . [Amended 3-5-761 A. Residence District AA. (1) Residence District AA buildings or structures shall be on lots of eighty-four thousand (84,000) or more square feet having a minimum lot width at the building line of two hundred (200) feet, minimum front yard of fifty (50) feet and minimum side and rear yards of thirty (30) feet, covering a maximum of ten percent (108) of a lot. [Amended 8-16-631 " On the present lot area are a two story frame dwelling, a pool , tennis court, a small cottage, and a garage. The Board of Appeals in turning down the alternate relief sought, to wit, a variance to permit a subdivision into two lots substandard in area, 4 - roar Vii. es: 2/2/79 & 3/29/79 7M®1= ANDUM Zi3le ' 77-3340 & 79-857 SUPREME COURT, SUFFOLK COUNTY SPECIAL TERM PART I By J. S. C. GEORGEJ' ASPLAND VS DATED OCT 6 i981 19 decided as follows, quoting the essential portions: "If the area variance were granted each resulting lot would lack minimum area by approximately 258 and would be subject to even further dimimution through the natural forces of storm damage and erosion. "Applicant's stated justification for the area variance is that to deny it would result in an undue hardship in that it would render his investment in the accessory cottage lost. The Board notes, however, that applicant requested a variance from this Board on December 30, 1976 to allow him to improve that cottage in order ' to permit temporary use of (this cottage) as living quarters for applicant during construction of the main residence' . Applicant was granted such relief and made full use thereof as requested, The Board, therefore, fails to see applicant' s financial hardship. " (Note: The cottage has since been relocated and no variance is sought because of it. ) "Since the variance from area requirements as here presented would require the granting of additional variances for the garage, the tennis court, the pool and the shed, which would otherwise not be necessary and since the applicant has the full use of each of these structures without variances while he owns a single parcel , the Board finds that the variance requested is not the minimum variance necessary for the applicant to accomplish his purpose. "The Board must note, also, that the unusual strength and unanimity of opposition to this application has raised serious questions as to what effect such variances would have on the character of the neigh- borhood and the district as well as whether it might not be detrimental to the public welfare by setting a precedent which would increase the density of the area while at the same time restricting the use of the beach, ' - 5 - ROM. •►, °'`�lEtb]i�,rRANDI..9,�1 ly es : 7-3340 5 79-8579 f ! Yndey $77-3340 & 79-857 SUPREME COURT, FFOLK COUNTY SPECIALTERMPART I By GEORGE J•ASPLAND s. C. VS. DATED OCT 61981 19 Petitioner' s Argument The gist of petitioner's argument is that a zoning ordinance should be strictly construed in favor of a property owner to allow a reasonable interpretation of a code , citing 440 East 102nd Street Corp. v. Murdock, 285 N.Y. 298 (1941) to the effect that zoning ordinances being in derogation of the common law right to use one 's property as one pleases, must be strictly construed against a municipality. In the instant case, the minimum lot area ordinance imposes no special limitation upon water front property respecting the amount of land to be included in a "lot" . Also cited by petitioner is the Court of Appeals case of Bloom v. Town of Oyster Bay, 32 N.Y.2d 9300 347 N.Y.S. 2d 197 (1973) , which, in reversing the Appellate Division, granted judgment in accordance with the dissenting opinion of Justice Munder, wherein, among other things, this was said: "Non-buildable land may be available for yard setbacks or such other open areas as the ordinance may require. The sterilization of almost one half of the total acreage in question borders on an unconstitutional confiscation. 41 AD2d 535. " Sec. 153-33 of the Zoning Ordinance prohibits the erection of any structure within 100 feet from a natural contour line. The non-buildabil- ity of the area between such line (dune) and the high water mark is conceded by petitioner, who nevertheless argues from the Bloom case that mere non- buildability is no reason for excluding such area from the calculation of - 6 - 1011:1 $1l gV 6 Jti7U -..- .. .. "MORANDUM Ii*' 377-3340 G 79-8579 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I By GEORGE J•ASPLAND S. C. VS. DATED OCT 19 square footage in a lot. Petitioner's brief cites as follows: ". . . in Benedict and Naqel V. Trustees of the Freeholders and Commonalty of the Town of East Hampton and the Town of East Hampton (Sup Ct, Suf Co, Index No. 71-1731, July 22, 1971) affd 40 AD2d 542 (2nd Dept. , 1972) , at issue was the ownership of the beach between the dune and the high water mark of the very land involved in this application. At trial, the Trustees attempted to again litigate the title question and submitted numerous deeds, Trustee Journals dating back to 1772, and the Dongan Patent. Mr. Nagel, the prior owner of the Ashman property, and Mr. Benedict, Nagel' s neighbor, sub- mitted a recorded chain of title dating back to 1868, wherein each deed conveyed title to the high water mark. In its decision , a copy of the pertinent part of which is annexed as Exhibit 'E' , the Court held that Nagel and Benedict owned to the high water mark, the Court noted at Page four of its decision that: Considering the history of plaintiff' s parcels the only conclusion that may properly be drawn is that their title does not sto at the dune but runs own to t e each or to the an s was e y t e sea, and between high- water-mark and low-water-mark. ' (Trustees of the Freeholders and Commonalty o the Town of East Hampton' vKirk, 68 NY. 549r___463) Plaint ffs' titleis ground in the same history as that of the plaintiff in Georgica_ Association v. Trustees of t eh Free- o ers an Commons t o the Town of East Hampton N.Y.L.J. , 4 10 63, P. 4 , Mun er, J. ) # Therein, notwithstanding the absence of express reference to the 'beach' in the original allotment to one Stephen Hand, Mr. Justice Munder 7 - mss : 2/2/79 & 3/29/79 VR" "`r • WNORANDW* I ex� 7-3340 s 79-857 `iUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I BY GEORGE J' ASPLAN3- S. C- VS. DATED OCT 61981 19 f found that plaintiff owned to the high water mark. The proofs herein offer no reason for this Court to reach a different conclusion. [emphasis added] . " Respondents ' Argument The Planning Board's arguments rely on the susceptibility of :he subject area to flooding and erosion, and contend that this is a sufficient -aason for denial even if each of the proposed lots were to reach 84 ,000 quare feet. Town- Law, Sec. 277, cited in part, reads : "where a zoning ordinance has been adopted by the town the plots shown on said plat shall at least comply with the requirements thereof; that the land shown on such plats shall be of such a character that it can be used safely for building purposes without danger to health or peril from fire, flood or other menace. " The Zoning Board of Appeals makes these points : The petitioner must overcome the strong presumption that the 'oard's determination is correct; the Board' s conclusion had a rational basis in law and fact; in the denial of the request to include beach property in its computation, the Board located the boundary of his property for zoning )urposes only, along the crestline of the dune. Continuing, Sec. 153-33c of the Zoning Ordinance gives the joard authority to fix the mean high water line on a lot fronting on the ?tlantic Ocean. Thus : "The 15' contour line is the elevation measured — e — Faw .�1D . np es : 2%2/79 & 3/29/79 1EMO �ANDti, M i7;d477-3340 & 79-857 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I BY J. S. C. GEORGE J• ASPLAND VS. DATED 19 • OCT 6 1981 from mean sea level. In any case where doubt exists as to the 15' contour crestline of the dunes or the mean high water line, the building inspector or the applicant for a building permit may apply to the Zoning Board of Appeals for its determination of the location of said line. " In every single section of the ordinance, which is concerned with ocean front property, the mean high water line is placed at the end of beach grass growth and not at the water' s edge. Secs. 153-33 et seq. The reasonable nature of the subject interpretation is found in the substantial evidence contained in the record demonstrating that this interpretation is consistent with the specific provisions of the ordinance, that it is consistent with the traditional interpretation of "lot area" as made by the Town Board of Assessors , Planning Board and individual members of the community. Court's Determination From New York Jurisprudence 2d "Adjoining Landowners" , Sec. 77 : "The term 'high-water mark' as applied to tidal waters , generally means the line marked by the periodical flow of the tide excluding the advance of the water caused by winds, storms and unusual conditions. "Precise location on the ground of the high water line as a boundary may be governed by local surveying practice. " Quoting from Dolphin Lane Assoc. Ltd. v. Town of Southampton, 72 Misc. 2d 868, 339 N.Y. S.2d 966, Justice Geiler : 9 - �o w eG : 2/2/79U bUVJI/ 3/29/79 . i (_ IEMORANDtV Inde #77-3340 6 79-857 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I By GEORGE J• ASPLANJ). S. C. DATED OCT 'g 1981 V3. 19 i "How is the high water mark determined? The United States Supreme Court in the case of Borax Consolidated, Ltd, V. Los Angeles , 296 U.S. 10 , 56 S.Ct. 23, 80 L.Ed. 9, stated that the proper determination of the location of a high water line at any given time involves the consideration of all the high waters at a particular place over a Considerable period of time and that, under sound astronomical theory, the period considered should cover the past 18. 6 years. In other words , the average high water line is obtained by taking the mean of all of the high tides over a reasonable period of time. This standard for determining the location of the high water line is also used in the State of New York (Board of Education of Union Free School District v. Nyquist , 51 Misc. 2d 902 , 274 N.Y.S.2d 229; Wood v. Maitland, 169 Misc. 484 , 8 N.Y.S. 2d 146, modified and aff'd. 259 App.Div. 796, 19 N.Y.S. 2d 320) . - It is the fact that the above-cited case, affirmed by the Ap- pellate Division, was modified by the Court of Appeals , 37 A.D. 2d 292, 296, 372 N.Y.S.2d 52. The modification consisted in rejecting the determination of the location of the high water mark along the southern shore of Shinnecock Bay by reference to the type-of-grass test introduced by the Town. The Court of Appealo found that prior to the litigation, it had been the normal practice to locate the high water line by reference to a line of vegetation. In other words , the establishment of a high water line by reference to a type of grass test rather than by the traditional line of vegetation test was rejected by the Court. In the instant case, there has been no evidence 'produced, other than the mere statement thereof, as to the practice of establishing the high 10 - roAr No �`; :? es : 2/2/!9 & 3/29/79 #TMORANDUMInde�'�77-3340 & 79-857 SUPREME COURT, SUFFOLK CUNTY SPECIAL 'TERM PART I By GEORGE J- ASPLAY.DS. C. VS. DATED OCT 61991 19 water mark at a vegetation or contour line. In fact, there is no showing of a settled vegetation line on the subject property. At the hearing before the Zoning Board, member McCaffrey, who had viewed the property, made the following statement: "MEMBER NANCY H. McCAFFREY: Just to review the location, this property is located on the east side of Beach Lane, Wainscott, right on the Ocean. It suffered some severe erosion two to three years ' ago and since that time the property has changed hands. Part of a dune area has been built up inside the (indecipherable) with beach grass planted on it. A new home has been built to replace the old one. It had to be removed. The fill that was placed to build up this dune is also being used to build up a driving area, and also under the pilings , which the new house is built upon. " Several prior deeds to the property, in evidence, show the distance from the northerly or street side of petitioner's property to run about 481 feet to the high water mark. The deed to petitioner reads 551.96 feet, this, presumably because of the change in the mean high water mark in a seaward direction. The survey before the court, revised October 17 , 1978 , reveals a series of mean high water marks since 1930 , with the mean of all high water marks being that of December 12 , 1945. It is of interest to note that petitioner took title in November, 1976 and the mean high water marks as Df September 27, 1976 and November 9, 1978 extend even further seaward than the 1945 line. - 11 - �I ions viieu 6 ,)uju -FORM a■ • ` . �1��/�n1D(,� l e 2/2/79 5 3/29/79 Inde 477-3340 fi 79-857 SUPREME COURT, SUFFOLK COUNTY SPECIAL TERM PART I BY GEORGE J• ASPLAN®; S. C. VS. DATED OCT 61981 19 Of note at this point is the following excerpt from Wood v. Maitland et al. , 169 Misc. 484, 8 N.Y.S. 2d 146, 151, which quotes Coulson i Forbes on The Law of Waters: 'The sea shore may be defined as that portion of the land adjacent to the sea which is alternately covered and left dry by the ordinary flux and reflux of the tides. . Although, in common parlance, the word ' shore ' has often a more extensive meaning--taking in all that extensive belt of waste ground or strand, shingles and rock liable to the action of every kind of tide--yet it is now finally settled, that in legal intendment no more of that unclaimed tract is sea shore than that portion which lies between high and low water mark at ordinary tides. This point has been finally settled by the case of Attorney-General v. Chambers, (4 De G. , M. s G. 206) , in which the Lord Chancellor Cranworth, * * * held that the sea shore landwards is, in the absence of particular usage, prima facie limited by the line of the medium high tide between the spring tides and the neap tides; or, in other words, that part of the shore which for four days in every week, or for the most part of the year , is reached and covered by the tides. As this line will vary as the sea recedes from or en- croaches on the land, so the boundaries of the shore will vary with the recession or encroach- ments of the sea. Land above this line , though overflowed by high 'spring and extraordinary tides , is not shore, but is presumed to be land the property of adjoining owners. ' Coulson & Forbes on The Law of Waters (3d Ed. ) , page 21. In keeping with the standard set in the above cited cases, and from a study of the survey filed, a fair approximation of pet'itioner' s high water mark would appear to be that of December 12 , 1945, and would afford 12 - f es 2/2/79 5 3/29/79 117 ,gixI e- 6-MORAN®UM Inde:i77-3340 & 79-857 SUPREME COURT, SUFFOLK COUNTY SPECIAL TERM PART I By GEORGE J• ASPLA.NDj. S. C. VS. � DATIED ICT 6 I 19 petitioner the requisite square footage to constitute two legal sized lots upon subdivision of his present lot. Petitioner makes no claim of intent or right to build or exert exclusive domain over the beach property in question. As seen, one section of the ordinance would prohibit such construction , and respondents aver that the area is subject to public easements. Any infraction by petitioner would presumably prompt appropriate Town action. Earlier in these proceedings, before consolidation, the Planning Board, in the proceeding against it, had moved to dismiss. The motion was denied by Justice McInerney on "points of law" , which points were required to be resolved. These are: (The answers to them, as found by the court, follow each "point" question) . 1. Did the zoning ordinance establish a southern-most developmental boundary as the 15-foot contour line and require any house to a be set back one hundred feet therefrom? Yes. 2. Must all lots comply with the lot requirements of the residential AA zone if they are situated in this zone? Yes. 3. Does the proposed two-lot subdivision comply with these requirements of the zoning ordinance? Yes. 4 . Does the zoning ordinancerequire the Board to treat the beach and area between the 15-foot contour line and high-water mark of the Atlantic Ocean in a different category than the upland lying to the north of the 15-foot contour? Yes, but only to the extent of limiting any constructio Plgtions 01740 b 5050 "i e( 2/2/79 6 3/29/79 `a" "• CEMORANDUS I�:n'.�dex 07-3340 s 79-857 SUPREME COURT, BUFFOLPK COUNTY SPECIAL TERM PART I ®YWO - ASPLAN[b. S. C. VS. DATED OCT •61 1 19 thereon. 5. Should the Board consider suitability of the parcel for subdivision in view of the inroad of the ocean on the sand beach and possible extensive damages caused by this to houses in the area? Yes. Nothing is found in the Ordinance which would prevent petitioner from including all of the property down to the high water mark. Nowhere in the Code is there any limitation on the inclusion of beach property in counting area square footage. The use of the terms "sand dunes" , "beach grass" , "natural contour line" are not used in the sense of confining extent of ownership but rather of restricting development. The point is made by petitioner that zoning ordinances are to be strictly construed and is considered well taken. Neither respondent contests that title was to the high water mark. Although respondents rely on the assertion that historically, the Town Trustees retained ownership rights over the beach and that for centuries the established highwater mark was at the southerly dune or beach grass line, cliff, bank edge or limit of arable land, this has not been sustained by adequate proof. What may have been a dune site or vegetation line in years past has been changed by the inroads and withdrawals of the sea in its capricious actions. There is no evidence as to a stable dune site nor vegetation line in the record here. The survey of George H. Walbridge Co. - 14 - PoAw Rio t— es : ilL ig e J/29/79 -�A'T ORANDUNI j � 077-3340 6 79-857 SUPREME COURT. SUFFOLK UNTY SPECIAL TERM PART I BY GEORGE J• ASPLAND J. S. C. VS. DATED 19 of East Hampton, revised October 17, 1978, which is not refuted by testimony or other evidence, shows nine different mean highwater marks from December 17, 1930 through November 9, 1978, two different dune sites, one in October, 1976, the other November, 1978, and three different beach grass lines. What petitioner is proposing here , is not seen as a threat to community values. Two lots would be created where one existed before, each of permissible size. If it is considered objectionable to form two lesser lots out of a greater one, the Zoning Ordinance should have initially provided against any lots of less than twice 84 , 000 square feet in an area, or specifically proscribed inclusion of "beach" area in the calculation of lot square footage. The Bloom case, cited hereinbefore , is compelling on the point that land, although unbuildable , must be included in the calculation of the entire parcel size. Sec. 277 of the Town Law which requires that a lot "shall be of such a character that it can be used safely for building purposes without { damage to health or peril from fire, flood or other menace" is not seen as Iapplicable. That section clearly refers to building purposes. The claim of 1 respondents that the subject beach is susceptible to flooding and erosion, is therefore without relevance. Turning to the variance request, the court notes that the cot- tage has been moved to a different location and no variance is necessary as 15 - i 'ova's tions 01740 S 5050 CiEMORAN®94 .1 #77-3340 6 79-8579 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I By 40RGEJ•ASPLA.�W S. C. VS I. DATED �j 6I:�I is to it, leaving only the tennis court and frame shed as subjects for a variance from side and rear yard set back requirements. The court fails to see that petitioner encounters such a "practical difficulty" as precedents have consistently required, to justify the granting of the variances sought. Significant economic injury has not been shown. Fulling v. Palumbo, 21 N.Y.2d 30, 33 , 286 N.Y.S. 2d 249 , 252. Also , there is no question that petitioner would not now be in need of a variance but for his desire for a subdivision. From Anderson, "New York Zoning Law and Practice" , second edition, Sec. 18. 43: "As it is applied in the cases just reviewed, and in other recent litigation , the self-created hardship is not applied as a flat bar to relief, but a factor to be considered by the board of zoning appeals and the courts. It is clear that where the practical difficulties asserted by the applicant are self-created, the rule of Fulling v. Palumbo does not mandate relief, even where there is proof of substantial economic injury. An area variance may be denied -on the ground of self-created hardship, provided such denial is not arbitrary and capricious. Even where the self-created hardship applies , it is regarded as a factor to be considered in determining whether or not to grant relief, but not the sole factor to be so considered. " As to the subdivision proposed, the actions of the Boards are seen as arbitrary, would deprive petitioner of a use of his property .unjustifiably, and amount, in the words of the Bloom case , t6 a confiscation. This matter is remitted to the Planning Board with the direction - 16 - Fo:h»��• •`, , 2/2/79 & 3/29/79 �,-M®RANDUM 1}1"36 $77-3340 & 79-857 ~SUPREME COURT, SUFFOLK OCUNTY SPECIAL TERM PART I By GEORGE J• ASPLAN9 S. C. vs. DATED OCT 61981 19 that it grant the application for subdivision and to the Zoning Board of Appeals to interpret the Zoning Ordinance in such a way as to permit the subdivision requested, but the latter's denial of the variance as to the tennis ccurt and frame shed is confirmed. Settle judgment. J. S. C. 17 - r vt a ?i ci riff MEMORANDA nd Dept., June, 198'( 9`L:1 a x Subsequently, the People moved pursuant to CPL 440.40 to net aside the a : defendant's sentence.The court denied the motion and we:d7 rm that determi- t i JS r ' nation. CPL 440.40(subd 3)provides that the court may dory a motion to set ;s ' < aside a sentence when the ground or issue raised was previously date(uuucd on G 4 ase herein. Accordingly, under the cnm custances the merits. Such was the c " here presented, the court's denial of the motion to set aside the sentence was !E { s not an improvident exercise of discretion. (See People u Ashen', 60 AD3d 710.) t ' `` ;1 ,: view of the foregoing, we need not reach the question uF whether the defendant could properly have been sentenced as a second violent felony h t F, t offender. Titone, J.P., Lazer, Brown and Niehoff, JJ., concur. . ! t P v i . j¢ a _ 41 THE PEOPLE OF THE STATE OF NEW YG1+R, Respondent,Queen v N intN,LI LOVER- t i t ENA,Appellant.—Judb'inent of the Supreme Court, QucenS County (Dunkin, v 1n s •J.),rendered May 12, 1981, affirmed. No opinion. This case is renutted to the i ik e Supreme Court, Queens County, for further proceedings pursuant to CPL 44 ,t 460.50 (subd 5). Lazer, J P., 'Thompson, Bracken and Rubin, JJ., concur. inter r,i� AZ ?rp G y 1„ (June 7, 1982) " If Y31 j g e ART-TEX PETROLEUM, INC., Appellant, v EXXON CunruaA•i•n+N, Itcspun- if ., dent. — Order of the Supreme Court, Dutchess County (Jiudice, J ), doled al 3 h De 3, 1981, affirmed, with $50 costs and disbursements (St Buruuh t Y -J-� C Eaton Allen Corp. v International Business Alnclts. Corp., 711 AD'Ld 875.) Mollen, P.J., Thompson, Bracken and Brown, JJ., concur. n hnA " ° 7r� �yyyl�i r +,t s� Z ARTHUR ASHMAN, Respondent, V PLANNING BOARD t1N THE 'Pl1wN OF BAST 7 l y le i. BAMPTON, Appellant. (Proceeding No. 1.) In the hlat[cr of AItT11Ui+ ASHMAN, Respondent,v Et nERT T. EDW ARDS et al.,Appellants. I Proceeding No. 'l )—In n s Id ` consolidated proceedings pursuant to CPL article 78 to review i 1 n a determi- A ? j nation of thePlanning Board of the Town of East Hampton,dated Januar y'26, jd 1977, which denied petitioner's application for"subdivision waiver" and lLI a ( determination of the 'Zoning Board of Appeals of the Town of East Hampton, tit €� rs53fv •r dated December 5, 1978,which,after a hearing,denied petitioners application , f is, a ryt} "' (a)for certain variances and Ib)to interpret the applicable zoning m duet ief,lce to permit petitioner's subdivision, the appeal, ae limited by tgtprlLud: biwf, is r' <� from so much of a judgment of the Supreme Court, Suffolk County (A�pland, r; JJ,dated November 12, 1981,as(11 remitted the matter to the planum;,'board a rt, t with a direction that it grant the application for subdivision of pvlrtioner's bhp ay 1;>~: eft ,.... premises, and (2) remitted the matter to the zoning board of appeals to lid1 aM- it interpret the zoning ordinance so as to permit the subdnisum requested, ItY ` Judgment reversed insofar as appealed from, on the law, without costs or tat i t,- disbursements, and the respective matters are remitted to the planning board A of and the zoning board of appeals for further consideration in accordance thee.a herewith. We agree with Special Term that the beach Reeti in question should Che have been part of the land measured to determine the lot arca of petitioner's ;frb r+'^ •� property (see Bloonl to Town Bd. of Town of Oster Buv, 32 N1'2d 930, revg 41t ;v"-{ ant AD2d 533 upon the dissenting memorandum of Justice Nunderi Ilowever,we 'C � ito it d't7 ant are of the opinion that the remitphlr to ilia respective boards in it h a ch rection, y -* ony t'k inter alio, that petitioner's application be granted, was imprnpvi. While we ing +' find the appellants interpretation of the zoning ordinance to he .0 bite any and did aY<e�� - capricious in excluding the beach area front the calcul.rtwn of the lot area of +, ng. o,. pMitioncr's property, we also believe that there were other peitineut "tatters « �- M A�� {�*`1 x .�tj r4 el' ^"#� yfj-r 3 r � 9 ; � 1 ''.. y1. t Ru ,t a,#}�'3`a C r L 4y ,f [ at' . .p t➢� t�S" Y � � � trt< 1AYR q 'iT� '� y {�*�;� p t111IIIFi>L � "`C� r 'r s J t fR R �,l N`; p yp � 7 �7 4 �aA � }♦ � i�'��f�� i N i,�d^. hl lr� �ry{'b r iF � $ - �'� r *W� DY 'el#r4• t.. 1,4�0� A r 01: 934 88 APPELLATE DIVISION REPORTS, 2d SERIES k y 4rruT � �i� i n , Concerning ,oppll Of other ugcnra•s properhzonsidered by the appelLuus whrvahon and aia� ich need to he ri considered in plight of Spe (aloncalculahnttheurea Term's decision lated y{ - lot arca can prima facie I t ark a meet the standards to permit subdi,cion, the oppcll int boards aught consider t (without limitation intendedi whethi r other health safety and conservation ,, A factors would permit subdivision at thisjuneture or Ivhetber petitioner should t y € r , be required to suhmit more detailed prouI un such ntters or('21 be required ,iIr I ui s to obtain approval from the 1)ep;n'tnu'nt of I?nvironmental Conservation and r the Suffolk County Planning Comms Sinn. Petitioner urges this covet to affirm F •,i Special Ter m s direction that his :gaplirrtio l be granted, vet he also states in z• s uli his Ill ief his willingness to Obtain approval floin these tWo agencies should the 'fir'`I ' planning board so require. Petitioner s pO.ihon is anomaluu,and suggests that f"�I ¢'x'tosr he knew that Special Term's directive as erronemis. Weinstein,J. P., O'Con- F 1 mw nor, Thompson and Boyers, JJ., concur. _ yyi1 L.. 1' 3 CIT( OP NEW YORK, Appellant, Y UNSA FF. Bi.n,aiNCs,RosF.-PULLY PROFEa- 2p + 1p TIES, INC.. ct al., Respondent, Re,lnmdulL, tt rl Respondent. -- In proceed- .,�y c', ings pursuant to section C2(i 8`L 0 of the Administrative Code of the City of ' 1,1: New York for the issuance of a precept directing that the Queens Borough � ,f rry-. +- Superintendent of Buildings abate tho unsafe and dangerous conditions exist -r, `Iz ing on certain premises by demolition of the structures thereon, the appeals ure from two orders of the Supreme Court, Queens Countv (Giaccio,J ) dated i"ehl'nar;Y 5, 1991 and September 13, 1981, respectrvel}f, the the first of which adhered to the court's original decision dismissing proceeding upon A iU E t certain conditons, mrd the second of which again denied petitioner's request ,Sid t ,� 9v'3 r'IT�f� P 9 for the same relief. Order dated February 5, 1981, reversed, on the law, n,r .0 �1 without costs or dishursements, petition granted and matter remitted to Special Term for the issuance, forthwith, of a precept pursuant to section C26- 82.0 of the Administrative Code of the City of New York. Appeal from order 'a �?. , dated September 14, 1981,dismissed, without costs or disbursements, m light r va,nwi'kt � of the determination on the appeal from the order dated February 5 t 1 ry re stru Oa �� t +k;;I this record we conclude that the subject structures and premises are structur '� r w7 '`a,�111 ally unsafe,dangerous and a fire hazard. Accordingly,the petition shouldhave " I ",",, been granted. Titone, J. P., Lazer, Niehoff and Ruhin, JJ., concur. hh``lfyyyf r 6„ k # 4 COUNTY OF ROOKLAND, Respondent, v Civil,SERVICE EMPLOYEES ASSOCIA' M1 f u +iii TION, Appellant, et al., Defendants — In an action, inter alfa, to enjoill defendants from engaging in a strike, the defendant Civil Service Employees d+ t Association,Inc.,appeals,as limited by its brief, from so much of an order still r•. `t �' judgment (one paper) of the Supreme Court, .Count , .b y IStolankJ ';v� entered January 20, 1982 as, after a nonjury trial, held it in contempt for ,l t"Al ; failing to obey temporary restraining orders dated December 27, 1977 and +� ut # li : December 29, 1977. Order and judgment affirmed insofar as appealed from, ' Y I -I without costs or disbursements.'fhiscoutt has Previously field that"Itlhe Civil Service Employees Association, Inc. (LSCA,Inc.)is liable for the actionsofthea'' Sat Rockland County ,all on an agency theory"(COonh'of Rockland a Civil Se h'mp10tees Assn., 74 AD2d 631, 'mot far Iv to app otsmd 50 NY2d 928Y 4'3 Accordingly, the law of the case is that CSEA, Inc., cannot be absolved of 'rt ` 4 responsibility for the acts oftheRockland Countyunit.Inasmuch asthereisnQ v .r, '`1•'- li question that the latter participated in the strike, the former was properly -�. fiiundtobeguiltyofenntinaleontempt, regard less ofits actunIparticipationiD the strike Furthermore; the record estahhsties that the orders to show Gauss r. ' ) I2, containing the temporary restraining order were served on agents of CSEA „ Inc.,as well as the Rockland County unit. Finally,the testimony and evldena^ � I It at trial demonstrate that "the impact of the strike on the public health,safety` ly �t I iS�y�1 and welfare of the con roumty" (Judiciary Law, § 75,1, sabot 2, par [a], cl fila ,r` c a ! r•, jC t T x , ! t _ a d "ice a i r +� 1'y 1�A� � �f� ��' � �7i � � �� AFF, �� � t T � a" t ` C5 r:.� ,`'� �+ n�+sp ¢'� � 'If, � �! •I. ... L, + s e y "3 v-,"? ° °' x y�, `dFr # 't As. s •yt �r�ti,t qTx' 25T+,tai let k , z ,L a . r ">'Y �i �:, �j;i 930 32 NEW YORK REPORTS, 2d SERIES The order of the Appellate Division should be atlirnted. +p Chief Judge FULD and Jud-es BuFITEO, JONES and IVAOIITLza ! r�if`< concur affirm Judge GnnnIELRI dissects and votes to arm in a cepa- a ,+ 17 rat© opinion in which Judges Buiila; and JASEN concur. 7r ¢ 's� ili�� ' ,a (�I Order reversed and the orders of the County Court reinstated x� 1 in a memorandum. YoFRANir BLoo5i et al., Respondenis, 'D. TOwN BOARD OF THE Tow,; );4- A or OYSTER BAY, Appellant, and RmirnT LIEUOWITZ et al., ' ;Ii sy x ykv.+ F n Intervenors-Appellants. r Y 8 4 x Argued April 30, 1973; decided Juue 7, 1973. ``�"�'y �`� " "f' "• i'>�"�r: + i'rF id j t I rezoning;pal resolution ations which reclassifledln action site of mined-cut sandgment eP trimg from nlight industry district to apartment house district, Special Term dismissed action as to some plaintiffs, for lack of standing, continued it as to others, and 'z declared that resolution was invalidly enacted, for failure to comply with '�+', f .'d* provision in zoning ordinance requiring prior approval of sewage disposal system by town engineer, and that, in calculating allowable density of 16 iz4 �,i�-� s q }, �i� dwelling unite per acre, lot area should include o:�ly portion of lo ! t upon " + yr.�r i 3 rtr�ail`ty" which structure might be located—order of Appellate Division which affirmed judgment of Special Term reversed, on dissenting opinion at Appellate Division, + < ' and judgment granted declaring resolution valid is accordance with conditions ` „e ¢ F ' dl� T lily and distinctions contained therein. '. Ayai+l ' t Bloom v. Town lid. of Town of 01 ster Bay, 41 A D 2d 633, reversed. ty APPEAL from an order of the Appellate, Division of the �4. , a a 1T' Supreme Court in the Second Judicial Department, entered I a n t;n,, January 8, 1973, which, by a divided court, affirmed, insofar as " t appealed from, a judgment of the Supreme Court, entered in H ',.ia Nassau c County upon a decision of the court at a Special Term (STEVEN B. Dl:aovxtnx J.) (1) dismissin+r the above-entitled , , „ N �4y1 action, for a judgment declaring invalid a rezoning resolution L x`e 4-, , adopted by defendant Town Board of the Town of Oyster Bay, °< insofar as it was brought by residents of the Incorporated Village of Upper Brookville, for lack of standing, (2) continuingJX it as to those plaintiffs who were residents of the town outside M the limits of said village, and (3) declaring (a) that the resolu- 19F r ?, tion, which reclassified certain property from " H11 light i ) industry district to ” E-1 " apartment house district, was invalidly enacted, for the reasons that section E-15 of the town's yC Rnilrlintr 7nnn _31, ' ' 1 MEMORANDA • 931 Mj;z Ef in the enactment thereof and that the 356 dwelling units approved i AOIITLE$ by the resolution exceeded the maximum of 240 units permitted t''��a '. a cepa under the ordinance and (b) that, in calculating the density a ^ = requirement of section E-9 of the ordinance with respect to the k� F subject property, the lot area should include only that portion instated ; 1 ' ava3a4of the lot upon which a structure might be located. The subject property, a mined-out sand pit located on the west s!de of Route x ' ` 106 in the town,but outside the limits of the incorporated village, s Towx 1 t+t consisted of 28 acres, including 15 acres of fiat land, at the et al., !. { grade of Route 106,surrounded by 13 acres of sloping land rising , for a distance of about 100 feet to the level of lands which were zoned residential. A storm water recharge basin and a shopping center were located across Route 106 from it. Special Term g invalid xt : found that those plaintiffs who owned residences in the town om ligbt �'„ A action °"rV ( but outside the limits of the incorporated village were aggrieved ° by the rezoning of the subject property g E! '" ore, and N pro ert and had standing to y ply witb ^tufa l maintain the action, since they lived in close proximity to the disposal sa property and the proposed use of it would result in population R; # :y of 1s ��, , density and noise and would generate substantially more traffic Cot upon " t I on Route 106,producing air pollution, offensive odors and danger i1 yh .p i` affirmed to 'children; that the record was all but devoid of evidence of Division, +��¢ i )aditions Axe compliance with section E-15 of the ordinance, which precluded ; "5 classification of property as 11E-1 11apartment house district "until after evidence satisfactory to the Town Board demon- strates that the system of selvage disposal for such apartment of the house has received the prior approval of tho Town Engineer �i ntered fir- who, on the basis of a deposition made by him, had only vague e ' :far as s recollections of having made any detailed analyaiis of the pro- rp k d sed in "�'a posed sewage disposal system or having discussed it with the Term Town Board; that section E-9 of the ordinance, providing that X'� +,' ntitled In ' E-1 ' Apartment house District, the maximum number ilntion t of dwelling units shall not exceed 16 per acre " should be inter- „ c Bay, =, preted to limit the unit density of apartments to 16 per usable orated or buildable acre, and that only the 15-aero flat portion of the ming subject property could be utilized. '19ac di�.cuting .justice att atside the Appellate Division stated, inter alfa, thatr ` Lc would affirm esolu- �-4A the finding as to the present plaintiffs' standng,i • bthat, while he light disagreed with the finding as to the lack of standing of abutting was , owners who were residents of the incorporated village the own's manor was moot since they had not appealed; that, going to the with merits, apart from the fact that there was no proof of nonutility .• ?':ax'JIC9:�.E2yA..c'.--..'21i.$fYi1RE'L..rw ......nra-r... ._......... ' i �`� ° � Kyr x ti p#f� xt1A t k S � Y+�' b � .'F$ E,3 I 1 Y° �F j,1111 ' �• !aa �N 1 9i.$ i{„ :x �'., Q� I fW P Vr, `}� ' 932 32 NEW YORK REPORTS, 2d SERIES r of the slope area, and conceding that building on the slopes would t � be impractical and uneconomic, he did not believe that the slope 1,'. area had to he eliminated from consideration, and a provision �a} _ „�i in the ordinance limiting " the total building area " to 20cfo ` t' of the total lot area in an P-1 apartment house district i suggested to the contrary; that the sterilization of almost one half of the total acreage in question bordered on an uncon- stitutional ncon stitutional confiscation; that, as to compliance with section E-15 *" d of the ordinance, in contrast to the uncertainty of the town engineer, who was ill and distressed at the time of his examina- tion, there was unequivocal testin[onr by two councilmen, bothf attorneys, as to the Town Board's Navin received his oral i „I y. , g approval of the sewage disposal system and having been satisfied with it, and that, sinco a legislative art was being reviewed, since the amendment was an upzonim;, and since the legislative body had complied with statutory requirements, the amendment should be upheld. aK,SY 1��� r, (fir s:arl John 31. Conroy, loam Attorney (Charles F. Lynch of counsel), for appellant. George C. Pratt for intervenors-appellants. William R. Cotter for respondents. n, Order reversed, without costs, on the dissenting opinion at q F Hthe Appellate Division and judgment granted to appellants declaring valid the rezoning resolution in question in accordance » with the conditions and distinctions contained therein. Ikll• 3°.�+S. YrpF,i r�V Concur: Chief Judge Fueu and Judges Bunxr:, Clennmrra, +r �ONEs and � � onlnIle sudissents and votes o affirm which JdgeBnrirrrconcursn the following pisimii a JnsEN, J. (dissenting). T agree with the majority that Special - s� Terms construction of the phrase lot area , excluding as it did the 13 acres of sloping land, was erroneous. However, I l�� c N, would otherwise affirm the order of the Appellate Division, In "� the posture that this case comes to us, the issue of whether the intervenors' property was validly reclassified is essentially factual and nonreviewablo in this court. The applicable section 4- of of the zoning ordinance requires that before the Town Board S, y' act, the town engineer approve the proposed sewage system N and the evidence of this approval be satisfactory to the Town Board. Mother that approval roval had been obtained and whether5. � k' Y i MEMORANDA 933 n would the Town Board was satisfied with the evidence of that approval , slop ;. ; e e 1 were questions of fact. As the evidence of the occurrence of y " ovision p these necessary preconditions to the Town Board's power to acto ' +�'f 207o " was conflicting, the courts below had the power to resolve the �PFt # district r � issues of fact and these affirmed findings are binding on this a '';, est one { t�: court. ancon n E-15 r Order reversed, etc. a� town " Amina <. In the Matter of DIANE BERNf et al., Appellants, v. ADELE LEON- D, both i Ann,as Executive Directrix of the Nassau County Civil Service L is oral xg Commission, et al., Respondents. wk yip atisfied Submitted April 30 1973• decided J7 1973. since P 1 1 Juno t e bed Civil service—promotion examinations—policewomen sought to annul pro- € ' dment s�'; motion examinations for Police Sergeant,who supervised patrolmen, and Police- �'tq Roman Sergeant, who supervised policewomen, alleging that requirement of four years of service as patrolman for Police Sergeant examination was not � L iacla of tq," bona Ads qualification but was established arbitrarily and capriciously, that t only basis for giving separate examinations for Police Sergeant and Police- +t fi woman Sergeant was differences of sexes, and that, accordingly, giving ofzc separate tests was unconstitutionally discriminatory—dismissal of their yeti- §, tion wee properly affirmed—memorandum by court. a +{ don at �`rv�t - Matter of Berni v. Leonard,40 A D 2d 701, allirmed, ellantsAPPEAL from an order of the Appellate Division of the Supremos t it a :dance Court in the Second Judicial Department, entered October 24, 1972, which, by a divided court, affirmed it judgment of the x *` Supreme Court at Special Term (BERTRANT IIARNETT, .,I • opn. JUFLLI, r affirm G9 Mise 2d 935), entered in Nassau County in it proceeding pur- q suant to CPLR article 78, denying all application and dismiss- ing a petition to annul promotion exaniinatioils held on April special 29, 1972 for the positions of Police Sergeant and Policewoman ass as it r Sergeant in the Police Department of the County of Nassau, L - ver, I a. upon the ground that petitioners, policewomen in that depart- +'aw in. In t. * ment, were deprived of their right to take tho examination for lit & 1T er the Police Sergeant and relegated to taking that for Policewoman _ ntially - Sergeant solely because of their sex. A Police Sergeant's duties o section �. 1 consisted of supervising the activities of patrolmen and per- +# Board `i � s forming related duties as required, and candidates for that leek system ;t . position were required to have four year.,; of service as a patrol- e al {+ I k Town , man. A Policewoman Sergeant's duties consisted of super- e ) a Nether vising the activities of policewomen and performing related r i syyrr,,, 4 ` ��ti��ti 77F77F L MEMORANDA, Second Dept., January, 1973 533 Y a these flue ' Realistically, this meant that, contrary to former law • • • calendar con- z relators gestion, lack of facilities and virtually any other factor rendering it physically Fl they are x ), impossible to dispose of trial calendars within the prescribed periods eonsti- that the ys= " toted no excuse for the industrious metropolitan prosecutor ready to go to stars are :, - "trial but unable to do so through circumstances beyond his control." CPL $0.30 (subd. 5) represents a clear legislative disapproval rsuant to sapprovaof the intended effect - of the promulgated roles and, in our opinion, left intact the prior decisional that in '`"1 after the `,�` law that good cause for delay existed when the delay was not "chargeable to ;t ' the court r' t ,f the prosecutor and • • • occurred for reasons beyond his control or the , ^cense of control of the court" (People v. Ganci, 27 N Y 2d 418, 423, cert. den. 402 County. U. S. 924; see, also, People V. Minicone, 28 N Y 2d 279, 281, cert. den. 404 iefendant X` i ,. U. S. 853)• Accordingly, the relators are not entitled to release under CPL 80.30 and their writs should be dismissed. This interpretation of section 30.30 ( `} KeE,• in rele cnmmal s - r � > does not mean, however, that the District Attorney's office controls the col ;:y 5 tion of the Read Calendar or the movement of the cases a ;uch con- s Td P� y appearing on ;,° aa, it.. The power to regulate the order of its business or its calendar practice a9felony. t ; ' is m the court (Matter of McDonald v. Goldstein, 273 App. Div. 649). Rabin, 3cu3 e period P J.,Hopkins, Munder, Martuseello and Latham, JJ., concur. I periods contend )72 the ap (January 8, 1973) ryR }a;a r assign , , I FRANH Broox et al., Respondents, v. Tol BOAnD os TEE TowN or months OYSTER BAY, Appellant, and ROBERT LiEnol et al., Intervenors-Defendants- `'- ing trial (' : ..Appellants,In an action for a declaratory judgment, defendant and inter- ovember, 1:3": Tenors-defendants appeal from so much of a judgment of the Supreme Court, � •'x ate grewA Nassau County, entered June 20, 1972, as adjudged (1) that a zoning rel number %4.! `--tion. of the Town of Oyster Bay reclassifying certain real property from Supreme • - H-Industrial to E-1 Apartment Hoose is invalid and (2) that, in calculating existence �t�ro4e the density requirement under the Oyster Bay Building Zone Ordinance with r 7r f 'e Legm respect-to said property, the lot area should only include the buildable par- ex cep ar-creep tion of a lot. Judgment affirmed insofar as appealed from, with one bill of ' astion m costs jointly against appellants appearing separately. No opinion. Rabin, People •.,;; ,: P, J., Martuseello, Latham and Shapiro, JJ., concur; Mender, J., dissents and res that w votes to reverse the judgment insofar as appealed from and to declare the ` s •` ,ale were zoning resolution valid, with the following memorandum: This case presents r ntioa in an example of the not unique dilemma of what to do with the site of nn r i ,� •*`�' o insnffi exhausted sand pit. Typical of Band and gravel mines on Long Island, this correct one has cut into a hillside, leaving precipitous slopes on the perimeters other section than the valley on which an abutting road exists. Fortunately, the floor of after the '.x' e the mine remained at the level of that road. The site in question is a 28-acre s Trial parcel of land, with a flat area of 15 acres surrounded by three slopes rising of. We `'"' to a height of 100 feet. The bases of the slopes, presumably determined by : of the the sharpest angle of repose, occupy 13 acres of the total area. The owner C sae r is:4H Judicial jai seeks to get the maximum use of the entire area. The neighbors would prefer 3erseded the minimum use. The governing authority must, and apparently in this case v ' " 1-29.7) did, elect to balance these interests. Plaintiffs reside in a single-family rel mentary dential development which is south and east of the subject property. The sub- t ^`= '., Book `'.* jest property is on the west side of New York State Route 106, at this point 3? , ise of a a three-lane highway and the principal north-south route from Oyster Bay to vs after Hicksville. Directly across Route 106 from the subject property is a large lie gen- w sump or recharge basin. North of the sump and on the some side of. Route ca i r under ,^ . 106 is a shopping center, some of which is opposite part of the road frontage : either. �i t'3 y� • � � tt �i u�t u. &s. Fir "Yi ,yYt# ,. � b�..��4syi rwah�9,. �j'1tl.'•itr d�xti,4r'k 414 R.4 R.4 L :, ; . 31 . '.. x }}kAwgi p 4%,Z1,-sw ', a' 534 41 APPEi. kTL DIVISION REPORTS, 2d SERIES of the subject pro rorty. The development in which plaintiffs live is built on 1i 10,000 square toot plots. None of the plots which abut the easterly side of , Route 1011 front on the, State highwav, access thereto from the plots being by an intersecting road several hundred yards south of the subject property. Io this action for a declaratory rY judgment, Special Term found that on a prior appeal in this litigation we determined that some of the plaintiffs were proper 1,t t �+ ,q � ', ,sn parties (see A�amisn v. Town Bd. of Opstcr Bay, 38 A D 2d 551). Special : . f��y< ` � • x a„ w c>. Term then found the enacted amendment to the zoning ordinance, changing , the classification of the parcel here involved from H-Iludustrial to E-1 Apart- �.4 .- „°, ment House, invalid for two reasons: (1) the legislation lacked the. prior W .. `^ nazi y approval of the Town Engineer as required by section E-15 of article VII-A ' of the Building Zone Ordinance of the Town of Oyster Day and (2) the '.M e YF , approval for 956 dwelling units exceeded the allowable 16 units per acre ander t., x,11 t +'$ t c PP g section E-Oa of article VII-A of the ordinance, since the area covered by the a slopes was nubuildable in a practical sense and that area must be, excluded - 1 .,l.. ' ",�,w B fsft ) from "lot area" as defined in the ordinance. As to the standing of plaintiffs, " NN q„ �syi� i ,'•; „I I would first observe that we did not, in our prior determination, do more than recommend to plaintiffs that they plead in more exact terms their status as `•` � �•li ` 4d,}^r-N,+e ? aggrieved partizs (Ajamian v. Town Bd. of Oyster Ba±f, supm). Inferentially, it?' cd course, we were also telling them to support the pleadings with proof. no proof in the present record on the issue of status or standing is far from ` roverwhelming. Plaintiffs offered no proof of pecuniary damage and the inters tE WI� : t venors owners' expert testifled that, in fact, the rezoning from Industrial to „ Apartment House use would increase the value of the surrounding property. ''v I do not feel, however, that pecuniary damage is the sine qua non for standing. P ry g 4' As indicatedin Blumberg v. City of Yonkers ('Ll A D 2d 586, alfd. 15 N Y Y �I 2d 791), the right of a litigant to maintain an action for a declaratory judg- ment declaring the invalidity of a zoning ordinance, or an amendment tbereof, rti ' is based on the sane criteria for the institution of a proceeding under article ° 78 of the CPLR to review the determination of an administrative body grant- ing n variance. In other words, the litigant need only show that somehow he a= ' a tciix•i! ! or his property is especially "affected", or "aggrieved", or has suffered rsryv , lkit "special damage" (see Schapiro v. Town of Forth Hempstead, 35 A D 2d ` 596; Daum v. Meade, 35 A D 2d 598; Marcus v. Village of Mamaroneck, 2S3 `'f delf N. Y. 325). At bar, there was some showing that the zoning change would ntt � �M�t1jR it bring an increase in traffic and its deleterious side effects. Thus, though not +t` ° ¢>T�r ffifor the reason that we previously affirmed plaintiffs' requisite status, I would < afflrm the finding of standing as to plaintiffs. I note, too, that several`of Speciala[,: the original plaintiffs were held to be without standingby Term on ^ the ground they were residents of an adjoining village and could not be heard z on n zoning matter beyond their corporate boundaries. I disagree. It seems to ya( a fie that abutting owners are especially affected and should have standin test the validity of rezoning legislation notwithstanding that their lot lines form part of the boundary between two municipalities and they live in an adjoining village (see Matter of Town of Bedford v. Village of Mt. Risco, 40 A D 2d a 1 '+ 979; Township of River Vale V. Town of Orangetown, 403 F. 2d 684). How- f. ever, I- think the standing of the excluded plaintiff's should be reviewed in a n. 1 � proper case. Here, they have not appealed, so the matter is moot. Going to the merits, I cannot agree with the restrictive interpretation given by Special ' .� Term to the ordinance definition of "lot area", which reads: "LOT AREA is ' the area of a lot on which a building and its accessories may be located, exelu- ,.h t sive of land in the bed of any street" (art. I, § 3). Holding that the area .,P.S occupied by the slopes is not available for building, the court multiplied the x 'y • ' " 1 + +� ? allowable 16 units per acre by the number of buildable acres and found a 2 "� v,. lie n lj - ; ; MEMORANDA, Second Dept., January, 1973 535 manmum of 240 unite > U4, " �,. permissible. Therefore the towns authorization of �� ' - � +j �• �, t 356 dwelling unite was illegal. Apart from the fact that there was no proof of nonutility of the slope area and that modern technology indicates the con- trary, and conceding that-building on'the sand slopes would be impractical I j } �t• I`Y+ �' `, . and uneconomic, I do not believe that the slope area must be eliminated from " consideration. The ordinance itself suggests the contrary when it provides that the total building area shall not exceed twenty (20) percent of the total 1 lot area" in an E-1 Apartment House District Q E-0). There is nothing in n` the ordinance which requires that the 80% remaining must be buildable. Non. + buildable ]and may be available for Y yard setbacks or such other open areae i as the ordinance may require. The sterilization of almost bne half of the 5 ( t I " *.i total acreage in question borders on an unconstitutional confiscation. I am r6 , troubled with the remaining question of whether there was compliance withti°a, , F section E•15 of the ordinance, which provides that no property shall be classi- fled E-1 Apartment House District "until after evidence satisfactory to the v Town Board demonstrates that the system of sewage disposal for such apart meet house has received the prior approval of the Town Engineer." IG is suggested by the intervenors that since the State has pre-empted the field of t regulation of sewage disposal systems for apartment houses, the ordinance provision requiring the prior approval of the Tows 4 EngineR+ ` p is n longer useful or vital to an ordinance amendment establishing an Apartment House District. The Town Attorney takes the 'r y position that section E-16 has vitality it. and its requirements must be met. With this latter view I agree. At the trial, tt 1 ` a deposition of the Town Engineer was received in evidence. From that, the !� court concluded that the provisions of section E-15 were not complied with. This witness, who had left the position of Town Engineer only days after the x questioned enactment, was not before the trial court. In reaching its conclu- t ? , e Bion Special Term relied upon portions of the engineer's testimony in which toT l C he indicated that he did not discuss the sewagedisposal system with the Town gnx Board before the hearing and that he did not tell them whether or not he m: „ approved it. My own rending of the engineer's testimony discloses that he was w i w vague and unsure about the matter. He remembered discussing the sewage disposal question in"one of the offices of the [Town] Councilmen". He visited the site and remembered making some computations relative to the slopes and the sanitary sewers, but, to use his own words "for the life of we I don't $ remember how it came out. I don't remember if it was positive or negative [i.e., whether he approved it or not]." He was sure, however, that the meeting , , ? r t in the Councilman's office had occurred and the calculations made before the hearing at which the Town Board acted. As for the form which his reports took, be testified as follows: "In some cases it could be oral, and in some fa cases it could be in writing, If I was asked specifically to put it inwriting for , the record, I world do it. If it was just an informal discussion, relative to r ' . engineering data on a particular problem, it could just be reported back to 1 one Councilman, who would be, say, if it's the North Shore area you would ,x. report back to Councilman Christ, maybe, or the Hicksville area you would report to Councilman Doolittle. It could be either in writing or verbally." 1 i At the time of his examination the engineer was ill and distressed. He had il;, not checked his files on the matter. The following excerpt is revealing: "No, +, I haven't had time. I have been laid up for the last month and this is all pretty fast for me right now. I haven't had time to even think back a couple of years }l a as to what really happened. MR. COTTER: I understand that, and we appre- e. ,- ciate your coming today. We are under pressure from the Court to complete the trial by next Wednesday, so we are having to do this, even though it is so 01030 to the time you have left the hospital, and we apologize for that" In a-- b. r « aI fi - Y � �' S dFr� t9 s t"r^ '� e � rs,� sL �' 536 41 APPELLATE DIVISION RI PORTS, 2d SFRIES n , contrast to the eneoineer's uneertsinty, we have the unequivocal testimony of �,.I two Councilmen, Christ and Diamond. both attorneys, who appeared before the court. Councilman Christ indicated that between the public hearing con- �� '+ �, I corning the zoning amendment whicb was held in Janus Board meeting in g December 1970 at which the n;nendme t97was the enacted own Town Engineer advised him that the site in question was adequate a aced, the byxM' date the sewage. As was the cust card who rode herd oon" be (Christ) was the member of the Town Bn this particular mutter because he lived in the par- �- ticulnr port of town which was affected. He did not ask the engineer for a �^ �i.. T, 4 - t # written report. Both be and Diamond testified that before the vote was taken, i] 'v r y k � 3 i theengineer assured themthatthere was`no problem with respect to sewage g . a , - my disposal- Diamond further testified that there is absolutely1, #. , .t I(r. .mind that, compared to what exists thero now or would eontiaqune to exist ,ssg � q x,., s tS z 1 1 as an industr al park [sic], would be enhanced a millionfold if the restrictive x 1 - l; covenants which w t placed on the approval of this application came into being V., " R f' ' [and] with the tremendous need that we have in the Town of Oyster C rt yi:` .9 s Bey for garden a 3Ir , a „� "y ; �T partments, if we are not going for heave n's sake where are we g g to Put it in the sandpit, then, going to put it4" From the above, Icon- yc elude that section E-lb of the ordinance was satisfied. It requires, and I thinl: this is significant that evidence of the Town Engineer's 'satisfactory to ' „ approval be p � r,�j. i'y the Town Board, Here, the Town Board was aware that the + ' engineer's prior approval was required. They were reminded of the fact imme- c diaiely before the vote. The board Wes advised by tfiie board member respon- t �];'I it Bible for this particular matter that such approval least one of the other board members was ersonallhad aware of the pp At Y { e &" + lffl t Since there was no requirement that than p y writing, ppro°sl' `x $ t - be "satisfied" with an oral assurance, pat cularlybwh n thknewthe the physiche board al (sandy) makeup of the site and knew that the number of apartment units was 1 , considerably less than the number for which approval had originally been sought. _ , Since we are reviewing n le is an upzoning which obviously ill enh and since the amendment in question ' y once the aesthetic and pecuniary value of the area in question, and since the le slative bo has complied with the statutory J tatutory requirements, I vote to uphold the amendment in question. + ,, 2 AL FEINAERG, on Behalf of Himself a¢d All Other Tenants Similarly Situated, Respondent_.Appollant, v. REGION HOLD+Na Cour. Appellant-Respond- Administration y, y 1 ant, and ALnEar A. 1VeLyII a ppellant-R Pond- t y!y4t4 Administration of the City o New York,tRespondenor of the tonDnegnddodIIoLVDetlaorp Cat U s ass ( Intervening Defendant-Appellant-Respondent.—In n class action by a tenant, w ' as ; Al Feinberg, of an apartment located in the Borough la Queens, City oP New from inter alio, to enjoin his landlord and all landlords similarly situated ,+, prosecuting eviction proceedings against plaintiff and all others Similarly ulr. situated, by reason of rent increases based on interim maximum rent orders of defendant Administrator of the Housing and Development m rent orders of the ity of New.York these appeals are by said landlord, defendant Region x HoldingCorp., and an intervenor-defendant, Dicmae Holding Co., from two a �` ° 7 orders of the Supreme Court, Queens County, both dated September 28 1912 - -' and entered October 2, 1972, and b � x said orders (hereinafter referred to as ooriginal ot�e=�ain2efd One of �.'" plaintiff's motion for a prelimina granted Said intervenor-defendant to dismiss lthenactionPor failure d denied atostate a cense o•: of action. Said defendant and said intervenor-defendant a 1. t•' this order, except the PPeal from all of Portion which requires plaintiff to furnish a $100,000 t t(1 i Only undertaking as a condition of the preliminary injunction; and plaintiff appeals �'.. y from said Portion of the order. The other order (hereinafter referred ESSEKS, HEFTER & ANGEL COUNSELORS AT LAW IOB EAST MAIN STREET P. O. BOX 279 RIVERHEAD, N.Y.. 11901 WILLIAM W. ESSEKS (516) 369-1700 WATER MILL OFFICE MARCIA Z.HEFTER MONTAUK HIGHWAY STEPHEN R. ANGEL TELEX-EHCA 6552316 LW P.O. BOX 570 ..LANE ANN R. KRATZ TELECOPIER NUMBER 1516) 369-2065 WATER MILL,N.Y. 11976 JOHN M.WAGNER p (516) 726-6633 WILLIAM POWER MALONEY July 6, 1907 ALAN D.DSHRIN OF COUNSEL Planning Board, Town of Southold Town Hall 53095 Main Road Southold, New York 11971 Re: Minor Subdivision for Thomas Samuels, orient Gentlemen: As you know, we are the attorneys for Thomas Samuels, the owner of the above-captioned subdivision which was approved on your Board on December 22, 1986. Dr. Samuels spoke with Diane of the Planning Board staff who asked that we provide you with proof that the required Declaration of Covenants and Restrictions was recorded in the Suffolk County Clerk 's Office. In this regard, we enclose a copy of the Declaration of Covenants and Restrictions showing the notations placed thereon by the Suffolk County Clerk. Please note that the Declaration was recorded in Liber 10242 of conveyances at page 351 on February 6, 1987. If you need any additional information do not hesitate to contact me. yepenuly yours , S R. Anel SRA:mg RECEIVED BY , xc: Dr. Thomas E. Samuels SOU H0LTOW�PjI��3/'6ARQ DATE y" ESC Uf°urcol�� MAR 13 1987 OFFIC s ORNEY ROBERT W.TASKER `, D TELEPHONE Town Attorney ®� Iw (516)477-1400 425 MAIN STREET • P.O.BOX 697 GREENPORT,L.I.,NEW YORK 11944 March 12, 1987 Stephen R. Angel, Esq. Esseks, Hefter E Angel 108 E. Main Street, P. O. Box 279 Riverhead, NY 11901 Re: Samuels Minor Subdivision Covenants and Restrictions Dear Steve: Receipt is acknowledged of your letter of March 5, 1987 with the enclosed copy of the covenants and restrictions. I find the contents of the declarations in order. However, as indicated in my January 19, 1987 letter to the Planning Board, a public hearing must be held pursuant to" Section 247 of the General Municipal Law on the question of the acquisition of such easements. Therefore, it would seem that before the acquisition of such easements occurs, that a public hearing must be held on the contents of the declarations. I would suggest that you refer to the hearing by including it in a "whereas" clause in the declarations. Yours very truly, ROBERT W. TASKER RWT1jr cc: Mr. Bennett Orlowski, Jr. ESSEKS, HEFTER & ANGEL COUNSELORS AT LAW 108 EAST MAIN STREET P. O. Box 279 RIVERHEAD, N.Y. 11901 WILLIAM W. ES5EKS (516) 369-1700 WATER MILL OFFICE MARCIA Z. HEFTER MONTAUK HIGHWAY STEPHEN R.ANGEL TELEx-EHCA 6852316 UW P.0. Box 570 TELECOPIER NUMBER 151 6) 369"2065 WATER MILL, N.Y. 11976 JANE ANN R. KRATZ JOHN M.WAGNER ' (516) 726-6633 WILLIAM POWER MALONEY ALAN 0. OSHRIN March 5, 1987 OF COUNSEL Robert W. Tasker, Esq. 425 Main Street P.O. Box 697 Greenport, New York 11944 Re: Samuels, Minor Subdivision Covenants Dear Bob: Enclosed please find a copy of the covenants and restrictions in the above matter after they have been corrected in accordance with your letter of January 19, 1987. Would you please confirm to the planning board that these covenants are acceptable. Sincerely, Stephen R. Angel SRA:mg xc: Planning Board, Town of Southold �1 D T LD O � S Y Southold, N.Y. 11971 (516) 765-1938 December 2, 1986 Mr. Stephen Angel Attorney at Law Esseks, Hefter, Cuddy and Angel P.O. Box 279 Riverhead, NY 11901 RE: Thomas Samuels Dear Mr. Angel: The following actions were taken by the Southold Town Planning Board, Monday, November 24 , 1986. RESOLVED that the Southold Town Planning Board re-affirm the, sketch map approval of the minor subdivision of Thomas Samuels for 2 lots on 3. 75 acres located at Orient, survey dated as last amended May 19 , 1986 . RESOLVED that the Southold Town Planning Board set Monday, December 8, 1986 at 8 : 00 p.m. at the Southold Town Hall as the time and place for a public hearing on the question of approval of the minor- subdivision of Thomas Samuels for 2 lots on 3. 75 acres at Orient. Enclosed is a copy of the legal notice for your files . If you have any questions, please don' t hesitate to contact our office. Very truly yours , BENNETT ORLOWSKI, JR. , CHAIRMAN SOUTHOLD TOWN PLANNING BOARD By Diane M. Schultze, Secretary enc. �y� > oS�EFOtKC� JAN 21, OFFIC ORNEY ROBERT W.TASKER D TELEPHONE Town Attorney Q (516) 477-1400 425 MAIN ST. GREENPORT, L.I., NEW YORK 11944 January 19, 1987 Bennett Orlowski, Jr. Chairman Southold Town Planning Board Southold, New York 11971 Re: Thomas Samuels Minor Subdivision at Orient Dear Bennett: In accordance with your letter of January 7, 1987, 1 have reviewed the proposed Declarations of Covenants and Restrictions dated January 6, 1987 and have the following comments: The overall purposes of the declaration appears to be the transfer of a scenic or conservational easement to the Town of Southold. Subdivision 2 of Section 247 of the General Municipal Law provides that any country, city, town or village "after due notice and public hearing may acquire by purchase, gift, grant, bequest, devise or otherwise the fee or any lesser interest, a development right, easement, covenant or other contractual right. . ." It is apparent to me that the provisions of Section 247 of the General Municipal Law must be complied with and therefore, a public hearing on the question of the acqusition of the easements must be held. In addition to the foregoing, there are several typographical errors in the proposed Declaration of Covenants and Restrictions, and they are circled in a copy thereof enclosed herewith for that purpose. Very truly yours, ROBERT W. TASKER RWT/jr (/ Enclosure cc: Stephen R. Angel, Esq. DECLARATION OF COVENANTS AND RESTRICTIONS This declaration made the �t� day of January, 1987 by Thomas E. Samuels a/k/a Thomas Samuels, (No# ) Haywater Road, Cutchogue, New York 11935, hereinafter referred to as "Declarant". WHEREAS, declarant is the owner of certain real property which is situate in the Town of Southold, County of Suffolk and State of New York, more particularly bounded and described as set forth in Schedule "A" annexed hereto (the "property" ) and made a part hereof; and WHEREAS , declarant applied to the Planning Board of the Town of Southold for minor subdivision approval to sub-divide the property into two lots for residential purposes, which lots are bounded and described on Schedule "B" annexed hereto; and WHEREAS , on December 22, 1986 the Planning Board of the Town of Southold adopted a resolution approving the subdivision of the property into said two lots subject, however, to the conditions contained in this Declaration of Covenants and Restrictions; and WHEREAS, declarant desires to restrict the use and enjoyment of said property and has for such purposes determined to impose on said property covenants and restrictions and does hereby declare that said property shall be held and shall be conveyed subject to the following covenants and restrictions, NOW, THEREFORE, this declaration witnesseth: 1 . Neither of the lots described on Schedule "B" annexed and referred to above shall be subdivided or have its lot lines changed in any manner at any future date unless authorized by the Planning Board of the Town of Southold. 2. No sanitary disposal facility shall be constructed or otherwise located within 100 feet of the edge of the tidal wetlands along the shoreline of Hallocks Bay. 3. No stormwater runoff resulting from the development and improvement of the subdivision or any of its lots shall be discharged down the face of the bluff in any manner into the adjoining body of water and the tidal wetlands bordering the property. 4. The declarant does hereby donate, grant, transfer and convey on to the Town of Southold in perpetuity a scenic and conservation easement of the nature, character and to the extent i hereinafter set forth, over and upon the property within 50 feet of the shoreline of Hallocks Bay (hereinafter sometimes referred to as the "burdened premises" ) : —� a. No building or structure of any description shall . be rrecte\ on the burdened premises, except that one ( 1 ) catwalk no wider than five ( 5) feet and floating dock may be constructed on each lot over the burdened premises so long as such catwalk and floating dock are approved by all applicable governmental agencies having jurisdiction, including but not limited to the Trustees of ( he Commonalt of the Town of Southold the , New York State Department of Environmental Conservation and the United States Army Corps of Engineers. b. No topsoil shall be removed from the burdened premises nor shall sand, gr vel, Peat or other minerals be KJJLC,,T✓ excavated therefrom I 4for any purpose. C. The burdened premises, to maintain its present appearance, shall remain in its natural state, and for this purpose, declarant, his heirs and assigns reserve the exclusive right to use and enjoy said burdened premises. d. The burdened premises shall not be open or available to the public for general or park use, but shall remain at all times in the exclusive possession of the declarant, his heirs and assigns. e. All rights, interests and privleges , f declarant in the burdened premises not herein speci fically donated granted, transferred and conveyed , remain and reside with declarant, his heirs and assigns. 5. These covenants and restrictions shall run with the land and shall be binding upon declarant, his heirs and assigns, and upon all persons or entities claiming under them and may be terminated, revoked or amended by the owner of the property only with the authorization of the Planning Board of the Town of Southold. IN WITNESS WHEREOF, the declarant above named has executed the foregoing instrument the day and year first above written. 7i�LZe'� BEGINNING : a point ing 3.75 acres. Legal Notices marked by a concret...uonument Any person desiring to be set on the southerly side of the heard on the above matters Main Road, which point marks should appear at the time and 1 LEGAL NOTICE the northeasterly corner of the place above specified. Notice of Public Hearing property therein described and Dated November'.20,1986 1 as: NOTICE IS HEREBY GIVEN the northwesterly comer of land BY ORDER OF 1 THAT pursuant to Section 276- of Latham; running thence THE SOUTHOLD TOWN of the Town Law, public hear- along said line of Latham, PLANNING BOARD ingswill be held bSouthold S.6°28'40" East, 257.56 feet BENNETTORLOWSKI,JR., Town Boar 3 -Tn Planning Hoard at the thence along other lend of Hcey, CHAIRMAN of Greenport, In Town Hall, Main Road, South- N.83"10'20" West ][81.11 feet; lTN27-5430 _,,,,,a,,,,,y sworn,says that he/she is —aM;New York in said Town on thence along lands of Heey and.. - - P princi al Clerk of THE SUFFOLK TIMES,a Weekly _the 8th day of December, 1986 Hardman, N.6°454W East, on the question of the following: 337.92 feet to the sostherly side Newspaper, published at Greenport, in the Town 7:30 p.m.Approval of the pre- of Main Road;thence along the liminary maps for the major sub- southerly line of the Main Road of Southold, County of Suffolk and State of New division of Daniel Marcucci lo- East 150 feet to the concrete York, and that the Notice of which the annexed is cated at Southold in the Town of monument, a point or place of Southold,County of Suffolk and BEGINNING. Containing 38 a printed copy, has been regularly published In State of New York and bounded acres�. and described as follows: 8:00 p.m. Approval of the said Newspaper once each week for one BEGINNING at the comer of minor subdivision for Thomas weeks successively, commencing on the 2;z the intersection of the easterly Samuels located at Orient, in side of Reydon Drive and the the Town of Southold,County of day of Nnir 198 6 northerly side of North Bayview Suffolk and State of New York Road; running thence along the and bounded and described as easterly side of Reydon Drive, follows: BEGINNING atthecorner thence East,. 918.78 feet; 9 cR-�- thence along an an of a curve formed by the intersection of the � t-�— bearing to the right having a easterly side of Narrow River B1ncipa C ark radius of 30 feet a,distance of Road with the northerly side of 31.42 feet; thence along an are Orchard Street; running thence \ along the easterly and northeas- 4 of a curve bearing to the right Sworn to before this having a radius of 165' a die- terly sides of Narrow River , Lance of 68.93 feet to a land Road, the following.two courses day of 19 shown on. "Map of Reydon - and distances: (1) N.15'44'40" East, 311.32 feet; and (2) MARY N DEGNAN .Shores, Inc." Map No. 631; vcr�4,�X, �� NOTARY P(,�rq i r thence S.83'03'05" East alongN.39°12'30" West, 328.57 feet; C Strte of New York said last described land, 554 10 running thence along land now 'u o1F .0 4840 50 feet; thence S.8'32'59" West, or formerly of Edwin H. King; along said last described land, the following two courses and 1000.28 feet to the northerly distances (1) N.42°29'50" East, side of North Bayview Road; 221.79 feet and(2)N.36°14'East thence along the northerly side 80 feet,more or less to the ordi- of North , Bayview Road, nary highwater mark of Hal- N.86°24'52"West,597.83 feet to lock's Bay; thence easterly, the corner at the point or place southeasterly and southerly of BEGINNING. Containing along the ordinary high water 13.8983 acres. mark of Hallock's Bay as it 7:45 p.m. Approval of the winds and turns 975feet more minor subdivision of Howard or less to the northerly side of Hcey located at Orient, in the Orchard Street;and thence wes- Town of Southold,County of Suf- terly along the northerly side of folk and State of New York and Orchard Street,100 feet;more or bbunded and descri 'less to tFFyy�����o�jjnn��'' �py�,QQoointor bed as f°1—) ( lace of$foo *.1 GEntain- �___._.__�� u I ' LEGAL NOTICE Notice of Public Hearing NOTICE IS HEREBY GIv COUNTY OF SUFFOLK ss: EN THAT pursuant toSection STATE OF NEW YORK 276 of the Town Law, public hearings will be held by the Southold Town Planning Board at the Town Hall, Main Road, Patricia Wood, being duly sworn, says that she is the Southold, New York, in said Editor, of THE LONG ISLAND TRAVELER-WATCHMAN, Town on the 8th day of December, 1986 on the question a public newspaper printed at Southold, in Suffolk County; of the following: and that the notice of which the annexed is a printed copy, 7:30 p.m. Approval of the has been published in said Long Island Traveler-Watchman preliminary maps for the major subdivision of Daniel Marcucci once each week for . . . . . . . . . . . . . . . . . . . . . . . . . . weeks located at Southold in the Town of Southold,County of Suffolksuccessively, commencing on the . . . . . . . . .026. _ell . . . . and State of New York and bounded and described as GG follows: d y of . . . . . . l�d7 . ., 19 . . . BEGINNING at the corner of the intersection of the easterly A& of Reydon Drive and the northerly side of North Bayview Road;•running thence along the uarterly side of Reydon Drive,N. 818'll` East, 918.78 feet„ t ce along an arc of a curve Sworn to before me this . . . . . . . . . . . . . . . . . . . . . day of to the right having a fns of 30 feet a distance of ,_ �6 ' 1.C2 feet; thence, an arc 19 . . . . . r` oracutvebearing to the right having a radius of 165 feet a distance of 68.93 feet to a land shown on "Map of Reydon //��� � Shores, Inc." Map no. 631; • • . • • • • . . . . . . . . . . �. . . . . . . . . . . . thence S.83003'05"East along Notary Public said last described land, 554.10 feet;thence S. 8°3259"West, BARBARA FORBES .along said last described land, Notary Public, State of New York 1000.28 feet to the northerly side No. 4806846 of North Bayview Road;thence Qualified in Suffolk County along the northerly side of Commission Expires 3i 19 'PE, North Bayview Road, N. 86°24'52"West,597.83feet tothe corner at the point or place of BEGINNING. Containing 13.8983 acres. 7:45 p.m. Approval of the minor subdivision of Howard Hoey located at Orient, in the Town of.Southold, County of - Suffolk and State of New York and bounded and described as follows: BEGINNING. at a point marked by a concrete monu- ment set on the southerly side of the Main Road, which point marks the northeasterly corner of the property therein describ- ed and the northwesterly corner of land of Latham; running thence along, said line of Latham, S. 6°28'40" East, 257.56 feet thence alongs.other land of Hoeg N.83°IOT&West 181.11 feet;thence along lands of Hoey ,and, Hardman, N. 604940" Eilst, 337.92 feet to the 'southerly,,side of Main Road;thence along the souther- ly line of the Main Road east 150 feet to the concrete monu- ment, a point or place of BEGINNING. Containing 38 st. 8:00 p.m. Approval of the minor subdivision for Thomas Samuels located at Orient,in the Town of Southold, County of Suffolk and State of New York and bounded and described as follows: BEGINNING at the corner formed by the intersection of the easterly side of Narrow River Road with the northerly side of Orchard Street; running thence along the easterly and nor- theasterly sides of Narrow River Road,the following two courses and distances: (1)N. 15°44'40" East, 311.32 feet; and (2) N. 39°11'30"West,328.57 feet;run- ning thence along land now or formerly.9f,FA)xin H.King;the 4011owing r two courses and distances.(I).N.41029'S0". East, 221.79 feet and (2) N. 36014' East 80 feet,more or less to the ordinary highwater mark of Hallock's Bay; thence easterly, southeasterly and southerly along the ordinary high water mark of Hallock's Bay as it winds and turns 975 feet more or less to the northerly side of Orchard Street; and thence Westerly along the northerly side of Orchard Street, 100 feet; more or less to the corner and point or place of BEGINNING. Containing 3.75 acres. Any person desiring to be heard on the above matters should appear at the time and place above specified. Dated: November 20, 1986 BY ORDER OF THE SOUTHOLD TOWN PLANNING BOARD BENNETT ORLOWSKI, JR. CHAIRMAN IT-11/26/86(13) Page Two November 12, 1986 process, the county required the preparation of a Declaration of Covenants and Restrictions for this community water system. I prepared and submitted to the county five drafts of such covenants and restrictions. The first draft was prepared in June of 1986 and the last in September of 1986. Sometime thereafter, I was advised that the Department of Health Services had amended its code to delete the requirement for community water systems in minor subdivisions. I thereafter prepared a sixth draft of the covenants. This sixth draft was approved by the county and was filed in the office of the Suffolk County Clerk on November 7 , 1986 in Liber 10162 of conveyances at page 571 . The papers in my file indicate that Dr. Samuels, his consulting engineers and our office have diligently processed the application before the Department of Health Services since prior to the sketch plan approval of your board in March of 1985. I respectfully request that you extend sketch plan approval, and promptly give final approval to this two lot minor subdivision. I wish to point out, in addition, that time is of the essence in that we understand the Town of Southold is currently considering the adoption of a comprehensive revision to its zoning ordinance which would place the property in a lower density zone. Any delay could result in Dr. Samuels loosing the right to develope the property into two conforming lots. Finally, would you kindly acknowledge to me that the application for final minor subdivision approval is complete and advise me when the application will be placed on your calendar for final action. Ver truly yours , SO ph n R. Angel S RA:mg xc: Dr. Thomas Samuels Robert C. Forgione, P.E. ESSEKS, HEFTER & ANGEL COUNSELORS AT LAW 108 EAST MAIN STREET P. O. Box 279 RIVERHEAD, N.Y. 11901 WILLIAM W. ESSEKS (516) 369-1700 WATER MILL OFFICE MARCIA Z. HEFTER MONTAUK HIGHWAY STEPHEN R.ANGEL TELEx-EHCA 6852318 UW P. O. Box 570 TELECOPIER NUMBER(516)369-2065 WATER MILL, N.V. 11 976 JANE ANN R. KRAT2 (516) 726-6633 JOHN M.WAGNER WILLIAM POWER MALONEY ALAN O. OSHRIN OF COUNSEL January 7, 1986 Planning Board, Town of Southold Main Road - State Road 25 Southold, New York 11971 Re: Thomas Samuels - Narrow River Road Gentlemen: Enclosed please find a copy of the fully executed covenants prepared in connection with your resolution of approval. Please let me know as soon as possible if they are satisfactory or if any changes have to be made. Once they are approved by you, I will file them with the county clerk. Veyy truly yours, Sep n R. Angel SRA:mg Encl. g�FFOC,(�l' P D T LD S Y Southold, N.Y. 11971 (516) 765-1938 January 7, 1986 Mr. Robert W. Tasker Town Attorney 425 Main Street P.O. Box 697 Greenport, NY 11944 Re: Thomas Samuels Minor subdivision Dear Mr. Tasker: Enclosed is a copy of the Planning Board' s conditional resolution of approval of the above mentioned subdivision. Also, enclosed is a copy of the executed covenants and restrictions as per the Board' s resolution. Would you please review these and advise us if they are in satisfactory order for filing with the County Clerk. Thank you for your assistance in this matter. If you have any questions, please don' t hesitate to contact our office. Very truly yours, Si2/t ,-ff()A, t1W,6L,�y�y Xq BENNETT ORLOWSKI, JR. , CHAIRMAN SOUTHOLD TOWN PLANNING BOARD By Diane M. Schultze, Secretary enc. 13242 PC351 i DECLARATION OF COVENANTS AND RESTRICTIONS This declaration made the 30thday of January, 1987 by Thomas F. Samuels a/k/a Thomas Samuels, (No# ) Haywater Road, Cutchogue, New York 11935, hereinafter referred to as "Declarant". DIST. 1000 WHEREAS , declarant is the owner of certain real property SEC. which is situate in the Town of Southold, County of Suffolk and 02700 State of New York, more particularly bounded and described as set BLOCK forth in Schedule "A" annexed hereto ( the "property" ) and made a 0200 part hereof ; and LOT WHEREAS , declarant applied to the Planning Board of the 003000 Town of Southold for minor subdivision approval to sub-divide the property into two lots for residential purposes, which lots are bounded and described on Schedule "B" annexed hereto; and FEEBB6 1987 WHEREAS , on December 22 , 1986 the Planninq Board of the Town of Southold adopted a resolution approving the subdivision of .- the property into said two lots subject, however, to the conditions contained in this Declaration of Covenants and Restrictions ; and WHEREAS , declarant desires to restrict the use and enjoyment of said property and has for such purposes determined to impose on said property covenants and restrictions and does hereby declare that said property shall be held and shall be conveyed subject to the following covenants and restrictions. RECEIVED BY SOUTNOLD TOWN PLANNING BOARD JUL 9 1987 DATE J 1242 a ,352 NOW, THEREFORE, this declaration witnesseth: 1 . Neither of the lots described on Schedule "B" annexed and referred to above shall be subdivided or have its lot lines changed in any manner at any future date unless authorized by the Planning Board of the Town of Southold. 2. No sanitary disposal facility shall be constructed or otherwise located within 100 feet of the edge of the tidal wetlands along the shoreline of Hallocks Bay. 3. No stormwater runoff resulting from the development and improvement of the subdivision or any of its lots shall be discharged down the face of the bluff in any manner into the adjoining body of water and the tidal wetlands bordering the property. 4. The declarant does hereby donate, grant, transfer and convey on to the Town of Southold in perpetuity a scenic and conservation easement of the nature, character and to the extent hereinafter set forth, over and upon the property within 50 feet of the shoreline of Hallocks Bay ( hereinafter sometimes referred to as the "burdened premises" ) : a. No building or structure of any description shall be erected on the burdened premises, except that one ( 1 ) catwalk no wider than five ( 5) feet and floating dock may be constructed on each lot over the burdened premises so long as such catwalk and floating dock are approved by all applicable governmental agencies having jurisdiction, including but not limited to the Trustees of 10242 ?1.353 • the Town of Southold, the New York State Department of Environmental Conservation and the United States Army Corps of Engineers. b. No topsoil shall be removed from the burdened premises nor shall sand, gravel, peat or other minerals be excavated therefrom or deposited thereon for any purpose. C. The burdened premises, to maintain its present appearance , shall remain in its natural state, and for this purpose, declarant, his heirs and assigns reserve the exclusive right to use and enjoy said burdened premises. d. The burdened premises shall not be open or available to the public for general or park use, but shall remain at all times in the exclusive possession of the declarant, his heirs and assigns. e. All rights , interests and privileges of declarant in the burdened premises not herein specifically donated, granted, transferred and conveyed , remain and reside with declarant, his heirs and assigns. 5. These covenants and restrictions shall run with the land and shall be bindinq upon declarant, his heirs and assigns, and upon all persons or entities claiming under them and may be terminated, revoked or amended by the owner of the property only with the authorization of the Planning Board of the Town of Southold. IN WITNESS WHEREOF, the declarant above named has executed the foregoing instrument the day and year first above written. �� vV , Thomas E. Samuels a/k/a Thomas Samuels 1. 3242 PG354 • STATE OF NEW YORK) ss. . COUNTY OF SUFFOLK) On this ,10tk day of January, 1987 , before me personally came THOMAS E. SAMUELS a/k/a THOMAS SAMUELS, to me known and known . to me to be the individual described in and who executed the foregoing instrument and he duly acknowledged to me that he executed the same. STEPHEN R.ANfiEL Notwy Pum 748Newlbek OAIMed M Suffolk Courcy Common Ei*n Seo brbmb 30.1988 10242 4,355 � • SCHEDULE A BEGINNING at the intersection of the northerly line of Orchard Street and the easterly line of Narrow River Road ; RUNNING THENCE along said easterly line of Narrow River Road, two courses: 1 . North 15 degrees 44 minutes 40 seconds east, 311 . 32 feet; thence 2. North 39 degrees 12 minutes 30 seconds west , 328. 57 feet to land of Pluschau; THENCE along said land of Pluschau, two courses: 1 . North 42 degrees 29 minutes 50 seconds east, 221 . 79 feet; thence 2. North 36 degrees 14 minutes 00 seconds east, 80. 00 feet to the ordinary high water mark of Hallock 's Bay; THENCE along said ordinary high water mark and the following tie lines: 1 . North 87 degrees 41 minutes 00 seconds east, 114 . 07 feet; thence 2. South 34 degrees 49 minutes 30 seconds east , 84. 05 feet ; thence 3. South 61 degrees 45 minutes 50 seconds east, 61 . 29 feet; thence 4. South 5 degrees 49 minutes 30 seconds east, 49. 25 feet ; thence 5. South 21 degrees 41 minutes 40 seconds west, 100. 09 feet; thence 6. South 34 degrees 53 minutes 30 seconds west, 92. 66 feet ; thence 7. South 3 degrees 56 minutes 00 seconds west, 160. 38 feet; thence 8. South 19 degrees 48 minutes 00 seconds east, 53. 14 feet; thence 9. South 27 degrees 23 minutes 00 seconds west, 281 .72 feet to the northerly line of Orchard Street; THENCE along said line, south 82 degrees 33 minutes 20 seconds west , 83. 0 feet to the point of BEGINNING. 10242 P=6 • SCHEDULE B Lot One BEGINNING at a point located on the easterly line of Narrow River Road, which point is located the following two courses and distances from the intersection of the northerly line of Orchard Street and the easterly line of Narrow River Road; 1 . North 15 degrees 44 minutes 40 seconds east, 311 . 32 feet; thence 2. North 39 degrees 12 minutes 30 seconds west, 153. 57 feet and from said point of beginning RUNNING THENCE along the easterly line of Narrow River Road north 39 degrees 12 minutes 30 seconds west 175. 0 feet to land of Pluschau; THENCE along said land of Pluschau two courses: 1 . North 42 degrees 29 minutes 50 seconds east, 221 . 79 feet; thence 2. North 36 degrees 14 minutes 00 seconds east, 80. 0 feet to the ordinary high water mark of Hallock 's Bey; THENCE along said ordinary high water mark and the following tie lines: 1 . North 87 degrees 41 minutes 00 seconds east, 114. 07 feet; thence 2. South 34 degrees 49 minutes 30 seconds east, 84. 05 feet; thence 3. South 61 degrees 45 minutes 50 seconds east, 61 . 29 feet; thence 4. South 5 degrees 49 minutes 30 seconds east, 49. 25 feet; thence 5. South 21 degrees 41 minutes 40 seconds west, 58. 09 feet; THENCE along the dividing line between lots one and two of the proposed minor subdivision, map of property Thomas Samuels, the following two courses : 1 . South 72 degrees 40 minutes 40 seconds west , 137. 27 feet; thence 2. South 50 degrees 47 minutes 30 seconds west, 200. 0 feet to the easterly line of Narrow River Road and the point or place of BEGINNING. 10242 �C3W SCHEDULE A Lot Two BEGINNING at the intersection of the northerly line of Orchard Street and the easterly line of Narrow River Road; RUNNING THENCE along said easterly line of Narrow River Road, two courses: 1 . North 15 degrees 44 minutes 40 seconds east, 311 . 32 feet; thence 2 . North 39 degrees 12 minutes 30 seconds west, 153. 57 feet to a point on the division line between lots one and two of the proposed minor subdivision map of property Thomas Samuels; THENCE the following two courses along said division line: 1 . North 50 degrees 47 minutes 30 seconds east, 200 . 0 feet; thence 2. North 72 degrees 40 minutes 40 seconds east , 137. 27 feet to the ordinary high water mark of Hallock 's Bay; THENCE along said ordinary high water mark and the following tie lines: 1 . South 21 degrees 41 minutes 40 seconds west, 42. 0 feet ; thence 2. South 34 degrees 53 minutes 30 seconds west, 92. 66 feet; thence 3. South 3 degrees 56 minutes 00 seconds west, 160 . 38 feet; thence 4 . South 19 degrees 48 minutes 00 seconds east, 53. 14 feet ; thence 5. South 27 degrees 23 minutes 00 seconds west, 281 . 72 feet to the northerly line of Orchard Street; THENCE along said line, south 82 degrees 33 minutes 20 seconds west , 83. 0 feet to the point of BEGINNING. Il DECLARATION dJ OF N COVENANTS AND RESTRICTIONS By Thomas E. Samuels �,INI1Q0 x-iQ'. �S ESSEKS, HEFTER, L B ANGEL ari lr A- COUNSELORS AT LAW cqIOB EAST MAIN STREET ^qV RIVERHEAO, N. Y. 11901 IL Y `q I -� .� ii '. i ;; :.I _ ;! __._ r ii i.' _ _. iii ; ; :I, ;,, _ �! i� :. ��, .;i - II, i I�',.: 1'. i�i .. I,l ' jl{ 'I, ii �1� i r�i i 1 ��' { ) ��! py� ij� tl H !�If I� i jl �� LEGAL NOTICE Notice of Public Hearing NOTICE IS HEREBY GIVEN THAT pursuant to Section 276 of the Town Law, public hearings will be held by the Southold Town Planning Board at the Town Hall, Main Road, Southold , New York in said Town of the 8th day of December, 1986 on the question of the following: 7: 30 p.m. Approval of the preliminary maps for the major subdivision of Daniel Marcucci located at Southold in the Town of Southold, County of Suffolk and State of New York and bounded and described as follows: BEGINNING at the corner of the intersection of the easterly side of Reydon Drive and the northerly side of North Bayview Raod; running thence along the eastrely side of Reydon Drive, N. 8°18 ' 11" East, 918 . 78 feet; thence along an arc of a curve bearing to the right having a radius of 30 feet a distance of 31. 42 feet; thence along an arc or a curve bearing to the rights having a radius of 165 ' a distance of 68 . 93 feet to aland shown on "Map of Reydon Shores, Inc. " Map no. 631; thence 5. 83°03 ' 05" East along said last described land, 554. 10 feet; thence S. 8°32 ',59" West, along said last described land, 1000. 28 feet to the northerly side of North Bayveiw Road; thence along the northerly side of North Bayview Raod, N. 86024 ' 52" West, 597. 83 feet to the corner at the point or place of BEGINNING. Containing 13. 8983 acres. 7 : 45 p.m. Approval of the minor subdivision of Howard Hoey located at Orient, inthe Town of Southold, County of Suffolk j and State of New York and bounded and described as follows: BEGINNING ata point marked by a concrete monument set I on the southerly side of the Main Road, which point marks the northeasterly corner of the property therin described and the northwesterly corner of land of Latham; running thence along said line of Latham, S 6028 ' 40" East, 257. 56 feet thence along other land of Hoey, N. 83°10 ' 20" West 181. 11 feet; thence along lands of Hoey and Hardman, N. 6°49 ' 40" East, 337 . 92 feet to the southerly side of Main Road; thence along the southerly line of the Main Road east 150 feet to the concrete monument, a point or place of BEGINNING. Containing 38 acres±. 8 : 00 p.m. Approval of the minor subdivision for Thomas Samuels located at Orient, in the Town of Southold, County of Suffolk and State of New York and bounded and described as folllows: BEGINNING at the corner formed by the intersection of the easterly side of Narrow River Road with the northerly side of Orchard Street; running thence along the easterly and northeasterly sides of Narrow River Road, the following two courses and distances: (1) N. 15044 ' 40" East, 311. 32 feet; and (2) N. 39112130" West, 328 . 57 feet; running thence along land now or formerly of Edwin H. King;the following two courses and distances (1) N. 42029150" East, 221. 79 feet and (2) N. 36014 ' East 80 feet, more or less to the ordinay highwater mark of Hallock' s Bay; thence easterly, southeasterly and southerly along the ordinary high water makr of Hallock' s Bay as it winds and turns 975 feet more or less to the northerly side of Orchard STreet; and thence WEsterly along the Northerly side of Orchard Street, 100 feet; more or less to the corner and point or place of BEGINNING. Containing 3 . 75 acres. I d Any person desiring to be heard on the above matters should appear at the time and place above specified. Dated November 20, 1986 BY ORDER OF THE SOUTHOLD TOWN PLANNING BOARD BENNETT ORLOWSKI, JR. , CHAIRMAN ------------------------------------------------------------- Please publish onetime on Wednesday, November 26, 1986 and forward three (3) affidavits of publication to the Southold Town Planning Board, Main Road, Southold, New York, 11971 Copies mailed to the following on Monday, November 24, 1986 : Suffolk Times Long Island Traveler - Watchman Supervisor Francis J. Murphy S. Angel, esq. R. Bruer, esq. S. Glickman, esq. _ ESSEKS, HEFTER, CUDDY & ANGEL JAN 071985 COUNSELORS AT LAW 108 EAST MAIN STREET P. O. BOX 279 WILLIAM W. ESSEKS RIvERHEAD, N.Y. 11901 WATER MILL OFFICE MARCIA Z. HEFTER (516)369-1700 MONTAUK HIGHWAY CHARLES R. CUDDY - STEPHEN R.ANGEL TELEX-EHCA 6852318 UW P. O. 570 WATER MILL, N.Y. 11976 a JAMES HEFFRON (516) 726-6633 THOMAS J. OSOORNE December 10 , 1984 Mr. Bennett Orloski, Jr. , Chairman Southold Town Planning Board Town Hall Main Road Southold, New York 11971 Re : Minor Subdivision, Thomas Samuels Orient Dear Mr. Orloski : As you most likely know, we are the attorneys for Tom Samuels , in connection with his application for a two lot minor subdivision on property in Orient . I appeared with Mr . Samuels before your board on November 26, 1984 . I have written this letter at Mr . Samuels ' suggestion. As I understand it , the Planning Board has taken the position that Mr. Samuels ' property can not be divided into two 80 ,000 square foot lots, because a portion of the area to be included in each of the lots would be subject to flooding . At your meeting of November 26 , 19849 you brought to my attention Subdivision C , of Section A106-36 of the Southold Code , which provides in full the following: "C . Land subject to flooding . Land subject to flooding or land deemed by the Planning Board to be uninhabitable shall not be platted for residential occupancy nor such other uses as may increase danger to health , life or property or aggravate the flood hazard , but such land within the plat shall be set aside for such uses as shall not be endangered by periodic or occasional inundation ." According to you , Subdivision C , reproduced above , imposed a duty on the Planning Board not to include lands subject to flooding in any subdivision map. You would therefore exclude the area subject to flooding from lots and from density determinations . Re: Minor Subdivision, Thomas Samuels Orient December 10, 1984 I took the position that such an interpretation was unreasonable on several grounds. I want to now take this opportunity to set forth these grounds with some specificity . THE UNREASONABLE AND CONFISCATORY AFFECT OF SUCH AN INTERPRETATION OF CODE SECTION A106-36C . A vast amount of land in the Town of Southold is subject to flooding. Our client retained John I . Holden , P . E . , L . S . of Southampton, to make a computation of how much land, in the Town at Southold, is within the "A" zones established under the Federal Flood Insurance Program. The "A" zone designation indicates land that is subject to occasional flooding . Mr. Holden concluded that approximately 21% of the total land area of the Town of Southold, excluding Greenport and Plum Island , is within such "A" zones (a copy of Mr . Holden ' s letter is annexed hereto) . Moreover, during the years that the Town has had a Zoning Ordinance, and a Planning Board, subdivisions and other developments were permitted to be located , in whole or in part , in areas classified under Floodplain Regulations as being subject to flooding . To deny a landowner any use of his property by refusing to include it in a subdivision , because it lies in a zone that is subject to flooding, would be a confiscation of such property . Indeed , the confiscation would be dramatic in that 21% of the land area of the Town is in such a zone , and certainly much of the Town ' s most valuable shorefront property is located there . I would be pleased to provide the Hoard, or the Board ' s attorney , with case citations supporting the argument that such a classi- fication would be a confiscation of private property . BUILDING WITHIN AREAS SUBJECT TO FLOODING IS EXPRESSLY PERMITTED BY THE TOWN CODE . Chapter 46 of the Southold Code, entitled "Floodplain Management" provides for permits to build structures within a floodplain . A reading of chapter 46 makes it clear , I submit , that construction is expressly permitted in all floodplain areas of the Town . The Town ' s concern is limited to design or engineering factors , such as first floor elevation and type of construction . A brief reference to some of the provisions contained in chapter 46 supports this conclusion. For example ; -2- Re : Minor Subdivision, Thomas Samuels Orient December 10, 1984 1 ) Section 46-3F provides that one of the purposes of Flood Plain Regulations is to "Help maintain a stable tax base by providing for the sound use and development of areas of special flood hazard so as to minimize future flood-blight areas . ' emphasis added) 2 ) Section 46-12 specficially provides for "develop- ment permits" within the floodplain. 3 ) Section 46-13 gives the building inspector the authority to review application for construction in the flood- plain. 4) Section 46-18A provides the standards for resident- ial construction within the floodplain. I submit , that if the Town ' s policy were to refuse the right to develop any area subject to flooding, there would be no chapter 46 , giving the building inspector authority to issue permits for construction within the various floodplain zones . Another way of stating this, is : if Planning Board was correct in refusing to subdivide lands subject to flooding, there would be no need for chapter 46 . It would be superfluous. OPEN SPACE , WHETHER OR NOT BUILDABLE , HAS TO BE INCLUDED IN A LOT FOR DENSITY PURPOSES . i Implicit in the Planning Board ' s position is the assumption that only non-restricted, fully-buildable property should be included in lot area for subdivision purposes . The Southold Code , however, does not define "lot" in such a manner . Section A106-13 defines "lot" as follows : "LOT - A portion of a subdivision or other parcel of land intended as a unit for transfer of ownership or for development . " More important than the definition of lot in the Southold Code , is the fact that this issue has been presented to the Courts of the State of New York , and they have uniformly held that land which is not buildable must be included in lot area for determin- inq lot size or density. It should be noted, that these cases dealt with land that could not be built: upon , whereas the floodplain area , can be built upon simply by compliance with Floodplain Regulations (See , Southold Code Chapter 46 ) . -3- Re : Minor Subdivision, Thomas Samuels Orient December 10, 1984 Bloom v . Town Board , Oyster Bay 32 N . Y . 2d 931E ( 1973 ) involved an attempt by the Town to preclude an owner from including 13 acres of severely sloping land for density purposes . The owner wanted to construct multiple residences on his parcel , at a rate of 16 units per acre . The parcel was 28 acres in area , but only 15 acres were flat and buildable . The remaining 10 acres sloped severely , rising approximately 100 feet . The Court of Appeals , the State ' s highest court, reversed the Appellate Division , Second Department , and held that all of the land had to be included for density purposes . The Court of Appeals relied on the dissenting opinion of Justice Munder in the Appellate Division (41 A .D . 2d 533 [2d Dept . 19731 ) . Copies of the opinions issued by the Court of Appeals, and the Appellate Division , are enclosed for your examination . A more recent case , involving land closer to home , was Ashman v . Planning Board, Town _of_East Hampton , Memorandum Decision , Asplan , J . , October , 8 , c1—opy enclosed , reversed on other grounds 88- A .D . 2d 923 ( 2d Dept . 1982 ) . Here , the Planning Board of the Town of East Hampton attempted to exclude for lot area purposes the land between the high water mark and the dunes ( the beach area along the Atlantic Ocean) . The issue was presented to both the Pianning Board and the Board of Appeals . These Boards cited as reasons for their determination , the unbuildabilty of the land, the fact that its size and shape change due to shore- line processes , the fact that it is subject to public easements and the fact that the property is susceptible to flooding and erosion. Relying in large part on Bloom v . Town of Oyster Bay , supra, the Court held that beachfront property owned by a developer must he included in the area used for determining lot size . It should be noted that the Appellate Division specif- ically agreed with the Justice in Supreme Court , Suffolk County on this issue . A copy of the Appellate Division ' s opinion is also enclosed . Rased upon the opinions cited above , and in light of definition of " lot" used in the subdivision portion of the Southold Code , I submit , that the Board has no other alternative but to include all land owned by an applicant for lot size and density purposes . THE PROPER INTERPRETATION OF SECTION A106-36C IS THAT IT RELATES TO DRAINAGE AREAS NOT LAND SUBJECT TO FLOODING IN GENERAL . Subsection C of A106-36 provides in part that land subject to flooding shall not be platted by. the Planning Board for resident- ial purposes . This provision , reproduced in full at the begin- -4- Re : Minor Subdivision, Thomas Samuels Orient December 10, 1984 ning of this letter , is the cause of our clignt ' s dispute with the Planning Board. In my opinion, the proper interpretation of this provision is to limit it to those areas which are actually used for drainage , such as re-charge basins and drainage swales . The reasons for this conclusion are as follows: 1 ) The Southold Code entitles Section A106-36 as " drainage improvements" thereby limiting the subsections to this topic . Stated another way , if the Town Board wanted to exclude all area subject to flooding from residential lots and determin- ations of density , it would not include Subsection C under "drainage improvements" but rather, would place the restriction in its definitions of lots and density . 2 ) Traditionally , those areas of a plat which have been designated for improvements , such as roads or drainage , are not counted as parts of residential lots , nor are they counted for density purposes. Presumably , the drafters of the Town Code had this in mind . 3 ) Though I have not personally examined the files of the Planning Board , I am sure that over the years numerous subdivisions have been approved on land either wholly or par- tially subject to flooding. This indic,ites that. prior Boards construed Subsection C in the same manner as I do . CONCLUSION I respectfully urge the Board , in behalf of our client Thomas Samuels , to change its position in connection with the platting of land within the floodplain. To do otherwise would work substantial damage on our client and others similiarly situated . If the Board wishes any additional information , please do riot hesitate to contact me. Respectfully yours , Stephen R . Angel SRA :s Enclosures cc : Thomas Samuels Robert Tasker , Esq. -5 �1 • � �<Y 1. j 4 MEMORANDA, Second Dept., January, 1973 533 ) t ¢lg �. :ase flue ,aqt �Realidietlly, this meant that, contrary to fornrar law • • calendar con- rciston .: r r 6°•dorir lack of facilities and virtually any other ixctur rendering it physically R# a to dis ose of trial calendars within the prescribed t ' ��ey are r .� frx�pM P P periods consti- 1 14 hat the y e g + ar u; no eSansa for the industrious metropolitan prose ulna ready to go to ;;;yyy ,oma ere + Vn ,m y •bnt;pnablo to do ee through circumstances beyond his contact." CPL 1`z "'7 rd sant r t �.�, 5) represents a dear legislative disapproval of the intended effect t �s"'a' rt that mR rt"'d;go-pManulgated rales and, in our opinion, left intact the prior decisional ' °ler the 1014 xst Ujr.that good cause for delay existed when the delay was not "chnrgeablo to ,a court i;�" .the.pmaecutor and • •. .•: occurred for reasons beyond his control or the l control:ol the court" (People V. Ganei, 27 N Y 2d 418, 423, cert. den. 402 }t ^iounty a i 1st U. & 92lI see, also, People V. Minicone, 28 N Y 2d 279, 281, ecrt, den. 404 if {a; :cedant k'x, a ;' U.S, 853). Accordingly, the rolators aro not entitled to release under CPI, :n tele 3Q,3Q.and their writs should be dismissed. This interpretation of section 30.30 nmmal does not mean, however, that the District Attorney's o0iee controls the com- • ' a: , tion of the Read Calendar or the movement of the eases appearing on ch con +„ f• 1'� y PP g JG doe t;a r' Nl�J+' Thi.power to regulate the order of its business or its calendar practice y .1 h m thamurt (Matter of MoDenald v. Goldstein 073 App. Div. 6.19 Rabin felony. 3c. , ` i P• )• , period fi .'+ r+*+I,P Jo Hopkins, ilLnadery hiartuscello and Latham, JJ., concur. "'art "kr' •, perioda JA1,i� contend '4crta i�r 7('n y tat 1 Court , : th 2 there t c= r (.Ttaivary 8, 1973) P�+ '"�" ,u� t✓.'d assign , F.,$b .,y4, .j,"rrumix Bloom et al., Respondents, v. Towx BOARD ov auu Town or monthe '' , •OteraR BAT, Appellant, and Rouser LtuoowtTa et Ill., Intervenors-Defendants- �sl ' ��g g fast ,tj4ppellaute.—In as action for a declaratory judgment, defendant and inter- 'ember, st 54+jsaora-defendants appeal from so much of s judgment of the Supreme Court, ..r grewbet � tl�a9itn County, entered Jnam 20, 1072, as adjudged (1) that a zoning resolu- tka,'of the Town of Oyster Day reclassifying certain real property from ,preme .. x,31" tt j rH.Industrial to E-1 Apartment House is invalid and (2) that, in calculating e' islence 1 ; t;.the.density requirement under the Oyster Bay Building Zone Ordinance with I egie ) Is. tYapaet to said property, the lot area should only include the buildable per- , excep r;� + ;.'lien of a lot. Judgment affirmed insofar as appealed frmn, with one bill of .tion m 1 , } coats jointly against appellants appearing separately. No opinion. Rabin, People igs xti F. d, Martuaeello, Latham and Shapiro, JJ., concur; Moulder, J., dissentswd �r'= :? thatretn to revere the judgment insofar as appealed from snit to declare the >;.,'F• c were ,9 '44 losing resolution valid, with the following memorandum: 'Phis cane presents :;on into,f ;• m rumple of the not unique dilemma of what to do with the site of an asnfli exhaae4d sand pit. Typical of sand and gravel mines on I,oug Island, this .orrect �... : ' ose hu cat into a hillside, leaving precipitous slopes oar the perimeters other action t�'1y'� '�"a` than the valley on which an abutting road exists. Fortunntely, the floor of '+ 's' '1.`, t''z;•' !er the ix.� i thelnine remained at the level of that road. The site it, question iso 28-Here ( •" r q {a'l Taal parol of land, with a flat area of 15 acres surrounded by three elopes rising We "' is to a height of 100 feet. The bases of the elopes, pre.:munbly detenuined b l !/:.• t - of the �; s the sharpest ankle of repose, occupy 13 acres of the total nrea. The owner `f `� �•� ud'eild i`a"' � seeks to get the naxinmm use of the entire area. The neigbb+rcs would prefer ceded the minimum use. Thu governing authority must, and apparently in this case 20.7). did, elect to balance these Interests. Plaintiffs reside in n single-family resi- -,ntary ;,4';, dentia! development which is south and east of the subject property. The bub-Book r. of n �'.,, s� a�ihme-lane ht property ighwon ay and nud tDe bside of Now York Strata Routs 106, at this point principal north-south route from Oyster Iiay to after 4 )" Hicksville. Directly across Route 106 from the sub,jnct property in it large c gen s fi 'S =p or recharge basin. North of the sump and on the s,nmc side of Route aOder 4 , �" 100 a a shopping center, some of c•hich is opposite part of the read frontage either. 16 r, ; V a . r lj LL +'tC , 4cSi Z' I� Ra 1+ �Ir r1 ( S oll 3 k 1_g 534 41 APPELLATE DIVISION REPORTS, 2d S'ERIES o A err r rkt + + of the subject property. Tho development in which plaintifla live is built on v 10,000 square-foot plots. None of the plots which abut the easterly side of £ - Route 106 front on the State highusy, ❑ccvas thereto from the plate being by � an intersecting road several hundred yards south of the subject property. In this action for a declaratory ry judgwet Special Term found that on a prior r + appeal in this litigation we determined that some, of the plaintiffs were proper Pr x cin �e s- a t« parties (see Ajamian v. Town 11d. of Oyster Bay, 38 L D 2d 551). Special , st r. Term then found the enacted nmendmcnt to the zoning ordinance, changing s .'- 'qs+;" t the classitlention of the arcs `+ rd,diuer y � p 1 hero invdvcd from II-hidugtrinl to E-1 Apart- fir§ "y l 'i meat House, invalid for two reasonq: (1) flit- legislation lacked the prior 3 , approval of the Town Engineer eq iequiled by section E-16 of article VII-A ' },.4til� of the Building Zone Ordinance of the 'Town of Oyster Bay and (2) the1� ' approval for 3fi6 dwelling units exceeded the allowable 16 units per acre under f4'*_ g section E-Da of article VII-A of the ordinance, since the area covered by the 1 x � ` ' " °• �.. > ,v �3. slopes was unbuildablo in a practical sense and that area must be excluded + from "lot area" as defined in the ordinance. As to thin standing of plaintiffs, ry r ty• �t ��;+ I would tlrst observe that we did not, in our prior determination, do more than ^'- - 3na'-wl'ni`�"' ;Sid Vt 1m'y1b41i recommend to plaintiffs that they ple+ul in more exact tcrmq theiretatas as aggrieved parties (.4 jmniun V. Tow" 11d, of Oyster Ray, supra). Inferentially, • . of course, we were nlso felling them to support Ow plendbtgs Vvilh Proof. \,'1$e 1`)V roof in the ppresent d recoron the s e ,que of status or utandin6+ is far from overwhebniug. PlniutiRs offered no proof of pc.nninry damage and the inter-, venors-owners' expert te;titled that, in filet, the rezoning from Industrial to Apartment House rise would increase the value of the surrounding property. judg-I do not feel, however, that pecuniary dmnage is the sine qua non far standing. 4 k.% As indicated in Blumberg v. City of Yonkers (21 A D 2d 886, affd. 15 N Y 1 4r:}, 2d 791), the right of a litigant to maintain an action for a declaratory ment declaring the invnlidity of it zoning ordinance, or an c mendmcnt thereof, ' is based on the snore criteria for the institution oP a proceedinz, under article1 78 of the CPLR to review the.deten inatnen of an administrative body grant- t' F 1�@ `"z''I+e §.. xr .t ing a variance. in other words, the litigant need onl show that somehow be ��'�f.a 4.t !)ht" iyp. K at " • or his property is especially ''afloeted" or "c y " , aggrieved , or lies suffered ' r• ,) t k'i r `w special damage" (see Schapiro v. Town of North Hempstead, 35 A D 2d it { :�41 . ' 596; Daum v. Meade, 35 A D 2d 598; Marcus V. Village of L'Iamaroneck '63 F ,v ; f �,..e N. Y. 3?5).. At bar, theca vase some showing that the zoning change world ' }¢ +t bring an increase in trafila and its deleterious aide effect Thus, though not } is ,A for the reason that we previously afili-med plaintifla' requisite status, I dGworld � affirm k r > y 4 'Jdarm the finding of standing as to plaintiff.i. 1 note, too, that several' of ro : ar, yt4n+�`4Ln,�('o y ' the original plaintiffs were held to be withoat standing by Specinl Term on d\ y .�- f ¢ I 1 the ground they were residents of an adjoining village and could not be heard (r on a zoning matter beyond their corporate boundaries. I diragree. It seems to sa tAt *¢ x i til d,a too that abutting owners are especially affected and should bave standing to test the validity of rezoning legislation notwithstanding that their lot lines form ,f part of the boundary between two municipalities cord they live in an adjoining u D c village (see Matter of Town of R dford v. Village of ;TIL Kisco, 40 A D °-d T1_ 979• Townshipn River i'ala V. Town of Orangvtown, 403 F. 2d 684). How- X„ a V ,E'' ever, I think the thestanding of the excluded plaintiffs should be reviewed in a proper case. Here, they have not appealnl, so the matter is moot. Going to ' the merits, I cannot agree with the restrictive, interpretation Eiven by Special+ 4114 i- 'F' Term to the ordivanea definition of "tut urea", which reads: "LOT AREA is ld.; M1 Pi r at h i+ the arca of a lot on which a building and its accessories may be located, exclu- ear;C siva of land in the bed of any street° (art. I, 6 3). Holding that the area Y RVfIJAVir,,y1" fie''rt+ i 7 occupied by the slop" is not available for building, the court multiplied the s.j H . dq` ' , k ti•q 1� allowable 10 units per acre by the nauSbcr of buildable acres oral found a ' A e rYtPr � .» January, p � a 1 «, NDA ,xl Dept., 1973 {pr " maximum oY 240,.units permissible. 'Therefore the town's authorization of All 358 dwelling units was illegal. Apart from the fact that t}ere wasno proofwd�� (r.pyf{r nt4 q,. of nonutility of the dope area and that modern technology indicates the (wn- traay, and emoediag that building cu'r'bs Band slopes would be impractical 4 + , and unesonamio, I do not believe that the elope area must be eliminated from �ri� r - aosaideratioa.• !.The'ordinanee itself suggests the contrary when it providesv Nt A'% that the total'building area shall not exceed twenty (20) percent of the total ryw lot area" in an E-1,Apartment Home District 0 E-0). There is nothing ar ` n the ordinance which requires that the 80% remaining must be buildable. Non; buildable land may be available for yard setbacks or such other open areas } A ;' as the ordinance may require, The sterilization of almost one half of the total acreage in.question borders on an unconstitutional confiscation. I am ° r' tionbled with tha:remntadn '0 rr 7 g question of whether there was compliance withiv4� p (+ H 1 seetioa E-15 of the ordinance, which provides that no property shall be classi- 1t pp,,�� a e°qs �' rr Bed Board .House at thet dem after gad disposal satisfactory such to the a- ' 31• . Town Hoard damonetrates that the system of sewage disposal for such apart- t,' meat house has''received the prior approval of the Town Engineer." grocer. It is S , uggmtcd by the intervenors that eisoa the State has pre-empted the field of = t regulation of sewage Ala oaal sa airy sK t ;rwx x+ ,ti; . p systems apartment houses, the ordinance r provision n r§ gniring the prior approval of the Town Engineer is no longer useful or vital to:an ordinance amendment establishingan Apartment House District. The Town Attorney takes the position that section E•15 has vitality tt and its requirements most be met. with this latter view I agree. At the trial, A deposition of the Town En gision was received in evidence. From that, the .t�• rourt concluded that the provisions of section E•16 were not complied with. This witness, who bad left the position of Town Engineer only days after the + questioned eautmenk was not before the trial court. Iu ranching its cmpclu• rl,+, } «wt , # cion Special Term relied upon portions of the engineer's testimony in which i4 he indicated that he did not disems the sewage disposal system with the, Town � a. Board before the hearing and that he did not tell them whether or not ho .,c . approved it. My own repding of the engineer's testimony discloses that ha was "ver t-�f "'1 �' i 4``'r "•' vague and unsare about the matter. He remembered discusaiug the sewage ;';. . disposal question in "one of the ogees of the [Town] Councilmen ". Ire, viczitpxl i'iti yt:• I '^ �'' x` 6>' ..ax }: the site and remembered mincing some computations relative to the slo ,rn and t the sanitary sewers, but, to use his own words, "for tho life of nm�I don't remember how it tame out. I don't remember if it was positive or mgutivo N"V; fix, whether he approved it or not]." He was sure, however, that the mectiog 4F in the Councilman's oflco hall occurred and the calculations made before the hearing sit which the Town Board acted. As for the form which his reports jl•' took, he ta"ed as follows: "In Some eases it could be oral and in some sales it could be is writing. If I was asked specifically to put it in writing for the record, I would do it. If it was just an informal discussion, relative to ! •• engineering data on a particular problem, It could just be reported back to + ' one Councilman, who would be ea if It'll the North Shore area you would 4 r yr -k �� report beck to Councilman Ch ria! maybe, or the Illeksvilla area you would �0' report to Councilman Doolittle. YC scald be either in writin• or vcrhnll " { ti,. At the time of his examination the engineer was ill and distreti.ed. rle had 't ' �} ;,p•+ti cot checked his filen on the matter. The following excerpt is revealing: "No, .1 �, =j'p rt+'ts'i^Pl�,• s,l;# a I haven't had time. I bavu boon laid up for the last month and this is all patty �l ➢ a .;f'� rrril Ss, rI` e )! pl* feet for me right now. I hstan't had time to oven think Uncir a couple of Nears ;f Ni as to sskat really happened. MR. COTTER: I understand that, and we nppre. b nate your coming today. We are under pressure from the Court to complete ,pt3x W r the trial by next Wednesday, so we ere having to do this, even th«;ugh it Lv so Y done to the lima you have !-ft the hospital, and we apologiza for th;ct." In IIIiS a a "s' ! J hp R ,t{i ;w€r % q I. `( � 4a 44 ✓ �F,y, t , .9jMl�r. 1 y• 'b � 4i.a� :._ - .. '} ...fry ... . A•. !;,`.., b� .Ai. - .,. - � _. xlqq e p f �1��{1 9 f ' �1,1"h sl lt, 4 Y S t F ♦� � N $Po 2 � iYY� ',i � ' tf altip z r i Y �`J' -• M r 1 n k Ili ialys ' 4A ) 1 536 11 APPELLATE DIVISION REPORTS, 2d SERIES T�kr rw l� contrast to the engineer's uncert:inty, ¢'u have the unequivocal testimony of (ytf t i k two Councilmen, Christ and Di+u,,on4, both cttorneys, who a ppcnred hetero i p +yt+ .1• the ho zoning am ndment wllilan Christ aicatcj icu n�asthat held lin} een January, 1970,aandathe Town T 8 f j Board meeting in December, 1070 at which tha nmendmnt was snouted, the Town Town Engineer advised num that the site in question was adequate to eacommo- rM s l� a 't Yr • date the sewage. tom, he (Christ) was the member of the Town �- 8 As way the cus SdM �f} 'a 11' Board who rode herd on thin $? Particular matter ))seance Ile lived in the par. a•^ �'° c ,+ ticulnr part of town which was afGctcd. IIs did sot esk the engineer for a . written report. Both ho and Diamond testified that be/oro he vote was taken, the engineer assured them that there Ives no problem with respect to sewage k disposal. Diamond further tcstithd that "there is nhsalutoly no question in p' w A 1 . my_miad that, compared kr r.hat exists (hero now or would continue to exist + x •lh! q as an industrial n `t< eoveneaa which worplsced)onwould uldnbe enhanced a millionfold if the restrictive " t' .i "v 7 • • • and approval c4 this application came into being v) I�t [and] the tremendous need that tivo have in the Town of Oyster r` x 1 Bay for garden apartments, in: we aro not goingto sake Put it in tha sandpit, then, r�1*1 r t Por heaven's ct on where aro we goring to put it71, From Cha above, I con- 1 a Y elude that section 1-16 of the ordinance wue eatis0ed. ` ` `'f v 3`• think this is si nidcantIt requires, and I , that evidcuco of "satisfactory to the Torn IJoard." hero, Cleo Town Engineer's approval be Y engineer's prior approval u•ns rcyuircd. 1'l:cy wcronre"mn dud o.^ the fact immerd was aware that n �t Bible(fore this the vote. The board eras advised by tfie board member respon. r`„ e ober b mortar that such o (cast one Of the ober board members was �proval had been received. At yewk� Since there was no requirement that then 1 Personally were of the approval. 4a 'r F be "satisfied" with nn oral assurance, F 1 "oval be in writing, the board could particularly when they knew the pil ical 'ti` { .q't Y ' .'.4+ (°:ndp) makeup o4 the site and knew that L.e number of apartment units was ;; 3 �a„1,.. ,� ,�,i', z ,,• + py' considerably lees than he uumhcr for which approval Since we are reviewing a lrizslnlivo act, and s ern tho ,vrcnhad dloeap nn songht l t `+ �s :s an upzoning which obcioosiy will enhnuco the nesthetal rnd ,lt i aqumtion I< f +, } ar"T"•+n„ , �, of the area in question, and since the lgislnlive body hu.l complied withvalue I statutory requirements, I vote to uphold tbo amendment ill gocation. w gI'S:rxnr::m, ou Uohnlf up ITilnaeif And All Otber Tcnanta Similarly " x ;�"t,ar .� Situated, Respondent-A ottani, v. liru[n.t M''tt d . ant, end ALOFur :1. 19nparr ns +, ITor.nrxc Ca;;r„ Appell:mt-RePsad- , Adminiv,:alor of the I[ousin r Administration of Iho Cit -.1,Al g and Development i � ., Intervening Defendant A } a few York, He�poldent• Drexrea IIoznctra Co. :..L u Feinber plena t-liespundcut.—In n class action by a tenant,- York, inter alio,eG>arnjcinIhisulandlordlab'd ill tandl;nll [1nndlnrdQ.sueimil:Cit situated ++y �7 t. f New >' }'J1+,t ,i; Yxtl s<. from prosecuting eviction proceedings agnnlat plal[Itl1T and ell eburs similarly 'r ," � al'$'• 3,1{l xfia F �l situated, by reason Of rent increases h;lsed an irrterim ma:imnm rent orders qq �g "a,k ) of dcYcndant Adminiatrntor of Ihn ITouiing and Development Administration irVF tix�t 1( } eJ e tN w of fhe City of New.York, theca appeals ore by said lnndlurd defendant Region t�N Ilolding Co rp•r and nu inter venurydefemiant Diewac Ilolding co. from two • ` r a + tl , cJ r„ciM orders of the Su lreme Court Queens Count hath dated Se (ember 28 1972 and entered October 2, Is,; and by piniutitYYProm aro c said orders. One of ,j J' said orders. (hereinafter referred to al the cri;om ardor) inter olio gra o o plaintitt's motion fa: s preliminarydenied t x114 ;1W $aid intervenor-defendant to dismiss thcln Betio', forfaila torn ata a cause ¢ r_ of action. Said defendant and said intervenor-defendant s , Y {°fir this order, except the portion which raguires ilefen appeal from all of er ' undertaking as a condition of the preliminary Plaintiff to i'urniah s tv100,000 only from said portion of the order. The other rorder' (hcreinaftection- and rrppeals rsYerr d : . Y.t + MF R:1\Ui1�Sec'ond Dept., Jane, l lti'L • 23 .�•',k, +;•yIa 2 l q ' , Subsequently, the People moved pursuant to CPL -14040 to set itI,ol . the 4Net. tx }! defendant's sentence.The court denied the motion and :117 it m t Jetermi- 4 i f •}4: nation. CPL 440.40 (subd lI provides that the court ort+ deuv ., iootlo❑ to set t ^ V ° .-V t Oil fJ Y< aside a sentence when the ground or issue raised++aspnvwuaydet-raincdmi t {#1 & 3 the merits. Such was the case herein. Accordingly, under the ciruun t tnces 1 1A� here presented, the court's denial of the motion to set aside the sentence was t t , 4 t n;. not an improvident exercise of discretion. (See People e A,!t o•, GU AI)2d 710.) I �f �� .f t In view of the foregoing, we need not reach the question of Mo—tier the y 1t tv R f defendant could properly have been sentenced as a second tw1cl t felony offender. Titone, J. P., Lazer, Brown and Nlehoff, JJ., concur. 41 THE PEOPLE OF THE STATE OF NEW FORK, despuuduitn,v :1'ItFI V.I LLOljE ll- 4 ]INA,Appellant. —Judgment of the Supreme Court, Quee (• au lui Dunking rendered May 12, 1981, affirmed. No opinion This c t o is rrmiurJ to the ,l, Supreme Court, Queens County, for further prucceduitis pursuuut to CPL �vpp 460.50 Isubd 51. Lazer, J. P , Thompson, Bracken and itubin, JJ., concur. F�I��ctcya �l l . iso yy (( r �{ y k' (June 7, 1982) } F $, 1 Aar•Tex PETROLEUM. INC., Appellant, v EXXON CcoernR,v7n,N despoil- Iii} F $ r f IM' f �S n dent. — Order of the Supreme Court, Ilutchess Count ;Jiudity J 1, dated tai December 3, 1981, affirmed, with $50 costs and dlsbur=i meat, 1Sct Roruuh v f Jl a ts � Eaton Allen Corp. u International Business dluehs. Corp . 71, :AD2d 87:1.1 °l Molten, P.J., Thompson, Bracken and Brown, J.1., concur. t I'll. w $ ARTHUR ASH MAN, despondent, V PLANNING BOARD OF 7111, TOWN OF I..As'r �' } e BAMPION, Appellant. (Proceeding No. 1.1 In the Matter of Aunwit ,AsnN1AN. t L" lei t Vie, Respondent, V, Nu 6.1—In �+ Respo x. d consolidated proceedings pursuant to CPLd article 78 to i view 111 a deternli- ,.av nation of the Planning Board of the Town of East I lanlpton,doted Jiuu1al y 26, t d .1*, } 1977, which denied petltiuner's application fur"subdi+r. ion w;uv r' ,u1d ill a ,, •lg w °' fir.. It determination of the 'Lmung Board of Appeals of the Town tit E;i,1 Ibuuptun. y ayt•�, !rt :1 e. daledDecc•mber5, 1978.+vhic•h,ulterahcanng,dcni,dpotitnmel .Ipplicatiuu `r, 'jyp. i•{ ,...'+ lal fureertain variances.ind 1b1 to interpret the upplit,tbly vnun, ndin our to '' •�,; : permit pelittanefs subdivision, the appeal, its liuii(cd b+ apprll�io1 ,' brio(, is ',. from so much of a judgnu nl of the Suple'lle Court. Snilidk <'ou ulc i \=phuld. � . rti.. J,I,dated November 12, 191,1, as I D remitted the w;itter to the pl unlir L,mrd i t F0 '•ti • rt, s^'. with a direction that it giant the upplication ['or sUbd1%iniuu of I ,lttbmor':; premises, and (21 rentittcd the mutter to the unung bo.Od tit omwill:, lu id interpret the zoning ordinance so its to permit the subdivi,iml liyuodted. ay � JudEmtent reverse) tion(v as appealed (tont, nn the hoe, vcnhuui cosbs or •ut 'k1,: disbursements, uud the to:pectty e matters are reniitu d to the pl uuunl board , i � > r7aa •�b of `t' - and the zoning bund til appeals for lulther umtiidiraition tit W. ,rdancc -` .Le rR`t herewith. we agree with Special Terni that the Leach to i in yw i i m ,huuld have been part of the Fwd ntcasw'ed to deternune ux 1,,t ,ur.i til potiliuuer', f• F proper( ince Blount i Ti u'n lid. ofTaR•n oJ'O�sfrr Iigi l_' N1 I 0 tU, re+g I I t err ' v1 :.-tit erg .0 rope 513 upon the dts.,acing ntemm'anduni of JusU,e Nluudri i. Ib Wever, wV :nt + 1'j ereuftheupiniunth.tUlotevuittiturtothelcapectivc bo;ud, Wilh tdirection, �7 N ny I r nfrr alio, that pctHiuner's application be granted W." irnpri I i i While we @� y. ing i t find thrappellants' uituprctatlun of the runing u1Julanu• to 11, it I'll iary and did ', i C1prlClana In Excluding the beach urea Gum the c:drulation o1 'hi lot arca of y . p ug, a r Ili petitioner's Proprrty, vve oho believe that there wire othw prrUni tit m:ulrrs t rr1k , �,}.•-. i Ft x,J' 1 +ha�l,"^•• -) 1,1 �,< ;.ii�. + ) t 1 .2 r 5 1 V7j 't t,lir,.{q 3 ,1f �" 'f v 1�4, 45•ii .'F ll it .ft ,. RL ,'T N$•.R} � r gi PP i A -4R ix � � E " �, �i �or l it �!r I' 2 �; 1. 924 HK :1I'['b;LLA'fl? ' flA RfTORG5. 'd ?I:1tIES 1 " ll, F " ��, 1i1'i; concerning uni,ue of it'll undalno J. II lofothlr ,.uui(' propirlYcon idemdby the ultUlaanl, wheal, nee f to,1),t ' nide rut It If rFSptci d Terni s dec1sicn {, A ,r i do r I onrdeuLltinlthe rlrc❑ lfthepotitiwul-.. n,e11ui111ed1'tnr(vcan pnmafacie lrt+ r Y meet the rl•uuhuds to permit vu6dn ieion, lhe.rppell•rnt boards might consider les 121 (without lunrtatimi uurudedl whether other holt" safety and conservation I ' a.cs •'.. til� factors wouldperuutsuhlicisiunufthi:juncher-('urwhedur'petitioncrshould 'ft4,. }, (I I be reyurmd tit vu6nut i lore detu6 rl proof on such niOtters to (2i he requ'red • , . ', sl to nhhun appiovIll from (he 1),p.,rtinont of Idrvu'"I1nir'ntal Con2)be req and '10 c r }: �� the Suflullc l'ounty Planning('muuu yen. 1'elitiuncr'err�t,s this court to affirm ',• 5pr. r rl •I'crm s direction t"Ot hf., ;lpplicutiun 6e I;rtinted. yet he also stetes in his Ili tcfhis uflhngne., touhlainulprovall,-unithexe'fw'11af'(ncit,sshould the r{ , plannmgholard sn rcyuiri. l'ctitiunrr',pnsftion i,;uunnahms and suggests that v .� �.,. a,c{ `'sN fhe knew that Specrul 'I'uur: din•f too �s'a, errunouuv. 1YcinsteinJ , . P., O'Con- `, �,. G fits Ifl��l nor. 'hhomp�on ,mdf3o}u ', JJ.. (Dolor_ t r x' vj 3 Cnv or 1\r.w Yonx, Appellant, v 11,�snee finuu,u:cs, Muse:Pot.w Paoree nes. Inc , et ill R(,'pnndl ut. kv.po❑ h'ntd. at 11 Resp„nduit. — I- prneced• e a �,3 ,, logs pa r,uOut to .,(tion ('26 ';2.0 ( ,he Admnir trntivo ('udf• of Ili Cit}•of ,{ ' 'y y pi�F New Ymk for the lagminll of ,1 p1(npt (fir, Lim • (h. t the (�uc(ns Borou;h F' t” 'y,i t .F c` ' Rlgmrrntcnd,_nt of Building, nh:1to (he un�uii• it d u)„fcrous eonchtu,ns crcist• . N" xF , ,��i ing on certain per miles M drat' uri"n of the ehw luics thereon the appeals tea ' `- M gyp'.•,' are from two order,of tilt, ti iprenn l , urt. Out ens CmInt� 1(„actin,JJ,detect .. February J, I!741 and 81p ( 1nh( I I I I`INI, rl,pocU vel c, the fir,t of which ' ,w r adlieled to the unut:s orlgionl de (I,14a1 dumreulg flu• proceeding, upon a I Ij ,� k� 1• n•rt.nn umditmnv ,aid the second of whn'11 "Ka domed P,•titioner's request elk P without the same eclat Onkr d.lte 1 I Jnway 5 1081. rr_,ersed, on the law, without cuts or dr�hununcu(;. rctnlun I grant<d and matter remitted to i 0;')s Xlt "I'll Special Term for thelssuurcc, forthwith, oft' prrulipurvuanttosce[ronCotr n �- c> tf:,.0 of the Adminivhati(e ('Ode of the Crty of til w York. Areal Gram order "� rr`"l� dated September 14 13N1, chsmis,ed. without costs ret disbur�'meats m h66t t? n�`da; H��• P S 'f nfthe determu(ahon on file appeal ham the Of dl-r dated Fubruary 5, Iobl On x : this record we conclude that the ,uhWct structures and premises are structur fall, "f si�i ally unsafe,dangerous and a fire 1107ilyd. Accordln •Iv, the (trtmn shouldhnce t � :�� been granted Titonq J P. I.aze'r, Nicholincl Rubin, JJ., concur. F kv' 4 COUNTY oe RO('HLAND, Res ( ” 77 pondurt. v Civu.Sruvtca EMt•wvees Aesxle w ,- �. ,� • ;41 rwv, Appellant, e[ rel., Defendants ` In ,in action. infer alis, to e7)e p �• ,� ''> r defendants from engaging in it strike. the def,ud'Assoc1nt Civil Service Employed udgrinhmi, int appeals,as "muted b} its 1),let from so much of nn order find `r " ✓' $ +�, '� u � • `,yydrl+t' oientered Jnnunt arpgn'rl of the Supreme ('Dort, Rockland County (Stolank J1. ka,zi" 6 K'X'' it -Y '0, 19N;, n,, alto r n nunjnry Incl, held it in cont(•mpt vf1, p� holing to obey ha'llola'v rc,trauunt oldon dated December 27, 1977 v a " j1r Ucct,mb(r .29, 1977 Order null pidj'nie ret ,jtirrnr d ul;ofer as ,q,p(al(d fr(T ,v`Mi ,is i r; withoutcovtsurdisbmsernuiu. 'IluIll's iouslyheldthat"ItlheCiO atI-t�o- i 'v yft�: ; Fepnn(( I:mph1}'.es Ik'wr As.uciu"un, lac. H'SI•:A, Inc.) i,"able for the actwns aftl'o lis` , ;•y' Rockland Cuunh unit ort On 'i eacv the(i•. v ; tij' 1 'y F.mplau'cs Assn . 74 Nl),)d till, mot jilt IV toorOppfoandlbD tY2dit 13W L t f ! W"1 R 1 Acctirdingly, tilt, law of the. ( is ;, s e u that CSMA. Inc., c.uvwt he obsohed of S.1 -s'f,'rr 4 +•, ; ., rrspor,abiht}'(ortheaclsutthe Knr'kl:uul('ountyunrt. Ifill ill hla uastherend N °' t i y7t5y�:'��f, question that lice latter parts ip•rted in the_ strike, tiro former was prop.Ilr T SY t ,{'ti•`- 1 �• " •}5e 73jfnundtobeguiltyofcrnuinnlconfertpt ripaidicsxnfit,actual pnrticip•.4on14 I_ the strike. Furtheiniore, the recoil ,�( ebli, heti fit;'it the orders to ,hoes cau�t $} I (untaining (he tenioutary iestrainmg eider Ave rr ('iced on agents of Cc'A �u s Cyt; ,`♦.7 life., its well as the RO(kland C"unty unit I iu illy the te,tirnony and ovidence ' - �" An+ t i'• at trial dcnromti'ate that "the i n fact of the chike on tiro Public health.safety, . ,. d, and welfare of lire communit)" 6Judica i,) I nc, § 751, subd 2, par Ial, cl NO 3 :} ` s �y'���ik,�`;�i," ,s4 - iti• it,� 1 � • ` L� k'.t•" 4 ' ' es f. Qv i 4'Cs} #j nf� ,•rs� y.�" Sp 1 R y {�`.�"3>{�N � a +> ry9 Sys _ 1 t k If 1 ,1 ri< &, ,X+'kH r,rY gwFrAe � l,qg$ � V iktl - '' M }" ' ,13 . . ,f ',%;1j;, , G r r s" r .! ` 4 �Y'tf 3 , rit , 1 4 1 r� � 1 :. �! � h -nN + c x "v: x � i t' H t z ,, s h r 1; d , y a �4. ki L ke'. r1 > 1x.'.i ..w,et' ..r �` ,t �r, Vis' ,n �': �LL� ,�rt� t°' �,' �s� ']r .�, to �.• �dpr "Fti�Pk � rp`R t{ + iso t�� 930 32 NEW YORK REI'OIcrs, 2d SERIES r "i 3 1 t} �t'srkS { + rr . , ,1 �:i The order of the Appellate Uivision should be affirmed. n! i Chief Judge Pur.0 and Judges BiLEITrt,, Joss and WACnztEs '+ a , ' )tits ,tt �"dK � � concur; Judge OA1111m t.n dissents and votes to affirm in a segs t rate opinion in which Judges Buurts and Jnssx concur. Order reversed and the orders of the Count Court reinstated P .t Yf in a memor:uulum. FRANK I3 LOODf et 111., I1C9p Orld PTlt 4, 91. '(`O tcN BOARD ON THE TOWN ".2k of OYSTER, BAY, Appellmit, rind ROBERT Liruowrrz et al, t t ,1..• Intervenors-App el l all t5. Argued April 30, 1913; deeide,1 Juno 7, 1973. r; c. Municipal corporationa--zoning in action for judgment declaring Invalid -� =t li ���,; rezoning resolution which reclassiacd site of mined-out Band pit from light industry district to Apartment house district, Special Term dismissed action as to some plaintiffs, for lack of standing, continued It as to others, and . declared that resolution was invalidly enacted, for failure to comply with t j s,nw" I 1 srII provision in zoning ordinance requiring prior ndisposal {� 111111 approval or sewage �... "ewi t 1 „ system by town engineer, and that, in calculating allowable density of 16 j, ' dwelling units per acre, lot arca should include only portion of lot upon MII ); I which structnro might be located—order of Appollato Division which a6lrme�i �w ,q. •=+r,,,1 t't judgment of Special Term reversed, on dissenting opinion at Appellate Division, and judgment granted declaring resolutiou valid in accordance with ccnditions ;lx �'; and distinctions contained therein. L �} ii s� ell � 1 , t v.. Ifi � Bloom v. Town 1)d. o/ Tums of Orpatar Bay,41 A D 21 533, reversed. �» ' •'{v,jj d�"V'�m t �s 'FAV � htF '4i . APPEAL from an order of the Appellate hivision of the } {, i *r} y}lSupreme Court in the Second Judicial Department, entered r ,rw 44j t January 8, 1973, which, by a divided court, affirmed, insofar as Y1 appealed from, a judgment of the Suprema Court, entered in ; , Nassau County upon a dccisiou of the court at a Special 'Perm r � w i y 1 Fkp (STFVI?N B. DEROUNIA'or, ,1.), (1 ) dismissing; the above-entitled ' d 9� action, for it judgment declaring invalid a rezoning resolution *f r 1 fit? A adopted by defendant Town Board of the 'Gown of Oyster Bay, t 4th' insofar as it was brought by residents of the Incorporated Village of Upper Brookville, for lath of <Aandiug, (2) continuing " r * it ns to those plaintiffs who were residents of the town outside , 1' v u rx ± s the limits of said village, and (3) n r ( ) derbtrig (n) that the resolu- tion, which relassiied certain property from nrlight s l industry district to " 1;-1 " apartment house district, was i invalidly enacted, for the ren:sus that section P-15 of the town's o y " te a '=t tt r Building Zone Ordinance (oi -inco) were not complied with hfEHiORANDA 931 t e� rr F.: in the enactment thereof and that the 356 dwelling; units approved a by the resolution exceeded the maximum of '�f0 units permitted AOIITt.PR f , a cepa ;ae 'inn' under the ordinance and (b) that, int calculating the density requirement of section E-9 of the ordinance with respect to the subject property, the lot area should include ooly that portion instated of the lot upon which a structure might be located. `Phe subject t property, a mined-out sand pit located on the west side of Route ` '1 106 is the town, but outside the limits of the incurponhied village, aha wv 1'owx j �t consisted of 28 acres, including 15 acres of font land, at the t �� et nl, grade of Route 106,surrounded by 13 acres of Sloping land rising s< t for a distance of about 100 feet to the level of ]ands which were zoned residential. A storm water recharge basin and a shopping (t f" center were located across Route 106 from it. special Term invalid q <, found that those plaintiffs who owned residences in the town om light ' ` a but outside the limits of the incorporated village were aggrieved p9 d actions ,$k ere, and ; { by the rezoning of the subject property and had standinga, toe 'i, ply with maintain the action, since they lived in elosu proximity to the disposal �t property and the proposed use of it would result in population , ` of 16 4 density and noise and would generate substantially more, trafficot upon affzmed ,fit +� on Route 106,producing air pollution Offensive odors and danger Division, .,ray, „ ,- to children; that the record was all but devoid of evidence of ars" o.y aditdone t . compliance with section E-15 of the ordinance, which precluded classification of property as " E-1 " apartment house district "until after evidence satisfactory to the 7`owu Board demon- ' strates that the system of sewage disposal for such apartment ,f the house has received the prior approval of the Town Engineer r.tered a who, on the basis of a deposition made by him, had only vague r t iar as r recollections of having made any detailed aanlysis of the pro- 1 red in posed sewage disposal system or having discussed it with the h Term - Town Board; that section E-9 of the ordinance, providing ill, titled " In ' E-1 ' Apartment House District, the nutximum number ;;t:tion , r p r�r of dwelling units shall not exceed 16 per acre " should be inter- Bay, k1� preted to limit the unit density of apartment, to 16 per usable rated n �' or buildable acre, and that only the 15-ncrc flat portion of the uin6 1 subject property could be utilized. The dis�onliog Justice at itaide the Appellate Division stated, infer ulia, th,nt he would affirm aolu- la the finding as to the present plaintiffs, sthunlia t; that tvbile be gt ,$ light Y disagreed with the finding as to the luck of ,Luulitt of abutting was owners who were residents of the incorpoiult_,1 -illaecill( " z'3 ,wn's f +*c ' tuatter was utout since they had not nppeab d ; 111:'t, going to the fax. i with } 3 merits, apart from the fact that there was no ]noon of nonutility ' t; $ 4 �A'i?�� (t i 4• n -fy v b r t #i "� Ir£ r �v v� Y [ Rf , nhT k r. usa tL , �4 . 4 ; � t v 'e a z A �y � V �$�.� Ri aoY_ v' a YANG- IS ,sYz Ake Y A+T � § a Y , { c A l X �t �x 'x"�'��lt 9yq �f '4 k kl�r de v � � 1 � �$ .�'.�E�.�h��id �Yd" ' � v'3'�F'"jI' � � ,.F �yttir ♦r�' ;• �, �' '�. � �+ • � `n t'�, f ��E '� }�y F� 4 r y ° ���4 Y L n 'ivy" fj,i. } ak{ s �.,y �. 'xD i' < < ,,r't�fff^ dr p f raj i' S g. Y t&'� T� e4 � 9 5} �h PF IY�Ij .�.� , 1 i . '# [� Y � i •' 1,`I Nt Y44 v,v r Yf r t j ,v4f< , 4 •q $ 1 e >`} ^ t b 01YUK i J ^¢ ( - SEEM; '{7`r • tii F YUK e� , i' .1 Y Y+I 9 1`ti a [.�6 'LiLnt........�••,WHS.4Y ,..f:.0+aL..d_.?,Y,yWc.• 7` ��.. W ' ,' a "A n++ 1.' 932 32 NEN YORK REPORTS, 21 SERIES of the slope arca and eoneoding, that hnihVing on the dopes would t be impractical and uneconomic, he did not believe that the elope , a j area had to be eliminated from consideration, and a provisionvia r .. in the ordinance limiting " the total building area " to 20 ; , �, � ' i �• of " the total lot area " in nn '` IN " apartment house districttP i kt ^ �• 1, 13;. to the suggested contrary; that the sterilization of almost one gg J � half of the total acreage in i I uustion bordered on an uncon- k stitutional con5senUou; that, as to conipUnnee with section 1515 's w: ,� of the ordinance, in contrast to the uncertainty of rho tovm i engineer, who was ill and distressril at ilw lime of his examina- tion, there was unequivocal testi+nony by two councilmen, both attorneys, as to the Town Board's having, received his oral approval of the sewage disposal sysWin and driving, been satisfied with it, and that, since a legislnl ivo act was Wrig revi+ wed, since ktyrk �r3 -s;+ � the amendment was an upzoning, and since the lel,Mativc body had compiled with sti,lu(ury rr, nin•inenlr,, t he :uncudment t'�-8 P�''� t•�,� �i,f,�� 1 I should be upheld. John 31. Conroy, Tuawn Affmicy (Charles P. Ly;ich of , 'f counsel), for appellant. ' 4J• . p ry P tl l y n, George C. Pratt for intervenor,-appellants. � , fr"I4trsh q �l� William R. Cottei for ncspondents. � �,,`•G 11 + f ¢ �µ".�' Y k Order reversed, without f•osts, on floe dissenting opinion at 40q, the Appellate Division and jndgnent grunted to appellants A" dmquestion valid the rezoning resolution in uostion in accordance r . Nt wx*ata , with the conclitions and distinctions contained therein. t >w Concur: Chief Judge 1`'ut.o and Judges P,uaicn, GAaaILLLI, Fi' gn�.�l br' ti ) JONES and WACIITr.Ea. J edge .1ASE s dissents and votes to Arm in the following, opinion in which ,lud-,e 131ar:ITa:I, concurs. JAsi Q J. (dissenting). 1 agree with the majority that Special � Term's s construction of the phrase lot arca , excluding as it + r.1y r fit ;I did tfie 13 acres of sloping land, was erroneous. However, I + ,sy Mgt would otherwise affirm the order of the Appellate Division. In t• Rg ' the posture that this case comes to us, the issue of whether the N�iF`I f)��N°�� ��M• intervenors' property was validly reelassifled is essentially l fi F4 factual aNnonreviewable in this court. The applicable section of the zoning ordiunnce requires that before the Town Board r �� Yr ..... act, the town engineer approve the proposed sewage system and the evidence of this approval W satisfactory to the Town • ¢ Board. Whether that approval had been obtained and whether k ;, h } k" MEMORANDA 933 1 -� would the Town Board was satisfied with the evidence of that approval p x a sloe q •;' were questions of fact. As the evidence of the occurrence of ,vision ;>� �' these necessary preconditions to the Town Board's power to act 20% + � was conflicting, the courts below had the power to resolve the ;istrtct x issues of fact and these afnned fuidino7 are binding on this t ; one b„ court. t .. :.neon u E-15 Order reversed, etc. p, n} town amine } a I In the Matter of DIANE BEaNI et al., Appellants, v. AI)FLi, LEON- »G both l" ARD,as Executive Direetrix of the Nassau County Civil Service ** s oral _;' Commission, of al., Respondents.44, sines Submitted April 30, 1073; decided Juno 7, 1979. �� , w body 11 Civil servico—promotion examinations—policewomen sought to annul pro- A;1611 * y 1 motion examinations for Police Sergeant,who supervised patrolmen, and Police-dMent 3 weans Sergeant, who supervised policewomen, alleging that requirement of four years of service as patrolman for Police Sergeant examination was not , rIt of r` aH i' bona Ads qualification but was established arbitrarily and capriciously, that f,ee = rn only basis for giving separate examinations for Police Sergeant and Police- J <; v Y woman Sergeant was differences of sexes, and that, accordingly, giving of ;: d t a" separate tests was unconstitutionally discriminator + r. y—dismissal of their Doti- )4 s tion was properly affirmed—memorandum by court. 5(Vi Wl at ,f Molitor of Berni v. Leonard,90 A D 2d 701, all'irnned. llants APPEAL from an order of the Appellate Division of the Supremo dance h 972,tin the which, bycandividedlal court, aliiier 24, ,mcd entered cnOent lOf 1 c A A Supreme Court at Special Term (]3r:n•raaai 11AaNL•rr, J.; Olin. I affirm s ,q 69 Miso 2d 935), entered in Nassau County in it proceeding pill'- suant to CPLlt article 78, denying an application and dismiss- ing a petition to annul promotion examin dio i, held on April ' ;ectal j q1 29, 1972 for the positions of Police Sergeant ;uid Policewoman `u* as it Sergeant in the Police Department of the County of Nassau, E er, I upon the ground that petitioners, polivowtont•n in that depart- r,. In z ment, were deprived of their right to hd;c the i xarnination for ..r the Police Sergeant and relegated to talcin,q that for Policewoman k utially Sergeant solely because of their sex. A Polict. Se i g(raat's duties >> 'Ttion consisted of supervising the activities of patu=hueu and per- 43oard *: forming related duties as required, and i•;unlid;ites for that fi , "'stem i position were required to have four years ul : •i vice :Is It patrol- r Town man. A Policewoman Sergeant's dntie, cou,iktcd of super- ' +° ...ether ¢y`J vising the activities of policcwonu'u mut Il' IIbrming rclate'd I ,hnl � r a al •�,. E,n Llty,�„Qu. „. mks, • - ...�..... ._,a...�.......«.W......_'- .—.�._..- . . . ., .. ; * a x�:Sf dM1P i-ii��'9� h x •$,e t N nc , ✓gyp' k Y i4ZppWfPX-. y`o""4's ' 0 ",, '= ® � ® � ' tes : 2/2/79 & 3/29/79. ( �- j It 077-3440 & 79-857 SUPREME COURT. S FOLK COUNTY ♦` SPECIAL TERM PART I ARTHUR ASHMAN, DY GEORGE J• ASPLAN D. S. C. Petitioner, vs. DATIED OCT '6 R1 THE PLANNING BOARD OF THE TOWN 19 OF EAST HAMPTON, Respondent. In the Matter of the Application of ARTHUR ASHMAN, Petitioner, For a Judgment Pursuant to Article 78 of the CPLR VS. ELBERT T. EDWARDS, NANCY H. McCAFFREY, DAVID A. WEBB, JAMES CUOMO, and KENNETH S. EDWARDS* JR. , Constituting the ZONING BOARD OF APPEALS OF THE TOWN OF EAST HAMPTON, Respondents LEONARD I. AC.KERMAN, ESQ. SMITH, FINKELSTEIN, LUNDBERG & Attorney for Petitioner YAKABOSKI , ESQs . 34 Pantigo Road Attorneys for Respondent Planning East Hampton, New York 11937 Board GEORGE BIONDO, ESQ. 456 Griffing AvenueP.O. Box 389 Attorney for Respondent Zoning Board Riverhead , New York 11901 Old Montauk Highway Montauk, New York 11954 There are two consolidated Article 78 proceedings before the court. One is to review a denial by the Planning Board of an application for a subdivision waiver, the other to review a determination by the Zoning Board of Appeals which failed to interpret the Town Zoning Ordinance in such a manner as to allow for the inclusion as part of petitioner' s property, suf- ficient square footage to permit a legal subdivision, and rejected a request for a variance permitting the subdivision to consist of sub-standard lots. The last papers submitted herein were received by the court on +ugust 28 , 1981 from petitioner. Nothing of an evidentiary nature therein rias been considered in the rendering of this decision. :�iot:wns 017010 & 5030 1 {: 2/2/79 & 3/29/79 ,AEMORAN®UM ill 477-3340 & 79-857 SUPREME COURT, SUFFOLK COUNTY SPECIAL TERM PART I BY GEQRGE J• ASPLANg S C VS. DATED OCT 6 PS31 19 Facts The subject property is situate in Wainscott, a part of the Town of East Hampton, and borders on the Atlantic Ocean. Petitioner's deed reads to the high water line, and his title company insures title thereto, subject to the "right of the public in , to and over the beaches as adjoin the Atlantic Ocean" . There is an 84 ,000 square foot lot area requirement in an "PA" zone, in which petitioner' s property lies, and unless he can count the square feet between a 15 foot high dune and the mean high water mark as drawn by his surveyor, the proposed subdivided lots each fall short of the requisite 84 ,000 square feet. The distance between the dunes and the high water mark is such as to create an area about double the size of the balance of petitioner' s plot. The Planning Board' s denial was based on its lack of recogni- tion of "private ownership of the beach of the Atlantic Ocean" ; on findings that applicant did not satisfy the 84, 000 square foot requirement; and that the property has a long history of erosion. The Zoning Board of Appeals denied the application for an interpretation favorable to petitioner, on these grounds: "a) The land is unbuildable; b) It can not support any type of vegetation; c) Its size and shape are no more predictable than the wind, tide and waves which have created it; - 2 - lona {l �ao & Lw,u 77 2/2/79 p pia t�� s : 2/2/79 6 3/2'9/79 M EMORAINDUP .. n �, 077-3340 6 79-857 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I By GEORGE J• ASPL AJ�D S c VS. DATED OCT *61s?1 19 d) It is subject to public easements; e) It has historically been used by the public as . if it were public property; f) It provides the community with a place for passage along the ocean, a place for fishermen to engage in work or sport and for families to gather and to enjoy the gifts of their Town 's natural beauty, and it serves as the first line of defense against the destructive forces of the Atlantic Ocean; and g) The applicant benefits from each of these uses along with his neighbors and the public, and so he can not claim that this property is rendered useless by the decision to exclude it from minimum lot area computations. " The foregoing was prefaced by the following statement : "Although the applicant ma own that ortion of landwhich es to the seaward side of t e vegeta- tion -line, t at area, commonly known as the beach OT tHe Atlantic Ocean' is of such a unique nature that it can not be included in the meaning of the word 'lot' as used in Section 153-28 of the Zoning Ordinance . . . :" (Underscoring supplied. ) In explanation, the term "vegetation line" (or contour line) is the growth of grass along the dune, and it is the contention of respondents that seaward , beyond such a line, no one can include the area to the ocean itself as square footage to enable the formation of a lot of legal size. It would appear from the quoted preface that the 'Zoning Board does not dispute ownership to the high water mark as claimed by petitioner, indeed, its formal answer contains this paragraph: "ELEVENTH: That petitioner at best has a bare, naked title to the afore-described 'beach' which 3 - � Sn TJ77-3_140 G 79-857 SUPREME COURT. SUFFOLK 0UNTY SPECll ,_RM PART I Dv GEORGE J' ASPLAYDS. C. VS. DATED OCT '61981 39 e petitioner, as fee owner thereof, is permitted to enjoy in the same manner as any other member of the public. " The Planning Board too, holds this view, thus a reading of an affirmation by its counsel , dated March 30, 1977 (Page 2) shows: "Perhaps it was inartful for the respondent to suggest that it does not acknowledge private ownership on the beach below the dunes. " The pertinent Town Ordinance section on the subject of lot area is : "§ 153-28. Minimum lot area (Amended 8-7-59) Minimum lot area (square feet) , minimum lot width at the building line (in feet, being the shortest distance across the lot drawn at the building line) , and maximum coverage of lot requirements are as follows : . (Amended 3-5-761 A. Residence District AA. (1) Residence District AA buildings or structures shall be on lots of eighty-four thousand (84, 000) or more square feet having a minimum lot width at the building line of two hundred (200) feet, minimum front yard of fifty (50) feet and minimum side and rear yards of thirty (30) feet, covering a maximum of ten percent (10%) of a lot. (Amended 8-16-63) " On the present lot area are a two story frame dwelling, a pool , tennis court, a small cottage, and a garage. The Board of Appeals in turning down the alternate relief sought, to wit, a variance to permit a subdivision into two lots substandard in area, 4 - haw eta / yo 1_x 2/2/79 & 3/2.9/79 MEMORANDUO I, : #77-3390 & 79-857 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PARI' I By J. S. C. GEORGE J• ASPLAND VS. DATED OCT 6 1981 19 decided as follows, quoting the essential portions : "If the area variance were granted each resulting lot would lack minimum area by approximately 258 and would be subject to even further dimimution through the natural forces of storm damage and erosion. "Applicant's stated justification for the area variance is that to deny it would result in an undue hardship in that it would render his investment in the accessory cottage lost. The Board notes, however, that applicant requested a variance from this Board on December 30, 1976 to allow him to improve that cottage in order ' to permit temporary use of (this cottage) as living quarters for applicant , during construction of the main residence ' . Applicant was granted such relief and made full use thereof as requested. The Board, therefore, fails to see applicant's financial hardship. " (Note: The cottage has since been relocated and no variance is sought because of it. ) "Since the variance from area requirements as here presented would require the granting of additional variances for the garage, the tennis court, the pool and the shed, which would otherwise not be necessary and since the applicant has the full use of each of these structures without variances while he owns a single parcel , the Board finds that the variance requested is not the minimum variance necessary for the applicant to accomplish his purpose. "The Board must note, also, that the unusual strength and unanimity of opposition to this application has raised serious questions as to what effect such variances would have on the character of the neigh- borhood and the district as well as whether it might not be detrimental to the public welfare by setting a precedent which would increase the density of the area while at the same time restricting the use of the beach. " - 5 - 2/2/79 Foii,e sro `4ti EMORr�NDl. M t` �c077-3340~& 7928579 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I By GEORGE J•ASPLAND VS. DATED OCT 6 j1 19 Petitioner' s Argument The gist of petitioner' s argument is that a zoning ordinance should be strictly construed in favor of a property owner to allow a reasonable interpretation of a code, citing 440 East 102nd Street Corp. v. Murdock , 285 N.Y. 298 (1941) to the effect that zoning ordinances being in derogation of the common law right to use one 's property as one pleases, must be strictly construed against a municipality. In the instant case, the minimum lot area ordinance imposes no special limitation upon water front property respecting the amount of land to be included in a "lot" . Also cited by petitioner is the Court of Appeals case of Bloom v. Town of Oyster Hay, 32 N.Y.2d 930, 347 N.Y.S. 2d 197 (1973) , which, in reversing the Appellate Division, granted judgment in accordance with the dissenting opinion of Justice Munder, wherein, among other things, this was said: "Non-buildable land may be available for yard setbacks or such other open areas as the ordinance may require. The sterilization of almost one half of the total acreage in question borders on an unconstitutional confiscation. 41 AD2d 535. " Sec. 153-33 of the Zoning Ordinance prohibits the erection of any structure within 100 feet from a natural contour line. The non-buildabil- ity of the area between such line (dune) and the high water mark is conceded by petitioner, who nevertheless argues from the Bloom case that mere non- buildability is no reason for excluding such area from the calculation of - 6 - Poor o�A - - �,�,, e� : 2/2/79 F, 3/29/79 _ . MEMORANDU1 Ir, 177-3340 & 79-857 SUPREME COURT, SUFFOLK COUNTY SPECIAL TERM PART I By GEORGE J• ASPLANb S. C. VS. DATED OCT g pct' 19 square footage in a lot. Petitioner's brief cites as follows : " in Benedict and Naqel V. Trustees of the Freeholders and Commonalty of the Town of East Hampton and the Town of East Hampton (Sup Ct, Suf Co, Index No. 71-1731, July 22 , 1971) affd 40 AD2d 542 (2nd Dept. , 1972) , at issue was the ownership of the beach between the dune and the high water mark of the very land involved in this application. At trial, the Trustees attempted to again litigate the title question and submitted numerous deeds, Trustee Journals dating back to 1772, and the Dongan Patent. Mr. Nagel, the prior owner of the Ashman property, and Mr. Benedict, Nagel' s neighbor, sub- mitted a recorded chain of title dating back to ' 1868, wherein each deed conveyed title to the high water mark. In its decision , a copy of the pertinent part of which is annexed as Exhibit 'E' , the Court held that Nagel and Benedict owned to the high water mark, the Court noted at Page four of its decision that: Considering the history of plaintiff' s parcels the only conclusion that may properly be drawn is that their title does not stoat the dune but runs own to the eac or to the iands washed y t e sea, and between high- water-mark and low-water-mark. ' (Trustees of the Freeholders and Commons t of the Town of East Ham ton- vKirk, 68 NY. 549 , 463) Plaintiffs' title s ground in the same history as that of the plaintiff in Geor ic�a Association v. Trustees of t eh Free- o ers an Commona ty o t e Town of Vast Hampton N.Y.L.J. , 4 10 63, P. 4 , Mun er, J.) # Therein, notwithstanding the absence of express reference to ' the 'beach' in the original allotment to one Stephen Hand, Mr. Justice Munder 7 - o�ir-ru-• WEMORANDUM Incl*077/3330 6 79-8579 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I By GEORGE J• ASPLAN�• S- C- VS. DATED OCT 6121 19 J found that plaintiff owned to the high water mark. The proofs herein offer no reason for this Court to reach a different conclusion. [emphasis added] . " Respondents' Argument The Planning Board's arguments rely on the susceptibility of he subject area to flooding and erosion, and contend that this is a sufficient -�ason for denial even if each of the proposed lots were to reach 84 ,000 ;quare feet. Town Law, Sec. 277, cited in part, reads : "where a zoning ordinance has been adopted by the town the plots shown on said plat shall at least comply with the requirements thereof; that the land shown on such plats shall be of such a character that it can be used safely for building purposes without danger to health or peril from fire, flood or other menace. " The Zoning Board of Appeals makes these points : The petitioner must overcome the strong presumption that the bard' s determination is correct; the Board' s conclusion had a rational basis .n law and fact; in the denial of the request to include beach property in .is computation, the Board located the boundary of his property for zoning ,urooses only, along the crestline of the dune. Continuing, Sec. 153-33c of the Zoning Ordinance gives the ;oard authority to fix the mean high water line on a lot fronting on the ..tlantic Ocean. Thus : "The 15 ' contour line is the elevation measured — e — of; : 2/2/79 & 3/29/79 Po;waie %—( A'MORANDWO Ii' c 977-3340 & 79-857 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I By J. S. C. GEORGE J• ASPLAND YS. DATED 19 • OCT 6131 from mean sea level. In any case where doubt exists as to the 15' contour crestline of the dunes or the mean high water line, the building inspector or the applicant for a building permit may apply to the Zoning Board of Appeals for its determination of the location of said line. " In every single section of the ordinance, which is concerned with ocean front property, the mean high water line is placed at the end of beach grass growth and not at the water' s edge. Secs. 153-33 et sec . The reasonable nature of the subject interpretation is found in the substantial evidence contained in the record demonstrating that this interpretation is* consistent with the specific provisions of the ordinance , that it is consistent with the traditional interpretation of "lot area" as made by the Town Board of Assessors , Planning Board and individual members of the community. Court' s Determination From New York Jurisprudence 2d "Adjoining Landowners" , Sec. 77: "The term 'high-water mark' as applied to tidal waters , generally means the line marked by the periodical flow of the tide excluding the advance of the water caused by winds , storms and unusual conditions. "Precise location on the ground of the high water line as a boundary may be governed by local surveying practice. " Quoting from Dolphin Lane Assoc. Ltd. v. Town of Southampton, 72 Misc. 2d 868, 339 N.Y. S.2d 966, Justice Geiler: ' 9 - raRm ®as 2/^/79-b 3/29/79 MEMORANDU I #77-3340 6 79-857 SUPREME COURT, SUFFOLK COUNTY SPECIAL TERM PART I Uy GEORGE J• ASPLAK'j S. C. DATED OCT '61981 VS. 19 "How is the high water mark determined? The United States Supreme Court in the case of Borax Consolidated, Ltd, v. Los Angeles , 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9, stated that the proper determination of the location of a high water line at any given time involves the consideration of all the high waters at a particular place over a Considerable period of time and that, under sound astronomical theory, the period considered should cover the past 18. 6 years. In other words , the average high water line is obtained by taking the mean of all of the high tides over a reasonable period of time. This standard for determining the location of the high water line is also used in the State of New York (Board of Education of Union Free School District v. Nyquist , 51 Misc. 2d 902 , 274 N.Y.S.2d 229; Wood v. Maitland, 169 Misc. 484 , ' 8 N.Y.S. 2d 146 , modified and aff'd. 259 App.Div. 796, 19 N.Y.S. 2d 320) . " It is the fact that the above-cited case, affirmed by the Ap- ;:ellate Division, was modified by the Court of Appeals , 37 A.D. 2d 292 , 296 , 372 N.Y.S.2d 52. The modification consisted in rejecting the determination of the location of the high water mark along the southern shore of Shinnecock Bay by reference to the type-of-grass test introduced by the Town. The Court of Appeals found that prior to the litigation, it had been the normal practice to locate the high water line by reference to a line of vegetation. in other words , the establishment of a high water line by reference to a type of grass test rather than by the traditional line of vegetation test was rejected by the Court. In the instant case, there has been no evidence 'produced, other -han the mere statement thereof, as to the practice of establishing the high 10 - 2/2/79 & 3/29/79 6Tortr �a� _� f DA1EVIORANDUPS Inl' •c 477-3340 & 79-857 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I By GEORGE J• ASPLAJDS C VS. I DATED OCT 61961 19 water mark at a vegetation or contour line. In fact, there is no showing of a settled vegetation line on the subject property. At the hearing before the Zoning Board, member McCaffrey, who had viewed the property, made the following statement : . "MEMBER' NANCY H. McCAFFREY: Just to review the location, this property is located on the east side of Beach Lane, Wainscott, right on the Ocean. It suffered some severe erosion two to three years ' ago and since that time the property has changed hands. Part of a dune area has been built up inside the (indecipherable) with beach grass planted on it. A new home has been built to replace the old one. It had to be removed. The fill that was placed to ,build up this dune is also being used to build up a driving area, and also under the pilings , which the new house is built upon. " Several prior deeds to the property, in evidence , show the distance from the northerly or street side of petitioner' s property to run about 481 feet to the high water mark. The deed to petitioner reads 551. 96 feet, this , presumably because of the change in the mean high water mark in a seaward direction. The survey before the court, revised October 17 , 1978 , reveals a series of mean high water marks since 1930, with the mean of all high water ;narks being that of December 12 , 1945. It is of interest to note that ,etitioner took title in November, 1976 and the mean high water marks as ,f September 27, 1976 and November 9, 1978 extend even further seaward than the 1945 line. - 11 - P ions 01740 & 5030 Fo"ii ►�► `'` IEMoRAN®UM Zj p77-3340 & 79-8579 SUPREME COURT, SUFFOLK COUNTY SPECIAL TERM PART I BY GEORGE J• ASPLAN®; s. C. ' VS. DATED OCT 61991 19 Of note at this point is the following excerpt from Wood v. Maitland et al. , 169 Misc. 484, 8 N.Y.S. 2d 146, 151, which quotes Coulson & Forbes on The Law of Waters: "The sea shore may be defined as that portion of the land adjacent to the sea which is alternately covered and left dry by the ordinary flux and reflux of the tides. Although, in common parlance, the word ' shore' has often a more extensive meaning--taking in all that extensive belt of waste ground or strand, shingles and rock liable to the action of every kind of tide--yet it is now finally settled, that in legal intendment no more of that unclaimed tract is sea shore than that portion which lies between high and low water mark at ordinary tides. This point has been finally settled by the case of Attorney-General v. Chambers, (4 De G. , M. & G. 206) , in which the Lord Chancellor Cranworth, * * * held that the sea shore landwards is , in the absence of particular usage, prima facie limited by the line of the medium high tide between the spring 1 tides and the neap tides; or , in other words, that part of the shore which for four days in every week, or for the most part of the year , is reached and covered by the tides. As this line will vary as the sea recedes from or en- croaches on the land, so the boundaries of the shore will vary with the recession or encroach- ments of the sea. Land above this line , though overflowed by high 'spring and extraordinary tides , is not shore, but is presumed to be land the property of adjoining owners. " Coulson & Forbes on The Law of Waters (3d Ed. ) , page 21. In keeping with the standard set in the above cited cases , and "rcm a study of the survey filed, a fair approximation of pet'itioner' s high ::iter mark would appear to be that of December 12 , 1945 , and would afford 12 - Dns #1740 6 5030 �oii�ar,i.' • es : 2/2/79 6 3/29/79 MEMORANDUM Index 977-3340 6 79-857 SUPREME COURT, SUFFOLK COUNTY SPECIAL TERM PART I By GEORGE J• ASPLANDj. S. C. VS. DATED ICT 61981 19 petitioner the requisite square footage to constitute two legal sized lots upon subdivision of his present lot. Petitioner makes no claim of intent or right to build or exert exclusive domain over the beach property in question. As seen, one section of the ordinance would prohibit such construction , and respondents aver that the area is subject to public easements. Any infraction by petitioner would presumably prompt appropriate Town action. Earlier in these proceedings, before consolidation, the Planning Board, in the proceeding against it, had moved to dismiss. The motion was denied by Justice McInerney on "points of law" , which points were required to be resolved. These are: (The answers to them, as found by the court, follow each "point" question) . 1. Did the zoning ordinance establish a southern-most developmental boundary as the 15-foot contour line and require any house to be set back one hundred feet therefrom? Yes. 2 . Must all lots comply with the lot requirements of the residential AA zone if they are situated in this zone? Yes. 3. Does the proposed two-lot subdivision comply with these requirements of the zoning ordinance? Yes . 4 . Does the zoning ordinance require the Board to treat the beach and area between the 15-foot contour line and high-water mark of the :Atlantic Ocean in a different category than the upland lying to the north of the 15-foot chntonr? VPa s.,.� 9�„ar2/2/79 6 3/29/79 3E1�1r� A1�11DU1ar9 In 077-3340 6 79-857 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART Y DYMdt J• ASPCANQJ. s. C. VS DATED OCT 61961 19 thereon. 5. Should the Board consider suitability of the parcel for subdivision in view of the inroad of the ocean on the sand beach and possible extensive damages caused by this to houses in the area? Yes. Nothing is found in the Ordinance which would prevent petitioner from including all of the property down to the high water mark. Nowhere in the Code is there any limitation on the inclusion of beach property in counting area square footage. The use of the terms "sand dunes" , "beach grass" , "natural contour line" are not used in the sense of confining extent of ownership but rather of restricting development. The point is made by petitioner that zoning ordinances are to be strictly construed and is considered well taken. Neither respondent contests that title was to the high water mark. Although respondents rely on the assertion that historically, the Town Trustees retained ownership rights over the beach and that for enturies the established highwater mark was at the southerly dune or beach grass line, cliff, bank edge or limit of arable land, this has not been zustained by adequate proof. What may have been a dune site or vegetation line in years east has been changed by the inroads and withdrawals of the sea in its capricious actions. There is no evidence as to a stable dune site nor vegetation line in the record here. The survey of George If. Walbridge Co. - 14 - ROHM RIS k t MEMORA`1".� O tit.9 3340 .. 7 57 �-• �� _ �3 �77-3340 5 79-.R�7 r SUPREME COURT. SOFOL.[COUNTY SPECIAL TERM PART I Sv GEORGE J- ASPLAND J. S. C. VS. DATED 19 . . r of East Hampton, revised October 17, 1978, which is not refuted by testimony or other evidence, shows nine different mean highwater marks from December 17, 1930 through November 9, 1978 , two different dune sites, one in October, 1976, the other November, 1978, and three different beach grass lines. What petitioner is proposing here , is not seen as a threat to community values. Two lots would be created where one existed before, each if permissible size. If it is considered objectionable to form two lesser lots out of a greater one, the Zoning Ordinance should have initially provided against any lots of less than twice 84 ,000 square feet in an area, or specifically proscribed inclusion of "beach" area in the calculation of lot square footage. The Bloom case, cited hereinbefore , is compelling on the point that land, although unbuildable , must be included in the calculation of the entire parcel size. Sec. 277 of the Town Law which requires that a lot "shall be of such a character that it can be used safely for building purposes without damage to health or peril from fire, flood or other menace" is not seen as applicable. That section clearly refers to building purposes. The claim of respondents that the subject beach is susceptible to flooding and erosion, is therefore without relevance. Turning to the variance request, the court note§ that the cot- tage has been moved to a different location and no variance is necessary as 15 - • '• ®RAN®UM i x•477-3340 & 79-8579 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I BY � ORGEJ ASPLAJ S. C. VS. DATED }�1 19 to it, leaving only the tennis court and frame shed as subjects for a variance from side and rear yard set back requirements. The court fails to see that petitioner encounters such a "practical difficulty" as precedents have consistently required, to justify the granting of the variances sought. Significant economic injury has not been shown. Fulling v. Palumbo, 21 N.Y. 2d 30, 33 , 286 N.Y.S. 2d 249 , 252. Also, there is no question that petitioner would not now be in need of a variance but for his desire for a subdivision. From, Anderson, "New York Zoning Law and Practice" , second edition, Sec. 18. 43: "As it is applied in the cases just reviewed, and in other recent litigation , the self-created hardship is not applied as a flat bar to relief, but a factor to be considered by the board of zoning appeals and the courts. It is clear that where the practical difficulties asserted by the applicant are self-created , the rule of Fulling v. Palumbo does not mandate relief, even where there is proof of substantial economic injury. An area variance may be denied on the ground of self-created hardship, provided such denial is not arbitrary and capricious. Even where the self-created hardship applies , it is regarded as a factor to be considered in determining whether or not to grant relief, but not the sole factor to be so considered. " As to the subdivision proposed, the actions of the Boards are :;een as arbitrary, would deprive petitioner of a use of his property injustifiably, and amount, in the words of the Bloom case , t6 a confiscation. This matter is remitted to the Planning Board with the direction 16 - Fb1Frj4ie �Y !" es : 2/2/79 & 3/29/79 „ ° E ®�/�+ ��� i77-3340 & 79-857 ' SUPREME COURT. S FFOLPC COUNTY SPECIAL TERM PART I BY GEORGE J• ASPLAN9 S. C. VS. DATED OCT '61981 19 • that it grant the application for subdivision and to the Zoning Board of Appeals to interpret the Zoning Ordinance in such a way as to permit the subdivision requested, but the latter' s denial of the variance as to the tennis court and frame shed is confirmed. Settle judgment. J. S. C. 17 - .-tNTY OF SUFFOLK APR 1 5185 0 PETER F. COHALAN SUFFOLK COUNTY EXECUTIVE DEPARTMENTOF PLANNING LEE E. KOPPELMAN DIRECTOR OF PLANNING April 9, 1985 Mr. Bennett Orlowski, Jr. , Chairman Town of Southold Planning Board Main Road Southold, New York 11971 Re: Minor Subdivision - Thomas Samuels Northeasterly corner of Narrow River Road and Orchard Street, Orient. Dear Mr. Orlowski: The Suffolk County Planning Commission at its regular meeting on April 3, 1985, reviewed the proposed subdivision plat entitled, "Minor Subdivision - Thomas Samuels", referred to it pursuant to Section 1333 of the Suffolk County Charter. After due study and deliberation it resolved to approve said map subject to the following five conditions deemed necessary to help preserve the natural and aesthetic attributes of the shoreline of Hallocks Bay and the tidal- wetlands ad- jacent thereto. 1. No lot shall be subdivided or its lot lines changed in any manner at any future date unless authorized by the Town of Southold Planning Board. 2. No sanitary disposal facility shall be constructed or otherwise lo- cated within 100 feet of the upland edge of the tidal wetlands along the shoreline of Hallocks Bay. 3 . No stormwater runoff resulting from the development and improvement of the subdivision or any of its lots shall be discharged down the face of the bluff in any manner into the adjoining body of water and the tidal wetlands bordering the parcel. 4. A conservation or scenic easement having a minimum width of 50 feet shall be established along the shoreline of Hallocks Bay to insure that no development adverse to the aesthetic quality of the shore- line will take place along the shoreline. 5 . Conditions 1-4, inclusive, shall be filed as covenants and restric- tions in the office of the County Clerk on or prior to the granting of approval to this subdivision. Al AERASMEMORIAL HIGHWAY ERP NS E.L.L.NEW YORK 11783 (513)360-3192 1 Mr. Bennett Orlowski, Jr. -2- April 9, 1985 Minor Subdivision - Thomas Samuels ----------------------------------------------------------------------------------- These covenants and restrictions can be modified only at the request of the then owner of the premises with the approval of a majority plus one of the Town Board of the Town of Southold after a public hearing. Adjoining property owners shall be entitled to notice of such public hearing but their consent to such modification shall not be required. The Commission also offers the following comments on the map for your use and consideration: 1. It is suggested that before approval is granted to this subdivision that the subdivider be required to submit this proposal to the Suffolk County Department of Health Services for review to insure that the proposed subdivision will meet the requirements and stan- dards of that agency. 2 . Due to the low-lying nature of this tract and the fact that it faces an open body of water of moderate size it is strongly recommended that no new residential structure be constructed or otherwise located within 100 feet of the upland edge of the tidal wetlands along the shoreline of Hallocks Bay. Very truly yours, Lee E. Koppelman Director of Planning by C�gYI� C�I9Gi' Charles G. L nd Subdivision Review Section File: S-SD-85-12 CGL:gcc Encl. : Map cc: J.A. Kinsella, County Clerk I R.A. Villa, P.E. , SCDHS I I i i it APR 8 igg STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION 50 Wolf Road Albany, New York 12233-0001 In the Matter of the Application - of - THOMAS E. SAMUELS c/o J. H. Rambo, . Inc. (Hallock' s Bay Subdivision ) For a Tidal Wetlands Permit and Variances pursuant to the Environmental Conservation Law (ECL) , Article 25 , to place rip-rap and subdivide land for two single-family houses (the "Project" ) in an area adjacent to tidal wetlands (the "Side" ) , located in the community of Orient, Town of Southold, Suffolk County, New York. Tidal Wetlands Permit Application No. 10-84-0175 DECISION i March 29 , 1985 i I i DECISION OF THE COMMISSIONER The attached Hearing Report (the "Report" ) of Administrative Law Judge A. Marshall Irving , including Findings of Fact and Conclusions in the Matter of the Application of Thomas E. Samueld , c/o J. H . Rambo, Inc. , Bishops Lane , Southampton , New York 11968 , for a tidal wetlands permit pursuant to the Environmental Conservation Law (ECL) , Article 25 , to place 340 feet of rock rip-rap and thereafter to subdivide an existing parcel for two single-family houses ( the "Project" ) in an area adjacent to tidal wetlands ( the "Site") , located in the community of Orient, Town of Southold, Suffolk County, New York, is hereby adopted as the Decision in this matter subject to my comments below. My review of the record of this proceeding confirms the Administrative Law Judge ' s conclusion that the proposed Project meets or exceeds the standards contained in 6 NYCRR Section 661 .10 . Accordingly the Department Staff is hereby directed to issue a permit subject to the Department' s standard conditions for a project of this type and the additional special condition recommended in Conclusion No. 7 . IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Decision to be signed and issued and has filed the same with all supporting documents in its office in Albany this 29thday of March, 1985 . DEPARTMENT OF ENVIRONMENTAL CONSERVATION HENRY G. WILLIAMS, COMMISSIONER t STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION 50 Wolf Road Albany, New York 12233-0001 In the Matter of the Application - of - THOMAS E. SAMUELS C/o J. H. Rambo, Inc. (Hallock' s Bay Subdivision) Tidal Wetlands Application No. 10-84-0175 { HEARING REPORT by ADMINISTRATIVE LAW JUDGE f I A. Marshall Irving hereby submits this Hearing Report including Findings of Fact and Conclusions in the captioned matter . i Administrative Law Judg I PROCEEDINGS On June 15 , 1984, the Staff of the Department of Environmental Conservation ( the "Department" ) determined complete the application of Thomas E . Samuels, c/o J. H. Rambo, Inc. , v Bishops Lane, Southampton, New York 11968 for a tidal wetlands permit to construct a rip-rap retaining wall , subdivide land for two single-family houses and related improvements , collectively ( the "Project" ) on lands designated Tidal Wetlands Adjacent Area (AA) on the Applicant ' s property ( the "Site" ) located on Hallock' s Bay in the community of Orient, Town of Southold, Suffolk County , New York. This application was filed and processed pursuant to Environmental Conservation Law ( "ECL" ) Article 3 , Title 3 (General Functions ) ; Article 70 (Uniform Procedures) ; Article 25 (Tidal Wetlands ) ; and pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ( "6 NYCRR" ) ; Part 661 (Tidal Wetlands - Land Use Regulations ) ; Part 621 (Uniform Procedures) and Part 624 (Permit Hearing Procedures) . Notice of Complete Application was published in the Suffolk Times on June 28 , 1984 and in the Department' s Environmental Notice Bulletin on June 27 , 1984. A Notice of Public Hearing was published in the Suffolk Times on October 4 , 1984 and in the Department' s Environmental Notice Bulletin on October 10 , 1984 . Copies of, the Notice of Hearing were also sent to the Clerks and Chief Executive Officers of the municipalities within whose boundaries the affected wetlands are located, and to others who expressed an interest in this matter . The public hearing was held before Administrative Law Judge A. Marshall Irving in the Southold Town Hall, 53095 Main Road, Southold, New York on October 25 , 1984 at 10 : 30 A.M. i The Applicant appeared at this hearing on his own behalf . Additionally Robert Forgione of the consulting firm Blenstock & Lucches, P .C. , sanitary engineers also appeared at the hearing as a witness for the Applicant. The Department Staff was represented by Dennis Cole, Environmental Analyst, Bureau of Regulatory Affairs, Department of Environmental Conservation , Region #1 Office, Stony Brook, New York. Mr . Fred Muchacke, Marine Resource Specialist II , Bureau of Marine Habitat Protection , also with the Department' s Stony Brook Regional Office appeared as a witness for the Department Staff . The Parties-In-Interest in this proceeding ( collectively the "Intervenors" ) are as follows: Arthur Tyrrell , Southold Town Bayman' s Association; Martin Trent; Kathleen Latham; Dr . Orville 2 - Terry; Ruth Oliva , President, North Fork Environmental Council ; and Dorothy Berks , Orient Association . The following persons also attended the hearing: Scott Sutcliffe, Long Island Chapter-The Nature Conservancy; Betty King , Gertrude H. Reeves , Todd Berks , Francis J. Ferriera, Claude M. Conklin, William D . Tuthill and William Ashworth all of whom are members of the Orient Association; Stewart W. Y . Horton , Orient Preservation Commission and the following local residents, John Hoins , Emily S . Alford, Estelle E. Adams, Franklin Bear, Lyndal Brandeis, Kevin J . Aylward, Edythe J. Cockerill, Adrian B. Cockerill and J. A. Mould. The stenographic record of the haring was received on December 17 , 1984 . Following receipt of a post-hearing submission by Mr . Forgione and allowing five days for replies by the parties, the hearing record was closed on February 19 , 1985 . STATE ENVIRONMENTAL QUALITY REVIEW ACT ( "SEQRA" ) Pursuant to 6 NYCRR Part 617 , the Department Staff as lead agency determined that the impacts of the subject Project, an unlisted action , would not have a significant effect on the environment sufficient to warrant the preparation of a Draft Environmental Impact Statement. POSITION OF THE DEPARTME.NT STAFF The Department Staff is not opposed to the proposed Project and contends that the proposed Project meets all the requirements of 6 NYCRR Part 661 for issuance of the requested permit . POSITION OF THE INTERVENORS Mr . Tyrrell (Southold Town Bayman' s Association ) opposes the Project contending that any development on Hallock' s Bay would adversely affect shellfishing. Martin Trent, Suffolk County Department of Health Services (SCDHS ) contends the two septic systems (which would eventually be built on this subdivided land to serve the two houses) would cause pollution of Hallock' s Bay . Mrs . Latham contends the parcel of land is unsuitable for development and that the Project has been turned down by the Southold Town Planning Board and the SCDHS. Dr . Terry contends that any more houses in the general area of the Project would pollute the Bay . Mrs. Berks (Orient Association) contends that the Project would cause unacceptable environmental impacts on the existing land, cause pollution of shellfishing waters, and be detrimental to existing scenic views . Ruth Oliva , North Fork Environmental Council is opposed, contending that the proposed 3 - subdivision would increase pollution of the environment and that the parcel in question is not large enough for two houses . FINDINGS OF FACT 1 . The Applicant owns a 163 ,000+ square foot parcel of land ( the "Site" ) situated in the community of Orient, Town of Southold, Suffolk County at the location shown on Appendix A and as detailed on Appendix B. The Site is an irregularly shaped tract of waterfront property with some 975+ feet of frontage along Hallock' s Bay as shown on Appendix B. Road access to the Site is provided on the west from Narrow River Road. The property has an existing functional farm dike constructed in 1938 and a masonry wall along the waterfront at or above the line of mean high water . A portion of this dike was damaged in the severe storm of March 29 , 1984 and the Applicant proposes to repair the dike in addition to constructing 340 feet of concrete rip-rap seawall upon the receipt of the requested permit. 2 . Tidal Wetlands Maps Nos. 726-556 and 728-556 , which depict the Site in question, indicate that the waters of Hallock' s Bay adjacent to this Site are "SM" ( coastal shoals , bars and mud flats ) as shown on Appendix C. Almost all of the entire Site is within 300 feet of tidal wetlands and is thus a tidal wetlands adjacent area (AA) . The shoreline of this Site also contains approximately 0 . 25+ acre of Intertidal Marsh as a fringe along the shoreline mapped as "IM" on the aforesaid tidal wetlands maps. 3 . The Applicant' s proposal to construct 360+ feet of concrete rip-rap shoreline stabilization is a regulated activity requiring a permit pursuant to 6 NYCRR Section 661 .5 (line 29 ) which categorizes such use of land in an AA as a "generally compatible use--permit required" . 4 . There was no contention raised by any party to this proceeding that any variances would be required to the development restrictions contained in 6 NYCRR Section 661 . 6 for the creation of two lots, each of which would have one principal building. As proposed by the Applicant the setback of any future buildings on the Site could be 75 feet (or more ) and any on-site sewage systems could be setback 75 feet or more from any tidal wetlands boundary respectively. The bottom of any on-site sewage disposal system could also be situated at an elevation of two feet minimum above the seasonal high groundwater level ; the portion of the coverage of the Site by principal buildings could be well below 208 ; the minimum lot area requirement of 40 ,000 square feet for each lot could be met; all impervious surfaces exceeding 500 square feet could be setback 75 feet (or more ) from the wetlands, and finally all surface runoff water on the Site could be recharged on the Site by means of suitable dry wells . _ 4 _ 5 . As noted in the Proceedings section of this Report , the Applicant proposes to place rip-rap along the shoreline and to subdivide the land into two building parcels. No plans for the construction of either house were submitted at this time. The parties opposing the Project collectively contend that development of this Site would adversely affect the waters of Hallock' s Bay by increased runoff from impervious surfaces and from the effluent from the septic systems. The Applicant ' s proposal for the Site is at a density which is one-half the density allowed by 6 NYCRR Section 661 . 6(a ) ( 5) (ii ) ( i .e. 80 ,000+ square feet per principle building compared to the requirement of 40 ,000 square feet in the regulations ) . It would also be feasible to install the septic systems on this Site for the two houses at a distance well in excess of the 100-foot setback required by Section 661 . 6 (a ) ( 2) . 6 . The Applicant presented testimony by Robert Forgione, P .E. , whose expertise includes design and research regarding on-site wastewater disposal systems . In• Mr. Forgione ' s opinion the Site could be developed with on-site septic systems meeting and exceeding all of the State and local requirements for such systems . These systems could be installed at a minimum of 400 feet from mean high water and be constructed under "mounded fill" to meet the two-foot requirement to protect groundwater. CONCLUSIONS 1 . It is obvious that there is sufficient land in the subject 3 .75+ acre Site to create two lots, each of which could be developed with a principal building in full compliance with all of the development restrictions in 6 NYCRR Part 661. Furthermore, the proposed concrete rip-rap wall and the subdivision of this 3 .75+ acre Site into two parcels of 83 ,000+ and 80 ,000+ square foot building lots respectively would be compatible with the policy of the Tidal Wetlands Act to preserve tidal wetlands . Additionally, no tidal wetlands would be destroyed or affected by the proposed Project since the rip-rap would be installed above the line of mean high water and upland of any tidal wetlands areas. 2 . The proposed Project is compatible with the public health and welfare in that the density of development is only one-half of that allowed by 6 NYCRR Part 661 . 3 . The proposed Project complies with the development restrictions in 6 NYCRR §661 .6 since no variances would be required for the future planned development of this Site with two houses . 4 . There would be no undue adverse impact on any of the values and functions of the nearby wetlands since these wetlands 5 - would not be disturbed and would remain essentially unchanged by this Project. The effects of two more septic systems in the general area of Hallock' s Bay , which would meet or exceed all State and local requirements were not shown to be of environmental significance . Furthermore, the contentions of the Intervenors that the Project as proposed would have an unacceptable environmental impact on the waters and shellfishery of Hallock' s Bay were not supported by any evidence or testimony to demonstrate that effluent from the septic systems would eventually cause any problems in the adjacent tidal waters . Additionally this Project would not result in an over-development of the shoreline in the area in a manner similar to other communities or shoreline areas on the eastern end of Long Island where over-development has been shown to have caused pollution of tidal wetlands and/or tidal waters. 5 . The Project complies with the use guidelines of 6 NYCRR 5661 . 5 since the subdivision would consist of oversized lots and the future probable construction of two. dwellings on this Site is categorized as "generally compatible--permit required" in 6 NYCRR 5661 .5 at line 46 . 6 . Although the issue of aesthetic appreciation (view ammenities) was raised by several of the Intervenors there was no proof offered on this issue which would demonstrate that this Project would unacceptably degrade the existing aesthetic values of the general area from either the standpoint of public or private concerns . 7 . In view of the foregoing Findings and Conclusions it is reasonable to further conclude that the permit requested by the Applicant should be issued subject to the Departments ' s standard conditions and the following special condition: (A) This permit is limited to the placement of rip-rap and the subdivision of the Site into two lots all as shown on the maps filed with the subject application. Separate permit application(s) must be submitted for any future construction of residential or other principal buildings on this Site within any tidal wetlands adjacent areas. (B ) On-site water supply wells and on-site sewage disposal systems for future houses on the two lots must meet the regulations of the Suffolk County Department of Health Services . it PLANNINyG,BOARD TOWN OF SOUTHOLD SUFFOLK-COUNTY Southold, N.Y. 11971 TELEPHONE Richard wardMarch 14, 1985 765.1938 Kenneth Edwards BENNETT ORLOWSKI, Jr. , Chairman GEORGE RITCHIE LATHAM, Jr. William F. Mullen, Jr. Suffolk County Planning Commission Veterans Memorial Highway Hauppauge, New York 11787 Gentlemen: Pursuant to Section 1333 , Article XIII of the Suffolk County Charter, the Southold Town Planning Board hereby refers the following proposed final plat to the Suffolk County Planning Commission: (Map of) (Minor Subdivision) Thomas Samuels Hamlet Orient Tax Parcel Identifier No. 1000- 27 2 _— Material Submitted: Minor Subdivision - Class A(3 copies) x Class B (2 copies) Major Subdivision (3 Copies) Preliminary Map (1 copy) Topographic Map (1 copy) ; Darinage Plan (1 copy) Street Profiles (1 copy) ; Grading Plan (1 copy) Planning Board Res . (1 copy) ; Other material (specify and give number of copies) Waiver of Subdivision Requirements - See attached sheet______X Comments: Very trulyyo�urls ,, rr ( WAIVER OF SUBDIVISION REQUIREMENTS (Map of) (Minor Subdivision-) Thomas Samuels Hamlet or Village Orient Town South— — old The following items normally required as part of the subdivision applica— tion have been waived. Check, as required. Preliminary Map X Topographic Map X Drainage Plan X Street Profiles X Grading an _ Pl ___ X Landscape Plan X Other (describe) Reason: 1) Minor Subdivision a) Not required by subdivision regulations b) Subdivision of lot on an existing improved filed map c) Other (describe) i 2) Major Subdivision a) No new drainage structures and no changes in existing drainage proposed X b) No new roads and no changes in existing roads posed P X C) No major site clearing and grading proposed d) Other (describe) PVA IrrI 4 B'O .D PW <� TW bF SOU , D Southold, N.Y. 11971 (516) 765-1938 March 7 , 1985 Stephen R. Angel Esseks , Hefter, Cuddy and Angel Counselors at Law 108 E. Main Street P.O. Box 279 Riverhead, NY 11901 Re: Minor subdivision proposal for Thomas Samuels Dear Mr. Angel: The following action was taken by the Southold Town Planning Board,. Monday, March 4 , 1985 . RESOLVED that the Southold Town Planning Board approve the sketch map of Thomas Samuels for two lots on 3 .75 acres located at Orient, plans dated as last amended January 29 , 1985 . Please forward six (6) copies of the map (see the enclosed list for requirements) for our referral to the Suffolk County Planning Commission. Prior to our scheduling a public hearing, we will need three copies of the survey endorsed by the Health Department pursuant to Article 6 . If you have any questions , please don' t hesitate to contact our office . ery truly yours,, _ ` t , �1 Q Qr uciz r1..O BENNETT, ORLOWSKI, JR. , CHA SOUTHOLD TOWNILANNING BOARD By Diane M. Schultze, , Secretary 7P 2 ORIENT ASSOCIATION Box 44,RD# 1 Orient(Long Island), N.Y. 11957 February 25 , 1985 Bennett Orlowski, Jr. , Chairman Southold Town Planning Board Main Road, Southold 11971 Dear Mr. Orlowski, The committee of the Orient Association which has formed in the interest of preserving Hallock's Bay would like to request an appearance before the board to present a proposal for the designation of a "green belt" around the bay, and the inclusion of such designation in the Master Plan. We would like to emphasize once again that the Samuels property on Narrow River Road is an essential linchpin in this effort. Si&e`a Y, c Freddie Wachsberger Acting Chairperson, The Committee to Preserve Hallock' s Bay I i I I i �y JAN 25 1Q95 JAMES N.RAM80,IN& BISHOPS LANE SOUTHAMPTON, N. Y. 11968 PHONE: (516) 283-1254 WUNNEWETA ROAD CUTCHOGUE, N. Y. 11935 PHONE: (516) 734.5858 January 23, 1985 Southold Town Planning Board Town Hall Southold, New York 11971 ATTN: Mr. Bennett Orloski RE: Narrow River Road Minor Subdivision Dear Mr. Orloski, I have ordered Van Tuyl & Sons to prepare a verb description of the High Water Mark as requested yesterday by your staff. Enclosed you will find requested deed. I hope and trust these two items will complete your requirements. Sincere , Thomas E. Samuels TES :cq Enclosure CC: Steven Angel Esseks, Hefter, Cuddy & Angel �J AN 251985 Ilba..asra ain 8UU3' L180�—Llarguin mW d eu, .��. •� .,..rl�um. iamCle voce wiW Cnv,.mum s¢uum Gr.4 11 CONSULT YOUR LAWYER BEFORE SICINING THIS INSTRUMENT—THIS INSTRUMENT SHOULD BE USED BY LAWYERS ONLY. a — II " I THIS INDENTURE,made the lst day of August nineteen hundred and Eighty three BETWEEN LAWRENCE S . INGOLIA, 127 Windmill Lnae, Southampton, New York 11968 -)tstrtet 000 it e^tion party of the first part, and 0?700 l THOMAS SAMU EM, residing at : 89 Haywater Drive, NASSAU POINT i LOt �I 003000 party of the second part, II WrMESSETH,that the party of the first part, in consideration of Ten Dollars and other valuable consideration ipaid by the party of the second part, does hereby grant and release unto the party of the second part, the heirs u or successors and assigns of the party of the second part forever, L that certain plot, ptete or parcel of land, with the buildings and improvements thereon erected, situate, ALL and being ixt3c Orient, Town of Southold , County of Suffolk and State of New York, bounded and described as follows : BEGINNING at the corner formed by the intersection of ;the easterly aid I of Narrow River Road with the northerly side of Orchard Street - RUNNING THENCE along the easterly & northeasterly sides of Narrow Rive �I Rd . 1. North 15 degrees 44 minutes 40 seconds East, 311.32 feet : end I� 2. North 39 degrees 12 minutes 30 seconds West , 328.57 feet -, it THENCE along land now or formerly of Edwin H. King: 1. North 42 degrees 29 minutes 50 seconds East , 221. 79 feet: and 2, North 36 degrees 14 minutes East 80 feet, more or less to the ordinary highwater mark of Hallock' s Bay: jj THENCE Easterly, Southeasterly and Southerly along the ordinary high- water mark of Hallock' s Bay, as it winds and turns 975 feet more or less to the northerly side of Orchard Street: and THENCE Westerly along the Northerly side of Orchard Street , 100 feet : more or leas , to the corner and point or place of BEGINNING . SUBJECT to covenants, easements and restrictions of record . SUBJECT to riparian rights and easements of others over Hallock's Bay SUBJECT to the rights of the United States Government, the State of New York, and Town of Southold or other municipal agencies to regulate and control the use of piers, bulkheads and land adjacent -rAXNAP to the water, i I �IGN.•\''Ill TOGET11L'R with all right, title and interest, if any, of the party of the first part in and to any streets and it roads abutting the above described premises to the center lines thereof; TOGL•'THER with the appurtenances and all the estate and rights of the party of the first part in and to said premises; TO HAVE. AND TO HOLD the premises herein granted unto the party of the second part, the heirs or successors and assigns of qi I the party of the second part forever. i li !: AND the party of the firs[ part covenants that the party of the first part has not done or suffered anything whereby the said premises have been encumbered in any way whatever, except as aforesaid 1.i AND the party of the first part, in compliance with Section 13 of the Lien Law, covenants that the party of the first part wiil receive -he consideration for this conveyance ana will hold thv right to receive sacra consia- I� eration as a trust fund to be applied first for the purpose of paying the cost of the improvement and will app!v the same first to the ;:aynient of the cost of the improvement before using anv part of the total of the same for any other purpose. '.; The word "party" shall be construed as if it read "parties" whenever the sense of this indenture so requires. IN WITNESS WHEREOF, the party of the first part has duly executed this need the day and year first above written. IN PRESENCE OF: it LAWRENCE S . ING STAB Of NEW YORK, COUNTY OF SUFF01 sss STATE Of NEW YORK, COUNTY F In the ls�L—day Of August 19 $3 , before me On the day of 19 before me`i _ tj_rsonally came personally came LAWRENCE S. INGOLIA to me known to be the individual described in and who to me known to be the individual descriMd in and who executed the foregoing instrument, and acknowledged that executed the foregoing instrument, and acknowledged that executed the same. executed the same. NOTARY PUBLIC STATE OF NEW YORK, COUNTY OF sst STATE OF NEW YORK, COUNTY OF SS: On the day of 19 before me On the day of 19 before me personally came personally came to me known, who, being by me duly sworn, did depose and the subscribing witness to the foregoing instrument. with say that he resides at No. whom I am personally acquainted, who, being by me duly sworn, did depose and say that he resides at No. that he is the of that he knows the corporation described in and which executed the foregoing instrument; that he to be the individual knows the seal of said corporation; that the seal affixed described in and who executed the foregoing instrument; to said instrument is such corporate seal'; that it was so that he, said subscribing witness, was .present and saw affixed by order of the board of directors of said corpora- execute the same; and that he, said witness, tion, and that he signed h name thereto by like order. at the same time subscribed h name as witness thereto 39axgain anb *ale Metb SECTION WITH COVENANT AGAINST CRANIUR's ACTS LE No. BLOCK LOT LAWRENCE S. INGOLIA COUNTY OR TOWN TAX BILLING ADDRESS TO. THOMAS SAMU ELS Recorded At Request of The Title Guarantee Company - ori - - �IriR�ETTU�.RN BY MAIL TO: STANDARD FORM Of NEW YORK BARD OF TITLE UNDERWRITERS pTHOMAS SAMU c'•SS DWrlbNred by 89 HayWatei Drive JTITLE GUARANTEE- Nassau Point, New York NEW YORK ATICOR COMPANY Zlp No. JAMES&RAMBOAC. BISHOPS LANE SOUTHAMPTON, N. Y. 11968 PHONE: (516) 2831254 WUNNEWETA ROAD CUTCHOGUE, N. Y. 11935 PHONE: (516) 7345858 January 23 , 1985 Southold Town Planning Board Town Hall Southold, New York 11971 ATTN: Mr. Bennett Orloski RE : Narrow River Road Minor Subdivision Dear Mr. Orloski , I have ordered Van Tuyl & Sons to prepare a verbal description of the High Water Mark as requested yesterday by your staff. Enclosed you will find requested deed. I hope and trust these two items will complete your requirements. Sincerely, Thomas E. Samuels TES :cq Enclosure CC: Steven Angel Esseks , Hefter, Cuddy & Angel %OWN OF SOUTHOLD . ,. �, ENVIRONMENTAL ASSESSMENT — PART I — PROJECT INFORMATION 901':CE: -his docacent is designed td assist in determining •.net`er :-.e action Proposed may have a significant er.!c: on the environment_ Please complete tie enti.^e Jata :i:eet. answers co t.`.ese ^uestions +ill be consicered is oart of the aoplication for approval and may be suo;ec: to furtner vertficat'.on and public r-view. Provide any aaaiciarlal information you believe will be needed :a camolete PARTS 2 ane D. is expected tnaC amoletion of the EAF wilt be dependent on Information currently available and will not involve sew studies, resaar_n or investigation. If information requiring Such aaditional sort is_unava'.iaole, so indicata and soecify ase? instance. - NAVE 7F PaOJECT: - pt - - 711ME ANO .A0CRESS OF .^,:INE3 fir Different) . ;lame) A001E33 1170 nAIT OF ?Poi rpC.1tlT: Street, �iBm f° ircae ).'J.. Scata). lz•p 3US!NESS PFIGNE. tom• ] L al lcrpl ... 0--rR.. : .,4. F OJE_. : (Briefly describe type of proiec- or action) Nat: i�yLl�Z, l-�t�CG`CdCdx (PLc4SE COMPLETE EACH QUES iO3 - Indicate 'I.A. if not aoolicaale) A. SIE £SCRIPT-011 -- . - (Physical sat:ip; of overall project, both develacee arta %;ndevelcaed areas) L General waracter of *.tie land: Generaily unifara slope 7�Generaily gneven and rotting ur_irreguiar .. Pr-sent 'and use: UrbanIndUtrial Cartmercial Suouroan 2ucz1 __ Fnrest --. .-t�-�••r.• Agriculture , 0trier �•-7o,aan n:, .�O,du2F� __ _ _ .. - .. :. - 3. Tatai acreage of project area:• $76 acres. ...._. .._ _ . Aooroximate acreage: Presently After Comalat'.an Presently After Completion ' Peadew or 3rusnland o3.1751�raa _!Cris Yater Sur.•aca Ara _acres acres ' =o re7:_d acres '^_res iJOvegetatad (rocx. —� ear:n or rill; _+crei —acres Aoricuitcral _acres res . icadi. acildirni Heti-ma ('nesnwdtar or ana :_ler paved rfa_i aS per :r:; .115 iur'acas _a:.eS —teres 7a,� kris •Gras - 'p :tr.er (maica:a :Yoe) _acres _acres d• aha: is oreccm-nant sail tyae(s) on srojac: 3"a: J&amcl G� ' i. a. Are C.':en. Sedrocx autos-.pings an orojec: Siva? _les - b. ;'hat is CMC' :a :edr-.cx? ;in lilt) . 9/!!711 6. Approximate percentage of proposed project site with slopes: 0-10' f/.: 10-15. 15. or . I+ greater 7. Is project contiguousor contain a building or site listed on the National Register of Historic Places? _Yes L , . 8. What is the depth to the water table? >3 feet 9. Do hunting or fishing opportunities presently exist in the project area? Yes P__�No 10. Does project site contain species of plant or animal life that is identified as threatened or endangered - Yes .10, according to - Identify each species ' 11. Are there any unique or unusual land forms an the project site? (i.e. cliffs, dunes, other geological formations - Yes ✓Ko. (Describe 12. Is the project sitejpcesently used by the cormunity or neighborhood as an open space or recreation area - Yes No. 13. Does the pr"t site offer or include scenic views or vistas known to be important to.the community? Yes V No 14. Streams within or contiguous to project area: - a. Name of stream and name of river to which it is tributary 15. Lakes, Ponds, Wetland areas within or contiguous to project area: -/ a. Name : b. Size (in acres) rt C Q7OD n�i'/ 16. What is the dominant land use and zoning classification within a 1/4 mile radius of the project (e.g. single family residential, R-2) and the scale of development (e.g. 2 story). — 2 Z. 5%r" j 8. PROJECT DESCRIPTION 1. Physical dimensions and scale of project (fill in dimensions as appropriate) a. Total contiguous acreage owned by project sponsor acres b. Project acreage developed: d acres Initially; acres acres ultimately. e. Project acreage to remain undeveloped d. Length of project, in miles: if appropriate) sl ---• e. If project is an expansion of existing, indicate percent of expansion proposed: building square foot age developed acreage f. Humber of off-str--t parking spaces existing proposed %cPO A i ArtlN � q. Maximum vehicular trips generated per hour (upon completion of project) h. If residential: Number and type of housing units: One'Family Two Family Multiple Family Condominium Initial Ultimate z i. If: Orientation Neighborhood-City-Regional Estimated Employment Coan2rcial Industrial J. Total height of tallest proposed structure 8- feet. 2. Haw much natural material (i.e. rack, earth, etc.) will be removed from the site - Mons a Pubic yards 3. Now many acres of vegetation (trees, shrubs, ground covers) will be removed from site - 1� acres. 4• Will any mature 'crest (o�er 100 years old) or other locally-important vegetation be removed by this project? Yes S. Are there any plans for re-vagetation to replace that removed during construction? Yes No 6. If single phase project: Anticipated period of construction months, (including demolition). 7. I.f multi-phased project: a. Total number of phases anticipated NO. - v^ b. Anticipated date of commencement phase 1 _month -_Year (including demolition) e. Approximate completion date final phase month ,year. d. Is phase 1 financially dependent an subsequent phases? _Yes No S. Will blasting occur during construction? _Yes No 9. Number of jobs generated: during construction /b ; after project is complete 10. Number of jobs eliminated by this project _. 11. Will project require relocation of any projects or facilities? Yes L'XNo. If yes, explain: 12. a. Is surface or subsurface liquid waste disposal involved? Yes No. b. If yes, indicate type of waste (sewage, industrial, etc.) . C4' 1# • e. If surface disposal name of stream into which effluent will be discharged lzD'lC16'7• 13. Will surface area of existing lakes, nds, streams, bays or other surface waterways be increased or decreased by proposal? Yes v No. 14. Is project or any portion of project located in the 100 year flood plain? /Yes No 15. a. Does project involve disposal of solid waste? Yes ✓No b. If yes, will an existing solid waste disposal facility be used? _Yes No e. If yes, give name: location Id, ilill any wastes not go into a sewage disposal system or into a sanitary landfill? r Yes P"N 16. Will project use herbicides or pesticides? _Yes ✓No p 17. Will project routinely produce odors (more than one hour per day)? Yes I--'No 18. Will project produce operating noise exceeding the local ambience noise levels? Yes t�No 19. Will project ressult in an increase in energy use? ✓ Yes No. If yes, indicate type(s) n?,da�iPa'��CI�C QP,R/1�1�, 20. If water supply is from wells indicate pumping capacity Jam() gals/minute. 21. Total anticipated water usage per day _2 C O cals/day. 4�2'160U ' V. Zoning: a. What is dominant 'zoning classification of site? f} b. Current specific zoning classification of site C. Is proposed use consistant with present zoning? d. If no, indicate desired zoning • 26. Approvals: a. Is any Federal permit required? Yes tXYo . b. Does project involve State or Federal funding or financing? Yes No c. Local and Regional approvals: Approval Required Submittal Approval (Yes, No) (Type) (Date) (Date) City, Town, Village Board City, Town, Villace Planning Board City, Town, Zoning Board ---� �--- _�_ -fft, County Health Department _ o Other local agencies u n c Other regional agencies State Agencies 7T �(G'a1Q2> a Federal Agencies C. INFOR.'+ATIGNAL DETAILS �Vi/ ulk.r7��yrc �� Attach any additional informztion.as may be needed to clarify your project. If there are or may be any adverse impacts associated with the proposal, please discuss such impacts and the measures which can be taken to mitigate or avoid tth�hJ///�� « PREPARER'S SIGNATURE: �7lIA72���19tLLtF LO/ REPRESENTING: DATE: P , c • 5 • • �,�FFOGY P, NI D .JAN 071988 TO T°` "S ^ ID S � Y 1 � Southold, N.Y. 11971 (516) 765-1938 SUBDIVISION REQUIRED DOCUMENTS 1AINOR Survey map- 12 copies 5 foot contours Scale 1" = 100 ' Key Map with property location and distance to nearest existing street and intersection Name of owner and adjoining owners County Tax map numbers Fee at $25 per lot with a minimum of $50 If within 500 feet of bay, sound, or estuary thereof or county or state road, letter regarding drainage i grading and road construction I � Part I of I Long Environmental Assessment Form Legal description of Property Notations on existing restrictions (easements , covenants and zoning lines) i Southold Town Planning Board Town Hall Southold, New York 11971 Re: Gentlemen: The following statements are offered for your consideration in the review of the above-mentioned minor subdivision and its referral to the Suffolk County Planning Commission: (1) No grading, other than foundation excavation for a residential building is proposed. (2) No new roads are proposed and no changes will be made in the grades of the existing roads. I (3) No new drainage structures or alteration of existing structures are proposed. I Yours truly, JAN 071985 • APPLICATION FOR APPROVAL OF PLAT To the Planning Board of the Town of Southold: The undersigned applicant hereby applies for (tentative) (final) approval of a subdivision platin accordance with Article 16 of the Town Lav and the Rules and Regulations of the Southold Town Planning Board, and represents and states as follows: 1. The applicant is the owner of record of the land under application. (If the applicant is not the owner of record of the land under application, the applicant shall state his interest in said land under application.) 2. The name of the subdivision is to be ..... .. .......... .................................. . ................................................................................................ 3. The entire land under application is described in Schedule "A" hereto annexed. (Copy of deed suggested.) 4. The land is held by the applicant under deeds recorded in Suffolk County Clerk's office as follows: Liber ...... Page �I �� ............ On ..... ......... . Liber ........................ Page ............... ....... On ....................... ; Liber ........................ Page On Liber . ....................... Page ................. ..... On ....................... .. Liber ........................ Page ......... ...... .. ..... On ....................... as devised under the Last Will and Testament of ....................................... oras distributee ......................... .. ........ .......................... . . 5. The area of the land is ....h3...75........ acres. 6. All taxes which are liens on the land at the date hereof have been paid except . ........... ......:................. .......... .... .... .. ... ...... .................... 7. The land is,encumbered by . .. ../? e:yl.�[Cm�P ....... .. ........................ . mortgage (s) as follows: (a) Mortgage recorded in Liber ... .. .. . . .. .. . Pagc . .. .. . ... . . .. .. .. . in original amount of $. ........ .... . unpaid amount $ . .... . . . . . . . .. . . . . . . . held by . .... .. .. ........ .. ... ....... .. .... . address .................. . . .. . ... .. . . .. ....... . . ...... .................. . (b) Mortgage recorded in Liber . .. .. .... Pa- . . . . . .. .. .... ......... . in original amount of . .. .. . . .. . . ... unpaid amount $.. . .. . . .. .. .... .. .. .. . held b ........... ... address . .. ...... ........ . . .. ...... .. .. .. .. ...... ...................... P , . (c) Mort-age recorded in Liber Page . . . .... .... ..... in original amount of ... ........... unpaid amount $. ... .. . .. . . ...... . . .. . held by . .... .... ............. ..................... . address ..... ... ... . . .... .. .. . . ...... .. . . .. ...................... 8. There are no other encumbrances or liens against the land except ./✓g?t............. ..... ................... .... ................ ... ..... .......... ............................... 9. The land lies in the following zoning use districts �. . .... f...... ddlC2 �7 . .... ...... ...................... ................................... .................. ................................... 10. No part of the land lies under water whether tide water, stream, pond water or otherwise, ex- cept :..... ..................... .... ........................................... 11. The applicant shall at his expense install all required public improvements. 12. The land (does) (does not) lie in a Water District or Water Supply District. Name of Dis- trict, if within a District, is ....................... ....................................... 13. Water mains will be laid by ... .. ........ .. .... .. .. .... ........ .... .. .................. . and (a) (no) charge will be made for installing said mains. 14. Electric lines and standards will be installed by ....... .................................. and (a) (no) charge will be made for installing said I lines. 15. Gas mains will be installed by .../(C' ....... .... ............................................ . and (a) (no) charge will be made for installing said mains. 16. If streets shown on the plat are claimed by the applicant to be existing public streets in the Suffolk County Hi.-hway system, annex Schedule "B" hereto, to show same. 17. If streets shown on the plat are claimed by the applicant to be existing public streets in the Town of Southold Highway system, annex Schedule "C" hereto to show same. 18. There are no existing buildings or structures on the land which are not located and shown on the plat. 19. Where the plat shows proposed streets which are extensions of streets on adjoining sub- division maps heretofore filed, there are no reserve strips at the end of the streets on said existing maps at their conjunctions with the proposed streets. 20. In the course of these proceedin;;s, the applicant will offer proof of title as required by Sec. 335 of the Real Property Law. 21. Submit a copy of proposed deed for lots shov;inr all restrictions, covenants, Lte. Annex Schedule "D". 22. The applicant estimates that the cost of grading and required public improvements will be $.......... as itemized in Schedule "E" hereto annexed and requests that the maturity of the Performance Bond be fixed at ............ .. years. The Performance Bond will be written by a licensed surety company unless otherwise shown on Schedule "F". DATE ...... ! ..... .. . Sa�ntf.� ., 19. ... (Name of Applicant) B • y -rc1�LLGe.. �.:.... .. ............................. (Signature and Title) . . . . . . .... ....... . . (Ada ss) STATE OF NEW YORK, COUNTY OF . ....... .... ss: On the .........1 �. day of. ........ ....... .............. 19......, before ane personally came �l GU1 g, ....... . to me known to be the individual described in and who executed the foregoing instrument, and acknowledged that .. . .... . executed the same. PEGGY FIFEttl NOTARYM" .New York .... .. . . .. \.... ...•....... ..... ...... N4. g, t coantY Notary Public Terr t +cs L1arcn 3J 19i6 - STATE OF NEW YORK, COUNTY OF ........ ...... v.......... ss: On the . ...... ......... day ... .... .... . of .... ........... 19. .:..., before me personally came . . .. . .. .... .... . .. .....•...to"me known, who being by me duly sworn did de- 1 pose and say that ........... . resides at No. ..... .. ........ .. .. .. . ... ................ .......... . i . . . .. . . .. . . .. . . . ........... .. ... that . .. .. . . .... . . . . .. .. .. ..... is the ... .. ..... ... ........ .... .. . of . . ... .... .. ....... . . . .... .. . . .. .. .. . . .. .. .. .. .... .. . . .. ...... ............ . the corporation described in and which executed the foregoin;; instrument; that . .. .... .. ... knows the seal of said corporation; that the seal affixed by order of the board of directors of said corporation. :uul that . . . .. . . .. . . . signed . ........ . . .. . name thereto by lilac order. . . . ... . .. .. .. .. .. .. .. .. .... .................. Notary Public 60- JAA71985 _ New York State Department of Environmental Conservation OWN Bldg. #40 State University of New York 14WStony Brook, New York 11794 Henry G.Williams December 27, 1984 Commissioner Mr. Bennett Orlowski , Jr. Chairman Southold Town Planning Board Southold, New York 11971 Dear Mr. Orlowski : I would like to comment on the letter of December 17 that you sent to Mr. Tom Samuels regarding the determination of mean high water. In this letter you indicate that the State Department of Environmental Conservation would perform the stake out of this determination. The stake out of actual mean high water is not done by this department. It is, however, performed routinely by NOAA and some qualified engineers. I would appreciate your informing Mr. Samuels of this fact. Sinc rALtzn KLK:fb Kennetief Bureau of Marine Habitat Protection i ESSEKS, HEFTER, CUDDY & ANGEL JAN 071985 COUNSELORS AT LAW I06 EAST MAIN STREET P. O. BOX 279 WILLIAM W. ESSEKS RIVERHEAD, N.Y. 11901 WATER MILL OFFICE MARCIA Z. HEFTER (516)369-1700 MONTAUK HIGHWAY CHARLES R. CUDDY P O. BOX 570 STEPHEN R. ANGEL TELEx-EHCA 6652318 UW WATER MILL. N.Y, 11976 JAMES HEFFRON (516)726-6633 THOMAS J. OSBORNE December 28 , 1984 Southold Town Planning Board Town Hall Main Road Southold, New York 11971 Re : Application for Minor Subdivision - Property of Thomas E . Samuels at Orient Dear Sirs : We are the attorneys for Thomas E. Samuels the above captioned applicant . We enclose the following in connection with his most recent application for a two lot minor subdivision situate at Orient : 1 . Check in the sum of $50 .00 ; 2 . Application for approval of plat ; 3 . Letter of Thomas E . Samuels to Planning Board ( undated) ; 4. Environmental Assessment Form Part I , prepared by Thomas E . Samuels; 5 . Letter of John I . Holden, C .E . , professional engineer and land surveyor dated November 5 , 1984 regarding extent of land within Town of Southold subject to flooding; and 6 . Six prints of minor subdivision map prepared by R . j Van Tuyl , L. S . last amended December 3 , 1984. Your requirements indicate that an applicant should provide twelve copies of the map. I understand from speaking with Mr. Samuels that the Board ' s secretary indicated that six copies would be sufficient in this case . Please let me know if you need additional copies. In that case , I will contact Mr . Van Tuyl ' s office and have them delivered to you promptly , Re : Minor Subdivision - Thomas Samuels December 28, 1984 Page Two . Also enclosed is a copy Y of m letter to the Chairman hai m an of the Planning Board dated December 10 , 1984. The information contain- ed in that letter is relevant to the above captioned application , and should be included in the file. If any members of the Board or staff have any questions , please do not hesitate to contact me at the Riverhead number and address set forth above . Respectfully submitted, I S eph n R . Angel SRA : s Enclosures cc : Thomas Samuels 9 AMASk • ��� 071985 JAMES H.RAMBO,INC. i'FI%Nt a7.3 vc December 21 , 1984 Mr. Kenneth Koetzner Bureau of Tidal Wetlands N.Y.S.D.E.C. S .U.N.Y. Building #40 Stony Brook, N. Y. 11794 Dear Mr. Koetzner, The enclosed is self explanatory. I would appreciate your advising the Planning Board if you can accomodate their request. Thank you. Sincerely, Thomas E. Samuels TES:cq cc: Mr. B. Orloski Mr. Colin Van Tuyl Mr. Stephen Angel • 5�Ff0(k ' F T D c 4F SL Southold. N.Y. 11971 (516) 765-1938 December 17 , 1984 Mr. Thomas Samuels Wunneweta Road Cutchogue , NY 11935 Re : Narrow River Road, Orient Minor subdivision proposal Dear Mr. Samuels : Please let this confirm our telephone conversation of this date . The Planning Board requests that you ask you surveyor to designate mean high water based upon the stake out to be performed by the New York State Department of Environmental Conserva tion. If you have any questions , please don' t hesitate to mntact our office . Ve truly yo`� BEJN/NETT ORLOWSKI, JR. CHAIRMAN SOUTHOLD TOWN PLANNING BOARD By Diane M. Schultze , Secretary SUFFOL't P ' TOW r D S L Q� Southold, N.Y. 11971 (516) 765-1938 December 17 , 1984 Mr. Thomas Samuels Wunneweta Road Cutchogue, NY 11935 Re: Narrow River Road, Orient Minor subdivision proposal Dear Mr. Samuels : Please let this confirm our telephone conversation of this date. The Planning Board requests that you ask you surveyor to designate mean high water based upon the stake out to be performed by the New York State Department of Environmental Conseri tion. If you have any questions , please don' t hesitate to contact our office . BENNETT ORLOWSKI, JR, CHAIRMAN SOUTHOLD TOWN PLANNING BOARD By Diane M. Schultze, Secretary 1 ESSEKS, HEFTER, CUDDY & ANGEL DECCOUNSELORS AT LAW DE111984 IOB EAST MAIN STREET P O. Box 279 WILLIAM W. ESSEKS RIVERHEAD, N.Y, 11901 WATER MILL OFFICE MARCIA Z. HEFTER (516)369-1700 MONTAUK HIGHWAY CHARLES R. CUODY P O. BOX 570 STEPHEN R. ANGEL TELEX-EHCA 6552316 UW WATER MILL, N.Y. 11976 JAMES HEFFRON (516) 726-6633 THOMASJ. OSBORNE December 10 , 1984 Mr . Bennett Orloski, Jr. , Chairman Southold Town Planning Board Town Hall Main Road Southold , New York 11971 Re : Minor Subdivision , Thomas Samuels Orient Dear Mr . Orloski : As you most likely know, we are the attorneys for Tom Samuels , in connection with his application for a two lot minor subdivision on property in Orient . I appeared with Mr . Samuels before your board on November 26, 1984 . I have written this letter at Mr . Samuels ' suggestion. As I understand it , the Planning Board has taken the position that Mr . Samuels ' property can not be divided into two 80 ,000 square foot lots , because a portion of the area to be included in each of the lots would be subject to flooding. At your meeting of November 26 , 1984, you brought to my attention Subdivision C , of Section A106-36 of the Southold Code, which provides in full the following : "C . Land subject to flooding . Land subject to flooding or land deemed by the Planning Board to be uninhabitable shall not be platted for residential occupancy nor such other uses as may increase danger to health , life or property or aggravate the flood hazard , but such land within the plat shall be set aside for such uses as shall not be endangered by periodic or occasional inundation ." According to you , Subdivision C , reproduced above , imposed a duty on the Planning Board not to include lands subject to flooding in any subdivision map. You would therefore exclude the area subject to flooding from lots and from density determinations . `6� Re : Minor Subdivision , Thomas Samuels Orient December 10, 1984 I took the position that such an interpretation was unreasonable on several grounds. I want to now take this opportunity to set forth these grounds with some specificity . THE UNREASONABLE AND CONFISCATORY AFFECT OF SUCH AN INTERPRETATION OF CODE SECTION A106-36C . A vast amount of land in the Town of Southold is subject to flooding . Our client retained John I . Holden , P .E . , L . S . of Southampton , to make a computation of how much land, in the Town of Southold , is within the "A" zones established under the Federal Flood Insurance Program. The "A" zone designation indicates land that is subject to occasional flooding. Mr . Holden concluded that approximately 21% of the total land area of the Town of Southold, excluding Greenport and Plum Island, is within such "A" zones ( a copy of Mr . Holden ' s letter is annexed hereto) . Moreover , during the years that the Town has had a Zoning Ordinance, and a Planning Board, subdivisions and other developments were permitted to be located, in whole or in part , in areas classified under Floodplain Regulations as being subject to flooding . To deny a landowner any use of his property by refusing to include it in a subdivision , because it lies in a zone that is subject to flooding, would be a confiscation of such property . Indeed, the confiscation would be dramatic in that 21% of the land area of the Town is in such a zone , and certainly much of the Town ' s most valuable shorefront property is located there . I would be pleased to provide the Board, or the Board ' s attorney , with case citations supporting the argument that such a classi- fication would be a confiscation of private property . BUILDING WITHIN AREAS SUBJECT TO FLOODING IS EXPRESSLY PERMITTED BY THE TOWN CODE . Chapter 46 of the Southold Code, entitled "Floodplain Management" provides for permits to build structures within a floodplain . A reading of chapter 46 makes it clear , I submit , that construction is expressly permitted in all floodplain areas of the Town. The Town ' s concern is limited to design or engineering factors, such as first floor elevation and type of construction. li A brief reference to some of the provisions contained in chapter 46 supports this conclusion. For example: -2- Re : Minor Subdivision , Thomas Samuels Orient December 10, 1984 1 ) Section 46-3F provides that one of the purposes of Flood Plain Regulations is to "Help maintain a stable tax base by providing for the sound use and development of areas of _special flood hazard so as to minimize future flood-b fight areas. emphasis added) 2 ) Section 46-12 specficially provides for "develop- ment permits" within the floodplain. 3 ) Section 46-13 gives the building inspector the authority to review application for construction in the flood- plain. 4) Section 46-18A provides the standards for resident- ial construction within the floodplain. I submit , that if the Town ' s policy were to refuse the right to develop any area subject to flooding, there would be no chapter 46 , giving the building inspector authority to issue permits for construction within the various floodplain zones . Another way of stating this , is : if Planning Board was correct in refusing to subdivide lands subject to flooding, there would be no need for chapter 46. It would be superfluous. OPEN SPACE, WHETHER OR NOT BUILDABLE , HAS TO BE INCLUDED IN A LOT FOR DENSITY PURPOSES . Implicit in the Planning Board ' s position is the assumption that only non-restricted, fully-buildable property should be included in lot area for subdivision purposes. The Southold Code , however , does not define "lot" in such a manner . Section A106-13 defines "lot" as follows : "LOT - A portion of a subdivision or other parcel of land intended as a unit for transfer of ownership or for development . " More important than the definition of lot in the Southold Code , is the fact that this issue has been presented to the Courts of the State of New York , and they have uniformly held that land which is not buildable must be included in lot area for determin ing lot size or density. It should be noted, that these cases dealt with land that could not be built upon, whereas the floodplain area , can be built upon simply by compliance with Floodplain Regulations ( See , Southold Code Chapter 46) . -3- Re : Minor Subdivision, Thomas Samuels Orient December 10, 1984 ning of this letter, is the cause of our client ' s dispute with the Planning Board. In my opinion , the proper interpretation of this provision is to limit it to those areas which are actually used for drainage, such as re-charge basins and drainage swales. The reasons for this conclusion are as follows : 1 ) The Southold Code entitles Section A106-36 as " drainage improvements" thereby limiting the subsections to this topic . Stated another way , if the Town Board wanted to exclude all area subject to flooding from residential lots and determin- ations of density , it would not include Subsection C under "drainage improvements" but rather , would place the restriction in its definitions of lots and density . 2 ) Traditionally , those areas of a plat which have been designated for improvements, such as roads or drainage, are not counted as parts of residential lots , nor are they counted for density purposes. Presumably , the drafters of the Town Code had this in mind. 3 ) Though I have not personally examined the files of the Planning Board , I am sure that over the years numerous subdivisions have been approved on land either wholly or par- tially subject to flooding . This indicates that prior Boards construed Subsection C in the same manner as I do. CONCLUSION I respectfully urge the Board , in behalf of our client Thomas Samuels, to change its position in connection with the platting of land within the floodplain. To do otherwise would work substantial damage on our client and others similiarly situated. If the Board wishes any additional information , please do not hesitate to contact me. Re ectfully yours, S eph n" Angel SRA :s Enclosures cc : Thomas Samuels Robert Tasker , Esq . -5- Re : Minor Subdivision, Thomas Samuels Orient December 10 , 1984 Bloom v . Town Board , Oyster Bay 32 N. Y . 2d 930 ( 1973) involved an attempt by the Town to preclude an owner from including 13 acres of severely sloping land for density purposes. The owner wanted to construct multiple residences on his parcel , at a rate of 16 units per acre . The parcel was 28 acres in area, but only 15 acres were flat and buildable . The remaining 10 acres sloped severely , rising approximately 100 feet . The Court of Appeals , the State ' s highest court , reversed the Appellate Division , Second Department , and held that all of the land had to be included for density purposes . The Court of Appeals relied on the dissenting opinion of Justice Munder in the Appellate Division (41 A .D . 2d 533 [2d Dept . 19731 ) . Copies of the opinions issued by the Court of Appeals, and the Appellate Division , are enclosed for your examination. A more recent case , involving land closer to home, was Ashman v . Planning Board, Town of East Hampton, Memorandum Decision , Aspland , J . , October 6 , 1981 , copy enclosed, reversed on other grounds 88 A .D .2d 923 ( 2d Dept . 1982 ) . Here, the Planning Board of the Town of East Hampton attempted to exclude for lot area purposes the land between the high water mark and the dunes (the beach area along the Atlantic Ocean) . The issue was presented to both the Planning Board and the Board of Appeals . These Boards cited as reasons for their determination, the unbuildabilty of the land, the fact that its size and shape change due to shore- line processes, the fact that it is subject to public easements and the fact that the property is susceptible to flooding and erosion . Relying in large part on Bloom v . Town of Oyster Bay , supra, the Court held that beachfront property owned by a developer must be included in the area used for determining lot size. It should be noted that the Appellate Division specif- ically agreed with the Justice in Supreme Court , Suffolk County on this issue . A copy of the Appellate Division ' s opinion is also enclosed . Based upon the opinions cited above , and in light of definition of "lot" used in the subdivision portion of the Southold Code, I submit , that the Board has no other alternative but to include all land owned by an applicant for lot size and density purposes . THE PROPER INTERPRETATION OF SECTION A106-36C IS THAT IT RELATES TO DRAINAGE AREAS NOT LAND SUBJECT TO FLOODING IN GENERAL . Subsection C of A106-36 provides in part that land subject to flooding shall not be platted by the Planning Board for resident- ial purposes . This provision , reproduced in full at the begin- -4- tes : 1/2/79-& 3/29/79 , EM®1� EVDUMaegf77-3440 & 79-857 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I ARTHUR ASHMAN, By GEORGE J• ASPLAN D. S. C. Petitioner, VS. DATEDOCT '619Q1 19 THE PLANNING BOARD OF THE TOWN OF EAST HAMPTON, Respondent. , In the Matter of the Application of ARTHUR ASHMAN, Petitioner, For a Judgment Pursuant to Article 78 of the CPLR va. ELBERT T. EDWARDS# NANCY H. MCCAFFREY, DAVID A. WEBB, JAMES CUOMO$ and KENNETH S. EDWARDS, JR. , Constituting the ZONING BOARD OF APPEALS OF THE TOWN OF EAST HAMPTON, Respondents LEONARD I. ACKERMAN, ESQ. SMITH FINKELSTEIN LUNDBERG & Attorney for Petitioner YAKABOSKI, ESQs. � 34 Pantigo Road Attorneys for Respondent Planning East Hampton, New York 11937 Board 456 Griffing Avenue GEORGE BIONDO, ESQ. P.O. Box 389 Attorney for Respondent Zoning Board Riverhead , New York 11901 Old Montauk Highway Montauk, New York 11954 There are two consolidated Article 78 proceedings before the court. One is to review a denial by the Planning Board of an application for a subdivision waiver, the other to review a determination by the Zoning Board of Appeals which failed to interpret the Town Zoning Ordinance in such a manner as to allow for the inclusion as part of petitioner' s property, suf- ficient square footage to permit a legal subdivision, and rejected a request for a variance permitting the subdivision to consist of sub-standard lots. The last papers submitted herein were received by the court on August 28, 1981 from petitioner. Nothing of an evidentiary nature therein has been considered in the rendering of this decision. __ . _._ PlOL10A6 it/�U i SU3U Ioa:e,i ' ® es • 2/2/79 6 3/29/79 SEMORANDUM de*77-3340 i 79-857 SUPREME COURT, SUFFOLK COUNTY SPECIAL TERM PART I BY GEORGE J•ASPLAN 4. S. C. vs. DAT[D OCT 61381 19 Facts The subject property is situate in Wainscott, a part of the Town of East Hampton, and borders on the Atlantic Ocean. Petitioner's deed reads to the high water line, and his title company insures title thereto, subject to the "right of the public in , to and over the beaches as adjoin the Atlantic Ocean" . There is an 84 ,000 square foot lot area requirement in an "AA" zone, in which petitioner' s property lies, and unless he can count the square feet between a 15 foot high dune and the mean high water mark as drawn by his surveyor, the proposed subdivided lots each fall short of the requisite 84,000 square feet. The distance between the dunes and the high water mark is such as to create an area about double the size of the balance of petitioner' s plot. i The Planning Board's denial was based on its lack of recogni- tion of "private ownership of the beach of the Atlantic Ocean" ; on findings that applicant did not satisfy the 8d 000 square foot r q requirement; and that the property has a long history of erosion. The Zoning Board of Appeals denied the application for an interpretation favorable to petitioner, on these grounds: "a) The land is unbuildable; b) It can not support any type of vegetation; c) Its site and shape are no more predictable than the wind, tide and waves which have created it; 2 - On one *1 /70 a DUJU "*'" " A ,EMORANDUM �e�77/3340 i 79�B579 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I BY GEORGE J• ASPLAUO S C VS DATED OCT 6 1�Q� 19 d) It is subject to public easements; e) It has historically been used by the public as if it were public property; ' f) It provides the community with a place for passage along the ocean, a place for fishermen to engage in work or sport and for families to gather and to enjoy the gifts of their Town's natural beauty, and it serves as the first line of defense against the destructive forces of the Atlantic Ocean: and g) The applicant benefits from each of these uses along with his neighbors and the public, and so he can not claim that this property is rendered useless by the decision to exclude it from minimum lot i area computations. " The foregoing was prefaced by the following statement : "Although thea licant ma own that rtion of lan which es to t o seaward side o t e ve eta- tion linet t at area, commonly known as the beach 07Tie Atlantic Ocean' is of such a unique nature that it can not be included in the meaning of the word ' lot' as used in Section 153-28 of the Zoning Ordinance . . . . (Underscoring supplied. ) i In explanation, the term "vegetation line" (or contour line) is the growth of grass along the dune, and it is the contention of respondents that seaward , beyond such a line, no one can include the area to the ocean itself as square footage to enable the formation of a lot of legal size. It would appear from the quoted preface that the Zoning Board does not dispute ownership to the high water mark as claimed by petitioner, indeed, its formal answer contains this paragraph: ELEVENTH: That petitioner at best has a bare, naked title to the afore-described 'beach' which 3 - WEMORANDUM indea�7 3340 a 79-897+ SUPREME COURT, SUFFOLK COUNTY SPECIAL TERM PART I BY GEORGE J• ASPLA D S. C. VS. DATED OCT i61981 19 petitioner, as fee owner thereof, is permitted to enjoy in the same manner as any other member of the public. " The Planning Board too, holds this view, thus a reading of an affirmation by its counsel, dated March 30, 1977 (Page 2) shows : "Perhaps it was inartful for the respondent to suggest that it does not acknowledge private ownership on the beach below the dunes. " The pertinent Town Ordinance section on the subject of lot area "S 153-28. Minimum lot area [Amended 8-7-591 Minimum lot area (square feet) , minimum lot width at the building line (in feet, being the shortest distance across the lot drawn at the building line) , and maximum coverage of lot requirements are as follows: . (Amended 3-5-761 A. Residence District AA. (1) Residence District AA buildings or structures shall be on lots of eighty-four thousand (84,000) or more square feet having a minimum lot width at the building line of two hundred (200) feet, minimum front yard of fifty (50) feet and minimum w side and rear yards of thirty (30) feet, covering a maximum of ten percent (108) of a lot. [Amended 8-16-63) " On the present lot area are a two story frame dwelling, a pool , tennis court, a small cottage, and a garage. The Board of Appeals in turning down the alternate relief sought, to wit, a variance to permit a subdivision into two lots substandard in area, if 4 - 9EMORANDUM Ide,#77-3340 a 79-857 SUPREME COURT, SUFFOLK COUNTY SPECIAL TERM PART I BY J. S. C. GEORGE J' ASPLAND VS. DATED OCT 6 Iql 19 decided as follows, quoting the essential portions: "If the area variance were granted each resulting lot would lack minimum area by approximately 258 and would be subject to even further dimimution through the natural forces of storm damage and erosion. "Applicant's stated justification for the area variance is that to deny it would result in an undue hardship in that it would render his investment in the accessory cottage lost. The Board notes, however, that applicant requested a variance from this Board on December 30, 1976 to allow him to improve that cottage in order ' to permit temporary use of (this cottage) as living quarters for applicant during construction of the main residence' . Applicant was granted such relief and made full use thereof as requested. The Board, therefore, fails to see applicant's financial hardship, " (Note: The cottage has since been relocated and no variance is sought because of it. ) "Since the variance from area requirements as here presented would require the granting of additional variances for the garage, the tennis court, the pool and the shed, which would otherwise not be necessary and since the applicant has the full use of each of these structures without variances while he owns a single parcel , the Board finds that the variance requested is not the minimum variance necessary for the applicant to accomplish his purpose. "The Board must note, also, that the unusual strength and unanimity of opposition to this application has raised serious questions as to what effect such variances would have on the character of the neigh- borhood and the district as well as whether it might not be detrimental to the public welfare by setting a precedent which would increase the density of the area while at the same time restricting the use of the beach. " I 5 - """ "' !f♦es: 2/2/79 3/29/79 aEMORANDUM Indeef77-3340 s 79-857 SUPREME COURT, SUFFOLK COUNTY SPECIAL TERM PART I BY GEORGE J•ASPLAND s. C. VS. DATED OCT 61981 19 Petitioner's Argument The gist of petitioner' s argument is that a zoning ordinance should be strictly construed in favor of a property owner to allow a reasonable interpretation of a code, citing 440 East 102nd Street Corp, V. Murdock , 285 N.Y. 298 (1941) to the effect that zoning ordinances being in derogation of the common law right to use one's property as one pleases, must be strictly construed against a municipality. In the instant case, the minimum lot area ordinance imposes no special limitation upon water front property respecting the amount of land to be included in a "lot" . Also cited by petitioner is the Court of Appeals case of Bloom V. Town of Oyster Day, 32 N.Y.2d 930, 347 N.Y.S.2d 197 (1973) , which, in reversing the Appellate Division, granted judgment in accordance with the dissenting opinion of Justice Munder, wherein, among other things, this was said: "Non-buildable land may be available for yard 'setbacks or such other open areas as the ordinance may require. The sterilization of almost one half of the total acreage in question borders on an unconstitutional confiscation. 41 AD2d 535. " Sec. 153-33 of the Zoning Ordinance prohibits the erection of any structure within 100 feet from a natural contour line. The non-buildabil- ity of the area between such line (dune) and the high water mark is conceded by petitioner, who nevertheless argues from the Bloom case that mere non- buildability is no reason for excluding such area from the calculation of - 6 - lona FJL i sa3o- `EMORANDUM IndeIM77/3340 6 79-8579 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I BY GEORGEJ• ASPLANt S. C. VS. DATED OCT '61981 19 square footage in a lot. Petitioner's brief cites as follows: . . . in Benedict and N222l� v. Trustees of the Freeholders l an Commonalt of the Town of East ampton an t e Town of EastHampton (Sup Ct, Suf Co, index 11-17�y 22E 1971) affd 40 AD2d 542 (2nd Dept. , 1972) , at issue was the ownership of the beach between the dune and the high water mark of the very land involved in this application. At trial, the Trustees attempted to again litigate the title question and submitted numerous deeds, Trustee Journals dating back to 1772, and the Dongan Patent. Mr. Nagel, the prior owner of the Ashman property, and Mr. Benedict, Nagel' s neighbor, sub- mitted a recorded chain of title dating back to 1868, wherein each deed conveyed title to the high water mark. In its decision , a copy of the pertinent part of which is annexed as Exhibit 'E' , the Court held that Nagel and Benedict owned to the high water mark, the Court noted at Page four of its decision that: Considering the history of plaintiff' s parcels the only conclusion that may properly be drawn is that their title does not stop at the duneut"runs own to the Re-a—cS or to the an s washed y t e sea, and between high- water-mark and low-water-mark. ' (Trustees of the Freeholders and Commonalty of the Town of East Ham torr ' vKirk, NY. 5 9 , 463) Pla nt ffs' title Ts ground in the same history as that of the plaintiff in Geoor ic_a_ Association v. Trustees of t eh Free- o ers an Commons t o t e Town of sat Ham ton N.Y.L.J. , 4 0 6 , P. 4 , Hunder, j.-F, Therein, notwithstanding the absence of express reference to the 'beach' in the original allotment to one Stephen Hand, Mr. Justice Munder 7 - . s: 2/2/79 6 3/29/79 1*MORANDUM In ex.7-3340 6 79-857 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I BY GEORGE J' ASPLAN6' S. C. VS. DATED OCT 61981 19 f found that plaintiff owned to the high water mark. The proofs herein offer no reason for this Court to reach a different conclusion. [emphasis added] . " Respondents' Argument The Planning Board's arguments rely on the susceptibility of he subject area to flooding and erosion, and contend that this is a sufficient reason for denial even if each of the proposed lots were to reach 84 ,000 ;quare feet. Town Law, Sec. 277, cited in part, reads : "where a zoning ordinance has been adopted by the town the plots shown on said plat shall at least comply with the requirements thereofl that the land shown on such plats shall be of such a character that it can be used safely for building purposes without danger to health or peril from fire, flood or other menace. " The Zoning Board of Appeals makes these points: The petitioner must overcome the strong presumption that the 'oard' s determination is corrects the Board' s conclusion had a rational basis in law and facts in the denial of the request to include beach property in its computation, the Board located the boundary of his property for zoning aurposes only, along the crestline of the dune. Continuing, Sec. 153-33c of the Zoning Ordinance gives- the Board authority to fix the mean high water line on a lot fronting on the Atlantic Ocean. Thusf • "The 15' contour line is the elevation measured - 8 - c1wMf%1'%LJuM I7ide 77-3340 i 79-857 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I BY J. S. C. GEORGE J• ASPLAND VS. DATED 19 �• OCT 61981 from mean sea level. In any case where doubt exists as to the 15' contour crestline of the dunes or the mean high water line, the building inspector or the applicant for a building permit may apply to the Zoning Board of Appeals for its determination of the location of said line. " In every single section of the ordinance , which is concerned with ocean front property, the mean high water line is placed at the end of beach grass growth and not at the water' s edge. Secs. 153-33 et seq. The reasonable nature of the subject interpretation is found in the substantial evidence contained in the record demonstrating that this interpretation is consistent with the specific provisions of the ordinance, that it is consistent with the traditional interpretation of "lot area" as made by the Town Board of Assessors , Planning Board and individual members of the community. Court's Determination From New York Jurisprudence 2d "Adjoining Landowners" , Sec. 77: "The term 'high-water mark' as applied to tidal waters, generally means the line marked by the periodical flow of the tide excluding the advance of the water caused by winds, storms and unusual conditions. "Precise location on the ground of the high water line as a boundary may be governed by local surveying practice. " Quoting from Dolphin Lane Assoc. Ltd. v. Town of Southampton, r 72 Misc. 2d 868, 339 N.Y.S.2d 9661 Justice Geiler: 9 - . . ;� a.o Rrimv 7vaW F0061 i" +'9EMORANDUM Ind*#77/3340 6 79-8579 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I By GEORGE J• ASPLAN,g S. C. DATED OCT 61981 V8. 19 'How is the high water mark determined? The United States Supreme Court in the case of Borax Consolidated, Ltd, v. Los Angeles, 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9, stated that the proper determination of the location of a high water line at any given time involves the consideration of all the high waters at a particular place over a Considerable period of time and that, under sound astronomical theory, the period considered should cover the past 18. 6 years. In other words, the average high water line is obtained by taking the mean of all of the high tides over a reasonable period of time. This standard for determining the location of the high water line is also used in the State of New York (Board of Education. of Union Free School District V. Nyquist , 51 Misc. 2d 902, 274 N.Y.S. 2d 229; Wood v. Maitland, 169 Misc. 484 , 8 N.Y.S. 2d 146, modified and aff'd. 259 App.Div. 796, 19 N.Y.S.2d 320) . " It is the fact that the above-cited case, affirmed by the Ap- pellate Division, was modified by the Court of Appeals , 37 A.D. 2d 292 , 296, 372 N.Y.S.2d 52. The modification consisted in rejecting the determination of the location of the high water mark along the southern shore of Shinnecock Bay by reference to the type-of-grass test introduced by the Town. The Court of Appeals found that prior to the litigation, it had been the normal practice to locate the high water line by reference to a line of vegetation. In other words, the establishment of a high water line by reference to a type of grass test rather than by the traditional line of vegetation test was rejected by the Court. In the instant case, there has been no evidence 'produced, other than the mere statement thereof, as to the practice of establishing the high 10 ies: 1/2/79 i 3/29%79 F°"" "" UFMQRANDUM I`�de;V77-3340 & 79-857 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I BY GEORGE Y ASPLA D VS. DATED OCT 81981 19 water mark at a vegetation or contour line. In fact, there is no showing of a settled vegetation line on the subject property. At the hearing before the Zoning Board, member McCaffrey, who had viewed the property, made the following statement : "MEMBER NANCY H. McCAFFREY: Just to review the location, this property is located on the east side of Beach Lane, Wainscott, right on the Ocean. It suffered some severe erosion two to three years 'ago and since that time the property has changed hands. Part of a dune area has been built up inside the (indecipherable) with beach grass planted on it. A new home has been built to replace the old one. It had to be removed. The fill that was placed to build up this dune is also being used to build up a driving area, and also under the pilings , which the new house is built upon. " Several prior deeds to the property, in evidence , show the distance from the northerly or street side of petitioner's property to run about 481 feet to the high water mark. The deed to petitioner reads 551. 96 feet, this, presumably because of the change in the mean high water mark in a seaward direction. The survey before the court, revised October 17, 1978 , reveals a series of mean high water marks since 1930, with the mean of all high water marks being that of December 12, 1945. It is of interest to note that petitioner took title in November, 1976 and the mean high water marks as of September 27, 1976 and November 9, 1978 extend even further seaward than the 1945 line. - 11 - ons 91740 i 5070 Ioer *u • e 2/2/79 6 3/29/79 40EMORAN DU M Ind of -3340 i 79-857 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I BY GEORGE J• ASPLAND. S. C. ` vs. DATED OCT 61981 19 Of note at this point is the following excerpt from Wood v. Maitland et al. , 169 Misc. 484, 8 N.Y.S.2d 146 , 151 , which quotes Coulson i Forbes on The Law of Waters: "The sea shore may be defined as that portion of the land adjacent to the sea which is alternately covered and left dry by the ordinary flux and reflux of the tides. . Although, in common parlance, the word 'shore' has often a more extensive meaning--taking in all that extensive belt of waste ground or strand, shingles and rock liable to the action of every kind of tide--yet it is now finally settled, that in legal intendment no more of that unclaimed tract is sea shore than that portion which lies between high and low water mark at ordinary tides. This point has been finally settled by the case of Attorney-General v. Chambers, (4 De G. , M. 6 G. 206) 0 in which the Lord Chancellor Cranworth, * * * held that the sea shore landwards is, in the absence of particular usage, prima facie limited by the line of the medium high tide between the spring tides and the neap tides; or , in other words, that part of the shore which for four days in every week, or for the most part of the year , is reached and covered by the tides. As this line will vary as the sea recedes from or en- croaches on the land, so the boundaries of the shore will vary with the recession or encroach- ments of the sea. Land above this line , though overflowed by high 'spring and extraordinary tides, is not shore, but is presumed to be land the property of adjoining owners. " Coulson i Forbes on The Law of Waters (3d Ed. ) , page 21. In keeping with the standard set in the above cited cases, and from a study of the survey filed, a fair approximation of pet'itioner's high water mark would appear to be that of December 12 , 1945, and would afford 12 - es 2/2/79 6 3/29/79 ►' Fro1.►++ , &MORANDUM Inde 7-3340 6 79-857 SUPREME COURT, SUFFOLK COUNTY SPECIAL TERM PART I Sy GEORGE J• ASPLANDj, S. C. VS. DATED 19 c F petitioner the requisite square footage to constitute two legal sized lots upon subdivision of his present lot. Petitioner makes no claim of intent or right to build or exert exclusive domain .over the beach property in question. As seen, one section of the ordinance would prohibit such construction , and respondents aver that the area is subject to public easements. Any infraction by petitioner would presumably prompt appropriate Town action. Earlier in these proceedings, before consolidation, the Planning Board, in the proceeding against it, had moved to dismiss. The motion was denied by Justice McInerney on "points of law" , which points were required to be resolved. These are: (The answers to them, as found by the court, follow each 'point' question) . 1. Did the zoning ordinance establish a southern-most developmental boundary as the 15-foot contour line and require any house to be set back one hundred feet therefrom? Yes. 2. Must all lots comply with the lot requirements of the residential AA zone if they are situated in this zone? Yes. 3. Does the proposed two-lot subdivision comply with these requirements of the zoning ordinance? Yes. 4. Does the zoning ordinance require the Board to treat the beach and area between the 15-foot contour line and high-water mark of the Atlantic Ocean in a different category than the upland lying to the north of the 15-foot contour? Yes, but only to the extent of limiting any construction - 13 - io s #1740 i 5050 ioAr as • e� 2/2/79 6 3/29/79 *EMORANDUM Index #77-3340 6 79-657 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I DYMPd - ASPLANCb. s. C. VS. DATED OCT 61901 19 M thereon. S. Should the Board consider suitability of the parcel for subdivision in view of the inroad of the ocean on the sand beach and possible extensive damages caused by this to houses in the area? Yes. Nothing is found in the Ordinance which would prevent petitioner from including all of the property down to the high water mark. Nowhere in the Code is there any limitation on the inclusion of beach property in counting area square footage. The use of the terms "sand dunes" , "beach grass" , "natural contour line" are not used in the sense of confining extent of ownership but rather of restricting development. The point is made by petitioner that zoning ordinances are to be strictly construed and is considered well taken. Neither respondent contests that title was to the high water mark. Although respondents rely on the assertion that historically, the Town Trustees retained ownership rights over the beach and that for centuries the established highwater mark was at the southerly dune or beach grass line, cliff, bank edge or limit of arable land, this has not been sustained by adequate proof. What may have been a dune site or vegetation line in years past has been changed by the inroads and withdrawals of the sea in its capricious actions. There is no evidence as to a stable dune site nor i vegetation line in the record here. The survey of George H. Walbridge Co. 14 - FORM 0419 e 2/2/79 i 3/29J79 IEM®RANDUM d #77-3340 i 79-857 DUPREME COURT. SUFFOLK C UNTY SPECIAL TERM PART I Br GEORGE J' ASPLAND J. S. C. VS DATED 19 of East Hampton, revised October 17, 1978, which is not refuted by testimony or other evidence, shows nine different mean highwater marks from December 17, 1930 through November 9, 1978, two different dune sites, one in October, 1976, the other November, 1978, and three different beach grass lines. What petitioner is proposing here , is not seen as a threat to community values. Two lots would be created where one existed before, each of permissible size. If it is considered objectionable to form two lesser lots out of a greater one, the Zoning Ordinance should have initially provided against any lots of less than twice 84 ,000 square feet in an area, or specifically proscribed inclusion of "beach" area in the calculation of lot square footage. The Bloom case, cited hereinbefore , is compelling on the point that land, although unbuildable , must be included in the calculation of the entire parcel size. Sec. 277 of the Town Law which requires that a lot "shall be of such a character that it can be used safely for building purposes without damage to health or peril from fire, flood or other menace" is not seen as applicable. That section clearly refers to building purposes. The claim of respondents that the subject beach is susceptible to flooding and erosion, is therefore without relevance. Turning to the variance request, the court noteg that the cot- tage has been moved to a different location and no variance is necessary as 15 - rr tions 91740 i 5050 • MEMORANDUM dW #77-3340 6 79-8579 'Y a SUPREME COURT. SUFFOLK COUNTY SPECVL TERM PART I Br 'W0RGEJ•ASP1_A1W S. C. VS. DATED 19 to it, leaving only the tennis court and frame shed as subjects for a variance from side and rear yard set back requirements. The court fails to see that petitioner encounters such a "practical difficulty" as precedents have consistently required, to justify the granting of the variances sought. Significant economic injury has not been shown. Fulling v. Palumbo, 21 N.Y. 2d 30, 33 , 286 N.Y.S. 2d 249, 252. Also, there is no question that petitioner would not now be in need of a variance but for his deaire for a subdivision. From Anderson, "New York Zoning Law and Practice" , second edition, Sec. 18. 43s "As it is applied in the cases just reviewed, and in other recent litigation, the self-created hardship is not applied as a flat bar to relief, but a factor to be considered by the board of zoning appeals and the courts. It is clear that where the practical difficulties asserted by the applicant are self-created, the rule of Fulling v. Palumbo does not mandate relief, even where there is proof of substantial economic injury. An area variance may be denied on the ground of self-created hardship, provided such denial is not arbitrary and capricious. Even where the self-created hardship applies, it is regarded as a factor to be considered in determining whether or not to grant relief, but not the sole factor to be so considered. " As to the subdivision proposed, the actions of the Boards are seen as arbitrary, would deprive petitioner of a use of his property .unjustifiably, and amount, in the words of the Bloom case, t6 a confiscation. This matter is remitted to the Planning Board with the direction 16 - Y MEMORANDUM f*t77-3340 i 79-857 f5UP9EME COURT. SUFFOLK COUNTY SPECIAL TERM PART I Br GEORGE J• ASPLANO. S. C. VS DATED OCT '61981 19 • I that it grant the application for subdivision and to the Zoning Board of Appeals to interpret the Zoning Ordinance in such a way as to permit the subdivision requested, but the latter' s denial of the variance as to the tennis court and frame shed is confirmed. Settle judgment. J. S. C. 17 - MEMORANDA, Ond Dept., June, 1982 923 ,1 Subsequently, the People moved pursuant to CPL 440.40 to set aside the defendant's sentence.The court denied the motion and we affirm that determi- nation. CPL 440.40(subd 3( provides that the court may deny a motion to set aside a sentence when the ground or issue raised was previously determined on i j the merits. Such was the case herein. Accordingly, under the circumstances rt's denial of the motion to set aside the sentence was here presented, the cou not an improvident exercise of discretion.(See People v Askew, 66 AD2d 710.) ^!) - In view of the foregoing, we need not reach the question of whether the �,• defendant could properly have been sentenced as a second violent felony offender. Titans, J.P., Lazer, Brown and Niehoff, JJ., concur. It 41 THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v NF-FI'AL1 LOVER- t aNA,Appellant. —Judgment of the Supreme Court,Queens County Dunkin, S •J.),rendered May 12, 1981, affirmed. No opinion. This case is remitted to the f Supreme Court, Queens County, for further proceedings pursuant to CPL t 460.50 (subd 5). Lazer, J. P., Thompson, Bracken and Rubin, JJ., concur. ) i ) f (June 7, 1982) g Is 1 ART-TEX PETROLEUM, INC., Appellant, v EXXON CORPORATION, Re5p011- if dent. — Order of the Supreme Court, Dutchess County (Jiudice, J.(, dated h # December 3, 1981, affirmed, with $50 costs and disbursements. (See Bnrouh y Eaton Allen Corp. v International Business Machs. Corp., 76 AD2d 871) =• )dollen, P.J., Thompson, Bracken and Brown, JJ., concur. I n +F r J ARTHUR ASHMAN, Respondent, V PLANNING BOARD OF THE 'PUw'N OF EAST le HAMPrON, Appellant. (Proceeding No. 1.) In the Matter of ARTuuit AsuMAN, ,n Respondent,v ELBERT T. EDWARDS et al.,Appellants. (Proceeding No. 2.) In Id consolidated proceedings pursuant to CPLR article 78 to review(1( a determi- A nation of the Planning Board of the Town of East Hampton,dated J anuary 26, d 1977,which denied petitioner's application for"subdivision waiver and (2) a nt determination of the Zoning Board of Appeals of the Town of Fast. Hampton, al dated December 5, 1978,which,after a hearing,denied petitioner's application 1e (s)for certain variances and(b)to interpret the applicable zoning ordinance to permit petitioner's subdivision, the appeal, as limited by appellant; brief, is from so much of a judgment of the Supreme Court, Suffolk County (Aspland, .N, J.),dated November 12, 1981,as 111 remitted the matter to the planning board i rt, with a direction that it grant the application for subdivision of petitioner's Ar premises, and (2) remitted the matter to the zoning board of appeals to lid - interpret the zoning ordinance so as to permit the subdivision requested. 1 Ity, Judgment reversed insofar as appealed from, on the law, without costs or - .1st disbursements, and the respective matters are remitted to the planning board of and the zoning board of appeals for further consideration in accordance Lha herewith. We agree with Special Term that the beach area in question should the have been part of the land measured to determine the lot area of petitioner's ;1 'af• property (see Bloom u Town Bd.of Town of Oysler Buy. 32 NY2d 930, revg 41 ant AD2d 533 upon the dissenting memorandum of Justice Hunter( However, we F #� ent i are of the opinion that the remittitur to the respective boards wit h it da ectiou, I ony• ;, inter alia, that petitioner's application be granted, was improper While we a ing find the appellants' interpretation of the zoning ordinance to be arbitrary and "s did ,> capricious in excluding the beach area from the calculation of the lot area of *) - ng., petitioner's property, we also believe that there were other pertinent )natters r. f It 924 88 APPELLATE DIVISION REPOP I'S. 2d SERIES concerning conservation and approval of other agencies properly considered by c appellants which need to be reconsidered in lighi of S)ecial Term's decision f on calculating the area.if the petitioner's recalculated lot area can prima facie meet the standards to permit subdivision,the appellant boards might consider b (without limitation intended) whether other health, safety and conservation I factors would permit subdivision at this juncture or whether petitioner should ) (1)be required to submit more detailed proof on such matters or(2)be required , f to obtain approval from the Department of Environmental Conservation and t t the Suffolk County Planning Commission. Petitioner cages this court to affirm t Special Term's direction that his application be granted,yet he also states in i his brief his willingness to obtain approval from these two agencies should the c planning board so require. Petitioner's position is armunalous and suggests that he knew that Special Term's directive was erroneous. Weinstein,J.P.,O'Con- nor, Thompson and Boyers, JJ., concur. t 3 CITY OF NEW YORK,Appellant,v UNSAFE BUII.m NGS,ROSE-POLLY PROPER' ! TIES, INC., et al., Respondents-Respondents, et al., Respondent. — In proceed- ings pursuant to section C26.82.0 of the Admini;lrative Code of the City of New York for the issuance of a precept directing that the Queens Borough t Superintendent of Buildings abate the unsafe and dangerous conditions exist• ing on certain premises by demolition of the structures thereon, the appeals f t are from two orders of the Supreme Court, Queens County (Giaccio,J.),dated February 5, 1981 and September 14, 1981, respectively, the first of which I adhered to the court's original decision dismissing the proceeding, upon j certain conditions, and the second of which again denied petitioner's requed for the same relief. Order dated February 5, 1981, reversed, on the law; without costs or disbursements, petition granted and matter remitted.to, Special Term for the issuance,forthwith,of a precept pursuant to section C* " 1 82.0 of the Administrative Code of the City of New York. Appeal from o c dated September 14, 1981,dismissed,without costs or disbursements,in li e of the determination on the appeal from the order dated February 5, 1981. this record we conclude that the subject structures and premises are structdc I ally unsafe,dangerous and a fire hazard.Accordingly,the petition should hath' been granted. Titone, J.P., Lazer, Niehoff and Rubin, JJ., concur. 4 COUNTY OF ROCKLAND, Respondent, V CIVIL SERVICE EbPLUYERa 1•� r 1 TION, Appellant, et al., Defendants. — In an action, inter alfa, to If[ defendants from engaging in a strike, the defendant Civil Service Empl m Association,Inc.,appeals,as limited by its brief,froso much of an order judgment (one paper) of the Supreme Court, Rockland County (Stolarik, j d:. entered January 20, 1982 as, after a nogjury trial, held it in contempt,, t failing to obey temporary restraining orders dated December 27, 1977. I December 29, 1977. Order and judgment affirmed insofar as appealed without costs or disbursements.This court has previously held that"[t]he Ci f Service Employees Association,Inc.(CSEA,Inc.)is liable for the actions Rockland County unit on an agency theory"(County of Rockland u Ciuil I Employees Assn., 74 AD2d 631, mot for Iv to app dsmd 50 NY2d t Accordingly, the law of the case is that CSEA, Inc., cannot be absoly responsibility for the acts of the Rockland County unit.Inasmuch as there is r question that the latter participated in the strike, the former was p I found to be guilty of criminal contempt,regardless of its actual participatiok the strike. Furthermore, the record establishes that the orders to show,ca i containing the temporary restraining order were served on agents oCC Inc.,as well as the Rockland County unit. Finally,the testimony and evid I at trial demonstrate that"the impact of the strike on the public health,saf r and welfare of the community" (Judiciary Law, 0 7.51, subd 2, par[a1,d(ii c'. , t , 930 32 NEW YOH:5 W TOR S. 2d S;.:J :S ' The order of the Appc:]ludo llIvi�ion sho;ild Le affirmed. Chief Judge FULD and Judges 131TT1E:o, Jw:u,,s and WAcaTLim concur; Judge GARn1E1.1d di,seuts and votes to affirm in a sepa- rate opinion in which Judge- Brit is and JA.",F V concur. Order reversed and the orders of the County Court reinstated in a memorandum. FRANR BLOOM et al., Responderd!;, r. Tows I Whl) OF ME TowN � of OYSTER BAY, Appellant, and ROBERT LIEBOWITZ et any Intervenors-Appellants. g Argued April 30, 1973; decided Jnue 7, 1973. i Municipal corporations—zoning--in action for judgment declaring invalid rezoning resolution which reclassilled site of mined-rut sand pit from light industry district to apartment house district, Special Torm dismissed action as to some plaintiffs, for lack of standing, continued it as to others, and declared that resolution was invalidly enacted, for failure to comply with provision in zoning ordinance requiring prior approval of sewage disposal system by town engineer, and that, in calculating allowable density of 16 dwelling units per ace, lot area should include only portion of lot upon which structure might be located—order of Appellate Division which affirmed Judgment of Special Term reversed,on dissenting opinion at Appellate Division, y` t and judgment granted declaring resolation valid in accordance with conditions and distinctions contained therein. Bloom v. Town Bd. of Town of Oyster Bay, 41 A D 2d 533, reversed. APPEAL from an order of the Appellate Division of the r^ Supreme Court in the Second Judicial Department, entered January 8, 1973, which, by a divided court, affirmed, insofar as s appealed from, a judgment of the Supreme Court, entered in Nassau County upon a decision of the court at a Special Term I (STEVEN B. DEROUNIAN, J.), (1) dismissing, the above-entitled i action, for a judgment declaring invalid a rezoning resolution 41 adopted by defendant Town Board of the Town of Oyster Bay, insofar as it was brought by residents of the Incorporated Village of Upper Brookville, for lack of standing, (2) continuing it as to those plaintiffs who were residents of the town outside the limits of said village, and (3) declaring (a) that the resolu- tion, which reclassified certain property from " II ^ light industry district to 1 -1a apartment house distric y was invalidly enacted, for the reasons that section E-15 of the town's q, Building Zone Ordinance (ordinance) were not complied with J. • MEMORANDA • 931 ed• in the enactment thereof and that the 356 dwelling units approved AOHxf.ER by the resolution exceeded the maximum of 240 units permitted �I a sepa- under the ordinance and (b) that, in calculating the density requirement of section E-9 of the ordinance with respect to the subject property, the lot area should include only that portion instated of the lot upon which a structure might be located. The subject property, a mined-out sand pit located on the west side of Route 106 in the town,but outside the limits of the incorporated village, E Towx consisted of 28 acres, including 15 acres of fiat land, at the et al., grade of Route 106,surrounded by 13 acres of sloping land rising for a distance of about 100 feet to the level of lands which were zoned residential. A storm water recharge basin and a shopping center were located across Route 106 from it. Special Term s invalid found that those plaintiffs who owned residences in the town -oiA light but outside the limits of the incorporated village were aggrieved irs, annd by the rezoning of the subject property and had standing to ply with maintain the action, since they lived in close proximity to the disposal property and the proposed use of it would result in population ,y of 16 density and noise and would generate substantially more traffic �Ioa upon affirmed on Route 106,producing air pollution, offensive odors and danger i.Division, to children; that the record was all but devoid of evidence of )aditiona compliance with section E-15 of the ordinance, which precluded classification of property as " E-1 " apartment house district "until after evidence satisfactory to the Town Board demon- strates that the system of sewage disposal for such apartment of the house has received the prior approval of the Town Engineer ntered who, on the basis of a deposition made by him, had only vague ,far as y' recollections of having made any detailed analysis of the pro- red in posed sewage disposal system or having discussed it with the Term a Town Board; that section E-9 of the ordinance, providing that ntitled i " In ' E-1 ' Apartment House District, the maximum number elution j: of dwelling units shall not exceed 16 per acre " should be inter- r Bay, preted to limit the unit density of apartments to 16 per usable orated or buildable acre, and that only the 15-acre flat portion of the inuing subject property could be utilized. The dissenting Justice at utside the Appellate Division stated, inter glia, that he would affirm esolu- the finding as to the present plaintiffs' standing; that, while he light disagreed with the finding as to the lack of standing of abutting € was owners who were residents of the incorporated village, the own's �P matter was moot since they had not appealed; that, going to the 1 with merits, apart from the fact that there was no proof of nonutility I e H d, 932 32 NEW YORK REPORTS, 2d SERIES of the slope area,and conceding that building on the slopes would t be impractical and uneconomic, he did not believe that the slope area had to be eliminated from consideration, and a provision f in the ordinance limiting " the total building area " to 20% of " the total lot area " in an " E-1 " apartment house district i f suggested to the contrary; that the sterilization of almost one ihalf of the total acreage in question bordered on an uncon- stitutional confiscation; that, as to compliance with section E-15 I) of the ordinance, in contrast to the uncertainty of the town engineer, who was ill and distressed at the time of his examina- tion, there was unequivocal testimony by two councilmen, both attorneys, as to the Town Board's having received his oral approval of the sewage disposal system and having been satisfied with it, and that, since a legislative act was being reviewed, since the amendment was an upzoning, and since the legislative body had complied with statutory requirements, the amendment ishould be upheld. John M. Conroy, Town Attorney (Charles F. Lynch of 6 counsel), for appellant. F George C. Pratt for intervenors-appellants. William R. Cotter for respondents. `a Order reversed, without costs, on the dissenting opinion at the Appellate Division and judgment granted to appellants declaring valid the rezoning resolution in question in accordance with the conditions and distinctions contained therein. Concur: Chief Judge FuLo and Judges BURHE, GABRnum, JoxEs and WACIITLEE. Judge JASEx dissents and votes to affirm in the following opinion in which Judge BEECTEL concurs. JASEx, J. (dissenting). I agree with the majority that Special Term's construction of the phrase " lot area ", excluding as it t did the 13 acres of sloping land, was erroneous. However, I would otherwise affirm the order of the Appellate Division. In the posture that this case comes to us, the issue of whether the intervenors' property was validly reclassified is essentially factual and nonreviewable in this court. The applicable section ` of the zoning ordinance requires that before the Town Board act, the town engineer approve the proposed sewage system and the evidence of this approval be satisfactory to the Town Board. Whether that approval had been obtained and whether MEMORANDA 933 i would the Town Board was satisfied with the evidence of that approval e slope were questions of fact. As the evidence of the occurrence of ovision these necessary preconditions to the Town Board's power to act u 2070 was conflicting, the courts below had the power to resolve the district issues of fact and these affirmed findings are binding on this ,st one court. ancon- Al E-15 Order reversed, etc. i e town amina- In the Matter of DIANE BEAM et al., Appellants, v. ADELE LEDN- ! n, both Ann, as Executive Directrix of the Nassau County Civil Service is oral Commission, et al., Respondents. atisfied Submitted April 30, 1973; decided June 7, 1973. d, since e body civil service—promotion examinations—policewomen sought to annul pro- motion examinations for Police Sergeant,who supervised patrolmen,and Police- r idment wtsuan gerge&nR who supervised policewomen, alleging that requirement of four years of service as patrolman for Police Sergeant examination was not ;tela of bona Me qualification but was established arbitrarily and capriciously, that only basis for giving separate examinations for Police Sergeant and Police- woun Sergeant was differences of sexes, and that, accordingly, giving of separate tests was unconstitutionally discriminatory—dismissal of their peti- tion was properly affirmed—memorandum by court. tion at Natter of Berni V. Leonard,40 A D 2d 701, atTinned. ellants AppuL from an order of the Appellate Division of the Supreme .dance Court in the Second Judicial Department, entered October 24, 1972, which, by a divided court, affirmed a judgment of the affirm Supreme Court at Special Term (BEaTRANf IIARNETT, J.; opn. affixm,LLT69 Mise 2d 935), entered in Nassau County in a proceeding pur- suant to CPLR article 78, denying an application and dismiss- ing a petition to annul promotion examinations held on April Special 29, 1972 for the positions of Police Sergeant and Policewoman X as it Sergeant in the Police Department of tile. County of Nassau, :ver, I upon the ground that petitioners, policewomen in that depart- m. In ment, were deprived of their right to take the examination for ser the Police Sergeant and relegated to taking that for Policewoman ntially Sergeant solely because of their sex. A Police Sergeant's duties ection consisted of supervising the activities of patrolmen and per- Board forming related duties as required, and candidates for that system position were required to have four years of service as a patrol- Town man. A Policewoman Sergeant's duties consisted of super- hether vising the activities of policewomen and performing related yu yr MEMORANDA, Second Dept., January, 1973 533 these five Realist10ally, this meant that, contrary to former law • • • calendar con- relators gestion, lack of facilities and virtually any other factor rendering it physically ' they are impossible to dispose of trial calendars within the prescribed periods consti- that the , tuted no excuse for the industrious metropolitan prosecutor ready to go to 'tors are 7 trial but unable to do so through circumstances beyond his control." CPL _ rsnant to 30.90 (subd. b) represents a clear legislative disapproval of the intended effect that in ( of the promulgated rules and, in our opinion, left intact the prior decisional atter the the prosecutor and occurred for reasons beyond his colaw that good cause for delay existed when the delay was not "chargeable to the court ntrol or the 2e y. control of the court" (people v. Geed, 27 N Y 2d 418, 423, cert. den. 402 County. 1J. 6. 924; see, also, People V. Minicone, 28 N Y 2d 279, 281, cert. den. 404 iefendant U. S. 863). Accordingly, the relators are not entitled to release under CPL in rete- 30.30 and their writs should be dismissed. This interpretation of section 30.30 :: criminaldoes not mean, however, that the District Attorney's office controls y is the eom- "on of the 6 h e Read Calendar or the m such con- P� y movement of the cases a sarin on - PP g BO da A' it. The power to regulate the order of its business or its calendar practice actiee days P a felony. € u m the court (Matter of McDonald v. Goldstein, 273 App. Div. 849), Rabin, 1 y e period P. J.,Hopkins, Mender, Martuecello and Latham, JJ., concur. r_ P _ 1 periods i ' contend as churl X72 there (January 8, 1973) ' ' r assign- 1 FRAxx Bwosr at al., Respondents, v. Towx BoAno or Taa Towx m c months OYssaa BAY, Appellant, and Ronswr Lixeowtzz at al., Intervenors-Defendants- ing trial i Appellants,In an action for a declaratory judgment, defendant and inter- ovember, venorsdefeadants appeal from so much of a judgment of the Supreme Court, ats grew Nassau County, entered June 20, 1972, as adjudged (1) that a zoning resole- I. number tion of the Town of Oyster Bay reclassifying certain real property from . Supreme H-Industrial to E-1 Apartment House is invalid and (2) that, in calculating existence the density requirement under the Oyster Bay Building Zone Ordinance with e Legis respect to said property, the lot area should only include the buildable por- 1 "excep. tion of a lot. Judgment affirmed insofar as appealed from, with one bill of cation is costs jointly against appellants appearing separately. No opinion. Rabin, People P. J., Martuacello, Latham and Shapiro, JJ., concur; Munder, J., dissents and res that votes to reverse the judgment insofar as appealed from and to declare the pie were zoning resolution valid, wits the following memorandum: This case presents ution in an example of the not unique dilemma of what to do with the site of an s inaeffi- exhausted sand pit. Typical of sand and gravel mines on Long Island, this — correct one has cut into a hillside, leaving precipitous elopes on the perimeters other section than the valley on which an abutting road exists. Fortunately, the floor of ,fter the the mine remained at the level of that road. The site in question is a 28-acre a Trial parcel of land, with a flat area of 15 acres surrounded by three slopes rising of. We to a height of 100 feet. The bases of the slopes, presumably determined by of the the sharpest angle of repose, occupy 13 acres of the total area. The owner Judicial seeks to get the maximum we of the entire area. The neighbors would prefer ,3erseded the minimum use. The governing authority must, and apparently in this case .1-29.7), did, elect to balance theme interests. Plaintiffs reside in a single-family regi- mentary dential development which is south and east of the subject property. The sub- '., Book jest property is on the west side of New York State Route 106, at this point Lae of a a three-lane highway and the principal north-south route from Oyster Bay to 7s after Hicksville. Directly across Route 106 from the subject property is a large the gen- sump or recharge basin. North of the sump and on the same side of Route ISI r under 108 is a shopping center, some of which is opposite part of the road frontage t either. K, M k F" 534 41 APPEU ATE DIVISION FMORTS, 2d SERIFS �a of the subject property. The development in which plaintiffs live is built on 10,000 square-foot plots None of the plots which abut the easterly side of Route 106 front on the State highway, access thereto from the plots being by an intersecting road several hundred yards south of the subject property. In 6. this action for a declaratory judgment, Special Term found that on a prior '• appeal in this litigation we determined'that some of the plaintiffs were proper parties (see djamian v. Town Bd. of Oyster Bay, 38 A D 2d 551). Special Term then found the enacted amendment to the zoning ordinance, changing the classification of the parcel here involved from H-Industrial to E-1 Apart- ment House, invalid for two reasons:. (1) the legislation lacked the prior approval of the Town Engineer as requimi by section E-15 of article VII-A of the Building Zone Ordinance of the Town of Oyster Bay and (2) the r approval for 356 dwelling unite exceeded the allowable 16 units per acre under section E-9a of article VII-A of the ordinance, since the area covered by the elopes was unbuildable in a practical sense and that area must be excluded from "lot area" as defined in the ordinance. As to the standing of plaintiffs, I would first observe that we did not, in our prior determination, do more than recommend to plaintiffs that they plead in more exact terms their as aggrieved parties (6jamian v. Town Bd. of Oyster Bay, sspro). of course, we were also telling them to support the pleadings with proof, proof in the present record on the issue of status or standing is far overwhelming. Plaintiffs offered no proof of pecuniary damage and the in venorsowners' expert testified that, in fact, the rezoning from Industrial to — Apartment House use would increase the value of the surrounding property. I do not feel,however, that pecuniary damage is the sine "a non for standing. As indicated in Blumberg v. City of Yonkers (21 A D 2d 886, affd. 16 N T _ 2d 791), the right of a litigant to maintain an action for a'declaratory judg- went declaring the invalidity of a zoning ordinance, or an;iiiendment thereof, is based on the same criteria for the institution of a 'under article dzd 78 of the CPLR to review the determination of an native bods grant- ing a variance. In other words, the litigant need only showthat somehow he or his property is especially..aaRseted",sot "s g6+m•w w 1 or has a0ff![ed "special damage" (sea Schapiro.V. rb" of North Hsitfifeaa, 36 A D 2d 596; Daum v. Meade, 35 A D 9d,6881•Marcus v. Villavelof'Yamareaeeh, 283 N. Y. 326). At bar, thele was some ehowtng that the zoning ebamp would bring an increase in traffio and its deleterious side effeeta:'Thrd, though not for the reason that we previously'rftmed'plaintW req*dia stalks,I would affirm the finding of stauding'sa+to; plahltiffs. I note,ttoo, that 96"rar of the original plaintiffs were held to.be without stand{ng.LVjj 8%is"_ Teem on the ground they were residents of an'adjoloing village au�e`oeld'ii in Bend on a zoning matter beyond their eurportbe boundaries I agiagree 113 seems to ' As that abutting owners'are esp ciaft'affected and akbild s"v rttift to test the validity of rezoning legislation notwithstanding brat their lot lines farm part of the boundary between two mrmikipalities and theiliie'iii an adjoiaiag village (see Matter of Town of Ben *M b. .Valage of Mi.'Hisco,`40 A D 21 979; Township of River Vale V. Totmi'of Orangetown, 408 P. 2d 684).' How- ever, I think the standing of the eirdidsd plaintiffs abouMIIm-rd►iewed in a proper case. Htre, they.have:not'ippislea, so the matter it mdot,' (ioing'to the menta, I eannot agree with the raoWeHte interpretation'Oval`:by'Spodmw " Term to the ordinance',defindtton'of="lot'eiea", which resp i. 'LOT AREA is the area of a lot on which a bullding s" Its accessories inify bd Ubated, exdu`- sive of land in the bed of any streetOtIA I, § 8). "Holding"that the am occupied by the slopes is not Lvtfleble''foVbullding, 'the'J6twt multip8ed the ' allowable 16 units per acre by tiaa•number of buildable''tiidea"end found a MEMORANDA, Second Dept., January, 1973 535 1 maximum of 240 unite permissible. Therefore the town's authorization of 368 dwelling units was illegal. Apart from the fact that there was no proof Of nonutility of the slope area and that modern technology indicates the con trary, and conceding that building on-the send slopes would be impractical and uneeonomie, I do not believe that the slope area must be eliminated from ooneideration. The ordinance itself suggests the contrary when it provides that "the total Imilding ares shall not exceed twenty (20) percent of the total lot area" in an E-1 Apartment House District (g E-0). There is nothing i6 the ordinance which requires that the 80% remaining must be buildable. Non- &' buildable land may be available for yard setbacks or such other open areas as the ordinance may require. The sterilization of almost one half of the total acreage in question borders on an unconstitutional confiscation. I am troubled with the remaining question of whether there was compliance with session E-15 of the ordinance, which provides that no property shall be claeei- fled E-1 Apartment House District "until after evidence satisfactory cl the u Town Board demonstrates that the system of sewage disposal for such apart= mint house has received the prior approval of the Town Engineer." It is ri suggested by the intervenors that since the State has pre-empted the field of regulation of sewage disposal systems for apartment houses, the ordinance t provision requiring the prior approval of the Town Engineer is no longer j useful or vital to an ordinance amendment establishing an Apartment HouseY District The Town Attorney takes the position that section E-15 has vitality and its requirements must be met. With this latter view I agree. At the trial, a deposition of the Town Engineer was received in evidence. From that, the court concluded that the provisions of section E-15 were not complied with. 1 This witness, who had left the position of Town Engineer only days after the q ' questioned enactment, was not before the trial court. In reaching its conclu- sion Special Term relied upon portions of the engineer's testimony in which he indicated that he did not discuss the sewage disposal system with the Town Board before the hearing and that he did not tell them whether or not he , approved it. My own reeding of the engineer's testimony discloses that he was vague and unsure about the matter. He remembered discussing the sewage " disposal question in one of the offices of the [Town] Councilmen". He visited the site and remembered making some computations relative to the slopes and t the sanitary sewers, but, to use his own words, "for the life of me I don't remember how it came out. I don't remember if it was positive or negative e, whether he a : [�r. approved it or not]." He was ante, however, that the meeting in the Councilman's ofiiee had occurred and the calculations made before the hearing at which the Town Board acted. As for the form which his reports took, he testified as follows: "In some cases it could be oral, and in some eases it could be in writing. If I was asked specifically to put it in writing for i the record, I would do it. If it was just an informal discussion, relative to i" engineering data on a particular problem, it could just be reported back to one Councilman, who would be, say, if it's the North Shore area you would p. report back to Councilmen Christ, maybe, or the Hicksville area you would d - report to Councilman Doolittle. It could be either in writing or verbally." At the time of his examination the engineer was ill and distressed. He had l not checked his tiles on the matter. The following excerpt is revealing: "No, I haven't had time. I have been laid up for the last month and this is all pretty fast for me right now. I haven't bad time to even think back a couple of years t as to what really happened. MR. COTTER: I understand that, and we appre- t ciate your coming today. We are under pressure from the Court to complete the trial by next Wednesday, so we are having to do this, even though it is so aloes to the time you have left the hospital, and we apologize for that?, In `A i 536 41 APPELLATE DIVISION.REPORn, 2d 3ERIE8 contrast to the engineer's uncertainty, we have the unsgaivoal testimony of two Councilmen, Christ and Diamond, both attorneys, who appeared before the court. Connoilman Christ indicated that between the. Public hearing non. Board meeting in December, 1970 at w earning the zoning amendment, which was held in January, 1970,and the Town hich the amendment Town Engineer advised him that the site in questienacted,: the on was adequate was to aceo®mo Board who rode was date the sewage. As was the eontom,he (Christ) wan the member of the Town titular herd on this Partionlar matter because he lived in the par- part of town which was affected. He did not ask the engineer for'n written report. Both he and Diamond testified that before the vote was the engineer assured them that there disposal. Diamond further testified 11"a no problem with respect to sthat "there is abeolntsl.►.no question in my mind that, compared to what exists there now or would eetinne to exist as an industrial park [sic], would be enhanced a millionfohi if therestrictivecovenants which we placed on the approval of this appliestion same into being [and] with the tremendous Deed that we have in the Town of Oyster Bay for garden apartments, if we are not going to put it in the sandpit, then, for heaven's sake, where are we going to put itf„ From the above, I can. elude that section E-15 of the ordinance was atisded. It think this is significant, that evidence of the Town Engineer' pea al be "satisfactory to the Town Board:' Here, the Town Board was aware that the engineer's prior approval was required. They were r ded of the fad finme- diately before the vote. The board was advised by board member reopen. sible for of Particular matter that such approval had been least one of the other board members was received. At Since there was no personally aware of the appro"L requirement that the approval be in wrltlng,the board could (s ne)ma with an oral assurance, ParHealarly when they knew the (sandy) makeup of the site and knew that the number of apartment un its Vag considerably less than the Dumber for which approval had orklaWly been Since we are reviewing a legislative &04 is an upzoning which obviouslyan pna a amedmat in gastleu of the area in question, and sin �he j ee the a'ti�etla am P°6O°iny vats statutory requirements, I vote to uphold- legislative body has eompitd with ss 2 AL Farement on P tba,amedment in'gmatian,: - Sit�ated, Respondent-. Appellant,Behalf of Himself and All OGar Tenants Similaty ant, and ALBsar A. WAv.Renter Rotorua Cour., APPapant-Rapead` Administration of the City�of NewdmY��of the Homing and Dev�puAd Intervening Defendant-Appellent-R Respondent. aelim by t ON 1i Al Feinberg, of an apartment located R—� a cons astioe by a f Now York, inter alia, to enjoin his landlord and alldiorte Borough of L�''�of lfaw h from prosecuting evictionaganstplaintiffand Similarly situated &a DUMB Situated, by reason of rent increases based on in Of defendant Administrator of terim maximma "M ardam the Housing and D of the City of New York, these appeals An a .by mid e°elopment'AdetidraduHolding Corp., and an intervenor-defendant, Diamac Holding Cn.'-from : Orders of the Supreme Coork Queen$ County, both d ift"o an etered October 2, 1979, and by Plaintiff from 29, eIMsaid orders (hereinafter referred to a the one of said erdeaun o P>xiutilrs motion fors original order) 4dw alis grantod i oUm� injunction and denied &I or motion by said intervenaraefendan Of notion. Said defendant adinmia the aogon for failure to state ■ ausee and said intervenor-defendant appal from all of this order, except the portion which requirce undertaking as a condition of tie p plaints ; furnish a tt�,� h only from said portion of the order.�ther order (hereinafter apps I ' .other order (hentaftat rslhe>!sd ESSEKS, HEFTER, CUDDY & ANGEL JAN 071985 COUNSELORS AT LAW 106 EAST MAIN STREET P. O. Box 279 WILLIAM W. ESSEKS RIVERHEAD, N.Y. 11901 MARCIA Z. HErTEN WATER MILL OFFICE (516)369-1700 MONTAUK HIGHWAY CHARLES R. CUDOY P. O.Box 570 - STEPHEN R.ANGEL TELEX-EHCA 6652316 UW WATER MILL, N.Y. 11976 JAMES HErrRON ~ (516)726-6633 THOMAS J. OS§ONME December 10 , 1984 Mr. Bennett Orloski , Jr. , Chairman Southold Town Planning Board Town Hall Main Road Southold, New York 11971 Re: Minor Subdivision, Thomas Samuels Orient Dear Mr. Orloski : As you most likely know, we are the attorneys for Tom Samuels , in connection with his application for a two lot minor subdivision on property in Orient . I appeared with Mr . Samuels before your board on Npvember 26, 1984 , I have written this letter at Mr . Samuels ' suggestion. As I understand it , the Planning Board has taken the position that Mr. Samuels ' property can not be divided into two 80 ,000 square foot lots , because a portion of the area to be included in each of the lots would be subject to flooding. At your meeting of November 26 , 1984, you brought to my attention Subdivision C , of Section A106-36 of the Southold Code , which provides in full the following : ' "C . Land subject to flooding. Land subject to flooding or land deemed by the Planning Board to be uninhabitable shall not be platted for residential occupancy nor such I other uses as may increase danger to health , life or property or aggravate the flood hazard, but such land within the plat shall be set aside for such uses as shall not be endangered by periodic or occasional inundation ." 1 According to you , Subdivision C , reproduced above , imposed a duty on the Planning Board not to include lands subject to flooding in any subdivision map. You would therefore exclude the area subject to flooding from lots and from density determinations . Re: Minor Subdivision, Thomas Samuels Orient December 10, 1984 I took the position that such an interpretation was unreasonable on several grounds. I want to now take this opportunity to set forth these grounds with some specificity . THE UNREASONABLE AND CONFISCATORY AFFECT OF SUCH AN INTERPRETATION OF CODE SECTION A106-36C . A vast amount of land in the Town of Southold is subject to flooding . Our client retained John I . Holden , P . E . , L . S . of Squthampton, to make a computation of how much land, in the Town of Southold, is within the "A" zones established under the Federal Flood Insurance Program. The "A" zone designation indicates land that is subject to occasional flooding . Mr . Holden concluded that approximately 21% of the total land area of the Town of Southold, excluding Greenport and Plum Island , is within such "A" zones ( a copy of Mr . Holden ' s letter is annexed hereto) . Moreover, during the years that the Town has had a Zoning Ordinance, and a Planning Board , subdivisions and other developments were permitted to be located, in whole or in part , in areas classified under Floodplain Regulations as being subject to flooding . To deny a landowner any use of his property by refusing to include it in a subdivision , because it lies in a zone that is subject to flooding, would be a confiscation of such property . Indeed, the confiscation would be dramatic in that 21 % of the land area of the Town is in such a zone , and certainly much of the Town ' s most valuable shorefront property is located there . I would be pleased to provide the Board, or the Board ' s attorney , with case citations supporting the argument that such a classi- fication would be a confiscation of private property . BUILDING WITHIN AREAS SUBJECT TO FLOODING j IS EXPRESSLY PERMITTED BY THE TOWN CODE . 0 Chapter 46 of the Southold Code, entitled "Floodplain Management" provides for permits to build structures within a floodplain. A reading of chapter 46 makes it clear, I submit , that construction is expressly permitted in all floodplain areas of the Town . The Town ' s concern is limited to design or engineering factors , such as first floor elevation and type of construction . A brief reference to some of the provisions contained in chapter 46 supports this conclusion . For example : -2- Re : Minor Subdivision , Thomas Samuels Orient December 10, 1984 1 ) Section 46-3F provides that one of the purposes of Flood Plain Regulations is to "Help maintain a stable tax base by providing for the sound use and develo meet of areas of special flood hazard so as to minimize future flood-blight areas . emphasis added) 2 ) Section 46-12 specficially provides for "develop- ment permits" within the floodplain. 3 ) Section 46-13 gives the building inspector the authority to review application for construction in the flood- plain. 4) Section 46-18A provides the standards for resident- ial construction within the floodplain. I submit , that if the Town ' s policy were to refuse the right to develop any area subject to flooding, there would be no chapter 46 , giving the building inspector authority to issue permits for construction within the various floodplain zones . Another way of stating this, is : if Planning Board was correct in refusing to subdivide lands subject to flooding , there would be no need for chapter 46. It would be superfluous. OPEN SPACE, WHETHER OR NOT BUILDABLE , HAS TO BE INCLUDED IN A LOT FOR DENSITY PURPOSES . Implicit in the Planning Board ' s position is the assumption that only non-restricted , fully-buildable property should be included in lot area for subdivision purposes. The Southold Code , however, does not define "lot" in such a manner . Section A106-13 defines "lot" as follows : e I "LOT - A portion of a subdivision or other parcel of land intended as a unit for transfer of ownership or for development . " More important than the definition of lot in the Southold Code , is the fact that this issue has been presented to the Courts of the State of New York , and they have uniformly held that land which is not buildable must be included in lot area for determin- ing lot size or density. It should be noted, that these cases dealt with land that could not be built upon , whereas the floodplain area , can be built upon simply by compliance with Floodplain Regulations ( See , Southold Code Chapter 46) . -3- k 0o Re : Minor Subdivision, Thomas Samuels Orient December 10, 1984 Bloom v . Town Board Oyster—Bal 32 N . Y . 2d 93[ ( 1973 ) involved an attempt y he Town to preclu a an owner from including 13 acres of severely sloping land for density purposes . The owner wanted to construct multiple residences on his parcel , at a rate of 16 units per acre . The parcel was 28 acres in area , but only 15 acres were flat and buildable . The remaining 10 acres sloped severely , rising approximately 100 feet . The Court of Appeals , the State ' s highest court , reversed the Appellate Division , Second Department , and held that all of the land had to be included for density purposes . The Court of Appeals relied on the dissenting opinion of Justice Munder in the Appellate Division (41 A .D . 2d 533 [2d Dept . 19731 ) . Copies of the opinions issued by the Court of Appeals, and the Appellate Division, are enclosed for your examination . A more recent case , involving land closer to home , was Ashman v . P�l�a_nn_ii5? Board, Town of East H_a�Loon, Memorandum Decision , Asper, Octo er , , c enclosed , reversed on other grounds 88 A .D . 2d 923 ( 2d Dept . 1982 ) . Here , the Planning Board of the Town of East Hampton attempted to exclude for lot area purposes the land between the high water mark and the dunes ( the beach area along the Atlantic Ocean) . The issue was presented to both the Planning Board and the Board of Appeals . These Boards cited as reasons for their determination , the unbuildabilty of the land, the fact that its size and shape change due to shore- line processes, the fact that it is subject to public easements and the fact that the property is susceptible to flooding and erosion. Relying in large part on Bloom v . Town of Oyster Ray , sura, the Court held that beachfront property owned by a developer must be included in the area used for determining lot size . It should be noted that the Appellate Division specif- ically agreed with the Justice in Supreme Court , Suffolk County on this issue . A copy of the Appellate Division ' s opinion is j also enclosed . Based upon the opinions cited above , and in light of definition of "lot" used in the subdivision portion of the Southold Code, I submit , that the Board has no other alternative but to include all land owned by an applicant for lot size and density purposes . THE PROPER INTERPRETATION OF SECTION A106-36C IS THAT IT RELATES TO DRAINAGE AREAS NOT LAND SUBJECT TO FLOODING IN GENERAL . Subsection C of A106-36 provides in part that land subject to flooding shall not be platted by the Planning Board for resident- ial purposes. This provision , reproduced in full at the begin- -4- Re : Minor Subdivision, Thomas Samuels Orient December 10, 1984 ning of this letter, is the cause of our clignt ' s dispute with the Planning Board. In my opinion, the proper interpretation of this provision is to limit it to those areas which are actually used for drainage , such as re-charge basins and drainage swales . The reasons for this conclusion are as follows : 1 ) The Southold Code entitles Section A106-36 as " drainage improvements" thereby limiting the subsections to this topic . Stated another way , if the Town Board wanted to exclude all area subject to flooding from residential lots and determin- ations of density , it would not include Subsection C under "drainage improvements" but rather, would place the restriction in its definitions of lots and density . 2 ) Traditionally , those areas of a plat which have been designated for improvements, such as roads or drainage , are not counted as parts of residential lots , nor are they counted for density purposes. Presumably , the drafters of the Town Code had this in mind. 3 ) Though I have not personally examined the files of the Planning Board, I am sure that over the years numerous subdivisions have been approved on land either wholly or par- tially subject to flooding . This indicates that; prior Boards construed Subsection C in the same manner as I do. CONCLUSION I respectfully urge the Board , in behalf of our client Thomas Samuels, to change its position in connection with the platting of land within the floodplain. To do otherwise would work substantial damage on our client and others similiarly situated . If the Board wishes any additional information , please do not hesitate to contact me. Respectfully yours , Stephen R . Angel SRA :s Enclosures cc : Thomas Samuels Robert Tasker , Esq . -5- i f I M AJORANDA, Second Dept., January, 1973 533 this meant that conte to former law li .:ese flue „ � RM1s�7r r contrary ' calendar con- , relators 6seticx� lack of facilities and virtually any other ;aetor rendering it physically" aey are ��,impq"a to dispose of trial calendars within the prescribed periods consti- fat the 'FA szouse for the industrious metropolitan prosecutor ready to go to ;tin are ted:bK,tpoable to do so through circumstances beyond his control." CPL" .mane to �^ :Jff�& 5) represents a dear legislative disapproval of the intended effect that in da.00'pNeaulgated rales'and, in our opinion, left intact the prior decisional i =tcr the Al lslr,tb good cause for delay existed when the delay was not "chargeable to k ,e court , the p�ntor and ' •. .e:. occurred for reasons beyond his control or the ruse of aoutrol,ot the court" (Psopb V. Ganci, 27 N Y 2d 418, 423, cert, den. 402 II• & lt8li see, &190, PeoPle V. Minicone, 28 N Y 2d 270, 281, cert, den. 404 County. t' :endant U. 6. 853)• Accordingly, the relators aro not entitled to release under CPL :n rele- BOX and their writs should be dismissed. This interpretation of section 30.30 mina 1 ;•does not areae, however, that the District Attorney's oQiee controls the com- li ch con- position of the Ready Calendar or the movement of the cases appearing on N days «t',it. .The"power to regulate the order of its business or its calendar practice �t felony. fe is the eoart (Matter of McDonald V. Goldstein, 273 App. Div. 649). Rabin, period P.Jq Hopkins, Moulder, Martuseello and Latham, JJ., concur. i 4 periods '^ i i 't _ontend q�, Conn - 3 there (January 8, 1973) � assign- 1,.••'FRLrrs BIOOM at al., Respondents, v. Tuwx BOARD or Tim Town on months OtOM Bal, Appellant, and RORxaT LtsnowiTa et al., Intervenors-Defendants- g teal "Appellants.—In an cation .for a declaratory judgment, defendant and inter- (� ember, vwiad sadaata appeal from so much of a judgment of the Supreme Court, s grew &&%i County, entered June 20, 1972, as adjudged (1) that a zoning resolu- PP umber t1Ga, of the Town of Oyster Bay reclassifying certain real property from + ,preme H-Indpatrlal to E-1 Apartment House is invalid and (2) that, in calculating "isten.ca the density requirement under the Oyster Bay Building Zone Ordinance with M t• Legis- respect to said property, the lot area should only include the buildable per- excep- "lion of a lot Judgment affirmed insofar as appealed from, with one bill of .tion is eceb jointly against appellants appearing separately. No opinion. Rabin, 1 People P. J, MArtumello, Latham Lad Shapiro, JJ., concur; plunder, J., dissents and A that ,votes to averse the judgment insofar as appealed from mut to declare the U were sating resolution valid, with the following memorandum: 'Phis case presents , t on in an example of the not unique dilemma of what to do will, the site of an insuiij- exbAusted and pit. Typical of sand and gravel mines on bong Island, this dd ;orrect one has cat into a hillside, leaving precipitous slopes on the perimeters other ecction than the valley on which au abutting road exists. Fortunately, the floor of r Ier the '" the mine remained at the level of that road. The site in question is a 28-ucrc Trial parcel of land, with a flat area of 15 acres surrounded by three elopes rising ' 1 We t. to a height of 100 feet. The bases of the elopes, presumably determined by of the the sharpest angle of repose, occupy 13 acres of the total urea. The owner A,, odicial ecels to get the maximum use of the entire area. The neighbors would prefer Nt• , rt "Seded the minimum use The governing authority must, unit apparently in this case 29.7). did, elect to balance these interests. Plab;tif7s reside in a sinsgle-family resi- pIt ; .entary A deatial development which is south and east of the subject E �' J Property. The sub- '. Book Ject property is on the west side of New York State Route 106, at this point e U of a '.� 1c. a three-lane highway and the principal north-south route from Oyster Bay to !� s after .t Rreksville. Directly across Route 106 from the subject property is it large T' e gen- sump or recharge basin. North of the sump and on the same side of Route under 4, toe L a shopping center, some of which is opposite part of the road frontage either, r� p yyIY, l 534 41 APPELLATE DIVISION REPORTS, 2d SERIES of the subject property. The development in which plaintiffs live is built on 10,000 square-foot plots. None of the plots which abut the easterly aide of Route 108 front on the State highway, access thereto from the plots being by y; an intersecting road several hundred yards south of the subject property. In this action for a declaratory judgment, Special Term found that on a prior appeal in this litigation we detormined'that some of the plaintiffs were proper parties (see Ajamian v. Town Bd. of Oyster Boy, 38 A D 2d 551). Special Term then found the enacted amendment to tbo zoning ordinance, changing the classification of the parcel here involved from H-Industrial to E-1 Apart- 1"' ment House, invalid for two reasons: (1) the legislation lacked the prior A approval of the Town Engineer as required by section E-15 of article VII-A of the Building Zone Ordinance of the Town of Oyster Bay and (2) the ); approval for 356 dwelling units exceeded the allowable 16 units per acre ander section E-9a of article VII-A of the ordinance, since the area covered by the elopes was unbuildable in a practical sense and that area must be excluded from "lot area" as de0ned in the ordinance. As to the standing of plaintiffs, I would first observe that we did not, in our prior determination, do more than recommend to plaintiffs that they plead in more exact terms their status so aggrieved parties (Ajamian V. Town Rd. of Ouster Bay, supra). Infereil#Ally, of course, we were also telling them to support the pleadings with proof.\C�"• proof in the present record on the issue of status or standing is tar from overwhelming. Plaintiffs offered no proof of pecuniary damage and the inter%, venors-owners' expert testified that, in fact, the rezoning from Industrial to k Apartment House use would increase the value of the surrounding property. ' I do not feel, however, that pecuniary damage is the sine qua non for standing. s , As indicated in Blumberg v. City of Yonkers (21 A D 2d 888, affd. 15 N Y 2d 791), the right of a litigant to maintain an action for a declaratory judg- ment declaring the invalidity of a zoning ordinance, or an amendment thereof, r :p is based on the same criteria for the institution of a proceeding under article ,- h' 78 of the CPLR to review the-determination of an administrative body grant- t. ing a variance. In other words, the litigant need only show that somehow he lk ' or his property is especially "affected", or "aggrieved", or has suffered r. n "special damage" (see Schapiro v. Tow" of North Hampstead, 36 A D 2d i 596; Daum v. Meade, 35 A D 2d 698; Marcus v. Village of Mamaroneck, 283 N. Y. 325). At bar, there was some showing that the zoning change would bring an increase in tra0le and its deleterious side effects. Thus, though not for the reason that we previously affirmed plaintiffs' requisite status, I would affirm the finding of standing as to plaintiffs. I note, too, that several of the original plaintiffs were held to be without standing by Special Term on the ground they were residents of an adjoining village and could not be heard on a zoning matter beyond their corporate boundaries. I disagree. It seems to fne that abutting owners are especially affected and should have standing to test the validity of rezoning legislation notwithstanding that their lot linea form part of the boundary between two municipalities and they live in an adjoining village (see Matter of Town of Bedford v. Village of Mt. Risco, 40 A D 2d 979; Township of River Vale V. Town of Oran.getown, 403 F. 2d 684). How- ever, I think the standing of the excluded plaintiffs should be reviewed in a proper case. Hcre, they have not appealed, so the matter is moot. Going to the merits, I cannot agree with the restrictive interpretation given by 1� l$ saca ". „ Term to the ordinance definition of "lot area", which reads: "LOT AREA is the area of a lot on which a building and its accessories may be located, exclu- sive of land in the bed of any street" (art. 1, § 3). Holding that the area I occupied by the slopes is not available for building, the court multiplied the allowable 16 units per acre by the number of buildable acres and found a MEMORANDA, & Dept., .January, 1973 535 m,xtmnm of 248 .units patmlasihle. Tharafore the town's authorization of 958 dwelling units was illegal. Apart from the fact that tl•ere was no proof j Of aoantility of the slope area and that modern technology indicates the (wn- tl, b=7, and eonaediag that building 'on-the Send Slopes would be impractical i eoonomiay I do not believe that the elope area must be eliminated from a, eonmderatioo.•.::The ordinance itself Suggests the contrary when it that 6 ' that "the total building area shall notreaevesd twee 20 op +; the total lot a " in an E-1 Apartment House District U E-9).) n Thereisnothing ip the ordinance whieb requires that the 8096 remaining must be buildable. Non- buildable land may be available for yard setbacks or each other open areas i4 as the ordivanes may require, The Sterilization of almost dna half of the )1, total sareage in ,question borders on 6a � � �� the remaining nnGonstitntional con8ac oa. I nm +,KJ4 section E-15 g question of whether there was compliance with ordinance, which provides that no property shall be classi- fied E-1 Apartment House Distriet:wuntil after evidence satisfactoryto the N rr Tows Board demonstrates that the Syrtem of sewage disposal for such apart- ment frt + mint home Lea'raotdred the prior approval of the Town Engineer." It is suggested by the intervenors that allies the State has pre -empted the field of regulation of Sewage .disposal systems for apartment houses, the ordinance �J ' Provision regou'ing the Prior approval of the Town Engineer is no longer useful or vital to an ordinance amendment establishing an Apartment house t" District. The Town Attorney takes the position that section E-15 has vitality [1` "» and its requirements must be meR With this latter view I agree. At the trial, +l a deo „ deposition of the Town Engineer was received in evidence. From that, the i µ court concluded that the provisions of section E-15 were not complied with, This witness, who had left the Position of Town Engineer only days after the i ) questioned enactment, was not before the trial court. In renebing its conclu- n # cion Special Term relied Upon Potions of the engineer's testimony in whichr y ' be indicated that he did not discuss the sewage disposal system with the Town Board before the hearing and that he did not tell them whether or not he t"s approved it. My own reeding of the engineer's testimony discloses that he was vague and unsure about the matter. He remembered discussing the sewage j q° disposal question in "one of the offioce of the [Town] Councilmen". Ile vi sit f the site and remembered making come computations relative to the slopes and �t rq ; We unitary sewers, but, to use his own words, "for the life of mn I don't remember bow it bame oul. I don't remember if it was Positive or mgntivo I0 i [i.e., whether be approved it or not]." IIs was sure, however, that the meeting in the Councilman's office bad occurred and the calculations made be Jaro the l ` N r bearing at whish the Town Board acted. As for the form which his reports ' took, he testified se follows: In Some owes it could be ornl, and in Soule 9r; ]j saes it Gould be in writing. If I was asked specifically to put it in writing for ¢38 the record, I would do it. if it won just an informal discussion, relative to t' '. engineering data on a particular problem, it could just be reported back to ttc F one Counei]man, who would be ea if it's the North Shore arca you would 7k.n, , yr report back to Councilman Christ, maybe, or the Hicksville area you would t.', report to Councilman Doolittle. It Gould be either in writing orverbnll " '? l.� �. t engineer was ill and disty' At the time of his examination the distressed IIB had not checked his files on the matter. The following excerpt is revealing: "No, ' I haven't had time. I bave been laid up for the last month and this is all pretty i fast for me right now. I haven't had time to even think back a couple of years + as to what really happened. MR. COTTER: I understand that, and ae nppre- 1 1:3�ix ciate your coming today. We are under pressure from the Court to Com leteY ' the trial by next Wednesday, so we ere having to do this, even though it is so ii t+�"a clow to the time you have left the hospital, and we apologize for that." In Y v .µ r y, G i tt f is P S: 536 41 APPELLATE DIVISION REPORTS, 2d SERIES contrast to the engineer's uncertainty, we have the unequivocal testimony of two Councilmen, Christ and Diamond, both attorneys, who appeared before the court. Councilman Christ indicated that between the public Learing can. cBoud erning the toning amendment, which was held in January, 1979, and the Town Town Engineer Decomber, 1970 at which the n.nendment wet enacted, he s. Bincer advised Lim that the site in question was adequate to accommo- date the sewage. As was the custom, he (Christ) was the member of he Town Board who rode herd on this particular matter because he lived in the par- k'` ticular part of town which was affected. He did not ask the engineer written report. Both he and Diamond testitled that before the votas taken a the engineer assured them that there was no y disposal. Diamond further „ Problem with respect to sewage testi9od that here is absolutely Be question in my Mind that, compared to what exists there now er would continue to exist #,• as an industrial park [sic], would be enhanced a millionfold if the restrictive covenants which oro placed on the approval of this application came into being , i' • • ' [and] with the tremendous need that we have in the Town of Oyster Hey for garden apartments, if we are not going to put it in the sandpit hen, IF for heaven's make, where are we cin elude that section Eher of the going wets eatisB From r the above, I con- -15 hink this is signi9cant, that evidence of the Town Engineers awes, and I oval be satisfactory to the Town Board." Ilere, the Town Board was awarep that the engineers prior app al was rcyuired. They were r�inded of the fact imme- diately before the vote. The board was advised b ` ! sible for this y the board member reepoa- particular matter that such approval had been received. At least cue of he cher board mcinhere was personally aware of the approval. b' Since there was no requirement that the approval be in writing, the board mould k be "satial ed with an oral masuraace l I , particularly when they knew the phydml N{ (sandy) makeup of the site and knew that the number of apartment snits was h, considerably less than the number for tivewhich approval had originally been waght ) Since we are reviewing f is an uptoning whicbviotistylawill en t,a odsince tse acct a am amendment ndment in question !' of the area in question, and since the legislative body has complied with i statutory requirements, I vote to uphold the amendment in yueatiou, Ar Feixntaa, on behalf of Himself and All Other Tenants Similarly Situated, Respondent-Appellant, V. RrgrON HOLD'yo Coup,, Appellant-Respond- ant, and ALBEMT A. WAr.elr, as Administrator of the Housing and Development ,1 Administration of the City of New York, Rugpondent. tingDIGsa H Intervening Defendant-Appellant-Respondont--Ia a class action by atea n�,' Al Feinberg, of an apartment located in the Borough of York, inter aiia, to enjoin his landlord and all landlords aimRarly situated r Queens, City of New from Prosecuting eviction proceedings against plaintiff and all others similarly i, situated, an reason of rent increases based on interim ma:Imnm rent orlon of defendant Administrator of the IIoWing and Development Administration Of the City of Now,York, these appeals are by said landlord, defendant Region Holding Corp.# and an intervenor-defendantDie u orders of the Supreme Court, Queens Co , mac Holding Co.unty, both dated Septemberfrom 28, 1two 972 i and entered October 2, 1972, and by plaintiff from one of said orders, said orders (hereinafter referred to as the original order) inter pito on, anteodf PWntitl"s motion for a prolimine said Intervenor-defendant to dismiryes thmayataafordenied fnilnreato steate motion by .. v of action. Said defendant and said interaction for ail appeal this order, except the portion which requires plaintiff to furnish fa mall of a undertaking as a condition of 60 preliminary injunctiointiS=pPeala a only from said Portion of the order. The otter orn; and plaintiff (hereinafter referred I s. MEMORANDA.Zecond Dept., June, 1982 923 T�f d Subsequently, the People moved pursuant to ( 11 140.4o to set ,lode the n ' dekndant's sentence.The t'ou't denied the motion and we dlirni than deterno (� nation. CPL 440.40 (subd 3) provides that the court may d. uy a ',lotion to set 1. aside a sentence when the ground or issue raised was previuu I) dent'(mined mi r the merits. Such was the. case herein Accordingly, under the circumstances here presented, the court's dental of the mutton to act aside the sentence was not an improvident exercise of discretion.(See People t A ),a 66 AD'd 710.) It r, In view of the foregoing, we need not reach the question of whether the defendant could properly have been sentenced Lis a second twdent felony I w° offender. Titone, J P., Lazer, Brown and Niehuff, JJ , concto ; { 1 41 THE PEOPLE OP THE STATE OF NEw FORK, Respondent, V Nta l'ALI Lc1gF:tl- INA,Appellant. —Judgment of the Supreme Court, lluu ns County (Dunkin, epi •J.),rendered May 12, 1981, affirmed. No opt man This case is remitted to the Supreme Court, Queens County, fur father proceeding, pursuant to CPL • 460.50 (subd 5). Lazer, J P , Thompson, Bracken and ltnbui )J., concur. (June 7, 1982) f ^ 1 ART-TEx PETROLEUM, INC., Appellant, v EXXON COHPUItATIUN, I dot d 1 + dent. — Order of the Supreme Court, Dutchess County tJiudicc, J.), dated December 3, 1981, affirmed, with $50 costs and disbursements (Set' Baruuh y Eaton Allen Corp. v Internutional Business Mud's. Corp , 76 AI)'d 873.) 1 a { Molten, P.J., Thompson, Bracken and Brown, JJ., concur i r J ARTHUR ASHMAN, Respondent, V PLANNING BGAttn OF THE of Ot' EAST f 1 :e `$ IJAMPTON, Appellant. (Proceeding No. 1.) In the Mutter of AarunR A5IIMAN, Respondent,v ELBERTT. EDWARDSet al.,Appellants. (Ill uceeding No. 2 ) In d consolidated proceedings pursuant to CPLR article 78 to ei lew i I I a determl- A d 1977,nation of the Planning Board of the Town of East Ilamptun,dated J.inu,u y'26, which denied petitioner's application for•'subdivisv 1 ion w Oand i'2) a p S a t determination of the 'Luning Board of Appeals of the Town of,Ca=t Ibunpton. �, ,I l dated December 5, 197F,which,atter a hearing,denied pc Uhua r,app(ie;diuu s (a)for cerium variances Old(b)to interpret the applicable zuuing ordinvuc to t f j permit petitioner's aUhJIViS on, the appeal, as limited bn opprllo o brut, is t B &) from so much of u judgment of the Supreme Cou''t, Sullidk ('uuntn iA. J.I,dated November 12, 1961,as(1)remitted the matte t v o the plan um 1 ld o,aium {# with a direction that it grant the application for subdhls'on of petitioners 9t I ,IT premises, and 121 rcmitt,•it the matter to the zoning bo:ud of ippcal:; to id + a in the zoning ordinance so as to permit the subdivi,00l I( ',listed. w �, A'y Judbmient reversed insol it as appealed fro ;Rt on the I iia, wnhow cusLv or wJ '{ ;Rt e - disbursements, and the lespcctive matters tare remitted to the boardi`Zrs of �t and the zoning board of appeals for furthor con„d, rdion in u,urd.uce he herewith. We agree w illi Special Term that the beach an, in yue. t iuu ,build '.`'e i - have been part of the I:md e measured to del ernne the luu l . e.( ul la til uau•r s ' tiV'2J !1to, rev 41 property (see Bloont c• Town n Bcl. of Town o(Ons6•r lien i !; nt , �', �# AD'2d 533 upon the dissenting memorandum ufJuslue M1luuderl. Iloilover, we iy; nt ' are of the opinion that the iemitlitur to the u•spcctiic b..nJ, with .I du ectiuu, my ” nfer alio, that petitioner's awlicatamn be grunted. w,(, inyaoqu i While we Ing y "p find thirappellants' mtupretution of the Mining orduiance to l" all iti ly and did ::: a: r. capricious m excluding the beach area from the calculation of ih, lal ilea of '" ug. ;. tr; ' petitioner's property, we aLu bcheie that there welt' uth,•1 1I.-Irtoo Id matters ` y" a` 6. .1 i 1 d I r i l 924 88 APPELLATE: DIVISION REPORTS, 2d SERIES concerning conservation and appro% aI of other agencies properly considered by the appellants which need to be reconsidered in light of Special Terme decision on calculating the g area.If the petit ❑c' I is rcralculalc d lot arca can prima facie meet the standards to permit subdivision,the appelIunt boards might consider dr (without limitation intended) whether other health, safety and conservation factors would permit subdivision at thisjunclure or e)hetherpetitioner should ' i (1)be required to submit more detailed proof oil such matters or(2)be required i a to obtain approval from the Department of Environmental Conservation and t the Suffolk County Planning Conunis,ion. Petitioner urges this court toaffirm t. Special Tertn's direction that his application be granted, yet he also states in ' his brief his willingness to obtain approval from these two agencies should the planning board so require Petitioner's position is anomalous and suggests that he knew that Special Term's directive was erroneous Weinstein,J.P.,Mon• I nor, Thompson and Boyers, JJ., concur. a ! 3 CITY OF NEw YORK,Appellant, V UNSAFE Bon.mn'ca,ROSE-FOLLY PaDPxa• TIES, INC'., et al.. 1{CYI)Onlent, l{CSpnUdeOtS, Pt sal., Rrvpondent. — In proceed* ings pursuant to section C26-82.0 of the Administrative Code of the City of t New York f'or the issuance of a precept directing that the Queens Borough i i; Superintendent of Buildings abate the unsafe and dangerous conditions exist- ing on certain premises by demolition of the structures thereon, the appeals I tare from two ordvis of the Supreme Court, Queens County (Giaccio,J.),dated ;7 February 5, 1981 and Scph•nber 1.1, 1981, respectively, the first of which 1{ i adhered to the court's original decision dismissing the proceeding, upon certain conditions, and the second of which again denied petitioner's request 11� for the same relief. Order dated February 5, 1981, reversed, on the Ian'. without costs or disbursements, petition granted and matter remitted•ts' Special Term for the issuance,forthwith,of a precept pursuant to section C2& I' I 82.0 of the Administrative Code of the City of New York. Appeal from order' c dated September 14, 1981,dismissed, without costs or disbursements,in lighF of the determination on the appeal from the order dated February 5, 1981.011 1 this record we conclude that the subject structures and premises are structllr' ally unsafe,dangerous and a fire hazard. Accordingly,the petition should have been granted. Titone, J. P., Lazer, Niehof and Rubin, JJ., concur. `"t 1 4 COUNTY OF ROCKLAND, Respondent, V CIVIL Sk:HvICE EMPLOYEES AssoCL11 �, t TION, Appellant, et el., Defendants. --- In an action, inter alfa, to enA defendants from engaging in a strike, the defendant Civil Service EmplogaN Association, Inc.,appeals,as limited by its brief,from so much of an order judgment (one paper) of the Supreme Court, Rockland County (Stolarik,J. t Y' entered January 20, 1982 as, after at non ury trial, held it in contempt fo< failing to obey temporary restraining orders dated December 27, 1977 and,' ' December 29, 1977. Order and judgawnt affirmed insofar as appealed (ro f without costs or disbursements.This court has previously held that"latheCi S`rvice Employees Association,Inc. (CSEA, Inc.)is liable for the actions of Buckland County unit on an agency theory"(County of Rockland v Citil Serlk� 1 Employees Assn., 74 AD2d 631, mot for Iv to app dsmd 50 NY2d 928 ;' c Accordingly, the law of the case is that CSEA, Inc., cannot be absolvedo� responsibility for the acts of the Rockland County unit.Inasmuch as there is t I question that the latter participartrd in the strike, the former was properly 1 found to be guilty of criminal contempt,regardless ofitsactualparticipation14 ',` the strike. Furthermore, the record establishes that the orders to show ea containing the temporary restraining order were served on agents of CS e' Inc., as well as the Rockland County amt. Finally,the testimony and evid I a' at trial demonstrate that "the impact of the strike on the public health,safet i r and welfare of the community" fJudici❑ry Law, 0751, subd 2, par[a),cl 10'liont s �t ii h 930 32 NEW YORK REPORTS, 2d SERIES The order of the Appellate Division t-hould be affirmed. Chief Judge FULD and Judges BuE17'm,, JONES and WAOnTun .t concur; Judge OARRIELIA dissents and votes to affirm in a sepa- rate opinion in which Judges Buinui and JASEN concur. Order reversed and tho orders of the County Court reinstated in a memorandum. FRANx Brood et al., Respondents, 1'. TOWN BOARD OF THE Towx OF OYSTER BAY, Appellant, and ROMUT Lirmowrrz et al., Intervenors-Appellants. 1 Argoed April 30, 1973; deeided Juno 7, 1973. 0 Municipal corporations—zoning—in action for Judgment declaring invalid Y rezoning resolution which reclassified alto of mined-out sand pit from light industry district to apartment house district, special Term dismissed action as to some plaintiffs, for lack of standing, continued It as to others, and declared that resolution was Invalidly enacted, for failure to comply with Provision In setting ordinance requiring prior approval of sewage disposal ° system by town engineer, and that, In calculating allowable density of 16 dwelling units per acre, lot area should include only portion of lot upon which structure might be located—order of Appellate Divlslon which at9rmed Judgment of Special Term reversed,on dissenting opinion at Appellate Divldon and Judgment granted declaring resolution valid in accordance with conditions and distinctions contained therein. 'f Bloom v. Town Rd. of Town of Opater Bop, 41 A D 2d 533, reversed. APPEAL from an order of the Appellate Division of the "+ Supreme Court in the Second Judicial Department, entered January 8, 1973, which, by a divided court, affirmed, insofar as appealed from, a judgment of the Supreme Court, entered in Nassau County upon a decision of the court at a Special Term (STEVEN B. DEROUNIAN, .1.), (1) dismissing the above-entitled •,`, s action, for a judgment declaring invalid a rezoning resolution adopted by defendant Town Board of the Town of Oyster Bay, .� ^' insofar as it was brought by residents of the Incorporated u: Village of Upper Brookville, for lack of standing, (2) continuing it as to those plaintiff's who were residents of the town outside the limits of said village, fund (3) declaring (a) that the resole- tion, which reclassified certain property from " H " light industry district to " I'-P'" apartment house district, was invalidly enacted, for the reasons that section E-15 of the town's Building Zone Ordinance (ordinance) were not complied with t, :a • MEMORANDA 931 d in the enactment thereof and that the 356 dwelling units approved Aoaxfsa by the resolution exceeded the maximum of 210 units permitted a sepa_ under the ordinance and (b) that, in calculating the density requirement of section E-9 of the ordinance with respect to the 1° subject property, the lot area should include only that portion nstated of the lot upon which a structure might be located. The subject property, a mined-out sand pit located on the west side of Route i, 106 In the town,but outside the limits of the ineorpaated village, Toww ;: consisted of 28 acres, including 15 acres of flat land, at the et al., t grade of Route 106,surrounded by 13 acres of sloping land rising for a distance of about 100 feet to the level of lands which were sonedresidential. A storm water recharge basin and a shopping ' center were located across Route 106 from it. Special Term invalid found that those plaintiffs who owned residences in the town out Biot but outside the limits of the incorporated villa, were aggrieved ) :c:` aecd by the rezoning of the subject property and had standing to ply with maintain the action, since they lived in close proximity to the l„ disposal property and the proposed use of it would result in population i. y of 16 density and noise and would generate substantially more traffic Ot upon affirmed Y on Route 106,producing air pollution, offensive odors and danger Division, " to children; that the record was all but devoid of evidence of aditions compliance with section E-15 of the ordinance, which precluded i claseWcation of property as " E-1 " apartment house district "until after evidence satisfactory to the Town Board demon- s' stratea that the system of sewage disposal for such apartment l .f the house has received the prior approval of the '['own Engineer ", ntered who, on the basis of a deposition made by him, had only vague far as A recollections of having made any detailed analysis of the pro- rcd in posed sewage disposal system or having discussed it with the Term 4 Town Board; that section E-9 of the ordinance, providing that :atitled " In ' E-1 ' Apartment House District, the maximum number ,intion of dwelling units shall not exceed 16 per acre " should be inter- I preted to limit the unit density of apartments to 16 per usable 'rated a� f or buildable acre, and that only the 15-acre flat portion of the ruing r subject property could be utilized. The dis�,,entiug Justice, at utside the Appellate Division stated, infer olio, that be would affirm :,solu- the finding as to the present plaintiffs' standing; that, while he light disagreed with the finding as to the lack of st;ualiug of abutting was owners who were residents of the incorporated village, the oven's matter was mout since they had not appealed ; tbat, going to the with merits, apart from the fact that there was no proof of nonutility t i r i= { 7 i i f 932 32 NEW YORK REPORTS, 2d SERIES t'.;: of the slope area,and conceding that building on the slopes would t t be impractical and uneconomic, he did not believe that the slope t area had to be eliminated from consideration, and a provisions i in the ordinance limiting " the total building area " to 20% of " the total lot area " in an " E-1 " apartment house district suggested to the contrary; that the sterilization of almost one half of the total acreage in question bordered on an uncon- stitutional confiscation; that, as to complinnee with section E-15 of the ordinance, in contrast to the uncertainty of the town engineer, who was ill and distressed at the time of his examina- "4", " tion, there was unequivocal testimony by two councilmen, both attorneys, as to the Town Board's having received his oral approval of the sewage disposal system and having been satisfied with it, and that, since a legislal ive act was being reviewed, since the amendment was au upzoning, and Since the legislative body had complied with statutory requirements the amendment k" should be upheld. John M. Conroy, Town Attorney (Charles F. Lynch of counsel), for appellant. f. George C. Pratt for intervenors-appellants. William R. Cotter for respondents. h Order reversed, without costs, oil the dissenting opinion at the Appellate Division and judgment granted to appellants V, declaring valid the rezoning resolution in question in accordance V, with the conditions and distinctions contained therein. 'k I Concur: Chief Judge Pacaf and .Judges BURSE, GAIMuzLd, H JoxEs and WAcuTLER. Judge .JASEN dissents and votes to affirm in the following opinion in which Judge BREITEI, concurs. t ( JASEN, J. (dissenting). I agree with the majority that Special t- Tor 's construction of the phrase " lot area ", excluding as itj'�"' did the 13 acres of sloping land, was erroneous. However, I :` 1 would otherwise affirm the order of the Appellate Division. In the posture that this case conics to it.,;, the issue of whether the , intervenors' property was validly reclassified is essentially factual and nonreviewable in this court. The applicable section 's x of the zoning ordinance requires that before the Town Board act, the town engineer approve the proposed sewage system and the evidence of this approval be satisfactory to the Town *}s" Board. Whether that approval had been obtained and whether MEMORANDA 933 would the Town Board was satisfied with the evidence of that approval ± a slope were questions of fact. As the evidence of the occurrence of ,vision these necessary preconditions to the Town Board's power to act 20% was conflicting, the courts below had the power to resolve the istrict issues of fact and these affirmed findings are binding on this ,st one court. ancon- } •` r; u E-15 Order reversed, etc. town :,mina- In the Matter of DIANE BEnNI et al., Appellants, v. ADELES LEoN- both ;4 Asn,as Executive Directrix of the Nassau County Civil Service s oral Commission, of al., Respondents. a i ,tisfied -0 Submitted April 30, 1073; decided Juno 7, 1073. since ,.r� Civil service—promotion examinations—policewomen sought to annul pro- body d bodynient yy motion examinations for Police Sergeant,who supervised patrolmen, and Police- la wonas Sergeant, who supervised policewomen, alleging that requirement of four rears of service se patrolman for Police Sergeant examination was not di of " bona fids qualification but was established arbitrarily and capriciously, that 1 i only basis for giving separate examinations for Police Sergeant and Police- woman, Sergeant was differences of sexes, and that, accordingly, giving of Wants tests was unconstitutional] discriminatory of their pati- f tioa was properly atflrmed—memorandum by court. Mesfer of Bomi V. Loosard,90 A D 2d 701, affirmed. iun at slants d APPEAL from an order of the Appellate Division of the Supremo dance Courtin the Second Judicial Department, entered October 24, a 1972, which, by a divided court, altirmod it judgment of the n Supreme Court at Special Term (BERTRAM HARNETT, .I.; opn. "IELL1' 69 Mise 2d 935) entered in NassCounty affirm au oun Y in a proceeding pur- suant to CPLR article 78, denying an application and dismiss- ing a petition to annul promotion examinations held on April 29, 1972 for the positions of Police Sergeant and Policewoman as it Sergeant in the Police Department of the County of Nassau, ; ,or, I upon the ground that petitioners, polieewnwon in that depart- ' r.. In �i ° went, were deprived of their right to take the examination for " ,-r the Police Sergeant and relegated to takivig that for Policewoman ntiaily ti �� Sergeant solely becauso of their sex. A Polies 5eri,gaant's duties action consisted of supervising the activities of patrolmen and per- Board forming reluted duties as required, and candidates for that ystem position were required to have four pears of service as a patrol- Town man. A Policewoman Sergeant's duties consisted of super- 4 Nether vising the activities of policewomen and p(•rformi " ug related s. i y 40� ~ • -`MEMORANDUM i �c • N77/3440 s 798579 r� SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I ARTHUR ASHMAN, By GEORGE J• ASPLAN O. S. C. Petitioner, VS. DATED OCT 61481 19 THE PLANNING BOARD OF THE TOWN w OF EA-ST HAMPTON, • . � Respondent. In the Matter of the Application of ARTHUR ASHMAN# Petitioner, For a Judgment Pursuant to Article 78 of the CPLR vs. ELBERT T. EDWARDS, NANCY H. MCCAFFREY, DAVID A. WEBB, JAMES CUOMO, and KENNETH S. EDWARDS* JR. , Constituting the ZONING BOARD OF APPEALS OF THE TOWN OF EAST HAMPTON, Respondents. LEONARD I. ACKERMAN, ESQ. SMITH, FINKELSTEIN, LUNDBERG 6 Attorney for Petitioner YAKABOSKI , ESQS. 34 Pantigo Road Attorneys for Respondent Planning East Hampton, New York 11937 Board 456 Griffing Avenue GEORGE BIONDO, ESQ. P.O. Box 389 Attorney for Respondent Zoning Board Riverhead , New York 11901 Old Montauk Highway Montauk , New York 11954 There are two consolidated Article 78 proceedings before the i court. One is to review a denial by the Planning Board of an application for a subdivision waiver, the other to review a determination by the Zoning Board of Appeals which failed to interpret the Town Zoning Ordinance in such a manner as to allow for the inclusion as part of petitioner's property, suf- ficient square footage to permit a legal subdivision, and rejected a request for a variance permitting the subdivision to consist of sub-standard lots. The last papers submitted herein were received by the court on August 28 , 1981 from petitioner. Nothing of an evidentiary nature therein has been considered in the rendering of this decision. Motions /1740 i 5030 2/2/79 6 3/29/79 100 MEMORAN DUM #77-3340 79-857 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I BY GEORGE J•ASPLAN vs. DATED OCT 61981 19 Facts The subject property is situate in Wainscott, a part of the Town of East Hampton, and borders on the Atlantic Ocean. Petitioner's deed reads to the high water line, and his title company insures title thereto, subject to the "right of the public in , to and over the beaches as adjoin the Atlantic Ocean" . There is an 84 ,000 square foot lot area requirement in an "AA" zone, in which petitioner' s property lies, and unless he can count the square feet between a 15 foot high dune and the mean high water mark as drawn by his surveyor, the proposed subdivided lots each fall short of the requisite 84,000 square feet. The distance between the dunes and the high water mark is such as to create an area about double the size of the balance of petitioner's plot. The Planning Board's denial was based on its lack of recogni- tion of "private ownership of the beach of the Atlantic Ocean" ; on findings that applicant did not satisfy the 84, 000 square foot requirement; and that the property has a long history of erosion. The Zoning Board of Appeals denied the application for an interpretation favorable to petitioner, on these grounds: me) The land is unbuildable; b) It can not support any type of vegetation; c) Its size and shape are no more predictable than the wind, tide and waves which have created it; _ 2 _ e i Lions niou i zu7u ir`"" '" %MEMORANDUM t77-3340 6 79-8579 s . SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I By GEORGEJ' ASPLAUPS. C V8. DATED OCT '61301 19 • d) It is subject to public easements; e) It has historically been used by the public as if it were public property; f) It provides the community with a place for passage along the ocean, a place for fishermen to engage in work or sport and for families to gather and to enjoy the gifts of their Town's natural beauty, and it serves as the first line of defense against the destructive forces of the Atlantic Ocean; and g) The applicant benefits from each of these uses along with his neighbors and the public, and so he can not claim that this property is rendered useless by the decision to exclude it from minimum lot area computations. " The foregoing was prefaced by the following statement : "Althou h thea licant may own that portion of lan w e es to the seaward side of the vegeta- tion line, that area, commonly known as the beach of-t- a Atlantic Ocean' is of such a unique nature that it can not be included in the meaning of the word lot as used in Section 153-28 of the zoning Ordinance . . . :" (Underscoring supplied. ) In explanation* the term "vegetation line (or contour line) is the growth of grass along the dune, and it is the contention of respondents that seaward , beyond such a line, no one can include the area to the ocean itself as square footage to enable the formation of a lot of legal size. It would appear from the quoted preface that the Zoning Board does not dispute ownership to the high water mark as claimed by petitioner, indeed, its formal answer contains this paragraph: "ELEVENTH: That petitioner at best has a bare, naked title to the afore-described 'beach' which - 3 - I011Y <N - M EMO RA N D _-II "W.vao M Index 477-3340 6 79-857 SUPREME COURT. SUFFOLAOUNTY SPECK TERM PART I By GEORGE J• ASPLA 'd VS. DATED OCT ,S 1981 19 • r. petitioner, as fee owner thereof, is permitted to enjoy in the same manner as any other member of the public. " The Planning Board too, holds this view, thus a reading of an affirmation by its counsel, dated March 30, 1977 (Page 2) shows : "Perhaps it was inartful for the respondent to suggest that it does not acknowledge private ownership on the beach below the dunes. " The pertinent Town Ordinance section on the subject of lot area is : "S 153-28. Minimum lot area [Amended 8-7-591 Minimum lot area (square feet) , minimum lot width at the building line (in feet, being the shortest distance across the lot drawn at the building line) , and maximum coverage of lot requirements are as follows: . (Amended 3-5-761 A. Residence District AA. (1) Residence District AA buildings or structures shall be on lots of eighty-four thousand (84 ,000) or more square feet having a minimum lot width at the building line of two hundred (200) feet, minimum front yard of fifty (50) feet and minimum side and rear yards of thirty (30) feet, covering a maximum of ten percent (108) Of a lot. [Amended 8-16-631 " On the present lot area are a two story frame dwelling, a pool , tennis court, a small cottage, and a garage. The Board of Appeals in turning down the alternate relief sought, to wit, a variance to permit a subdivision into two lots substandard in area, 4 - l•1 LIL7IT6 j17�V 6 3VJV Toro, ai, s: 2/2/79 6 3/29/79 ME MORA N DU M x #77-3340 6 79-e57 SUPREME COURT. SUFFOt.K COUNTY SPECIAL TERM PART I BY J. S. C. GEORGE J- ASPLAND VS. ` DATED OCT 19 decided as follows, quoting the essential portions: 0If the area variance were granted each resulting lot would lack minimum area by approximately 25% and would be subject to even further dimimution through the natural forces of storm damage and erosion. "Applicant's stated justification for the area variance is that to deny it would result .in an undue hardship in that it would render his investment in the accessory cottage lost. The Board notes, however, that applicant requested a variance from this Board on December 30, 1976 to allow him to improve that cottage in order 'to permit temporary use of (this cottage) as living quarters for applicant , during construction of the main residence' . Applicant was granted such relief and made full use thereof as requested. The Board, therefore, fails to see applicant's financial hardship. " (Note: The cottage has since been relocated and no variance is sought because of it. ) 'Since the variance from area requirements as here presented would require the granting of additional variances for the garage, the tennis court, the pool and the shed, which would otherwise not be necessary and since the applicant has the full use of each of these structures without variances while he owns a single parcel , the Board finds that the variance requested is not the minimum variance necessary for the applicant to accomplish his purpose. "The Board must note, also, that the unusual strength and unanimity Of opposition to this application has raised serious questions as to what effect such variances would have on the character of the neigh- borhood and the district as well as whether it might not be detrimental to the public welfare by setting a precedent which would increase the density of the area while at the same time restricting the use of the beach. ' - 5 - foie. •w es 2/2/79 & 3/29/79 MEMORANDUM Ias x X77-3340 &-79-857 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I By GEORGE J'ASPLAND S. C. VS. DATED OCT 61981 19 Petitioner' s Argument The gist of petitioner' s argument is that a zoning ordinance should be strictly construed in favor of a property owner to allow a reasonable interpretation of a code, citing 440 East 102nd Street Corp. v. Murdock , 285 N.Y. 298 (1941) to the effect that zoning ordinances being in derogation of the common law right to use one's property as one pleases, must be strictly construed against a municipality. In the instant case, the minimum lot area ordinance imposes no special limitation upon water front property respecting the amount of land to be included in a "lot". Also cited by petitioner is the Court of Appeals case of Bloom v. Town of Oyster Bay, 32 N.Y.2d 930, 347 N.Y.S. 2d 197 (1973) , which, in reversing the Appellate Division, granted judgment in accordance with the dissenting opinion of Justice Munder, wherein, among other things, this was i said: "Non-buildable land may be available for yard setbacks or such other open areas as the ordinance may require. The sterilization of almost one half of the total acreage in question borders on an unconstitutional confiscation. 41 AD2d 535. " Sec. 153-33 of the Zoning Ordinance prohibits the erection of any structure within 100 feet from a natural contour line. The non-buildabil- ity of the area between such line (dune) and the high water mark is conceded by petitioner, who nevertheless argues from the Bloom case that mere non- buildability is no reason for excluding such area from the calculation of 6 - i ro.L •N if— MEMORANDUM n c #77-3340 6 79-8579 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I By GEORGE J• ASPLANt) S. C. VS. DATED OCT 6 1.%' 19 square footage in a lot. Petitioner's brief cites as follows : '. . . in Benedict and Nagel v. Trustees of the Freeholders and Commonalty of the Town of East Ham]�ton an the Town of East Hampton (Sup Ct, Suf Co, In ex No. -1731, July 22, 1971) affd 40 AD2d 542 (2nd Dept. , 1972) , at issue was the ownership of the beach between the dune and the high water mark of the very land involved in this application. At trial, the Trustees attempted to again litigate the title question and submitted numerous deeds, Trustee Journals dating back to 1772, and the Dongan Patent. Mr. Nagel, the prior owner of the Ashman :. property, and Mr. Benedict, Nagel' s neighbor, sub- mitted a recorded chain of title dating back to ' 1868, wherein each deed conveyed title to the high water mark. In its decision , a copy of the pertinent part of which is annexed as Exhibit 'E' , the Court held that Nagel and Benedict owned to the high water mark, the Court noted at Page four of its decision that: Considering the history of plaintiff' s parcels the only conclusion that may properly be drawn is that their title does not sto at the dune utt rxns own to t o beachor to the an s washed y the sea, and between high- water-mark and low-water-mark. ' (Trustees of the Freeholders and CommonaltyCOmkonalty of the Town of East Ham tom'` v. Kirk, NY. 541, 463) Pla nt ffe' title�a ground in the same history as that of the plaintiff in Geoor ica_ Association V. Trustees of t eh Free- o ers an Commona ty o t e Town of East Hampton N.Y.L.J. , 0 63, P. 4 , un er, , Therein, notwithstanding the absence of express reference to the 'beach' in the original allotment to one Stephen Hand p , Mr. Justice Munder - 7 - .'. ;vu Rte• r .rrrr 2/2/79 & 3/29/79 *IIEMORANDUM In #77-3340 & 79-857 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I Br GEORGE J• ASPLAN6- S. C- VS. DATED OCT 61981 19 found that plaintiff owned to the high water mark. The proofs herein offer no reason for this Court to reach a different conclusion. [emphasis added] . " Respondents' Argument The Planning Board' s arguments rely on the susceptibility of .he subject area to flooding and erosion, and contend that this is a sufficient -�ason for denial even if each of the proposed lots were to reach 84 ,000 i, square feet. Town Law, Sec. 277, cited in part, reads : "where a zoning ordinance has been adopted by the town the plots shown on said plat shall at least comply with the requirements thereof; that the land shown on such plats shall be of such a character that it can be used safely for building purposes without danger to health or peril from fire, flood or other menace. " The Zoning Board of Appeals makes these points : The petitioner must overcome the strong presumption that the oard' s determination is correct; the Board's conclusion had a rational basis _n law and fact; in the denial of the request to include beach property in ;is computation, the Board located the boundary of his property for zoning ,urposes only, along the crestline of the dune. Continuing, Sec. 153-33c of the Zoning Ordinance gives the ,oard authority to fix the mean high water line on a lot fronting on the atlantic Ocean. Thus: "The 15' contour line is the elevation measured 8 - es 2/2/79 6 3/29/79 '°"""' *MEMORANDUM x#77-3340 6 79-857 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I BY J. S. C. GEORGE J• ASPLAND VS. DATED 19 �• OCT 61981 from mean sea level. In any case where doubt exists as to the 15 ' contour crestline of the dunes or the mean high water line, the building inspector or the applicant for a building permit may apply to the Zoning Board of Appeals for its determination of the location of said line. " In every single section of the ordinance, which is concerned with ocean front property, the mean high water line is placed at the end of beach grass growth and not at the water' s edge. Secs. 153-33 et seq. The reasonable nature of the subject interpretation is found in the substantial evidence contained in the record demonstrating that this interpretation is' consistent with the specific provisions of the ordinance , that it is consistent with the traditional interpretation of "lot area" as made by the Town Board of Assessors, Planning Board and individual members of the community. Court' s Determination From New York Jurisprudence 2d "Adjoining Landowners" , Sec. 77 : 'The term 'high-water mark' as applied to tidal waters , generally means the line marked by the periodical flow of the tide excluding the advance of the water caused by winds, storms and unusual conditions. 'Precise location on the ground of the high water line as a boundary may be governed by local surveying practice." Quoting from Dolphin Lane Assoc. Ltd. v. Town of Southampton, 72 Misc. 2d 868, 339 N.Y.S.2d 966, Justice Geiler : 9 - iod, es 2/2/79 3/29/79 • MEMORANDUM Ir #77-3340 6 79-857 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I By GEORGE J• ASPLANy? S. C. V8. DATED OCT g 1981 �g 'How is the high water mark determined? The United States Supreme Court in the case of Borax Consolidated, Ltd. v. Los Angeles , 296 U.S. 10, 56 S.Ct. 231, 80 L.Ed. 9, stated that the proper determination of the location of a high water line at any given time involves the consideration of all the high waters at a particular place over a Considerable period of time and that, under sound astronomical theory, the period considered should cover the past 18. 6 years. In other words, the average high water line is obtained by taking the mean of all of the high tides over a reasonable period of time. This standard for determining the location of the high water line is also used in the State of New York (Board of Education. of Union Free School District v. Nyquist, 51 Misc. 2d 902, 274 N.Y.S. 2d 229; Wood v. Maitland, 169 Misc. 484 , ' 8 N.Y.S. 2d 146 , modified and aff'd. 259 App.Div. 796, 19 N.Y.S.2d 320) . - It is the fact that the above-cited case, affirmed by the Ap- pellate Division, was modified by the Court of Appeals , 37 A.D. 2d 2920 296, 372 N.Y.S.2d 52. The modification consisted in rejecting the determination of the location of the high water mark along the southern shore of Shinnecock Bay by reference to the type-of-grass test introduced by the Town. The Court of Appeals found that prior to the litigation, it had been the normal practice to locate the high water line by reference to a line of vegetation. In other words, the establishment of a high water line by reference to a type of grass test rather than by the traditional line of vegetation test was rejected by the Court. In the instant case, there has been no evidence 'produced, other than the mere statement thereof, as to the practice of establishing the high 10 - ` V71i, es : 2/2/79 i 3/29/79 Noir �a� *MEMORANDUM I #77-3340 6 79-857 SUPREME COURT, OUFFOLK COUNTY SPECIAL TERM PART I By GEORGE J• ASPLAYDS. C. VS DATeD OCT '6 1981 19 water mark at a vegetation or contour line. In fact, there is no showing of a settled vegetation line on the subject property. At the hearing before the Zoning Board, member McCaffrey, who had viewed the property, made the following statement : "MEMBER' NANCY H. McCAFFREY: Just to review the location, this property is located on the east side of Beach Lane, Wainscott, right on the Ocean. It suffered some severe erosion two to three years 'ago and since that time the property has changed hands. Part of a dune area has been built up inside the (indecipherable) with beach grass planted on it. A new home has been built to replace the old one. It had to be removed. The fill that was placed to build up this dune is also being used to build up a driving area, and also under the pilings, which the new house is built upon. " Several prior deeds to the property, in evidence, show the distance from the northerly or street side of petitioner's property to run about 481 feet to the high water mark. The deed to petitioner reads 551. 96 feet, this, presumably because of the change in the mean high water mark in a seaward direction. The survey before the court, revised October 17, 1978 , reveals a series of mean high water marks since 1930, with the mean of all high water marks being that of December 12 , 1945. It is of interest to note that petitioner took title in November, 1976 and the mean high water marks as of September 27, 1976 and November 9, 1978 extend even further seaward than the 1945 line. - 11 - Ions 91740 & 5030 rNEw 2/2/79 6 3/29/79 %MEMORANDUM In . #77-3340 & 79-857 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I BY GEORGE J• ASPIAN®. S. C. VS. DATBD OCT 61981 19 Of note at this point is the following excerpt from Wood v. Maitland et al. , 169 Misc. 484, 8 N.Y.S. 2d 146 , 151 , which quotes Coulson & Forbes on The Law of Waters: "The sea shore may be defined as that portion of the land adjacent to the sea which is alternately covered and left dry by the ordinary flux and reflux of the tides. Although, in common parlance, the word 'shore' has often a more extensive meaning--taking in all that extensive belt of waste ground or strand, shingles and rock liable to the action of every kind of tide--yet it is now finally settled, that in legal intendment no more of . that unclaimed tract is sea shore than that portion which lies between high and low water mark at ordinary tides. This point has been finally settled by the case of Attorney-General v. Chambers, (4 De G. , M. & G. 206) , in which the Lord Chancellor Cranworth, * * * held that the sea shore landwards is, in the absence of particular usage, prima facie limited by the line of the medium high tide between the spring tides and the neap tides; or , in other words, that part of the shore which for four days in every week, or for the most part of the year , is reached and covered by the tides. As this line will vary as the sea recedes from or en- croaches on the land, so the boundaries of the shore will vary with the recession or encroach- ments of the sea. Land above this line, though overflowed by high 'spring and extraordinary tides, is not shore, but is presumed to be land the property of adjoining owners. " Coulson & Forbes on The Law of Waters (3d Ed. ) , page 21. In keeping with the standard set in the above cited cases, and from a study of the survey filed, a fair approximation of pet'itioner' s high water mark would appear to be that of December 12 , 1945, and would afford 12 - ns #1740 & 5030 FO"" "' MEMORANDUM Inaex #77-3340 & 79-8579 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART I Br GEORGE J- ASPLANDj. S. C. VS . , DATED ICT 6 1991 19 i petitioner the requisite square footage to constitute two legal sized lots upon subdivision of his present lot. Petitioner makes no claim of intent or right to build or exert exclusive domain over the beach property in question. As seen, one section of the ordinance would prohibit such construction , and respondents aver that the area is subject to public easements. Any infraction by petitioner would presumably prompt appropriate Town action. EarlAer in these proceedings, before consolidation, the Planning Board, in the proceeding against it, had moved to dismiss. The motion was denied by Justice McInerney on "points of law" , which points were required to be resolved. These are: (The answers to them, as found by the court, follow each "point" question) . 1. Did the zoning ordinance establish a southern-most developmental boundary as the 15-foot contour line and require any house to be set back one hundred feet therefrom? Yes. 2. Must all lots comply with the lot requirements of the residential AA zone if they are situated in this zone? Yes. 3. Does the proposed two-lot subdivision comply with these requirements of the zoning ordinance? Yes. 4. Does the zoning ordinance require the Board to treat the beach and area between the 15-foot contour line and high-water mark of the Atlantic Ocean in a different category than the upland lying to the north of the 15-foot contour? Yes, but only to the extent of limiting any construction aons *ai9v r 2vDu yqd„ urs 2/2/79 6 3/29/79 4MEMORANDUM Int; #77-3340 6 79-857 SUPREME COURT, SUFFOLK COUNTY SPECUF L TERM PART I 8Y6E6hdt J• ASPLANb. s. C. VS. DATED OCT 61961 19 thereon. 5. Should the Board consider suitability of the parcel for subdivision in view of the inroad of the ocean on the sand beach and possible extensive damages caused by this to houses in the area? Yes. Nothing is found in the ordinance which would prevent petitioner from including all of the property down to the high water mark. Nowhere in the Code is there any limitation on the inclusion of beach property in counting area square footage. The use of the terms "sand dunes" , "beach grass" , "natural gontour line* are not used in the sense of confining extent of ownership but rather of restricting development. The point is made by petitioner that zoning ordinances are to be strictly construed and is considered well taken. Neither respondent contests that title was to the high water mark. i Although respondents rely on the assertion that historically, the Town Trustees retained ownership rights over the beach and that for centuries the established highwater mark was at the southerly dune or beach grass line, cliff, bank edge or limit of arable land, this has not been sustained by adequate proof. What may have been a dune site or vegetation line in years past has been changed by the inroads and withdrawals of the sea in its capricious actions. There is no evidence as to a stable dune site nor vegetation line in the record here. The survey of George H. Walbridge Co. 14 - SUPREME COURT. SUFFOL OUNTY SPECIAL TERM PART I er GEORGE J• ASPLAND J. S. C. VS. DATED 19 of East Hampton, revised October 17, 1978, which is not refuted by testimony or other evidence, shows nine different mean highwater marks from December 17, 1930 through November 9, 1978, two different dune sites, one in October, 1976, the other November, 1978, and three different beach grass lines. What petitioner is proposing here , is not seen as a threat to community values. Two lots would be created where one existed before, each of permissible size. If it is considered objectionable to form two lesser lots out of a greater one, the Zoning Ordinance should have initially provided against any lots of less than twice 84 ,000 square feet in an area, or specifically proscribed inclusion of "beach" area in the calculation of lot square footage. The Bloom case, cited hereinbefore , is compelling on the point that land, although unbuildable , must be included in the calculation of the entire parcel size. Sec. 277 of the Town Law which requires that a lot "shall be of such a character that it can be used safely for building purposes without damage to health or peril from fire, flood or other menace" is not seen as applicable. That section clearly refers to building purposes. The claim of respondents that the subject beach is susceptible to flooding and erosion, is therefore without relevance. Turning to the variance request, the court noteb that the cot- tage has been moved to a different location and no variance is necessary as - 15 - n cions r1/w a 5050 '�oft�=" . MEMORANDUM x.#77-3340 a 79-8579 SUPREME COURT, SUFFOLK COUNTY SPECIAL TERM PART Z BY WORGEJ•ASPL U S. C. Vs. DAT[D OCT 8 r � 19 to it, leaving only the tennis court and frame shed as subjects for a variance from side and rear yard set back requirements. The court fails to see that petitioner encounters such a "practical difficulty" as precedents have consistently required, to justify the granting of the variances sought. Significant economic injury has not been shown. Fulling v. Palumbo, 21 N.Y. 2d 30, 33 , 286 N.Y.S. 2d 249 , 252. Also, there is no question that petitioner would not now be in need of a variance but for his desire for a subdivision. From, Anderson, "New York Zoning Law 'and Practice" , second edition, Sec. 18. 43s "As it is applied in the cases just reviewed, s and in other recent litigation, the self-created hardship is not applied as a flat bar to relief, but a factor to be considered by the board of zoning appeals and the courts. It is clear that where the practical difficulties asserted by the applicant are self-created, the rule of Fulling v. Palumbo does not mandate relief, even where there is proof of substantial economic injury. An area variance may be denied on the ground of self-created hardship, provided such denial is not arbitrary and capricious. Even where the self-created hardship applies, it is regarded as a factor to be considered in determining whether or not to grant relief, but not the sole factor to be so considered. " As to the subdivision proposed, the actions of the Boards are seen as arbitrary, would deprive petitioner of a use of his property lnjustifiably, and amount, in the words of the Bloom case , tG a confiscation. This matter is remitted to the Planning Board with the direction 16 - IrtFr�,• es s 2/2/79 1 3/29/79 MEMORANDUM x i77-3340 s 79-957 SUPREME COURT. SUFFOLK COUNTY SPECIAL TERM PART t BY GEORGE J- ASPLANg S. C. VS. DATED OCT 61991 19 that it grant the application for subdivision and to the Zoning Board of Appeals to interpret the Zoning Ordinance in such a way as to permit the subdivision requested, but the latter's denial of the variance as to the tennis court and frame shed is confirmed. Settle judgment. J. S. C. i I 17 - R I `" i JOHN I. HOLDEN, C.E. LICENSED PROFESSIONAL ENGINEER AND LAND SURVEYOR N. Y. STATE LICENSE NO. 22118 RESIDENCE: 185 ELM STREET SOUTHAMPTON. N. Y. 11888 AT 3.1085 Nov. 5, 1984 Mr. Thomas Samuels Bishops Lane Southampton, N.Y. 11968 Dear Mr. Samuels: The undersigned has determined that the area of "Af1 Zones within the Town of Southold, Suffolk County, N.Y., excluding Plum Island and the Village of Greenport, is : Approximately 298,957,000 sq. ft. or approximately 6,863 acres or approximately 10.725 sq. miles. The area was determined by means of a Planimeter, from the Flood Insurance Hate :daps (FIRM) for the Town of Souttxold, dated June 15, 1983, which are at a scale of 1" 5001 . The following map sheets or panels were used for this purpose : 4, 110 120 14, 46, 48, 50, 57, 58, 70, 789 79, 91, 922 93, 94, 98, 112, 1140 116 and 118. The area of Southold Town (including the Village of dteenport ), given in the Long Island Lighting Company Property Census Journal, is 34,000 acres. Deducting the areas of Plum Island and the Village of Greenport, which were scaled from available maps, leaves 322680 acres. Based on the acreage, the percentage of the "A" Zones would be 6, 853 '32,680 = 21.0%. Very truly yours, Jo:un I. Bolden JOHN I. HOLDEN, C.E. LICENSED PROFESSIONAL ENGINEER AND LAND SURVEYOR N. Y. STATE LICENSE NO. 22118 RESIDENCE: 183 ELM STREET SOUTHAMPTON. N. Y. 11968 AT 9-1068 Nov. 5, 1984 Mr. Thomas Samuels Bishops Lane Southampton, N.Y. 11968 Dear Mr. Samuels: The undersigned has determined that the area of "A" Zones within the Town of Southold, Suffolk County, N.Y., excluding Plum Island and the Village of Greenport, is : Approximately 298,957000 sq. ft. or approximately 6,863 acres or approximately 10.725 sq. miles. The area was determined by means of a Planimeter, from the Flood Insurance Rate Maps (FIR11) for the Town of Southold, dated June 15, 1983, which are at a scale of 111 5001 . The following map sheets or panels were used for this purpose: 4A 11, 129 14, 469 48, 56, 57, 589 760 78, 79, 910 92, 93, 94, 98, 112, 1141 116 and 118. The area of Southold Town (including the Village of Oteenport ), given in the Long Island Lighting Company Property Census Journal, is 34,000 acres. Deducting the areas of Plum Island and the Village of Greenport, which were scaled from available maps, leaves 32,680 acres. Based on the acreage, the percentage of the "A" Zones . would be 6, 863 *. 32,68o = 21.0%. Very truly yours, L John I. Holden FILE NO.S- SD-85-I2 SUFFOLK CO. PLANNING DEP1 SUB,D REVIEW SECTION APRIL 319` BY: C The subdivision of this parcel, as proposed, has been approved by the Suffolk County Planning Commission subject to 5 conditions deemed neces- sary to help preserve the natural and aesthetic attributes of I-lie- ,h .7 e_ c t Bcti e.- i th d u i Hi n i�' 1 cL� Q ) thrr o Refer to letter for conditions and comments. c Approved in nrconlance ..ith Emr I of Review } - 1 � m drlenuinatian dated '1u �/ � _ n���S,UnF'FOLK COUt TY CPARTA 1;.'[T OF FAM'I SERVICES 74 '�"Y"�� - �tllf� t:e ��fl�ttl�y��-Pif2-IL�r.,�-5 /p 57/ IV11V _t.LS.7,S1.7L..-., F �i� op Hauppauge,Naw Yod:_ ¢ -. o N j � �� This is to certify that the proposederipn0ern�nts for water supply Q I� and sewcpa d�i-pansol�Fpor r - �m in the 7 v VT7Tr 6-etQ_ with c mitt of _2_ lots y ( �'I Y' -----{ Q 7 were approvau on Ca bava dein. r ----- - - _ C I - - - T)jConsent is hereby given for the filing of the map on which this endorsement eppears in the Office of the County Clerk in accordance with provisions of tiLe Public Health Law and the Suffolk County a F Sanitary Code. �� a w' o a r Eke=of Environmentat.H c, -- il i,_.�r-.:'� �Url_ 'i l' �r;7ii.�itey � 15042 VIE'Vk- 0 ' "� �(:,,{t'Jd�Y'%�'-l9 til � r'a!"1�'Ji�F ' C .fir i �... •,. . �,r?.) ��7� - nr o'F Cco. . : � •,rea':;" iIr'� - ..a=,.T f-P_ I i 6U�F'G1 _.___ - -- ---- --'--�--- I ,i-�;� - sem' -X'Ca • <''�" SC 7 r. t � t 5✓,J o/(t Goc,r,7, 7 Pomace.: - 14 f ! �r Ill - ��o`` % - •/ .-(,:./,n�,z(,d. 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