HomeMy WebLinkAboutZBA-06/22/2006 Hearing
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2 TOWN OF SOUTHOLD ZONING BOARD OF APPEALS
e COUNTY OF SUFFOLK : STATE OF NEW YORK
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5 TOW N 0 F SOU THO L D
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7 Z 0 N I N G BOA R D o F A P PEA L S
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Southold Town Hall
10 53095 Main Road
Southold, New York
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June 22, 2006
12 9:30 a.m.
13 Board Members Present :
- 14 RUTH OLIVA, Chairwoman
15 JAMES DINIZIO, Board Member
16 MICHAEL SIMON, Board Member
17 LESLIE KANES WEISMAN, Board Member
18 LINDA KOWALSKI, Board Secretary
19 KIERAN CORCORAN, Assistant Town Attorney
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Board Member Absent : GERARD P. GOEHRINGER
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24 ORIGINAL'
e 25
COURT REPORTING AND TRANSCRIPTION SERVICE ( 631) 878-8047
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2 CHAIRWOMAN OLIVA: I'd like to
e call to order our regular meeting of Thursday,
3 June 22, 2006. I'd like to make a motion
declaring all our motions a negative dec.
4 (See minutes for resolution.)
5 CHAIRWOMAN OLIVA: Our first hearing is
Perry down on Clearview Road. Yes, sir.
6 MR. PERRY: I'm Richard Perry, just here
to answer any questions from last time, 830
7 Clearview Road. I also have signature receipt
cards.
8 CHAIRWOMAN OLIVA: Thank you, would you
give those to Linda? Michael, do you have any
9 additional questions for Mr. Perry?
BOARD MEMBER SIMON: Not at this time.
10 CHAIRWOMAN OLIVA: Jim?
BOARD MEMBER DINIZIO: No.
11 CHAIRWOMAN OLIVA: Leslie?
BOARD MEMBER WEISMAN: No, I think it was
12 fairly well covered in the last go around.
CHAIRWOMAN OLIVA: Anybody in the audience
13 that wishes to speak for this application?
tit MS. MOORE: I just want to put on the
14 record Mr. DiSalvo was just waiting for a decision
to see if it would impact him. So he had no
15 objection to his application. We just wanted to
be sure that nothing came in the decision that
16 might impact us.
CHAIRWOMAN OLIVA: Thank you. I'll make a
17 motion to close the hearing and reserve decision
until later.
18 (See minutes for resolution.)
CHAIRWOMAN OLIVA: Thank you very much,
19 Mr. Perry. We will make our decision in another
week, but then it might take a while before it/s
20 written up. But you can call up in a week and
find out.
21 -------------------------------------------------
CHAIRWOMAN OLIVA: Our next hearing has
22 been held over for the Kennedys for over in
Fishers Island. I believe Mr. Hamm is here and
23 it's our pleasure to meet Mrs. Kennedy.
MR. HAMM: Good morning, Steven Hamm, 38
24 Nugent Street, Southampton for the applicant.
You are in receipt of a letter from Miss
. 25 Moore raising a legal point. Rather than go
through everything on that here, I've just
June 22, 2006
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2 prepared a memorandum addressing that issue. I
e had participated in the subdivision and can attest
3 and give you written evidence that the location of
the building envelope on this property on the
4 northerly side was not a condition to that
approval. And there's support here for that
5 position. Also my client has spoken to Ken
Edwards of the Planning Board who indicated the
6 same thing. And further when Miss Kennedy applied
for a building permit she was denied for setbacks
7 but not because the envelope was in the wrong
place. I'd like to put this in the record.
8 CHAIRWOMAN OLIVA: Fine, thank you
Mr. Hamm.
9 MR. HAMM: I understand that two of your
members have been to the site and Mrs. Kennedy is
10 here if you have any further questions of her.
CHAIRWOMAN OLIVA: Thank you Mr. Hamm. Is
11 there anything Mrs. Kennedy would like to add?
MS. KENNEDY: I just wanted to thank you
12 for your time and particularly the two gentlemen
that went out to the site. This is a very
13 important piece of land for me. I've been coming
tit to Fishers Island for over 50 years. My parents
14 did set up this subdivision in case one of their
children did want to build a house in the future,
15 and it's something I have been working on very
diligently I hope with all of the neighbors to
16 build the best possible site and to select the
best site that we possibly can.
17 I did submit a rather lengthy, and I
apologize for its length - - discussion about some
18 of the issues that were raised at the last
hearing, so if anybody has any questions on those
19 I'd be more than happy to answer them, but I don't
want to take up your time with them unless you
20 have specific questions.
BOARD MEMBER SIMON: I just have one
21 question, it's more for the record. As I
understand the location that you/ve designated is
22 at the top of the hill but there previously was a
much larger structure at that spot at one time?
23 MS. KENNEDY: Yes, it's called the
Monnonato Inn, and it was a hotel. I did include
24 one picture of that in the documents I submitted.
tit I have lots more if you want some.
25 BOARD MEMBER SIMON: Just one comment I
have. Before I realized that, when I walked over
June 22, 2006
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2 the property I wondered why nobody had previously
e built on this particular spot, now I know.
3 MS. KENNEDY: I was too. I think they
were concerned that there was rubble. And there
4 are, as Mr. Greevey refers to them, lots of large
pebbles that he is going to deal with but no
5 rubble. Thank you.
CHAIRWOMAN OLIVA: Jim?
6 BOARD MEMBER DINIZIO: No, I didn't. I'm
sorry if I gave you that impression. I've visited
7 this area, not for this application, but I've
certainly been down that right of way before. You
8 kind of assumed that I was there, but that's not
so. However, I think that the most logical place
9 for you to put a house on this lot is where you
want it, and the Town has encouraged people to
10 stay away from the water as much as possible. And
with that said, I wish you all the luck in the
11 world in working something out with your
neighbors.
12 MS. KENNEDY: Thank you and thank you for
help in going out and looking at it too.
13 CHAIRWOMAN OLIVA: Leslie?
e BOARD MEMBER WEISMAN: No, I'd just like
14 to compliment both you and your neighbors on the
level of cooperation and communication that all of
15 this documentation indicates. I have to write up
the findings, and I have to tell you that I have
16 complete confidence that every piece of possible
information is in the file. And as an architect I
17 have to tell you that I think it's very well
sited. I think it's an appropriate site. It has
18 the least amount of impact on any of the natural
features surrounding the site. And thank you very
19 much for all of your thoughtful writing.
MS. KENNEDY: Thank you. And thank you
20 for your help.
CHAIRWOMAN OLIVA: And I couldn't agree
21 with my fellow members more. I think it is an
appropriate site, and I wish you well with it.
22 Does anyone wish to speak on this application.
Miss Moore?
23 MS. MOORE: Yes. I have to acknowledge
that everybody is very genteel on Fishers Island,
24 which is nice. I know my client, it's nothing
. personal between the parties, it's just a matter
25 of opinion. I do stand by that decision that I
sent to the Board which seems to set forth that
June 22, 2006
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2 the Zoning Board does not have jurisdiction over
e this issue. I just received the written
3 documentation. My client is away as you know from
the last hearing, you know he cannot be here
4 because he was out of the country, so I would ask
for time to respond and review it. The Planning
5 Board file, the entire file, I had to go through
the microfiche portion of the file but
6 unfortunately when they microfiche, they don't
microfiche everything from the file. So I will
7 have to requisition the file to review it. I'm
looking at documents here that again, I haven't
8 reviewed. So I would also request that maybe this
Board also requisition the file since it does not
9 appear to be available. The Planning Board didn't
have it, and it was not in microfiche. I tried
10 under the subdivision, their computer search, all
I was able to get was the minutes from the
11 approval, and I had the map from the file.
CHAIRWOMAN OLIVA: What year was this
12 done?
MS. MOORE: 1994 subdivision I believe.
13 MR. HAMM: It started in '91 finished in
e ' 94.
14 MS. MOORE: I actually found the minutes
from going through the minutes from year '91
15 through '94 until I was able to find it. So it
will take requisitioning the file is the most
16 important thing.
I also was there at the site and certainly
17 if I was Mr. Hamm I would be arguing the same
point, that it's not a condition. I think the
18 closest example that you have to siting building
envelopes is the Angel Shores subdivision.
19 Planning Board often times places building
envelopes on the property, and that is the
20 location that the Planning Board believes is the
appropriate location for the house. So to the
21 extent that a building envelope has to be
relocated, in this area they had it as a building
22 envelope, they had it as a proposed house, they
even had the proposed sanitary system on the filed
23 map. So I believe it's something that maybe
ultimately they will get this approval, but it
24 does have to go through the Planning Board process
first and then back to you with respect to the
e 25 location of the building envelope. That seems to
be what the law indicates as well.
June 22, 2006
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2 CHAIRWOMAN OLIVA: Mr. Hamm?
e MR. HAMM: The location that's shown on
3 there and this memorandum addresses that lSBue was
put there because my client's father wanted a
4 house there. The Planning Board did not want it
there initially. If you look at my Exhibit A is
5 the initial reaction to the sketch plan that was
proposed with a house in the location where it did
6 finally end up. But we fought for two or three
years to get it in that location and they
7 eventually allowed it. But it was never indicated
that other parts of the property were not
8 appropriate. In fact, the Planning Board
preferred other parts. It's a fluke that it
9 happened to be there. It was there because it was
controversial location, and they eventually said
10 it was okay. There is nothing in the record, and
I was involved with this throughout, that
11 indicates that this is the only location where a
house could go. The fact that it's shown being in
12 that location came about because that's where
Mr. Rouche wanted it but the Planning Board
13 initially objected to it. But this shows that
e they approved that location for the future if they
14 wanted it there. I'm not familiar with the Angel
Shores, but I'm sure if there were conditions
15 imposed with that subdivision, that when one went
to the Building Department In that subdivision, it
16 would be rejected if the location was not
consistent with the Planning Board approval. We
17 were not denied on the basis of a location here.
MS. MOORE: Well, that will be a point
18 that we'll have to - -
MR. HAMM: I would like this hearing
19 closed today. We have given Mr. Keenan every
opportunity. He came up two days before the
20 scheduled hearing of which he had plenty of notice
notwithstanding his objections to that. He has
21 been talking with my client for a year now. He
has asked for quid pro quos throughout, that is
22 why he has a lawyer involved trying to throw
monkey wrenches into this whole process. This lS
23 the third hearing on a house location, my God, is
this a use variance or something? Why are we
24 here?
e MS. MOORE: If I could respond. This
25 document is a new document. It sets forth law and
exhibits that none of us have seen before. Also I
June 22, 2006
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2 would point out that because this is a part of a
e three, four lot subdivision, Mr. Keenan bought his
3 property with a certain expectation that the
houses were going to go where the houses were
4 shown on the subdivision map. So in all fairness
to Mr. Keenan, I think when you start making
5 changes, in fairness to someone who buys in a
subdivision I think that that should be something
6 that understandably he would be upset with that
response.
7 And with respect to quid pro quos, I think
it's unfair to label him as some kind of
8 abuser. The offer that was made or he tells me is
that if he were donate $750,000 to one of the
9 trusts there, he would get the property, and that
just didn't seem appropriate to him, that that
10 would be the way if had the lot been offered to
him without those strings maybe that would have
11 been something he was interested in but that was
not something with respect to quid pro quos, I
12 think it went both ways. I don't think we should
be going there. I think it's purely as a matter
13 of both law and plan here. You have the case that
e I found, the law seemed to be pretty
14 straightforward. I found it pretty quickly, and
certainly, again, if I was Mr. Hamm I would be
15 arguing that it was not a condition, but that
doesn't seem to be the way the law is.
16 Again, if you want it as a written
response, certainly that's appropriate, you can
17 close the hearing subject to a written response.
CHAIRWOMAN OLIVA: I would like to make a
18 motion to close the hearing and give you three
days to respond.
19 MS. MOORE: Today is Thursday, I'm here
with this Board all day and my client is not
20 available, that's why I'm here.
MR. HAMM: It's a legal matter, why do you
21 need your client?
MS. MOORE: I don't know what you have
22 written, honestly. I don't know what you've said
here, so I don't know how to respond.
23 MR. HAMM: But your point is that we're
talking about a point of law not a point of fact.
24 MS. MOORE: Mr. Hamm, I don't know what
e you wrote here. This is a document of several
25 pages.
CHAIRWOMAN OLIVA: I will give you to
June 22, 2006
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2 Tuesday.
. BOARD MEMBER DINIZIO: Can I ask questions
3 and comment?
CHAIRWOMAN OLIVA: Sure.
4 BOARD MEMBER SIMON: I have a question
too.
5 CHAIRWOMAN OLIVA: I don't want this to
drag on.
6 BOARD MEMBER DINIZIO: I understand the
frustration level here, but this is probably a 15
7 page document here that probably should be read
over by someone opposing it. I have no
8 disagreement with that, but I would kind of like
to just maybe put everybody on the right path
9 here. We're not looking at a building envelope in
any way here. Our application is because there's
10 a right of way on this piece of property that they
intend to build a house too closely to. If that
11 right of way were not there, and it's a minimum
use right of way as I can understand it, it's not
12 like it's a road, they would not even be before
us. She would be building her house and everybody
13 would be on their merry way or disgruntled way,
whichever it is. I think we ought to address our
e 14 application and certainly, Miss Moore, you have
every right to do whatever lawyers do, which I
15 know what will happen, but that shouldn't be
our - - what we're required to do is to hold things
16 up forever. We're looking at a right of way, and
whatever we think is reasonable and certainly the
17 lay of this land does present a hardship and the
Town has, in many instances, encouraged people to
18 build away from the water which is what this
applicant intends to do. Beyond anything that the
19 Planning Board did, certainly our laws are clear
enough that if the Planning Board has made a
20 condition, they will not get a building permit. I
feel comfortable with that, but that is not why
21 we're here, that is not why this applicant lS
before us. And quite honestly, if I could make
22 the decision today, I would. But again, like I
say, you did hand in something that - -
23 MR. HAMM: I was forced to do that to
address - -
24 BOARD MEMBER DINIZIO: I understand that.
MR. HAMM: - - what I feel is a bogus
e 25 issue.
BOARD MEMBER DINIZIO: I understand the
June 22, 2006
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2 game that lawyers play, quite honestly. I
e understand that game. It's frustrating for me,
3 but it has happened. If she needs time to read it
over, I'm willing to give her to the week that we
4 have our next meeting that we make decisions.
CHAIRWOMAN OLIVA: You mean give her a
5 week?
BOARD MEMBER DINIZIO: We're going to meet
6 again. We can discuss whatever it is and then
close the hearing and make our decision. I think
7 beyond that - -
MR. HAMM: If the variance is granted Mrs.
8 Kennedy would like to be in her house next year,
so anything you can do to expedite this decision
9 would be greatly appreciated.
BOARD MEMBER DINIZIO: Understand,
10 Mr. Hamm, we are going to have no control over
that whatsoever.
11 MS. KENNEDY: I understand that aspect of
it. I do just plead for you to go as quickly as
12 possible. This fall my parents will have been
dead for five years. My siblings and I really
13 need to know what we can do here, so they can move
forward with their lives too. They have other
e 14 proposals, there are contractors lined up, there
are people who can't begin work. The hardship
15 that the delay is imposing, and I know it's none
of your doing, but it is a real hardship for an
16 awful lot of people across the board. And we do
feel, obviously my siblings and I have had some
17 disagreements on how to handle the property, but
we have come together, and we really do think
18 we're doing the best for everybody on the
peninsula and in the entire community. I think in
19 the information I have sent you, I have addressed
the issue of Mr. Keenan being offered the property
20 first. It's a little different than Miss Moore
described it, but that may be a difference of
21 opinion. But my plea is for time because I am
running out of time and my siblings are running
22 out of patience for me.
CHAIRWOMAN OLIVA: I would still like to
23 close the hearing, give Miss Moore time to give a
written response by next Thursday when we make our
24 decision.
BOARD MEMBER SIMON: Perhaps we could have
tit 25 it on Wednesday so we could read it before our
meeting?
June 22, 2006
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2 CHAIRWOMAN OLIVA: Yes.
e MS. MOORE: I'm abou t to leave out of the
3 country so I'm going to have to drop everything to
do this as it is.
4 BOARD MEMBER SIMON: I would like to make
a procedural point, however. I did not receive a
5 copy of your letter that you wrote since the last
hearing.
6 MS. MOORE: I actually hand-delivered it
at the same time I faxed it to Mr. Hamm, as a
7 courtesy, so as not to surprise him at the
hearing.
S BOARD MEMBER SIMON: But in any case this
was after the hearing and it is a letter that you
9 argue is raising some legal points to which he has
replied and now you want time to reply, so then he
10 could ask for time to reply? In fairness to Mrs.
Kennedy, and I think Mr. Hamm has made an
11 excellent point, so far as it is a legal question
you do not have to wait for your client.
12 MS. MOORE: We're all assuming it's a pure
legal question.
13 BOARD MEMBER SIMON: The rest of that lS
e too late.
14 MR. HAMM: It's four pages of argument,
the rest of which is exhibits, which are history
15 of the subdivision.
BOARD MEMBER SIMON: The rest of that is
16 after this further discussion, this came up after
the previous discussion was over and it cannot go
17 on forever so that people can address what mayor
may not be legal points ad infinitum.
18 MS. MOORE: I understand, but in the past
when I have appeared before this Board and brought
19 documents to a hearing, you have actually
adjourned hearings for a full month because you
20 were not satisfied that a document was submitted
prior to a certain time that you allocate for
21 having preparation of documents prior to a
hearing. So in all fairness you have set
22 procedures in the past. I merely ask that I be
granted the same courtesy that you give to others.
23 I will abide by your request.
CHAIRWOMAN OLIVA: My motion still stands
24 to close the hearing and have your response by
e Wednesday so we can go over it by Thursday.
25 BOARD SECY. KOWALSKI: If I could ask a
question, that's all. There was some conversation
June 22, 2006
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2 about a letter that Miss Moore gave for the file?
e There's no letter submitted.
3 MS. MOORE: Yes, it's a letter with a case
attached to it.
4 BOARD SECY. KOWALSKI: We never got it.
MS. MOORE: I hand delivered it.
5 BOARD SECY. KOWALSKI: Who did you hand
deliver it to?
6 MS. MOORE: Who was there - - let me get
it.
7 MR. HAMM: It's that letter that my
memorandum is addressing.
8 BOARD MEMBER SIMON: His letter, what he
gave us addressed a letter that we have never
9 seen.
MS. MOORE: June 16th.
10 BOARD SECY. KOWALSKI: Who did you give
the letter to? You said you faxed it a little
11 while ago. We have never seen this letter
before.
12 MS. MOORE: We faxed it to Mr. Hamm.
MR. HAMM: I received it on Friday.
13 CHAIRWOMAN OLIVA: My motion still stands.
e (See minutes for resolution.)
14 -------------------------------------------------
CHAIRWOMAN OLIVA: Our next hearing is for
15 Philip Mascia, is there someone here to speak on
this?
16 MR. MASCIA: I am respectfully requesting
that we can have permission for the proposed
17 addition for our deck and screened-in porch, just
to allow us sufficient space to safely utilize it
18 for my family, including two little children.
CHAIRWOMAN OLIVA: All you want really is
19 the deck?
MR. MASCIA: That's what the variance - -
20 yes, ma'am.
BOARD MEMBER WEISMAN: And screening In
21 the porch.
BOARD MEMBER SIMON: The porch lS
22 screened; the porch will be enclosed?
MR. MASCIA: Yes, but the deck will not.
23 BOARD MEMBER WEISMAN: It now has a
trellis over it, correct?
24 MR. MASCIA: Correct.
e BOARD MEMBER WEISMAN: You're simply going
25 to put a full roof on and screen?
MR. MASCIA: Yes.
June 22, 2006
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2 BOARD MEMBER SIMON: will the porch be
e enclosed by anything other than screens?
3 MR. MASCIA: No, sir.
BOARD MEMBER SIMON: The reason I ask is
4 that the porches are enclosed with solid material,
which then leads into heating the area, which
5 leads to a new room.
MR. MASCIA: That will not be the case.
6 CHAIRWOMAN OLIVA: Jim, do you have any
questions?
7 BOARD MEMBER DINIZIO: No.
CHAIRWOMAN OLIVA: Does anybody in the
8 audience wish to speak on this application? If
not, I'll make a motion to close the hearing and
9 reserve decision until later.
(See minutes for resolution.)
10 -------------------------------------------------
CHAIRWOMAN OLIVA: Next application is for
11 Manos up on Sound Drive in Greenport on a
reconstruction of a house.
12 MS. MOORE: Good morning.
CHAIRWOMAN OLIVA: Good morning again.
13 MR. MOORE: I have Mr. and Mrs. Manos here
e today. I also have Angel Chorno the architect
14 here. I did bring over on June 13th a packet of
documents. The property was staked so if you were
15 out there to take a look. I know that the Board
was concerned that the top of bluff line may have
16 changed in the time that it was originally done,
but as you can see it was not changed. So all the
17 measurements that we are basing our setback
requests on are in fact accurate.
18 CHAIRWOMAN OLIVA: What are the setbacks
requests again for the record?
19 MS. MOORE: We had originally asked for 51
for the pool and behind that - - I don't even
20 remember at this point, I have to go back through
my documents. We submitted most recently, I have
21 two drawings, the one done by the architect shows
the pool at 60 feet from the top of the bluff and
22 the house at 88 feet from the top of the bluff.
CHAIRWOMAN OLIVA: That's the way it's
23 staked out?
MS. MOORE: No, my letter explained
24 that. We have two proposals, one that we
e originally asked for which put the house five feet
25 closer and the pool five feet closer. The
Trustees approved that proposal. At the last
June 22, 2006
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2 hearing, I got differing opinions as to where the
e pool and the house should be located. So we said,
3 well, we can push the pool as far back as 60 feet
from the top of the bluff and still maintain the
4 sanitary as it's been approved. So you can see
the sanitary as you can see from the site plan
5 drawing, needs 52 feet from the westerly corner of
the house in order to maintain its lateral
6 design. That's the approval of the Health
Department granted. So, we pushed it back as best
7 we could without a significant impact on the
permits that we have already obtained and also
8 keeping in mind that we have houses on either side
of us and the houses to each side of them and I
9 gave you in my written material a copy of every
variance, and in fact almost every house here,
10 one or two out of the 15 or so that are along the
Soundview Drive in this area have been granted
11 variances for setbacks and over the years I've
given you a copy of the decision the Board has
12 routinely granted and a survey so you can see the
location, almost every house is at 50 feet from
13 the top of the bluff. And in fact, the house that
. was previously on this property before the
14 demolition was similarly located at 51 feet from
the top of the bluff. So what we would ask, we're
15 already being pushed back by the fact that the
pool is going in the front, we're pushing back at
16 the maximum that is something doable - - not
something they want but something that can be
17 accomplished at 60 feet. Gives us room for a
little bit of patio because between the pool and
18 the patio you need a little space so you can get
around, and the house is at 80 feet again. Again,
19 that lS 38 feet further back than most of the
houses that are along this bluff.
20 That's the proposal. You asked us to go
back, tweak it a bit, that's the one we're asking
21 for.
The surveyor, when he did the drawings,
22 superimposed the plans, he actually pushed it back
to 65 feet, 10 feet more than what we had
23 originally proposed. That pushes the house so far
back that the back of our house is going to be
24 looking at the front of the houses on either side
of us. It just is going to change the whole
. 25 character of the area. In fact, one of the
variances as I was researching, one of the
June 22, 2006
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2 properties to the west, had asked for a front yard
e variance I guess to 35 feet, the rest of the
3 community was at 40 feet, and the Board denied it
because they felt that would change the character
4 of the area. So we are similarly, we are within
the footprint but all the houses are closer to the
5 bank. Do you have any questions?
CHAIRWOMAN OLIVA: Mrs. Moore, we denied
6 an application for a pool at 74 feet and we were
upheld in court.
7 MS. MOORE. In this neighborhood?
CHAIRWOMAN OLIVA: On the sound in
8 .southold.
MS. MOORE: I understand that.
9 CHAIRWOMAN OLIVA: To me, I'm sorry, I can
go no closer than 70 feet.
10 MS. MOORE: We can't put the pool there if
it's at 70 feet, it's just impossible.
11 BOARD MEMBER SIMON: I have a question.
Do you believe that pool setbacks should be
12 treated differently than house setbacks?
MS. MOORE: Absolutely, in fact the code
13 does differentiate it for some time, I don't know
e if they have changed the code at this point, but
14 accessory structures were allowed to go closer to
the bluff.
15 BOARD MEMBER SIMON: Specifically pools,
which are very special accessory structures
16 because they're dug into the ground.
MS. MOORE: But they have no structural
17 element.
CHAIRWOMAN OLIVA: But the weight to them.
18 BOARD MEMBER DINIZIO: Pools don't add
substantially more weight because you dig out the
19 weight and put something else back in, so water or
dirt are not that far apart as far as weight is
20 concerned proportionally. Plus it's in the
ground, it's not like it's a barn which is placed
21 on top, which would be additional weight. We're
removing weight and putting weight back in. So
22 that's not a consideration. This is an accessory
structure by our own definition. Now you can go
23 75 feet, 70 feet, 60 feet really that's not the
concern to me. The concern to me is how the
24 neighbors would feel about having the pool
. alongside their house.
25 MS. MOORE: I think that's why the other
variance that the Board had granted to put the
June 22, 2006
15
1
2 pool on the side, that's what triggered all
e this.
3 CHAIRWOMAN OLIVA: Is there any way that
you could say cut the house back a little bit so
4 you move the pool and the patio back so it's
shorter that we can make that 70 feet?
5 MS. MOORE: The design of this house it's
modest in size. There are certain - - because of
6 their age, the living quarters is really on the
first floor, and I'll have my father, the
7 architect, speak with respect to the house.
CHAIRWOMAN OLIVA: It's a two story house,
8 64 feet by 52'5" is not what I call a modest
house. It's two story, that's at least a 3,000
9 square foot garage.
MS. MOORE: The pool is going into a hole
10 that already exists.
BOARD MEMBER DINIZIO: We're not here to
11 say what is modest and what is not. For them to
build a house on this piece of property, granted
12 that they have water on one side, they're not
asking for any further variances other than that
13 setback. They're asking for nothing more. So
e modest or not modest is not within our purview.
14 If they build a house that meets our code - -
BOARD SECY. KOWALSKI: The only thing is
15 part of the house also requires a variance.
BOARD MEMBER DINIZIO: That's what we're
16 discussing here, but not the size of the house.
MS. MOORE: The only variance we're asking
17 for is the one setback to the bluff.
BOARD SECY. KOWALSKI: The house is less
18 than 100 feet to the top of the bluff.
MS. MOORE: Of course.
19 BOARD MEMBER DINIZIO: And they have a
hardship there because they have neighbors that
20 would then be in their backyard. What these
people are asking for in general - - I'm not
21 fighting their cause, but if we make a decision
contrary to what they want, we're going to change
22 the neighbors substantially, not them. This house
has been there for many, many years and I've been
23 in that house. The house is not there any longer,
but if you move that house back any further, all
24 you're doing is changing what is substantially the
. neighborhood.
25 CHAIRWOMAN OLIVA: We're saying cut the
house back a little bit, by five foot.
June 22, 2006
16
1
2 MS. MOORE: Understand we have already cut
e it back in order to accomplish this plan. So we
3 have been cutting it back. Every request, we have
tried to respond to it. And we have tweaked the
4 size of the house; elevations, we have new
elevations because we ended up having to shrink
5 the living space and reposition the living space.
I would also point out that this is a heavily
6 vegetated bank. It's a very stable bank. You
received soil and water report that confirmed
7 that. We have a previously constructed site.
CHAIRWOMAN OLIVA: Pat, I'm not contesting
8 the stability, at this point, of the bluff. But I
know how things go. I just want to protect it in
9 the future because when you have a nor' easter,
l've seen banks that were fully vegetated that
10 were completely washed out.
BOARD MEMBER SIMON: If there were no
11 swimming pool and the house were 88 feet back, you
would still be here for a variance. It's unlikely
12 you would have any hard time at all getting the
variance; so the hard time is the pool, and the
13 argument is we have to move the house so far back
tit in order to make room for this pool is not really
14 about how much you're moving the house. It's how
much room we give to you for putting In the pool,
15 which is requiring by this current form a 60 foot
variance approval, whereas the standard lS
16 somewhat greater than that, that's the issue.
MS. MOORE: I understand that. However, I
17 would point out that there is a history of
variances all along, and it didn't take me very
18 long to find 10 or 12. Every house has received a
variance for the house, and a pool lS certainly a
19 less intrusive structure than a house. Every
house here is at 50 to 55 feet from the top of the
20 bank. It's truly arbitrary in the sense of making
us push back for a pool which is an accessory
21 structure. We/ve used patio to allow for
percolation so as not to have wood decking
22 material, lessening the structural effect along
the bank. So we have tried to do everything
23 possible here to make it as minimal a request as
we could. And in all fairness, I think that they
24 have really done everything they could and again,
e they had a variance, they had it for the house,
25 and I gave you the engineering opinions with
respect to the foundation. They have been at this
June 22, 2006
17
1
2 process for over a year and a half and they had a
e house there and they had a building permit. The
3 problem was the foundation, and that was no fault
of the client's, and despite the letter you
4 received objecting to my characterization that the
foundation was somehow not truly a problem. I
5 gave you the two engineers' opinions. I did not
want to impugn anybody's credibility or anything,
6 but the issue came up and I had to defend the
client that, in fact, they did it for a legitimate
7 reason.
CHAIRWOMAN OLIVA: Miss Moore, just
8 because another board gave a variance, each
application stands on its own; one does not set a
9 precedent for another. This Board should only
glve the minimum amount necessary, okay, and that
10 is our concern by getting near the bluff . If you
would just move that back another five feet, make
11 the patio a little bit narrower I you could do it.
MR. CHORNO: Angel Chorno, I am the
12 architect for the project. The patio originally
was requested to be 14 feet. In the last meeting
13 you yourself said it could be smaller, so I
e changed it to 10 feet, which is as patio goes in
14 front of a pool is very, very, very minimal. Then
I modified the design of the house to cut further
15 four feet. So from the last meeting to today, we
have changed - - gained 14 feet in distance for the
16 location of the house. So, I just wanted to point
out that because of your comments in the last
17 meeting didn't go to deaf ears, we listen and we
made the changes, and I redo the floor plans and I
18 redo the elevations, although the elevations are
minimal, four feet did not affect the front or the
19 back, but we did all you asked In the last
meeting. I just wanted to point that out.
20 CHAIRWOMAN OLIVA: Thank you. Leslie?
BOARD MEMBER WEISMAN: I appreciate the
21 changes that were made. I see them. I think they
do respond to a lot of the concerns we had in a
22 reasonable way. We heard from one neighbor
previously at the other hearing who suggested some
23 concern about noise coming from the pump and we
pretty much resolved that basically saying that
24 there would be an enclosed insulated soundproof
e cabinet to contain the noise. And I would be
25 interested to hear if there are any other
neighbors present who are informed of what the
June 22, 2006
18
1
2 changes are and have an opinion of it.
e MS. MOORE: I think that the neighbor that
3 objected at the Trustees hearing, we calmed his
fears by saying fine, we'd move the pool away from
4 the approved variance location.
BOARD MEMBER WEISMAN: The side yard
5 you're talking about?
MS. MOORE: Side yard, yes. That variance
6 is still in effect, it runs with the land, it's
there, but I think you're going to have a very
7 upset neighbor that we honestly tried to appease
and came to this Board with a whole new design for
8 that purpose. The notice that he got had the pool
as proposed.
9 BOARD MEMBER SIMON: I have no further
questions.
10 CHAIRWOMAN OLIVA: Jim?
BOARD MEMBER DINIZIO: Well, other than to
11 say, I think we really should be considering what
the applicant is asking for and what existed there
12 at the time. I understand your concerns, Ruth,
and I know that that's a lifelong thing, but quite
13 honestly I can't think of a place where we have
e granted a variance where suddenly that has caused
14 an instability to the bluff. I think we have
always been, and I looked through all these
15 decisions, they were way back when I was a new
member, Mr. Douglas made one decision and in every
16 case they were much closer than this. There is
certainly a history of us putting restrictions
17 about the bluff and saving the bluff, and still
allowing the applicant to enjoy their land. So I
18 understand the 70 feet, I think when you're
building a new house you probably could do that,
19 but we're in a neighborhood here where all these
houses have been pushed up to the bluff, why,
20 well, they want to see the sound, let's face it.
I think moving them back or requiring them to have
21 a smaller house that would really be required on
that piece of property is an undo burden on their
22 part when they just want to enjoy their land.
That's just my comment, and I'm just one member of
23 the Board.
MS. MOORE: And I would point out that
24 many of those decisions were when Mr. Goehringer
was Chairman of the Board. So there is another
tit 25 Board member that lS still on the Board, I don't
see him here today -- I hope he's well - -
June 22, 2006
-----------
19
1
2 CHAIRWOMAN OLIVA: He had an appointment.
e MS. MOORE: - - but certainly there is a
3 history here. All of the concerns and certainly
all of the protections that you imposed on all of
4 those properties in that water runoff, which lS
the key issue, keeping water runoff from going
5 down the slope, that's how you protect the bluff,
and we have implemented here - - whether the
6 Trustees have imposed it or not, we would have
implemented a dry well to capture any pool water,
7 so it doesn't go off the property inappropriately;
we have dry wells here, we have the hay bales to
8 prevent any sediment from going down. There is
existing vegetation along the entire landward edge
9 of the bluff. All the protections are here. We
even have a nonturf 10 foot buffer landward of the
10 existing vegetation. So every measure has been
taken. And again, the Trustees now have
11 concurrent jurisdiction with this Board. They
looked at this; they approved the structure at 51
12 feet, and they felt the protections that were in
place were adequate, so that the bluff will be
13 protected. They also have equal concerns as this
e Board does for the stability of the bluff .
14 CHAIRWOMAN OLIVA: Leslie?
BOARD MEMBER WEISMAN: No. I just want to
15 say you have responded responsibly to a variety of
things, to concerns, and I tend to agree with what
16 Jim was saying.
CHAIRWOMAN OLIVA: Is there anyone else in
17 the audience that would like to speak on this
application? Mr. Manos, I'm sorry.
18 MR. MANOS: We have been trying to get
this thing done for a while, it's important to us.
19 We have been sitting with a empty lot right
now. The pool is of importance to us because,
20 particularly to me, because as I said at the last
meeting, I'm 83 years old, getting down to the
21 sound is terrific but getting back up is a
problem, and that pool would be a great asset for
22 me as a place for exercise. And we'd like to get
it done, we'd like to get it built , we'd like to
23 get it moved in.
CHAIRWOMAN OLIVA: Thank you. I'll make a
24 motion to close the hearing and reserve decision
until later.
tit 25 (See minutes for resolution. )
-----------------------------~-------------------
June 22, 2006
20
1
2 CHAIRWOMAN OLIVA: Our next hearing is for
e the Suttons, Horton's Lane, Southold. Miss Doty?
3 MS. DOTY: Debra Doty, I represent the
applicants, Tracy and Alex Sutton. Mr. Sutton is
4 with us today as is Ural from Samuels and
Steelman's office, the architect. As a
5 preliminary matter I have my affidavit of posting,
and I only have three cards back. I have not
6 heard from the Rassos, although I do know they are
aware of the hearing, and Mr. Stankovich has not
7 responded.
We're seeking a lot coverage variance on a
8 small nonconforming lot right over here near Town
Hall, just to the west of Town Hall on Horton's
9 Lane. My clients are asking for a small addition
to the house which would incorporate a study with
10 a bathroom and a closet and a second floor master
bedroom. Additionally, they would propose or are
11 proposing demolishing an old garage, pre-existing
and constructing a new barn with a garage in it, a
12 work room, potting room and storage upstairs. And
they would also like to have an inground swimming
13 pool in the back yard. The increase in lot
e coverage, it would be increased to 25.66 percent.
14 I understand the Board's reaction to that. There
have been larger variances granted.
15 CHAIRWOMAN OLIVA: Every application
stands on its own, Miss Doty.
16 MS. DOTY: I understand that, but when
you're dealing with a small lot. In any event,
17 the proposed changes would blend with the
neighborhood. It's an 1880s house. Samuels and
18 Steelman have designed an addition to the house
it's totally compatible with the existing house,
19 and the barn looks like an old barn.
CHAIRWOMAN OLIVA: How large is that barn?
20 I don't see the dimensions.
BOARD MEMBER WEISMAN: 880 square feet.
21 CHAIRWOMAN OLIVA: That's a big barn.
MS. DOTY: It's a two-car garage and a
22 work room with a potting shed. I believe you were
at the property and you saw the garden and the
23 pots and everything. And it is a large structure,
I would grant you that. We're also taking down an
24 old garage that hugs the property line to the
south. It's only four feet off the property
e 25 line. The neighbor there has a tree that
overhangs that garage, and this would actually
June 22, 2006
21
1
2 help to preserve that tree because it would get
e the structure out from underneath it, add air.
3 CHAIRWOMAN OLIVA: You're very kind.
MS. DOTY: No, it's true. Apparently my
4 clients trimmed it because it was hitting the roof
of the garage and the neighbor was very concerned
5 about the trimming and whether it was done
properly and so on. So we are considering the
6 neighbor to the south. We would build an
up-to-date barn that's to code, and not a pre-code
7 barn, and a swimming pool. I don't believe you've
been in the house but it/s a tiny house. The old
8 house is really small. I went upstairs - - my
clients have five children, one of whom is In
9 college - - one of the children is sleeping In a
room that is about the Slze of a walk-in closet.
10 And I I ill not talking about a walk-in closest that's
111 a McMansion, I'm talking about a walk-in
11 closet. Additionally, we have six or seven people
using the upstairs bathroom. And you can imagine
12 what things are like when everyone has to get to
school or work.
13 CHAIRWOMAN OLIVA: I know it well, I have
e the same problem.
14 MS. DOTY: Which is why we're asking for
the addition to the house with the bathroom.
15 CHAIRWOMAN OLIVA: I think my only problem
really, Debra, is the size of the barn. If you
16 could cut that down a little bit, you have your
lot coverage down.
17 MS. DOTY: How much is a little bit?
BOARD MEMBER SIMON: Let me put this as a
18 question. I would agree that all of the purposes
are meritorious, but of course, there is the
19 problem of the lot coverage, and if the Board were
to give alternative relief, I think it would help
20 the Board if it had some indication of priorities
with regard to - - there are three issues here that
21 will increase lot coverage, which is the one that
lS the most important, which is the one that is
22 the second most important?
MS. DOTY: The addition to the house is
23 the most critical.
BOARD MEMBER WEISMAN: It was I, actually,
24 that requested the elevations for the front and
rear of the dwelling, and they're very beautifully
e 25 done. They're reasonable. They don't have a
significant impact on the neighbors where they're
June 22, 2006
n_ -----
22
1
2 sited and so on. I think the pool is fine and the
e siting of the barn is fine, although I think the
3 side yard to the neighbor of the north is very
close.
4 MS. DOTY: It's within code.
BOARD MEMBER WEISMAN: I realize that, the
5 impact is lessened by the fact that their dwelling
is way closer to the road and so it's not really
6 having a great impact to the structure adjacent to
it.
7 You also have exterior stairs on this, on
the second-story storage loft and barn. And they
8 would not visually impact much because they're
really adjacent to mostly wooded in the back, so
9 they're kind of tucked away. But the size of the
garage that's proposed, the part of the barn that
10 is a garage is a reasonable size for a two-car
garage, the work shop and potting room and half
11 bath, are another story in terms of what it does
to lot coverage and the scale of the accessory
12 structure, which is really substantial. It isn't
just about the footprint but when you look at the
13 elevation, when you look at where the ridge is,
e it's a substantial structure visually. And I
14 think that if there's any leeway for concern for
finding a slightly less substantial variance on
15 lot coverage, that's where I would probably look
for some potential alterations to the proposal. I
16 think the addition's fine, the pool's fine. I see
that there are a couple big trees near the shed
17 that you want to preserve, I have no problem with
its siting. It's just a very substantial
18 structure with a large storage area above.
MS. DOTY: Well, there's no storage at all
19 in the house.
BOARD MEMBER WEISMAN: I don't object to
20 the storage. It's going to be an unheated,
framed-out, but I think that you could probably
21 reconsider a little bit that work area in the
garage.
22 MS. DOTY: Could you give me a sense of
what might be acceptable to the Board in terms of
23 size?
BOARD MEMBER WEISMAN: Yes.
24 CHAIRWOMAN OLIVA: Yes.
e BOARD MEMBER WEISMAN: I have to write the
25 findings.
MS. DOTY: Miss Weisman, you could just
June 22, 2006
23
1
2 take my application and use that. I could put it
. on disk for you.
3 BOARD MEMBER WEISMAN: I think it's up to
the client and the architect to make a decision.
4 I think the Board will have to determine what is a
reasonable allowable increase in the 20 percent
5 lot coverage.
BOARD MEMBER WEISMAN: You might trim the
6 size of the pool a bit.
CHAIRWOMAN OLIVA: Take your pick.
7 MS. DOTY: That's the only concern. I
don't know if the pool can be reduced for safety
8 reasons because they've got young children diving
In.
9 CHAIRWOMAN OLIVA: The barn is the only
one that I can see, it's a large building. It's
10 going to be very imposing. They have a beautiful
piece of property, you have done a beautiful job
11 with it. If they could just take that barn out a
little bit and reduce your lot coverage, I don't
12 think we would have a problem.
MS. DOTY: You're talking footprint, are
13 you talking elevation as well?
e BOARD MEMBER SIMON: We/re talking a barn
14 42 feet in length, approximately?
BOARD MEMBER DINIZIO: It's way bigger,
15 it's like 60.
BOARD MEMBER WEISMAN: It's 22 by 40, 40
16 is the overall footprint. The garage part is
appropriately 23 - -
17 MS. DOTY: 22 by 24 is what I figured.
And the workshop is approximately 22 by 16.
18 BOARD MEMBER WEISMAN: That includes the
half bath and a sink. It's a serious working
19 environment for clearly people who love
landscaping. I'm a gardener myself and I would
20 love to have something like that, and I don't have
any objection to the storage loft, I mean
21 everybody needs storage and it is a small house.
But I do think it's a lot of lot coverage with a
22 lot of structures on a very small lot.
MS. DOTY: It is a small lot, that's part
23 of our problem, that it is a small lot, and that
dictates the percentage coverage and the number of
24 feet.
CHAIRWOMAN OLIVA: Ural?
e 25 MR. TALGERT: I just wanted to point out a
couple of things. The pool is a structure but
June 22, 2006
24
1
2 it's again, level with the ground, and it doesn't
. take up volume above ground. So in terms of lot
3 coverage, I think another Board member made a
comment that pools are a little different than
4 buildings, especially it's flush with the ground.
The other thing I was talking about with
5 Mr. Sutton about is he would be willing to cut
down the length of the barn by five feet if that
6 helps the Board. Instead of a 20 by 40, going to
a 20 by 35. I'm not sure if you've been upstairs
7 In his house, but he takes a lot of pride in his
craftsmanship, and working on wood projects. He's
8 also thinking of using that ground floor space as
a woods hop also. So having some space for that
9 for him would be kind of important besides storing
of his vehicles. So I'm throwing that out to the
10 Board.
CHAIRWOMAN OLIVA: Five foot would help.
11 Jim?
BOARD MEMBER DINIZIO: Growing up on a
12 quarter of an acre, growing up with one bathroom
In the house and seven of us, I see that as no
13 hardship whatsoever. Honestly, the workshop and
potting shed, in my mind is done, I just see no
tit 14 reason for that on a lot that's this small with
this many structures on it. My comment on
15 swimming pools had to do with weight put on the
property, not volume. The Town still considers a
16 pool an accessory structure and it's considered
for lot coverage purposes to be a viable building.
17 MS. DOTY: I think what he was addressing
lS visually it's not massive.
18 BOARD MEMBER DINIZIO: That you address to
the architect, I install phone systems. I am
19 looking at a site plan that is asking for a barn
that lS larger than the house that I'm going home
20 to in square footage. Honestly, I see no hardship
in that that I have to go anything over lot
21 coverage for this, there's no reason for it. So
you probably would like to come back with
22 something that's more - - I understand your
proposal, you want to put more on the house, you
23 want to live in the house and make it more
comfortable, but quite honestly, a place to put a
24 trowel and a hoe, honestly, I'm not going to grant
the variance for that. I think you ought to
tit 25 reassess the barn. I understand you want to put
your cars inside, that's a good thing, everybody
June 22, 2006
25
1
2 enjoys that. I think you can gain a lot by taking
e that potting shed, that 15 feet additional, looks
3 like seven feet additional on that garage, and
come back with - -
4 BOARD MEMBER WEISMAN: My reaction to that
lS I think probably what would be the most
5 responsible thing for the Board to do is to
determine what we think is an appropriate lot
6 coverage and allow the architect and the client to
figure out where their priorities are. I think
7 that's the issue we need to deliberate. What we
think on a small lot, with what you're proposing
8 lS a reasonable lot coverage.
MS. DOTY: Taking into account that it's a
9 small house to begin with, it's a small lot, it's
residential office zoned with Town Hall right
10 across the street.
BOARD MEMBER WEISMAN: All those things,
11 plus we understand it doesn't have a great deal of
impact on the neighbors, from the road, in fact,
12 if anything, the proposed addition will screen the
accessory structures even more from that view.
13 But the issue clearly is lot coverage, and you
e have heard a variety of suggestions and I think
14 it's entirely up to you.
BOARD MEMBER SIMON: Just a general
15 comment. When we're looking at a place if one has
never seen it, one thinks that one is dealing with
16 a lot of approximately one third of an acre, then
when one wants to introduce the concept of a barn,
17 which has not historically been associated with
tiny lots, and then a swimming pool, and I can
18 imagine someone saying what a third of an acre,
and you're going to have a barn and a swimming
19 pool, more power to you. But we're up against lot
coverage.
20 MS. DOTY: That's why we're here.
CHAIRWOMAN OLIVA: I think we need to
21 decide on the lot coverage.
MS. DOTY: We're trying to preserve an
22 existing structure and enhance the community and
promote safety and provide a place for children,
23 et cetera. And the house inside lS gorgeous, they
have done a wonderful job, and it's all compatible
24 with the outside of the house. They want to stay
where they are, they like the house, they love the
e 25 neighborhood. They just need more space in terms
of usable space for them.
June 22, 2006
-
26
1
2 BOARD MEMBER DINIZIO: I have one more
e question about the barn. It says it's 18 feet to
3 the midpoint?
MS. DOTY: Ridge.
4 BOARD MEMBER DINIZIO: An accessory
structure is 15 feet.
5 CHAIRWOMAN OLIVA: 18.
BOARD MEMBER WEISMAN: It's technically a
6 story and a half.
MS. DOTY: Apparently there was a request
7 for additional information on lot coverage and the
size of various portions of structures that exist
8 right now, and I do have that prepared by Samuels
and Steelman, and I would like to submit it.
9 CHAIRWOMAN OLIVA: Does anybody else wish
to comment on this?
10 MR. SUTTON: I'm Alex Sutton, my wife and
I own the house. The reason that the barn is so
11 large is that the current 20 by 20 garage that we
have is entirely a shop. So I was trying to
12 actually have a garage and a shop, kind of have
our cake and eat it too, that's why that footprint
13 is that way. We certainly can try and work it out
e in another manner or in a smaller manner, but
14 that's why it was that way, it was just to try and
have a garage and a work shop.
15 The other thing lS that the property that
runs along the back of the properties that are
16 bordering Horton's Lane is a commercially zoned
lot and we assume at some point that someone will
17 buy that and develop on that, so we felt that a
large structure in the back of the property might
18 kind of border it in for the future. So although
it is a large structure, we thought that that
19 would have a purpose in that regard. And all
those properties have a lot of different accessory
20 buildings. Most of the properties on both sides,
some have more than two structures on them. Thank
21 you.
MS. DOTY: We would appreciate the Board
22 granting us as much lot coverage variance as
possible. We do have a small lot, we have a small
23 house, we have kids, and we have his workshop that
needs to be accommodated. We appreciate the Board
24 granting the variance.
CHAIRWOMAN OLIVA: Thank you. I'll make a
e 25 motion to close the hearing and reserve decision
until later.
June 22, 2006
--------- ----
27
1
2 (See minutes for resolution. )
e ----------------------------------------------
3 CHAIRWOMAN OLIVA: Next hearing is for the
Schultheises for a merger on Bayberry Road and
4 Clearwater Road in Cutchogue. Good morning again,
Miss Moore.
5 MS. MOORE: I have the two family
members. Mr. Petillo is the power of attorney for
6 Mr. Schultheis. As I pointed out I think in my
written papers, Mr. Schultheis is in a nursing
7 home right now, there's a reverse mortgage on the
property, and the goal here lS to enable us to
8 sell the lot in order to satisfy the reverse
mortgage and preserve the property.
9 CHAIRWOMAN OLIVA: The reverse mortgage is
on the house piece of property?
10 MS. MOORE: It's on the entire parcel.
All of them. A little bit of background here. In
11 the 1950s, three sisters, Elsie Auerbach,
Josephine Auerbach and Frieda Brown purchased the
12 three properties. They acquired the three
properties and the two sisters built the one house
13 together and combined one of lots and left the
e other lot separate. They have been receiving a
14 separate tax bill, and as you know in Nassau
Point, that Nassau Point subdivision was an exempt
1'5 subdivision up and through ' 97. At that point,
the property was, there was death among the
16 sisters, and the property ended up in
Mr. Schultheis, Senior and through junior. Junior
17 is a disabled person.
CHAIRWOMAN OLIVA: I read the will.
18 MS. MOORE: Obviously there is power of
attorney, conservator for his benefit. What we
19 are facing is interesting, a very technical issue
that I don't know if the Board has considered
20 before. The zoning code refers to the merging of
nonconformity. This case as well as the Charnews
21 case, that we're going to hear in a few minutes,
lS a similar situation where you have an oversize
22 conforming parcel that gets merged to a
nonconforming parcel. When you read the
23 description of the Merger Law 125, Paragraph A,
with respect to the merger, and if you look at the
24 last sentence, it says nonconforming lots shall
e merge until the total lot size conforms to the
25 current bulk schedule requirements. So the
intention was to try to create conformity to as
June 22, 2006
28
1
2 many lots as possible. We had that situation with
e the house parcel. The house parcel is a
3 conforming lot, is in more than one acre In a one
acre zoning district. In fact, it combines two
4 previously recognized lots in this subdivision.
What happens is to the third parcel, and because
5 we now go in for a - -
BOARD SECY. KOWALSKI: You said this is a
6 subdivision?
MS. MOORE: This is a Nassau Point
7 subdivision. Where you have the merging of a
nonconforming parcel on to a very conforming
8 parcel. I think if you read the language of the
code, I think that there lS an implied exception
9 for merging parcels to the point where they become
more than the conformity because you don't have
10 merging if a parcel is at least 40,000 square
feet.
11 ASST. TOWN ATTY. CORCORAN: How do you
reconcile that with the first sentence that says a
12 nonconforming lot shall merge with an adjacent
conforming or non-conforming lot? So merger is
13 certainly possible with a conforming lot, right?
. MS. MOORE: I see that and that's why the
14 Building Department has looked at this and said
well, you have a non-conformity merging with a
15 conformity. However, you have the exceptions
which say non-conforming lot has a minimum Slze of
16 40,000. So in one sense, the conforming lot, the
40,000 doesn't merge. So you create - -
17 BOARD MEMBER SIMON: You can't merge one,
you merge two.
18 MS. MOORE: We have three. We have three
parcels. We have a double lot with the house.
19 BOARD MEMBER SIMON: That's not two lots.
MS. MOORE: Yes. It's three lots merged
20 together.
BOARD MEMBER SIMON: Originally were three
21 lots.
MS. MOORE: A little 118-39, I'm sorry,
22 123 and 122.
BOARD MEMBER SIMON: But two lots once
23 merged are not still two lots, right?
MS. MOORE: We have just two lots here.
24 BOARD MEMBER SIMON: That's what I'm
. saying.
25 MS. MOORE: But what I'm saying is that in
the merger law it does create the exception of the
June 22, 2006
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29
1
2 one lot not merging because you have reached a
e point of the conformity. Look at the code.
3 BOARD MEMBER SIMON: I looked at the code.
MS. MOORE: It just seems to me you have a
4 contradictory.
BOARD MEMBER SIMON: Let me just say that
5 whether it's legislative intent or whatever you
call it, one would assume that the purpose of the
6 merger law was to eliminate nonconforming lots,
correct?
7 MS. MOORE: Yes. But what I'm saying
is - -
8 BOARD MEMBER SIMON: Is there any
exception to that principal that you can find in
9 that code?
MS. MOORE: The exception is the
10 non-conforming lot has a minimum size of 40,000.
ASST. TOWN ATTY. CORCORAN: Are you saying
11 that the lot, the nonconforming lot is greater
than 40,000; is that what you're saying?
12 MS. MOORE: You're considering all lots as
nonconforming. In a sense that anything that is
13 less than an acre is nonconforming.
e BOARD MEMBER SIMON: We're talking about
14 the other lot, the lot to be created, the waiver
of merger, will be a non-conforming lot, which is
15 contrary to the purpose of the merger law.
ASST. TOWN ATTY. CORCORAN: That is less
16 than 40, 000, right?
MS. MOORE: That one is less than 40. I
17 understand that, but what I'm saying is for
example, when this law was first adopted, that
18 applied to parcels that had two houses on them,
and they didn't realize that when they were
19 creating this legislation, they had to create the
exception because that wasn't the intent. You had
20 a CO on one and you have a CO on another, so that
was recognized later. What I'm saying, and you'll
21 see it again in the Charnews example, where a
conforming lot - -
22 ASST. TOWN ATTY. CORCORAN: The Charnews
lot has a very peculiar pattern, and we should
23 address that.
MS. MOORE: Let me say that if the
24 schultheis family had not realized that the merger
had occurred and sold the house, they would be in
. 25 the identical situation.
BOARD MEMBER SIMON: But they're not.
June 22, 2006
30
1
2 ASST. TOWN ATTY. CORCORAN: If the facts
e were different, they'd be different.
3 CHAIRWOMAN OLIVA: But that didn't happen,
though, Pat.
4 BOARD MEMBER SIMON: If you owned a three
acre lot and also owned a half acre lot next to
5 it, would that be merged under the merger law? Of
course, because the purpose of the merger law is
6 to eliminate the non-conforming lot, which will
then go to the adjacent lot owned by the same
7 person.
MS. MOORE: But your example is that the
8 three acre lot now becomes three and a quarter,
three and a half, whatever.
9 BOARD MEMBER SIMON: Exactly.
MS. MOORE: But that's not the intention.
10 Because if zoning already dictated that that three
acres lS in a two acre zone or in a one acre zone.
11 So in a sense you have a conforming - - the
nonconforming, the smaller piece, is merging to
12 the larger but there is a recognition that the
larger is large enough to stand on its own.
13 ASST. TOWN ATTY. CORCORAN: And there's a
e recognition that a non-conforming lot shall merge
14 with a conforming lot.
BOARD MEMBER SIMON: Merging is
15 symmetrical. It isn't a matter of whether the
smaller merges with the larger or the larger
16 merges with the smaller, it/s the same thing.
MS. MOORE: But I think the intent, when
17 you're looking at intent of the code, you are
trying to create conformity with a nonconforming.
18 However, it's not a penalty provision.
BOARD MEMBER SIMON: It's a policy. It's
19 a policy to elimhlate nonconforming lots.
MS. MOORE: I think it/s an opportunity to
20 look at this code and look at a situation where
you have one large piece that conforms and would
21 fit under the exception because it meets an acre
In size.
22 ASST. TOWN ATTY. CORCORAN: The exception
lS for the nonconforming lot, not for the
23 conforming lot. It says the nonconforming lot has
a minimum size of 40,000, doesn't say the
24 conforming lot has a size of 40,000.
BOARD MEMBER SIMON: You may be right as a
. 25 matter of policy, but do you think this would be a
matter of amending the code to make it say what
June 22, 2006
--
31
1
2 you want it to say rather than have us interpret
e code?
3 MS. MOORE: In deference to the Board, you
have interpreted the merger law over time.
4 BOARD MEMBER SIMON: Talking about this
case.
5 MS. MOORE: Talking about the merger law
and your interpretation. I know you're looking at
6 your watch like move along, but - -
CHAIRWOMAN OLIVA: Other people would like
7 to speak.
BOARD MEMBER WEISMAN: I will be writing
8 this up. I would like to inquire more about the
personal circumstances of your client that been
9 should be considered. Also I did look at the
house carefully, it appears not only to be
10 unoccupied it appears to almost be abandoned.
There's an old car sitting there.
11 MR. PETILLO: Myself and my girlfriend
have been working on it for the last six months.
12 It was destroyed when he was in the hospital last
summer. The toilet overflowed and mold. so we
13 had to rip it up. We have been personally doing
e it. We just got to the point where we primed
14 it.
CHAIRWOMAN OLIVA: Leslie, in the will it
15 specifically said that Junior should be taken care
of in any way, shape or form.
16 MR. PETILLO: Carl, Jr. is actually with
my father right now in New Jersey. My grandfather
17 lS in a nursing home. We're working on getting
him placed in a disabled, somewhere for social
18 serVlces.
CHAIRWOMAN OLIVA: That is why you need
19 basically the waiver of merger?
MR. PETILLO: The problem here for me,
20 this house has been in our family for 55 years.
I've been coming out here for 27 of them, and my
21 father for longer with my mother, and we all have
fond memories. And my sister and I would like to
22 keep this house as a summer house to bring our
kids out, to keep it going. The only way possible
23 for us to do that is to have this lot split and
sell that parcel - -
24 CHAIRWOMAN OLIVA: To payoff the reverse
. mortgage.
25 BOARD MEMBER SIMON: What you're saying is
hardship, and this in a way is a hardship case
June 22, 2006
-
32
1
2 very obviously, but it's a particularly unusual
e kind the hardship would be on you and your family
3 to retain a house so that you would not have to
sell it to take care of the legal owner of the
4 house.
MR. PETILLO: He's in a nursing home, he's
5 taken care of.
BOARD MEMBER SIMON: Sounds like the
6 hardship of the people who want to be able to
maintain the house that is on the property, so
7 they can live there. They don't live there now.
Nobody lives there now.
8 CHAIRWOMAN OLIVA: He's been working on
it.
9 MR. PETILLO: We just got to the point
where - -
10 BOARD MEMBER SIMON: You're not the
applicant.
11 MR. PETILLO: No, I am Frank Petillo, Jr.
I am the power of attorney.
12 BOARD MEMBER SIMON: You're the power of
attorney, but as power of attorney, you're
13 representing the owner, not yourself.
e MR. PETILLO: Yes.
14 CHAIRWOMAN OLIVA: Leslie?
BOARD MEMBER WEISMAN: I would like to
15 hear some more about the circumstances. Just let
you speak without interpretation and questioning
16 you. I'd like to hear it from you.
MR. PETILLO: It's very important to us to
17 keep this house in our family. We have great
memories of this.
18 MS. MOORE: His mother is the Schultheis,
daughter of Carl. We're talking three
19 generations.
MR. PETILLO: I have a two and a half year
20 old, she's going to be three in August. And she
loves it out here, she's getting older and my
21 sister's moving on and getting married right now.
We would like to keep it in our family and this is
22 the only way to do it. The price of the house,
without this merger, we're losing close to half a
23 million dollars, without this merger, with what
the property is valued it.
24 BOARD MEMBER WEISMAN: Without the waiver.
e MR. PETILLO: And that is enough - -
25 MS. MOORE: Let me put in the record,
Prudential provided an opinion letter with
June 22, 2006
33
1
2 respective value of the properties.
e MR. PETILLO: And there's a similar piece
3 down the road, I'm not sure, but they have a
single lot with a house on a double lot and that's
4 what their house is going for, and it's on a hill
and it's actually a smaller house. To payoff
5 this reverse mortgage, I believe my grandfather
now is close to two years behind on taxes and to
6 come up with that money with the reverse mortgage,
we can't do it.
7 ASST. TOWN ATTY. CORCORAN: Are you saying
that the result if the lots remain merged, what
8 will happen?
MR. PETILLO: We will have to sell
9 everything, lose over 50 years of us coming out
here and the taxes.
10 ASST. TOWN ATTY. CORCORAN: And you will
have to sell everything to meet the obligations of
11 the reverse mortgage. The grant of the waiver
would allow you to sell off part of it, pay that
12 and then retain the other and continue its use.
MR. PETILLO: And then keep the house in
13 our family. This is the only way we could do it.
CHAIRWOMAN OLIVA: Jim?
e 14 BOARD MEMBER DINIZIO: Let me just see if
I have this, because Pat knows how I feel about
15 the merger law. I understand your position. But
what I am getting here is that someone has sold
16 this house to the bank for money - - hold on,
because I need to get this all - - they received
17 that money, so they have a partner in the house,
basically, is what it is. The bank doesn't own
18 the entire house, it just owns a portion I suppose
of the value of this house, and now you want to
19 split the lot that this house sits on so you can
repay that debt to your partner, the bank; is that
20 right?
MR. PETILLO: We were always under the
21 impression - - my grandfather took out this reverse
mortgage. Elsie was put In a nursing home out
22 here. My grandfather took on that debt, and in
order to pay that he was under $1,000 in his
23 checking account for two years after she died, and
he's taking care of his disabled son. In order to
24 pay that debt at the nursing home, he had to do
this, just to have a positive balance in his
. 25 checking account. He was an 85 year old veteran
at the time, and he was flooded with bills from
June 22, 2006
34
1
2 this nursing home. He agreed if she left him the
e house, he would take care of her debt at the
3 nursing home, which he did. This is starting to
trickle down into our generation and it has to
4 stop somewhere.
MS. MOORE: If I could explain a little of
5 the reverse mortgage. What you do is as an
elderly person, you go to the bank and say, bank,
6 I don't have income, I want $300,000 to be able to
live out the rest of my life. Your equity in the
7 home is your ability to live. You take that,
there's a mortgage that's placed there, and it
8 accrues interest, but it is not due and payable
until either transfer or death. At which time the
9 heirs have to payoff this loan or the property
gets sold.
10 BOARD MEMBER DINIZIO: Right, purchase the
house from the bank. But the property has higher
11 value than this amount. He doesn't owe the entire
value of this piece of property to the bank.
12 MR. PETILLO: Almost. Without this waiver
of merger, it is almost. It's acquiring I don't
13 know how much interest. It's acquiring $34 a day
interest for the past two years now.
e 14 BOARD MEMBER DINIZIO: You said $500,000.
The lot without the house is going to go for that
15 much?
MS. MOORE: Yes, but not merged. Merged
16 it's not too far off. Anybody who goes out In
Nassau Point to buy a property, most of Nassau
17 Point they're demolishing houses and rebuilding,
but buying the property, not necessarily the
18 house, but the parcel itself.
BOARD MEMBER DINIZIO: You're saying that
19 the lot, the square that doesn't have it is not
worth more than $500,000? The lot without the
20 house - -
MS. MOORE: It's actually appraised at
21 $495,000. But that is essentially what this is
all about. It's about a loan on the house that
22 you guys can't afford to pay.
MR. PETILLO: He couldn't afford to pay it
23 either, that's why it was a reverse mortgage type
and not a mortgage and not a second mortgage.
24 Between himself and taking care of my uncle, who
mentally he's a six to eight years old, he's 52,
e 25 53, he's a wonderful guy, I f m sure the neighbors,
they lived here together, and in order for him to
June 22, 2006
--
35
1
2 take care of everything this is the way he had to
e do it.
3 BOARD MEMBER DINIZIO: Can I further this
discussion just a little bit? I know the time.
4 So the result it will be you can't afford to pay
off the $500,000, take a mortgage to purchase that
5 back. So you want to split this lot, to sell so
that you can afford to move into the house free
6 and clear.
MS. MOORE: So the family can retain the
7 house, it's not for him.
MR. PETILLO: It's myself, my sister, my
8 kids.
MS. MOORE: Well, I don't know about free
9 and clear because there's still a lot of
improvements that are required.
10 BOARD MEMBER DINIZIO: If you inherit the
house, you don't have a mortgage.
11 MS. MOORE: Well, you might inherit with a
mortgage.
12 BOARD MEMBER DINIZIO: This one you're
not.
13 MS. MOORE. Right, we're paying off. Just
e keeping in mind that we are in the Nassau Point
14 area where it is an approved subdivision map. It
lS three separate lots on the subdivision map, and
15 as I pointed out before, the house is already on a
double lot, which is part of the subdivision. So
16 what we're doing here is actually creating one lot
that is in conformity with Nassau Point. Nassau
17 Point was developed primarily with one lot and
only those unfortunate souls that created merger
18 have ended up with oversized parcel.
BOARD MEMBER DINIZIO: It's a one acre.
19 MS. MOORE: R40 is the minimum we have.
BOARD MEMBER WEISMAN: Clearly this
20 compelling life circumstances here are different
than we often tend to hear in these cases where
21 typically it's the fact that selling off a lot
that's merged would yield economic profit which
22 the courts have not upheld as hardship. These
circumstances suggest otherwise, and I think they
23 need to be very carefully considered in the
decision.
24 CHAIRWOMAN OLIVA: Is there anyone in the
audience that wishes to speak? Yes?
e 25 MR. DOWNING: Good morning, my name is
Richard Downing. I'm appearing on behalf of my
June 22, 2006
------
36
1
2 wife and also our neighbor, Jane Nelson, who is at
e 1230 Bayberry Road. I live at 1280 Bayberry Road,
3 across the street. First point I want to raise,
as it was raised over here, I think it's contrary
4 to the code to use the merger code to now unmerge
a conforming lot and create a non-conforming lot,
5 but that's already been addressed.
A quick background, I understand what the
6 family's trying to achieve, I'm one of the full
year-round residents and over the last three years
7 I I ve helped Carl, the father and the son, during
snow emergencies, actually I took care of the son
8 when the father was rushed to the hospital. I
plowed out Bayberry Road, that portion lS a
9 private road. Three homeowners out of four paid
for the snow plow, and there are times when Carl,
10 because of their conditions, I would take it upon
myself to pay to have their driveway plowed. So
11 I'm sympathetic to what they're trying to achieve.
My problem is with Lot 125, which is the northern
12 lot to the one that is the unmerged portion that's
trying to be created. There's a freshwater pond
13 that abuts the property line. If they unmerge the
e property, I don't know if it's going to be a
14 buildable lot because of the 90 foot setback from
freshwater. During the heavy rains that we had
15 last year, we have pictures, and I can supply to
the Board, that a significant portion of the new
16 lot to be created was flooded. So while we may
unmerge this now, even if they attempt to seal it,
17 may not become a buildable lot, which will
significantly affect the value of the property.
18 CHAIRWOMAN OLIVA: That pond is on the
adjacent lot.
19 MR. DOWNING: On the adjacent lot, on Lot
125. I think it runs about one-half of the
20 property line. And as I said, that significantly
flooded last year. And also looking at it, the
21 current driveway to the residence in the
conforming lot runs onto the new created lot.
22 CHAIRWOMAN OLIVA: That would have to be
moved.
23 MR. DOWNING: Based on the house if you
have been out there, as it shows on the diagram,
24 it's underground parking to the house. So that
driveway is going to have to be moved but it
e 25 doesn't look like there's enough of a setback to
get underneath the house. So then we're going to
June 22, 2006
37
1
2 be back here to entertain the application to move
e the house so we can fit the driveway or that house
3 is going to get torn down. We start getting into
a snowball effect.
4 Lastly, as I said, that Bayberry Road,
that portion is a small, private road. We're
5 going to add one more house, I live directly
across, my driveway abuts the current driveway.
6 My neighbor Jane Nelson, her driveway lS a mere 20
feet to the north of her driveway; because of the
7 pond, I'm going to envision a driveway that's
gOlng to come close to the current property line
8 of the conforming also nonconforming lots. We're
going to have four driveways intersecting in a
9 very short area. Also with the existence of the
pond and whatever setbacks are going to have to be
10 made, building a house on that lot, where is there
gOlng to be parking? It can't be on the road
11 because Bayberry Road is barely wide enough for
one car. So while again, I'm sympathetic to what
12 they're trying to achieve, I don't know if it's a
buildable lot. Maybe we should look at that
13 before we even entertain the application to merge
e or unmerge. So thank you.
14 CHAIRWOMAN OLIVA: Thank you. Yes, sir?
MR. FRASIER: My name is Dougle Frasier.
15 I'm a neighbor on Clearwater and Nassau Point
Road. I'm a member of the Nassau Point Property
16 Owners Association, I'm a director. I'm real
estate broker in general, plus a local homeowner.
17 I would be interested to know how much of this
mortgage has to be paid off, what the amount is
18 we're talking about.
MS. MOORE: The reverse mortgage itself is
19 about 290. It keeps accruing at about $35 a
day.
20 MR. FRASIER: I think it's very nice that
they're trying to do this. I was very upset to
21 hear them say that they're thinking of taking
young Carl, who I have known also for - - my
22 family's been in the area for 40, 50 years also,
and I've known him forever, and walk my dogs by
23 him endlessly talking to him. The fact that
they're talking about welfare or somebody taking
24 over finding him a spot in New Jersey, when
e there's tons of money to support him and his dad
25 to a style to which they have become accustomed,
and if there's some money left over when those two
June 22, 2006
38
1
2 are dead, so be it, these guys get their chance.
e But In the meantime it seems to me that young Carl
3 and his father's money that should be done.
From the Nassau Point Property Owners
4 Association, we have no interest in downzoning
anything. That is a fantastic little block there.
5 All the properties have been upzoned way beyond
merging, everyone of them on that intersection is
6 fabulous land, and it's a wonderful spot to walk
around because it isn't suburban, one house after
7 another. And in my mind there is no doubt that
this house is going to come down, there's going
8 to be three houses in a row there one day.
I happen to live on the right of way
9 directly across the street, and it comes to me,
we're going to have a lot more people down on our
10 beach just because we've split this property up.
I think that's it for the moment. Thank you.
11 CHAIRWOMAN OLIVA: Anyone else?
MS. SAMPIERI: Hi, I'm Joyce Sampieri, I
12 live directly across the street from the
Schultheises. I'm at 1380 Bayberry Road. I don't
13 sympathize with them. We have been living there
e since 1995. Carl has been to our house every day
14 that we are there. I had construction going on
for a year and a half , my construction people took
15 care of Carl. They fed him lunch. They had him
do little jobs. This man was totally lonely,
16 nobody was there. For the 15, 16 years that we're
living there, I have never seen the grandson. I
17 have never seen his father. My husband and I went
over to the property two months ago, they started
18 to tear everything out many months ago, maybe six
months ago. All the debris was left on the front
19 lawn; we went over there with our garbage pail,
filled it up and brought it to the dump. My
20 feeling lS that they want to unmerge this property
so this way they can reap the benefits of the
21 bigger piece.
The other issue here is you have a smaller
22 piece; we're going to be back here next year after
they sell this piece. Somebody looking for
23 another variance to build on something that is
less than an acre, it's an unconforming lot.
24 Thank you.
CHAIRWOMAN OLIVA: Thank you.
e 25 MS. FLOTTERON: Hi, my name is Nora
Flotteron, I live at 595 Clearwater Lane. I have
June 22, 2006
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39
1
2 also lived here for 14 years, this residence, and
. have known Carl. He's come down to my house on
3 several occasions. He was always intrigued by my
children and by my dogs. I'm concerned about the
4 integrity of my neighborhood. I'm concerned about
a lot being sold and another house being built
5 there. I'm concerned about more traffic In our
area. I'm concerned about the wildlife in the
6 area being disrupted. And I also agree with Mrs.
Sampieri, living there for 14 years I've only seen
7 Carl and his father. I've never seen any extended
family, and any claim that this house has needs to
8 be left for the children, the sisters, the
brothers, the aunts, the uncles. There has been
9 no activity in that house. My husband and I
rescue Carl and his father out of the house last
10 summer when smoke was billowing out of the
chimney. They had a fire in the oil burner, they
11 were completely unaware of it. Nobody was ever
there to help them except the neighbors, and I am
12 totally against this lot being unmerged. That's
it, thank you.
13 CHAIRWOMAN OLIVA: Thank you. Anyone
e else?
14 MR. SOUTHARD: Good morning, my name is
Frank Southard and I live on the adjoining
15 property with the Schultheis, with the pond.
CHAIRWOMAN OLIVA: Nice pond.
16 MR. SOUTHARD: Thank you. Last year In
October we had a torrential downpour, and if it
17 weren't for that property in the back, but if it
wasn't for that property and the wetlands In the
18 back, my house would have been flooded. It had
three or four inches in it as it was. We had the
19 fire department there, we had the town there, we
had everybody there. Because they were freshwater
20 lots, they couldn't pump it out of the basement,
they couldn't pump it out of the pond, and if they
21 did, they didn't know where it put it because it
lS a flood area back there. My concern is them
22 building a house on a quarter of acre and raising
it and all this water lS now going to flood all
23 our neighborhood. As it was, it was next to the
Nelsons, it was next to Mr. Downing, and it was in
24 my basement. So like Rich said, we'll be back
here next year trying to fight a building.
e 25 CHAIRWOMAN OLIVA: Thank you.
MS. MOORE: I'd like to point out that the
June 22, 2006
40
1
2 lot that we are proposing to unmerge is a half
e acre in size, not a quarter acre. There is
3 another option that if the Board wishes because we
have three parcels here, we have the Clearwater
4 and Bayberry Road lot, it was Lot 122. It is 189
by 180; it's the corner lot. If you go down that
5 street, and I know it was actually hard to find
because I rarely go down that way, I originally
6 thought that corner lot was the lot in question,
the waiver, when, in fact, it was the one to the
7 north. So there is an option to waive merger as
to either one of them. They were all created at
8 the same time in the Nassau Point subdivision, and
the same merger applies here. So there is that
9 opportunity.
with respect to the ponding area, there is
10 certainly adequate room to develop the property.
The parcel has 119 feet of road frontage, 94 in
11 the back. It's half acre in size, so there is
certainly adequate room.
12 The driveway certainly, you pointed out
Mrs. Oliva, that the driveway while it encroaches,
13 it could easily be relocated; in fact, there are
e options of accessing this property, the house
14 parcel either from Clearwater or Bayberry, so
there are multiple options here. We thought the
15 simplest solution was the splitting off of the
northerly lot, but there is always the other
16 option of splitting off the southerly lot.
CHAIRWOMAN OLIVA: Then that house would
17 have to go.
MS. MOORE: No, that house is dead center
18 on the middle lot. Let me help you. Might need a
variance for the side yard.
19 BOARD MEMBER WEISMAN: Need a variance for
the side yard, well to unmerge.
20 MS. MOORE: It would be an alternative
application.
21 BOARD MEMBER SIMON: As well as a waiver
of merger. It would take a separate application.
22 MS. MOORE: I'm giving you options here
that are certainly feasible.
23 CHAIRWOMAN OLIVA: Was it ever deeded as
three lots?
24 MS. MOORE: Elsie Auerbach bought it as
three lots.
e 25 BOARD MEMBER WEISMAN: It was documented.
CHAIRWOMAN OLIVA: The Schultheises only
June 22, 2006
41
1
2 two deeds, right?
e MR. PETILLO: Two deeds, the house and the
3 separate - -
MS. MOORE: Anything else?
4 MR. PETILLO: I have something to say to
our neighbors.
5 BOARD MEMBER SIMON: Speak to the Board,
please.
6 MR. PETILLO: With all due appreciation.
I don't think they have a right to say about our
7 family coming out there to visit. Our
circumstances is for one, our mother, I don't know
8 if you know anything about our family, but she had
multiple sclerosis Slnce I was born. We had to
9 move out of Brooklyn to a one-story house in
Jersey. That prevented us from coming out here as
10 much as we used to. I don't know if you know much
about my grandfather - -
11 CHAIRWOMAN OLIVA: Speak to us.
MR. PETILLO: - - but for one his
12 alcoholism not allowing us to come out there. Us
having to force ourselves to come out there.
13 Other problems that he was having. His lack of - -
e he was ashamed of himself, and we would have to
14 force it. I was in the Marine Corps from 2000 to
2004, and we had to force ourselves out there
15 during the summer. Doesn't mean we didn't call,
doesn't mean we didn't care. And we don't stand
16 any benefit - - there's no financial benefit here.
The only benefit we have is to keep this and keep
17 the house In our family. I think it's wrong that
they get up and start saying about our family.
18 Right now we're taking care of my uncle and my
grandfather and all his problems. This is my
19 problem now. This is my child, and I just think
it's wrong. He's talking about this pond that
20 flooded in the two weeks last year, where
anybody's basement get flooded last year when it
21 downpoured out here? When it rained for a long
time last year, this is when this pond flooded,
22 and according to Bob McCall, he was swamped with
basements. He was doing construction here, and he
23 had to put our house aside on the demolition with
the amount of people, sump pumps just busted
24 because they couldn't handle the amount of water.
e Thank you.
25 CHAIRWOMAN OLIVA: If there's no further
questions, I make a motion to close the hearing
June 22, 2006
42
1
2 and reserve decision until later.
e MR. SAMPIERI: I'm John Sampieri, we live
3 directly across from the Schultheis property.
We1re not looking to demean you. We did help your
4 uncle, Carl. He had very few people around him.
He was always lonely. Whenever I got there he
5 would spend most of the day with me. We're not
knocking your family, we/re just saying that we
6 were there for them. I never saw you there, not
that I'm saying you didn't try, but we never saw
7 you. But the most important thing about this
whole thing, is if you look at this the road that
8 serVlces these properties, you can only go with
one car, you can barely make it with one car. We
9 plow it, the town doesn't do anything for us as
far as plowing it. If you build two more houses
10 there, they're going to have a real problem. If
one car is coming one way and another coming the
11 other way, you have to back out. So that's one of
the main problems we have there besides the pond,
12 and the pond has actually flooded many times, not
just once. And if you put a house on that side,
13 that house is going to have major problems. And
e we didn't mean to demean your family, but the
14 facts are the facts. We didn't see anybody for 13
years. We took care of those kids.
15 BOARD MEMBER SIMON: I would just like to
ask two factual questions. One is how long has
16 the house been empty?
MR. PETILLO: My grandfather came to live
17 with us and Carl with my father in the beginning
of July.
18 BOARD MEMBER SIMON: So the two Carls
moved out of the house in July?
19 MR. PETILLO: Carl, Jr. I the reason why
he's lonely, he has to be entertained constantly,
20 he's like a six year old, if you don't entertain
them and keep them busy all day, mentally he's six
21 to eight years old.
BOARD MEMBER SIMON: I'm just trying to
22 get the dates clear. He left the house when?
MR. PETILLO: Since last July.
23 BOARD MEMBER SIMON: July 2005?
MS. MOORE: And I would clarify, they keep
24 mentioning three houses, we're only talking about
e one additional house. The waiving of merger as to
25 one lot, retaining. If the Board grants this
waiver and you want us to file a covenant with
June 22, 2006
43
1
2 respect to the main house that it shall not be
e further subdivided, we can do that. That's not
3 the intention here. The house can remain on the
double lot, it/s fine. That way it would assure
4 this Board and any future board that whatever code
revisions there may be in the future, whatever
5 position the Board takes at that time, there's
gOlng to be a covenant that anybody buying the
6 property would understand that there's no further
subdivision and they would know that. That's a
7 high burden to overcome.
CHAIRWOMAN OLIVA: I'll make a motion
8 closing the hearing and reserving the decision
until later.
9 (See minutes for resolution. )
----------------------------------------------
10 CHAIRWOMAN OLIVA: Our next hearing is for
the Shortinos on Bay Road in Cutchogue who wish to
11 enlarge their deck, I believe.
MR. SHORTINO: My name is Mario Shortino.
12 There's only one of us actually, the house is in
both our names, but Joan died about four years
13 ago. Anyway, I have entered into a new
relationship, I'm planning marriage. We were
e 14 engaged a month ago. The house is a small house.
I'm looking for a variance of about 2.3 percent
15 for a great room that would measure 20 by 22 feet.
There's no complications in that room. There's no
16 plumbing, of course there will be heating. It
will be a glass room and will be used as a
17 gathering spot. I have four adult children, she
has four adult children, and if you put one and
18 one together you don't have room in the existing
living room, which is 13 by 20. It was fine for
19 Joan and me and for our kids, who are scattered
around the country, but in this new situation it
20 doesn't work. There is a deck in the area we are
talking about adding this room, so nothing
21 physically - -
CHAIRWOMAN OLIVA: You want to enclose the
22 deck? You're going to tear the deck out and
replace it with a family room?
23 MR. SHORTINO: Oh, yes, a permanent room.
BOARD MEMBER SIMON: Does the 2.3 percent,
24 it looks as though the proposed addition is
approximately the same size as the deck. So then
. 25 in order for you to be asking for a lot coverage
variance, it must be you're not counting the deck
June 22, 2006
44
1
2 as part of the house.
e MR. SHORTINO: Right, they said you don't.
3 When I first went for the building permit they
said the deck didn't count.
4 BOARD MEMBER SIMON: It should have.
Ordinarily the deck would have been counted and
5 you wouldn't be talking about 2.3 coverage, you'd
be talking about zero additional coverage?
6 MR. SHORTINO: To tell the truth, in total
square footage, it's going to be less.
7 BOARD MEMBER SIMON: There's a discrepancy
because the survey you gave is dated 1990, and it
8 doesn't show the deck.
BOARD SECY. KOWALSKI: The C of 0 for the
9 deck is '94.
MR. SHORTINO: Correct.
10 BOARD MEMBER SIMON: So if the deck was
built about the time it got its CO, then the
11 survey was simply out of date.
MR. SHORTINO: You did get the plot plan,
12 right?
BOARD MEMBER SIMON: The plot plan shows
13 the deck, the survey shows no deck.
MR. SHORTINO: That's correct. There is a
e 14 CO on the deck.
BOARD SECY. KOWALSKI: What they're saying
15 is very minor change.
BOARD MEMBER SIMON: It's more minor than
16 it looks on the application.
MR. SHORTINO: The net effect is three
17 inches. When we built the deck, we expected a lot
of little children to be around. So we didn't
18 want railings, if all four kids showed up with
kids -- we were optimists - - we wanted a lot of
19 seating space without having to bring out chairs,
so we built very large steps. We figured kids
20 could sit on those, we could put cushions on
those, and that extends the actual - - the
21 measurement of the deck itself is 22 by 20, but
those steps extend on all sides by approximately I
22 think 18 inches each, so that's rounded out
another 36 inches. Well, all that's going to be
23 stripped and instead the total measurement will be
20 by 22 feet that we're talking about.
24 BOARD MEMBER SIMON: The question about
the trees, will those trees be saved?
. 25 BOARD MEMBER WEISMAN: They're way too
close.
June 22, 2006
45
1
2 MR. SHORTINO: Unfortunately they have to
e come down for any size they said. But the one
3 tree, he's been after me to take that one down
anyway, it's been trimmed and trimmed and trimmed.
4 But we have so many trees on that property we
weren't too concerned about that aspect of it.
5 As far as affecting the neighborhood, it
really doesn't. The neighbors have all called and
6 said everything's fine. They don't have any
problem with it. Especially the one neighbor
7 that's closest is Bertha Lynch. She surrounds the
property, she has an L-shaped piece that is both a
8 back yard and a side yard to us. And then the
golf course lS the other side and the road lS the
9 other side, so it doesn't change anything.
BOARD MEMBER SIMON: What would it take to
10 save one of the two trees? If the addition were
not as far wide as planned would it still be
11 possible to save the tree that is farther from the
deck?
12 MR. SHORTINO: I don't think so. The deck
is actually built around.
13 BOARD MEMBER SIMON: It's built around one
of the trees but not the other one?
e 14 MR. SHORTINO: Yes.
BOARD MEMBER SIMON: Would it be possible
15 to save the one that the deck is not around?
MR. SHORTINO: I don't think so because to
16 pull the stump out of the one, and to put the
foundation, that's what it was, they said when you
17 put the foundation in, you have to be several feet
away from that tree, and the probable effect is
18 that it would kill the tree anyway. But I did get
some static from the insurance company some time
19 ago with the two trees hang over the house. They
were a little leery of that and I have the
20 insurance, and there's no problem, but I just
thought that maybe with all this talk with
21 hurricanes and everything, I didn't see that that
was a big consideration. The other part of the
22 property is loaded with one of the most beautiful
trees, probably on the north fork. It's a great
23 big umbrella that covers both our properties.
That's sacred. We're pretty well treed and pretty
24 well shaded.
BOARD MEMBER SIMON: That sounds fairly
. 25 convlnclng. My question is how many feet away
from a structure can a tree safely be?
June 22, 2006
46
1
2 BOARD MEMBER WEISMAN: It depends on the
e caliper of the tree.
3 BOARD MEMBER SIMON: As far as a hurricane
lS concerned, if a tree were 12 feet away, it
4 could still fall on the house in a hurricane, so
that can't be the issue. Whether it's five feet,
5 six feet, 12 feet.
BOARD MEMBER DINIZIO: You're looking
6 about three feet, four feet now.
BOARD MEMBER WEISMAN: It's not possible.
7 BOARD MEMBER DINIZIO: You can't have a
tree within 10 feet of a house. The root system
8 probably goes to your house.
MR. SHORTINO: That was the problem that
9 the architect spelled out to me.
BOARD MEMBER WEISMAN: The root structure
10 generally is reflected in the size of the canopy.
So if you look at the mature canopy, it's
11 impossible to save those trees.
MR. SHORTINO: The sad thing about the
12 deck is it never did come to fruition. The
golfers are very close there, and we never wanted
13 to bother the golfer, I'm a hacker myself, and I
e know it's a distraction to have noise when you're
14 trying to tee off. So we gravitated to the other
side of the house and that's where we do the major
15 entertaining now is the outside in the smaller
section of the property. So the big deck sat
16 there, and I just spent money maintaining it for
the last few years.
17 CHAIRWOMAN OLIVA: Is there anyone else
that would like to speak on this application?
18 BOARD MEMBER DINIZIO: You're not going to
come back again for a deck now to fill in the rest
19 of that?
MR. SHORTINO: No, not at all. But to be
20 honest with you that little triangle between the
house and that existing structure I was scratching
21 my head and thinking of flagstone or bricks or
something down on the bottom. Is that a no-no?
22 CHAIRWOMAN OLIVA: As long as it's in the
ground, on ground level you don't need.
23 MR. SHORTINO: We have already learned
after all these years that our people don't tend
24 to go on that side. Usually when the company
. comes, it's hot and we have air conditioning In
25 the house, and if we had this glassy room, why do
you want to sit outside with the mosquitoes when
June 22, 2006
47
1
2 you can see the same stuff in comfort and watch
e the ballgame besides.
3 CHAIRWOMAN OLIVA: Anything else, Jim?
BOARD MEMBER DINIZIO: I was hoping to put
4 in a restriction to that effect then, no further
variances will be made.
5 MR. SHORTINO: That's fine, none expected,
none foreseen.
6 CHAIRWOMAN OLIVA: I'll make a motion to
close the hearing and reserve decision until
7 later.
(See minutes for resolution. )
8 -------------------------------------------------
CHAIRWOMAN OLIVA: The next hearing is for
9 Mr. Charnews. Miss Moore?
MS. MOORE: We have another unusual
10 circumstance on waiver of merger here. I have
everybody here today. I have Mr. and Mrs.
11 Charnews, the owners of the property. I have
Mr. Goldman, who is the contract vendee and has
12 been - - is going through the permit process. I
have Mr. Spiradakis, who is the property owner who
13 bought from Mr. Charnews the oversize parcel. and
e Mr. (inaudible) is here too but just listening.
14 From the authorization you know he represents
Mr. Charnews as well.
15 We have a very unusual circumstance here
where the properties were subdivided by deed and
16 they went back and forth in title ownership
between the two sons and the father, the Charnews
17 family, over a period of timel and with the
smaller parcel, the subject parcel being deeded
18 over to the one of the sons and at his death it
ended up going to one of the other Charnews family
19 members. It/s back and forth, so it's hard to
keep track.
20 The Spiradakis/Charnews piece to the east
is about 1.7 acres, and that piece sold in July of
21 2005. The purchase price of that parcel was
$482,500. It's beautiful. They have done a
22 beautiful job, beautiful home, and Mr. Spiradakis
lives there. That piece when they went in for a
23 building permit, and went in for all the permits,
they got DEC, Trustees, health department,
24 everybody involved. They didn't need the Zoning
e Board, everything was conforming.
25 ASST. TOWN ATTY. CORCORAN: Can I ask one
question with regard to the merger? When that
June 22, 2006
48
1
2 parcel, the 1.7 acre, and that's R 40, when they
e went to build, seek a building permit at that
3 point in time, they didn't need to do any sort of
chain of title, a single and separate search, so
4 there's no flag at that point in time that there's
been any merger?
5 MS. MOORE: Thank you very much. That is
clearly pointed out.
6 So he was able to construct that house.
Only when Mr. Goldman - - and Mr. Goldman, his
7 property, the contract and it's been going for
quite some time now, it's been over a year that we
8 have been in contract because of the permit
process involved, the price is $325,000, that
9 piece of property, we have gone through the Town
Trustees. I have seven copies of the Trustees
10 permit, because LWRP came back with an
inconsistency.
11 ASST. TOWN ATTY. CORCORAN: That's just as
to 97. If the Trustees had previously passed on
12 it, it/s sort of an academic issue.
MS. MOORE: It/s current today for this
13 board, but I'm saying that the Trustees approved
e it, and what I'm trying to say is that they
14 actually approved the house with a smaller buffer
and closer to the wetlands.
15 ASST. TOWN ATTY. CORCORAN: Pursuant to
Chapter 97.
16 MS. MOORE: Pursuant to Chapter 97. I
have that in seven copies and I'll give that to
17 you in the end.
Mr. Goldman went and got DEC approval.
18 The DEC is for a slightly larger house, a larger
decking with the encroachment, which was before
19 this Board, for a greater variance from the front
yard, but that has been reduced in size even
20 greater to a footprint of a house that is only
about 1,200 square feet and only results in a
21 porch overlapping the building envelope. So I'll
glve you those so you have it. It deals with the
22 area variance but I think it's all relevant with
the creation of this lot being a buildable parcel.
23 We have essentially all our approvals and then we
find out the merger took place. Again,
24 Mr. Corcoran has pointed out very clearly that the
the waiver of merger law and the merger law again
. 25 has a technical flaw to it in that a conforming
parcel will be developed, leaving behind the
June 22, 2006
49
1
2 nonconforming parcel and leaving behind what would
e be a sterilized piece of property. You have a lot
3 of information already.
ASST. TOWN ATTY. CORCORAN: That's the
4 risk. We already have a parcel that's been sold
and built on I presume, and people have gone their
5 merry way and probably don't want to unbuild it
and give it back and let us all start over again.
6 This is a problem.
MS. MOORE: Unique hardship.
7 ASST. TOWN ATTY. CORCORAN: If the waiver
were not granted, what would be the result?
8 MS. MOORE: The result would be it would
be a sterilized piece of property.
9 ASST. TOWN ATTY. CORCORAN: And its only
value would be to sell to the adjoining piece at
10 some bargain sale I presume.
BOARD MEMBER SIMON: I have a question,
11 the subject parcel which is bounded by wetlands,
I'm concerned about the buildable area; I'm
12 concerned the question of interpretation whether
the wetlands portion are included in the lot size
13 for the sake of lot coverage. Exclusive of the
e wetlands portion, what would the lot coverage be
14 on the lot that's proposed?
MS. MOORE: I don't have that. I have the
15 whole parcel, and the DEC essentially does look at
the buildable portion, and they only permit 20
16 percent of the buildable portion. We have a
permit from the DEC and they do take into account
17 the area that is buildable and limit you in the
size of this structure, and an impervious area to
18 that area that you have.
BOARD MEMBER SIMON: Because the building
19 envelope looks quite small.
CHAIRWOMAN OLIVA: The proposed residence
20 lS sited 80 feet from the freshwater wetlands a
minimum situation of 100 feet lS required pursuant
21 to Chapter 97.
ASST. TOWN ATTY. CORCORAN: I think Pat is
22 saying she's already gotten relief from the
Trustees on that. One question I have, and I know
23 we can't start over, but do you have an answer to
the question, if we went back in time and we had
24 this consolidated parcel, would you have been able
to subdivide it into two parcels? If the events
. 25 hadn't transpired as they had, are we talking
about a piece of property where there would have
June 22, 2006
50
1
2 been two houses on anyway or no? MS.
e MOORE: I don't have the technical answer,
3 probably not because understand, though the
subdivision regulations.
4 ASST. TOWN ATTY. CORCORAN: You could have
come for an area variance because it would have
5 been close in any event.
MS. MOORE: Because we have 1.7 acres on
6 the other piece and it/s a one acre zoning
district.
7 ASST. TOWN ATTY. CORCORAN: You add the
20,000 on the next piece, you're over 80,000,
8 you're In the 90,000 when you subtract out your
buildable land maybe you're under the 80. You're
9 at or around the requirements.
MR. GOLDMAN: In reference to the question
10 about the wetlands, I believe on the smaller
property, the one I'm trying to buy, the wetlands,
11 the flagged wetlands by the DEC lS only a very
small part. The wetlands is flagged as the water
12 line and only in that Spiradakis corner is where
there is actual unbuildable.
13 MR. SPIRADAKIS: I was going to actually
e say the same thing. The actual wetlands that
14 encroach into the land of the parcels occurs in
the 1. 7. I had an envelope to build, even though
15 it was 1.7 I had two inlets of water, so it's
really 1. 9. The two-tenths are deducted because
16 of those inlets. So there really isn't any
wetland except for the lake itself on the smaller
17 parcel.
MS. MOORE: Please see the survey I gave
18 you, both surveys have the same edge of wetlands
that have been flagged back in March of /05, that
19 all the boards based their approval on. You can
see here the limitation is to create the greatest
20 area of non-disturbance, the buffer area. Again,
the Trustees were satisfied with a 50 foot
21 nondisturbance area, the DEC wanted a greater
setback, and we're up to 65 feet of nondisturbance
22 area, and that's what pushes the house so far up
towards the street, and as I said, our setback,
23 the code requires 40, we're at 35.
ASST. TOWN ATTY. CORCORAN: Is it not
24 really that there are wetlands on the property
itself, it's just you need a setback from the
e 25 wetlands.
MS. MOORE: Exactly. It's not a
June 22, 2006
51
1
2 deductible area.
e BOARD MEMBER SIMON: If the 65 feet there
3 were wetlands itself - -
MS. MOORE: That would be different,
4 that's not the case. In a sense it makes sense,
the way these properties were developed back in
5 the old days, it really makes sense how the two
buildable areas were established. They're not
6 trying to build in the middle of the little canal
that falls between the two properties; it's really
7 in the upper portions.
ASST. TOWN ATTY. CORCORAN: In a perfect
8 world we would have chopped them down the middle
and had two one acre parcels, but that's not the
9 case.
CHAIRWOMAN OLIVA: Leslie?
10 BOARD MEMBER WEISMAN: I know the parcel
well, I live on the road. I think it's fully
11 documented.
MS. MOORE: When I got the LWRP
12 recommendation it didn't make sense to me because
the Trustees had a different approval. He
13 referred to 80 feet, and I didn't know where the
e 80 feet came from because the Trustees approved
14 50, so 5l.
BOARD SECY. KOWALSKI: Can I ask one
15 question? The one map you gave us, the partial
map, the date is cut off, I assume that's the
16 amended map that you're now submitting for the 35
foot front yard setback; the question is what is
17 the last amendment date on that map?
MS. MOORE: Looks like February 27,
18 2006.
BOARD SECY. KOWALSKI: There's a comma
19 after that.
MS. MOORE: You're right. We'll get the
20 original for you. As a matter of fact, this one
has not yet been approved by the DEC; we're
21 counting on them approving it. We actually have a
larger building envelope, which is the other
22 survey. So I don't know, this is the house he
ultimately wants. I guess if you were to approve
23 the other plan, we're asking for a smaller, so if
somehow, if you're inclined to grant this and you
24 are able to write it in such a way that if the DEC
e approves this, this is the one, if not, we'll go
25 with the one that is approved by the DEC. The
setback to the road is a larger setback with the
June 22, 2006
----..-- - ____u____ ------------
52
1
2 house we really want to build. Here we go, the
e last date surveyed is May 27, 2006. Let me give
3 you the original one for your file. He tells me
he had about four revisions of this house, trying
4 to reduce the amount of variance on the front yard
as we thought was reasonable.
5 CHAIRWOMAN OLIVA: Jim?
BOARD MEMBER DINIZIO: No. I guess I'll
6 have to look at the survey and the one that you
want. The one you just handed us has a 31 foot
7 setback, right?
BOARD SECY. KOWALSKI: 35.
8 BOARD MEMBER DINIZIO: This one here?
MS. MOORE: Yes, the little one.
9 BOARD MEMBER DINIZIO: That's the one that
you would like?
10 MS. MOORE: That's what he wants.
BOARD MEMBER WEISMAN: Your first proposal
11 lS the waiver to unmerge first of all, and then
we'll deal with the other problems that mayor may
12 not be created.
MS. MOORE: Yes. I think Mr. Spiradakis
13 wants to speak.
e MR. SPIRADAKIS: It was a surprise to my
14 family to learn that maybe we shouldn't have been
given a building permit, but we went through the
15 usual remedies with everybody, and we just kept
getting approved, and we got our building permit
16 and now my family just wanted to say that the way
these two lands are adjoined, there's sort of a
17 natural turn in the road, and his house we won't
even see and we have no problem with putting
18 somebody else who's going to get to enjoy the
lake, it doesn't affect the aesthetic of my house.
19 I'm basically saying I'm all for it.
ASST. TOWN ATTY. CORCORAN: You also need
20 the Town to recognize your lot, right? Right now
you have no issues whatsoever, but you got deeded
21 out a lot that the Town has now said has been
merged with another lot. It's a weird place
22 you're in. You don't have necessarily a
recognized lot.
23 MR. SPIRADAKIS: We'll share it.
MS. MOORE: I'm not sure I have an
24 answer.
e ASST. TOWN ATTY. CORCORAN: I don't know
25 what the legal effect of that is.
MR. SPIRADAKIS: I remember the title
June 22, 2006
53
1
2 search we did, it was single and separate. But we
e had the impression it was single and separate.
3 But then the building department to give us a
building permit looked into the whole thing and
4 then everything, we got our CO - -
ASST. TOWN ATTY. CORCORAN: They should
5 have said something.
MS. MOORE: That's why we have such an
6 unusual circumstance with the waiver of merger
law. You have very unusual circumstances here
7 where you have oversized lots that are clearly
developed.
8 ASST. TOWN ATTY. CORCORAN: That's not
before this Board now.
9 MS. MOORE: It doesn't happen that often,
but when it does, it really points out some of the
10 problems with the merger law that do require
legislative acts. And someday maybe we'll get it.
11 CHAIRWOMAN OLIVA: Anybody else have any
questions? This one is pretty unusual?
12 BOARD MEMBER DINIZIO: Honestly, during
the course of making that law, because I was
13 involved, I would have assumed that that law, from
e reading it, would have merged a lot to two acres
14 so that at that point, the Planning Board could
subdivide. That's how I think we have always
15 thought about it.
MS. MOORE: Or one acre, whatever the
16 zoning was. Once you reach that magic
conformity - -
17 BOARD MEMBER DINIZIO: No, we would have a
one acre lot. If there was an adjoining lot that
18 was not conforming, that would merge until that
lot, there was two acres there, two legal
19 conforming lots.
MS. MOORE: But if you're in a one acre
20 zoning district.
BOARD MEMBER DINIZIO: But you have not
21 quite a two acre lot, the next lot, the next
little piece makes it two acres, then you can
22 divide that lot into two. That was I think the
thinking.
23 ASST. TOWN ATTY. CORCORAN: And that
clearly could have been done here if they hadn't
24 been allowed to build a big house on it.
CHAIRWOMAN OLIVA: Anybody else want to
e 25 speak on this application? I'll make a motion to
close the hearing and reserve decision until
June 22, 2006
54
1
2 later.
e (See minutes for resolution.)
3 ~------------------------------------------------
CHAIRWOMAN OLIVA: Our next hearing is for
4 the Lathams on Rogers Road. Do we have someone to
speak for that?
5 MR. MCGANN: I'm Dave McGann. The Lathams
are away at a graduation ceremony. I'm here to
6 answer any questions you may have. I'm the
contractor involved in the project.
7 CHAIRWOMAN OLIVA: You just want to put an
addition?
8 MR. MCGANN: They have a rear deck. It's
existing. The house, the deck faces southwest.
9 It's unusable. They attempted to cover it with
vines and a lattice. It's still so hot and
10 there's no wind because of the L-shaped house,
basically been unusable and they would like to use
11 the space.
CHAIRWOMAN OLIVA: They just want to
12 enclose it?
MR. MCGANN: Yes.
13 BOARD MEMBER SIMON: This is only one of
e those cases that was covered by Walz but this was
14 not meant to include, otherwise they wouldn't be
here, right?
15 MR. MCGANN: Exactly. When we built the
house in I forget what year it was, we were in the
16 same position because of the 31 feet. So here we
are again. We're not planning on changing
17 anything as far as setbacks, just enclosing it.
BOARD MEMBER SIMON: The only problem was
18 that the 31 feet didn't get larger all by itself?
MR. MCGANN: Right or smaller.
19 CHAIRWOMAN OLIVA: Leslie?
BOARD MEMBER WEISMAN: No. I visited the
20 property and I see exactly what you're proposing
and nothing much is going to be altered, just the
21 building envelope.
MR. MCGANN: No, just to make what is
22 already there more usable.
CHAIRWOMAN OLIVA: Jim?
23 BOARD MEMBER DINIZIO: No.
CHAIRWOMAN OLIVA: Anyone in the audience
24 wish to comment on this application? If not, I'll
e make a mdtion to close the hearing and reserve
25 decision until later.
(See minutes for resolution.)
June 22, 2006
55
1
2 -----------------------------------------------
e CHAIRWOMAN OLIVA: Our next hearing is
3 Sullivan down in Nassau Point. Is there anyone
near speak on Sullivan?
4 MS. MOORE: Yes. Mr. Sullivan is here and
Mark Schwartz is here as the design professional.
5 This is a pretty straightforward application. We
were at the Southold Town Trustees yesterday
6 evening and the Trustees have approved the
proposed additions to the house. We have the
7 standard conditions of dry wells and hay bales,
which we'll add to the plan. This, you can see
8 that the house already is existing. They want to
place an addition on the north side of the
9 property, which results in a 14 foot setback, and
because the house is closer to the bulkhead, the
10 addition is therefore also closer, it's landward
of existing structures, but is within 100 feet of
11 the bulkhead. All other structures are on the
landward side of the house. The pool and the
12 garage are not before this Board and lS also part
of the project. If you have any questions.
13 CHAIRWOMAN OLIVA: It's almost as if
e you're trying to even out the house.
14 MS. MOORE: If you want, Mr. Schwartz can
certainly answer any questions with regard to the
15 design.
MR. SCHWARTZ: What we're asking for is
16 about an 11 foot addition to the existing
screen/sun porch that's there now. If you're
17 looking at the site plan, there's a break line, so
we're just trying to match the existing and bump
18 it out about 11 feet.
BOARD MEMBER SIMON: will the porch be
19 enclosed further; will it stay the same?
MR. SCHWARTZ: Yes, it will be enclosed.
20 CHAIRWOMAN OLIVA: Then in the back of the
house - - it's kind of the front of the house, the
21 one facing Nassau Point Road, you're making it
almost two-story addition, bumping out the dormer?
22 BOARD MEMBER WEISMAN: Yes, changing the
elevation.
23 MS. MOORE: Yes. Mr. Simon, you asked
about the porch, it is currently a heated,
24 enclosed porch. It will remain as such.
BOARD MEMBER SIMON: Is that going to be
e 25 made one room, one large room in place of the
current enclosed porch?
June 22, 2006
56
1
2 MR. SCHWARTZ: Correct.
e BOARD MEMBER SIMON: New roof no higher
3 than it is now?
MR. SCHWARTZ: New roof but the height
4 will be about the same.
CHAIRWOMAN OLIVA: Leslie?
5 BOARD MEMBER WEISMAN: No. It's very
clear what you're requesting, it's not
6 substantial. I have no questions.
CHAIRWOMAN OLIVA: Jim?
7 BOARD MEMBER DINIZIO: No questions.
CHAIRWOMAN OLIVA: Anybody in the audience
8 wish to comment on this application?
If not, I'll make a motion to close the
9 hearing and reserve decision until later.
(See minutes for resolution.)
10 -------------------------------------------------
CHAIRWOMAN OLIVA: Our next application is
11 for Wexlers on North Bayview.
MS. WEXLER: Do I speak or do you ask me
12 questions?
CHAIRWOMAN OLIVA: No, you can speak, tell
13 us what you want to do.
e MS. WEXLER: Okay. We're planning on
14 building a small house on our property. There
exists what is currently a cottage that's been
15 there a long time, it's a very small, little,
unheated structure that we fixed up enough to be
16 able to stay in until we build our house. It's
going to be an accessory building and I think we
17 need to have permission to build our small house
we're going to be building, a regular heated
18 house. We want to set that back into the woods so
it's not seen from the street, which I guess is
19 the best thing for the neighborhood and for us.
CHAIRWOMAN OLIVA: I think our problem is
20 that that small house, even though you say you're
going to rip out the kitchen, any accessory
21 structure should be put behind the house, and I
would prefer to see you move that so it is behind
22 your house and not on the road. It is rather
close to the road.
23 MS. WEXLER: It's considered a charming
house. It's been there for quite a while. It
24 would be a big expense to move it.
BOARD MEMBER SIMON: It's going to be an
e 25 accessory structure. We don't ordinarily approve
accessory structures between the house and the
June 22, 2006
57
1
2 road.
e MS. WEXLER: It's an existing house.
3 CHAIRWOMAN OLIVA: Doesn't make any
difference, you're changing the whole idea, the
4 whole thing by putting the new house. You have a
substantial amount of property. Perhaps you could
5 move the whole structure back, I'm not sure how
it's built, but if you want to preserve the
6 integrity of the architecture, then perhaps you
could just lift it up and move it.
7 MS. WEXLER: That would be quite an
expensive thing for us to do.
8 CHAIRWOMAN OLIVA: If you can't do that
then you would have to build something else behind
9 the house.
BOARD MEMBER SIMON: You have more than
10 four builder's acres, less than four actual acres.
MS. WEXLER: I don't know. We have
11 3.7. It's one building lot.
BOARD MEMBER SIMON: I have 166,000. The
12 size of the property is actually the size of two
building lots in R80, that's immaterial. It's a
13 large piece of land. And the accessory structure
e lS way out near the road, and you cannot argue
14 that there is no other place on our property for
this structure that we want and that we love. So
15 it's either going to have to be somewhere else or
nowhere is really what may happen.
16 MR. WEXLER: Because it's such a big piece
of property, and that structure is really
17 well-loved by the community, it's a charming
little traditional cottage that we really
18 painstakingly restored, and I designed the
position of the new house behind that in order to
19 be discrete to the community and promised that we
weren't taking any trees away from the front of
20 the property in order to keep the charm of that
community, and also because it creates, to remove
21 that structure and place it behind is just going
to throw off visually the whole kind of plan that
22 I had in mind in terms of the way the property
feels. It's a kind of kinesthetic feeling when
23 that house on the front is a very charming little
building.
24 BOARD MEMBER SIMON: We can agree with
everything you say but still have a problem
e 25 because we have to worry about the next project
that comes along where somebody is going to want
June 22, 2006
58
1
2 to either build or retain an accessory structure
e in the front of the property where it doesn't have
3 the particular merits that you have. This would
be making a new rule, essentially affecting
4 accessory structures in the front yard. And your
case may be very, very, compelling, the problem is
5 we're a Board that's concerned with rules that
apply to everybody else in the town. Maybe with
6 more imagination, something like that, you would
be able to show that this would never be anything
7 like anything else that anybody would do. You're
familiar with the problem?
8 MS. WEXLER. I really don't understand.
MR. WEXLER: I don't understand what you
9 meant by more imagination.
BOARD MEMBER SIMON: At the moment we
10 haven't seen any argument which sufficiently
distinguishes your project - - that would be
11 recognized by the courts - - to allow this to stay
where it is; and failing that, it looks as though
12 it's going to be an instance of a more general
rule which is going to be applied anywhere by
13 anybody.
CHAIRWOMAN OLIVA: Also you have a problem
tit 14 with the gazebo, that should be placed in the rear
of the house, and you have another accessory
15 structure.
MS. WEXLER: We have a garage. What
16 gazebo?
CHAIRWOMAN OLIVA: The little shed.
17 MR. WEXLER: It's a porch connected to the
deck. It's proposed.
18 BOARD SECY. KOWALSKI: They're attaching
it.
19 MS. WEXLER: You mean what we're planning
to build? It's like a screen porch.
20 MR. WEXLER: It's a screen porch attached
to the house.
21 BOARD SECY. KOWALSKI: Then the little
shed you need a variance because it's to the side.
22 It's not a problem.
MS. WEXLER: For the lawn mower, you mean
23 that little thing?
BOARD SECY. KOWALSKI: You have three
24 things.
MS. WEXLER: The other thing was to build
. 25 the house close to the road, which who wants that?
I mean the idea is we want to set the house back
June 22, 2006
59
1
2 so it isn't seen.
e CHAIRWOMAN OLIVA: That's fine. We all
3 agree with the house.
BOARD MEMBER SIMON: You're building the
4 principal dwelling where it probably ideally would
have been built in the first place, the problem is
5 you have a pre-existing dwelling, which you of
course can live in while the other one is being
6 built but whether it can stay or not is the
question before us.
7 MR. WEXLER: It would be a shame to tear
that little house down after I spent two summers
8 reconstructing it. We can't move that without
removing lots of trees in order to pull that house
9 in back of our new house. It would require us to
strip away some of that land behind us, and I
10 really hate to do that.
BOARD MEMBER WEISMAN: The irony is if you
11 actually rebuilt over your existing seasonal
cottage, you wouldn't have a problem.
12 MR. WEXLER: I understand.
MS. WEXLER: Which is what the neighbors
13 don't want us to do. We're trying to build a low
e house keeping all the woods.
14 MR. WEXLER: We tried to make this house
so discrete. The front of the house on the
15 property is literally buried into the hill, it's
only seven feet from the ground, a slight slope;
16 it's going to be totally disguised and we're
trying to be good citizens here, and to remove
17 this charming little cottage - -
BOARD MEMBER SIMON: You're running up
18 against a problem which we didn't create. Namely,
all these things you say are fine if it were a
19 principal residence, but it's not going to be your
principal residence.
20 MR. WEXLER: That's why we're here asking
for a variance. I know that.
21 BOARD MEMBER SIMON: Exactly.
CHAIRWOMAN OLIVA: Jim?
22 BOARD MEMBER DINIZIO: I see no compelling
reason that this accessory structure should be
23 there and should remain there. There is no
hardship, you're going to build a house.
24 MS. WEXLER: Excuse me?
BOARD MEMBER DINIZIO: There is no
e 25 hardship per se, other than you have a hardship
that's created because you want the house there.
June 22, 2006
60
1
2 The Town doesn't allow it, doesn't allow accessory
e structures in the front yard, pretty much as
3 simple as that. I don't even know how we could
answer that question with any sense of
4 legality. How could we -- what is your hardship
with allowing this to stay there? Why would that
5 be a hardship?
MR. WEXLER: Because I spent two summers
6 reconstructing that house. I feel really attached
to it.
7 BOARD MEMBER DINIZIO: Honestly, I
understand that.
8 MR. WEXLER: It's a hardship in my mind.
BOARD MEMBER DINIZIO: If we granted
9 variances based on that, we would grant variances
to everybody.
10 BOARD MEMBER DINIZIO: Today, sir, we're
going to take away probably two people's entire
11 lots, the value of their lots. We are just
talking about a building here. I see no
12 historical value to it other than it's been there
for a while, but architecturally I don't know how
13 you feel about it, but it looks to me just like a
e plain old bungalow. If you like it that much, if
14 you like the way it looks that much, why you can't
move it behind the house, the house you propose to
15 build. Then you don't even require a variance.
MS. WEXLER: I just don't understand why
16 this is a problem for the community and the
neighborhood and the town.
17 BOARD MEMBER DINIZIO: Because the law has
been written that way, ma/am.
18 CHAIRWOMAN OLIVA: Because it's the law.
MS. WEXLER: I thought the law had to do
19 with building a new structure that was an
accessory.
20 BOARD MEMBER WEISMAN: What happens is
that obviously because you can't have two
21 principal dwellings on one lot, you're building a
new one, this one then becomes an accessory
22 building. It is allowed but it's only allowed in
the rear yard. You're allowed to keep that
23 building or to have accessory buildings but your
existing garage will be in your - -
24 BOARD MEMBER DINIZIO: Side yard.
BOARD MEMBER WEISMAN: Well, no, mostly
e 25 the way it's sited it will be in their rear yard.
It's on the side but behind their house.
June 22, 2006
- -
61
1
2 BOARD MEMBER DINIZIO: It's not entirely
e behind their house.
3 BOARD MEMBER WEISMAN: Maybe a tiny
portion.
4 BOARD MEMBER DINIZIO: People have been
turned down for less.
5 BOARD MEMBER WEISMAN: That's true, but
that has no real significant - -
6 BOARD MEMBER DINIZIO: Not now, no. I was
more than willing to let that go.
7 BOARD MEMBER WEISMAN: You presented plans
and indicated what your expectations are for the
8 use of that seasonal cottage, once a principal
dwelling. Can you talk a little bit about what
9 you imagine that accessory building?
MS. WEXLER: Allen is a sculptor we have a
10 studio in New York, and we had to reduce the size
of our studio in New York from a large studio to a
11 smaller studio in the last couple of years. And
he has boxes of his past sculptures and it is
12 regularly kind of going in and out with trucks.
So we need a place to store it, once or twice a
13 year it goes out to shows. We needed a place to
e store it. We have some stored in New York and
14 we'd like to store some here, we thought that this
structure would be able to be a good place to
15 store the work.
MR. WEXLER: Mostly things on paper
16 because there's storage in the garage, my
sculpture, but paper I found in that area is very
17 humid, and has been getting mold on paper. It's
mostly paper and drawings and things like that
18 that I wanted to store in that cottage.
BOARD MEMBER DINIZIO: Unheated?
19 CHAIRWOMAN OLIVA: It's going to get more
moldy then.
20 BOARD MEMBER SIMON: This is a question in
the form of a suggestion, if this little house
21 were not so terrific, and I don't doubt that it
is, and you needed your sculpture needs, what
22 would you do; would you build a structure
somewhere else on your property for it, for
23 storage?
MR. WEXLER: Possibly, yes.
24 BOARD MEMBER SIMON: I appreciate that you
have important needs for a storage place and the
. 25 thing that's before us is whether you could use
the cottage that you are now living in as a
June 22, 2006
62
1
2 storage place, and that's the problem it's because
e of where it is.
3 CHAIRWOMAN OLIVA: Our other member,
Mr. Goehringer, was unable to be with us today and
4 I know he has some very strong feelings about this
and wanted to be able to comment on this
5 application. I don't know whether the rest of
this Board would be willing to adjourn the hearing
6 to next month so he could be present to ask the
questions he wishes to ask.
7 BOARD MEMBER DINIZIO: I think in all
deference to him, we have done that in the past
8 when a Board member has concerns about the
property.
9 CHAIRWOMAN OLIVA: I think he has very
deep concerns about that cottage.
10 BOARD MEMBER WEISMAN: The placement of
it. One thing that would allow would be for you
11 to investigate specifically what would be involved
in the cost and in site work to actually hoist up
12 the cottage, it's certainly movable, it's not like
it's embedded on the foundation and to resite it,
13 while we're able to have Mr. Goehringer
e participate in deliberations, you could at least
14 investigate, perhaps let Linda know what the
outcome would be, whether or not it was
15 unfeasible. At least you could find out what the
cost might be, simply hoisting it up and moving it
16 back, impact on trees.
MS. WEXLER: Because of the triangular
17 nature of the property, we would have to move it
to the far side, there's wetlands.
18 BOARD MEMBER SIMON: What I think Leslie
lS trying to say is this gives you the opportunity
19 to think and talk and discuss possible
alternatives, if you have to have one, and we
20 could still be discussing it when the hearing
continues next month. It's an opportunity to
21 explore some of the possible implications of not
being able to have it where you want, or
22 placement.
MR. WEXLER: You're saying it's possible I
23 could attach the new structure to that existing
cottage?
24 BOARD MEMBER SIMON: Yes.
MS. WEXLER: Then we would build the house
e 25 right on the street.
MR. WEXLER: You're allowed to build that
June 22, 2006
63
1
2 close to the street then?
. CHAIRWOMAN OLIVA: No, you're going to be
3 running problems with that. I wouldn't do that.
BOARD SECY. KOWALSKI: No, you could
4 attach that cottage to your house.
MS. WEXLER: We could make the cottage
5 into a house.
BOARD MEMBER WEISMAN: It would be one
6 house, they could incorporate the cottage - -
MR. WEXLER: You realize that would be
7 really harmful in terms of that community, to
build a contemporary house that close to the road.
8 BOARD MEMBER DINIZIO: Again, that's your
choice as far as architecture. Us holding this
9 over gives you an opportunity - - I have to write
this decision, and I have to answer five questions
10 in the variance application, and I cannot answer
the question concerning, number one, if the relief
11 is substantial because it is substantial when you
have an entire structure fully in a nonconforming
12 area.
BOARD MEMBER WEISMAN: You need a 50 foot
13 setback from the road.
e BOARD MEMBER DINIZIO: I'm talking about
14 if you build your house where it is that accessory
structure becomes wholly in the front yard.
15 There's no compelling reason for it. On
waterfront lots there is a reason to put it in
16 what everyone would call the roadside, because
everybody calls their front yard the waterside on
17 waterfront property, and you wouldn't want to put
a building any closer to the water because of the
18 bluffs and pollution and all of that. That's the
reason why we would grant an accessory structure
19 in what we perceive is the front yard. Here there
is no compelling reason. If you want to come up
20 with one, you have a month.
CHAIRWOMAN OLIVA: A month.
21 MS. WEXLER: Please, what is a compelling
reason, other than what we've said?
22 BOARD MEMBER DINIZIO: What I'm saying to
you is what you have said doesn't compel me. I'm
23 just being fair to you.
BOARD MEMBER SIMON: Refer to the code
24 because the code determines what our reasons which
we're allowed to consider.
e 25 CHAIRWOMAN OLIVA: Just realize in the
code you cannot have an accessory structure in
June 22, 2006
64
1
2 front of the house, it has to be behind.
. MR. WEXLER: That's why we're filing for a
3 variance.
CHAIRWOMAN OLIVA: That's what Jim's
4 saying, one of the reasons we would consider a
variance under some circumstances is if you had
5 water on your property, rather than saying an
accessory structure will go in your rear yard,
6 because it has a huge impact on wetlands.
MS. WEXLER: Yes, everyone builds - -
7 BOARD MEMBER DINIZIO: You could put this
anywhere you want. I understand it's costly to
8 move it, all of those things take into
consideration. All of our laws, the nonconforming
9 laws want to reduce or eliminate nonconformance.
That's the whole gist of that law, and for us to
10 allow it with no compelling reason, other than you
have renovated it, and believe me, I appreciate
11 that, sir, but it hasn't got anything to do with
our code.
12 BOARD MEMBER SIMON: Another thing we may
agree with you with what may seem to be
13 emotionally, morally, even logically compelling
e reasons, the problem is if we make a decision
14 based on those reasons, even if we fully endorse
them, and somebody challenges them, we will lose
15 in court because those are not recognized as
reasons in the state law and the Town law, that's
16 the problem.
BOARD MEMBER WEISMAN: Have you contacted,
17 you did let your neighbors know?
MR. WEXLER: Yes.
18 BOARD MEMBER WEISMAN: Have you heard any
feedback from them? They're all thrilled that
19 we're building off the road. What they're worried
about is people that come in and clear off the
20 trees and plop a big McMansion on the property.
everyone has actually come up and thanked us for
21 number one saving us the cute little structure
that their kids used to call the haunted house
22 because it was vandalized and had drug dealers
living there for quite a while and thanking us for
23 leaving it the way it was and not building a big
house there. And they're thrilled that we're
24 doing a small 1,600 square foot, little thing.
Everybody was very happy as far as I know. We're
e 25 friends with all the neighbors.
BOARD MEMBER WEISMAN: It will be helpful
June 22, 2006
65
1
2 to have comments from the neighbors, either by
. appearing at the next hearing and/or in writing.
3 Because one of the balancing tests is impact on
adjacent properties and so on.
4 CHAIRWOMAN OLIVA: The basic thing is
you/re gOlng to have to move it behind the house.
5 And I appreciate the work, I appreciate the love
you have put into it, but the law is the law in
6 this case. And we cannot deviate from it.
MR. WEXLER: It seems like a moot point to
7 have a postponement.
CHAIRWOMAN OLIVA: I have to give
8 Mr. Goehringer a time for his comments because I
don't know what they are.
9 BOARD MEMBER SIMON: As I say, it does
give you an opportunity to consider possible
10 alternatives, which you can't think of them today,
they would not necessarily mean upsetting the
11 principles that Miss Oliva just enunciated, but
other things you can do you have an opportunity to
12 do this and still vet these things before the
Board.
13 BOARD SECY. KOWALSKI: If you have other
e reasons. Also you can withdraw the application if
14 you want to do that and it will just end the
process, that's always another option too. You
15 can withdraw it.
BOARD MEMBER SIMON: We're not going to
16 vote on it until we have other Board members and
afforded our opportunities for discussion.
17 BOARD MEMBER DINIZIO: I'm not necessarily
going to vote against it, other than the fact that
18 I have heard no compelling reason to vote for it
so far. If you want to take advantage that you
19 get a second bite of this apple another month from
now, it may be worth it. I'm wholly opposed to
20 it, I just need some compelling reason. I have
been on this Board almost 20 years. I've denied
21 people for a whole lot less than what you people
are asking me. That's not to say that we haven't
22 granted some when they have had reasons that are
compelling enough for us to grant. It's the
23 reason why we're here, as a relief; not everybody
fits within our code, the strict interpretation of
24 it. You know, it's up to you, it's your
application. I would certainly take advantage of
e 25 that and sleep on it, talk to your neighbors.
Maybe talk to someone who might have a little
June 22, 2006
_____n___ ----------
66
1
2 experience in the town and maybe you could come up
. with something that could convince us.
3 CHAIRWOMAN OLIVA: I'll make a motion to
adjourn the hearing until July 27th at 9:30.
4 (See minutes for resolution.)
-------------------------------------------------
5 CHAIRWOMAN OLIVA: Mr. Fitzgerald, you are
next for a fence at Oakwood Drive and Haywaters
6 Drive in Cutchogue.
MR. FITZGERALD: Do you have the picture,
7 you can see from that if the fence were SlX inches
to the east on the neighbor's property, they could
8 build it to six feet high in the area that we're
asking to be permitted to build it to six feet
9 high on our property.
CHAIRWOMAN OLIVA: Jim, you just want to
10 extend it from that just for that 26 feet?
MR. FITZGERALD: Yes. From their back, we
11 built it at six feet as far as we can without the
variance. We would like to continue it for the
12 extra 26 feet to be in line with the neighbor's
front yard. They agree. They think it's a great
13 idea. The reason for this is we lost, as you can
. see In this photo, a large stand of hemlock to the
14 ever-popular willie adelgids that have been around
destroying hemlocks and had to take the trees
15 down, so that both we and our neighbors are
enjoying the increasing privacy that is coming
16 along from this fence.
BOARD MEMBER SIMON: A comment / your
17 application is interesting because what it shows
one of many minor glitches in the code, and that
18 has to do with the rule regarding fences, you can
have a fence in your front yard. Now that
19 typically means anything in front of the house,
including on the side, now that's a somewhat
20 different part of the fence. Now the issue has to
do with fencing between you and your neighbor, so
21 I could imagine a proposal to amend the code, we
don't have to do this, you're here for a variance,
22 so that a fence that fits the fact pattern that
yours does, would not require a variance. Looks
23 like an easy case.
BOARD MEMBER WEISMAN: Has the neighbor
24 agreed to this?
e MR. FITZGERALD: They love it.
25 BOARD MEMBER WEISMAN: We don't have
anything in the file.
June 22, 2006
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2 MR. FITZGERALD: If you need it.
e CHAIRWOMAN OLIVA: Jim?
3 BOARD MEMBER DINIZIO: I agree. I don't
think we need to redo the whole law because of
4 it. It's one of those things, one guy's front
yard, another guy's side yard. I think we grant
5 it and go on. I didn't realize this was yours.
BOARD MEMBER WEISMAN: Strangely
6 representing yourself.
MR. FITZGERALD: It feels funny.
7 CHAIRWOMAN OLIVA: Is there anyone in the
audience that wishes to comment on this
8 application? If not, I'll make a motion to close
the hearing and reserve decision until later.
9 (See minutes for resolution.)
-------------------------------------------------
10 CHAIRWOMAN OLIVA: Our next hearing is for
the Constantinos on Northview Drive in Orient for
11 the pool. You're doing a lot of work there,
beautiful piece of property.
12 MS. QUIGLEY: We're trying to put the pool
approximately 80 feet off Northview.
13 BOARD MEMBER WEISMAN: 81 from Brown's
e Hills and 61 from the side yard. I'd like to say
14 that the property is very heavily screened with
landscaping and evergreens. The setbacks are very
15 substantial from any of the property
boundaries. It's in a nice open, sunny area. You
16 don't have to clear cut anything for it. It's a
flat piece of property, virtually no impact on
17 anything other than your back yard.
CHAIRWOMAN OLIVA: I can't even see it
18 from the street.
BOARD MEMBER WEISMAN: I don't have any
19 questions and I don't have any problems with it.
BOARD MEMBER DINIZIO: Looking at the
20 swamp that is my pool right now, I don't know why
you want one. If you're going to have one, put it
21 there. It's a good location.
BOARD MEMBER WEISMAN: And you have a huge
22 piece of property.
CHAIRWOMAN OLIVA: Michael?
23 BOARD MEMBER SIMON: I have the most
common objector to the location of swimming pools
24 on properties that are modest size and so on. I
can't think of a better location for a pool than
e 25 the one you have chosen.
CHAIRWOMAN OLIVA: Is there anyone in the
June 22, 2006
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2 audience that wishes to comment on this
e application? If not I'll make a motion to close
3 the hearing and reserve decision until later.
(See minutes for resolution.)
4 ~~-----~-----------------------------------------
CHAIRWOMAN OLIVA: Now we're back to
5 Mr. Paroli. Mr. Gorman, good afternoon. I had
the shock of my life when I went to this fancy
6 pool house last Saturday.
MR. GORMAN: It's elaborate.
7 CHAIRWOMAN OLIVA: Elaborate, to put it
mildly. I was ready to move in.
8 MR. GORMAN: But they don't want anyone
living there.
9 CHAIRWOMAN OLIVA: I know, but you have
almost a full kitchen, indoor shower, bathroom,
10 outdoor shower, sauna, bedroom downstairs, living
room with a wet bar, upstairs with a loft that
11 sleeps a few people. We're all going to come stay
there.
12 BOARD MEMBER SIMON: And a heating system.
CHAIRWOMAN OLIVA: Yes, I forgot the
13 heating system. How much can we take away?
e MR. GORMAN: We originally filed for an
14 accessory building as an pool house for the pool.
And the architects involved elaborated on it. We
15 got health department approval, and we had plans
approved by the Building Department to put the
16 shower in the bathroom. We have those plans that
were stamped and approved. Once we had health
17 department approval for plumbing and it was
approved, we put heat in the building. I mean
18 it's the next step. And we got all the way
through, all the way through our inspection, the
19 rough-in, everything was roughed-in, pre-inspected
all the way down the line, we had no problems with
20 any of this stuff until the final inspection. And
Gary came out and said you're not allowed to have
21 a shower in here. I said you approved the plans.
This is a $20,000 shower. You saw that the body
22 steamers and the glass, the imported tile, and the
slate. r mean, this is a big deal, this shower.
23 BOARD MEMBER SIMON: The question is when
the Building Department looked at the plan and
24 raised the question about the shower and then you
went ahead and designed the heating system and so
e 25 forth, do you think the Building Department might
have looked differently had they seen that
June 22, 2006
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2 application with the heating plan filled in?
e Sounds like you added those things later.
3 MR. GORMAN: We did, we added a heating
system. I've put heat in accessory buildings,
4 we're not allowed to do that?
CHAIRWOMAN OLIVA: Not unless you come to
5 us.
BOARD MEMBER SIMON: Not unless there's a
6 variance.
MR. GORMAN: Well, here we are.
7 BOARD MEMBER WEISMAN: The bottom line is
it's a wonderful piece of architecture and it is
8 in every sense a second dwelling on the property,
by virtue of its heat, its use site, it has full
9 ceiling clearance on the story and a half loft,
and still the ridge is full, habitable space.
10 Clearly it's intended to be slept in, whether it's
just family members or guests, not assuming
11 there IS any rental conditions. It is in every
sense a second dwelling by definition. The reason
12 he was talking about the shower was because
typically pool houses have a sort of outdoor
13 shower and cabana, which you have anyway. And
e frankly, it/s environmentally less invasive to
14 have an indoor shower because any body soap,
detergents and so on go into plumbing rather than
15 onto the groundwater, in other words, it's a
greater pollutant if you have an outdoor shower.
16 I'm a little perplexed as to how to handle this.
Quite frankly, what do you remove?
17 MR. GORMAN: They are well healed people.
They have no intention of renting it out.
18 CHAIRWOMAN OLIVA: Excuse me, you can have
a shower indoors as long as that shower does not
19 connect to the rest of the building. It only has
an outside door to the outside. We had another
20 application that has done it. They have a pool
house, but the shower is only accessible through
21 the outside door, not through the inside.
MR. GORMAN: We have that possibility. We
22 could wall that off.
CHAIRWOMAN OLIVA: I saw that.
23 BOARD MEMBER SIMON: Just to give you an
example of how this works, last month we had a
24 case where there was a pre-existing accessory
structure used only in the summer time, and the
e 25 people had replaced the very small heater with a
space heater. The building inspector came into
June 22, 2006
70
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2 the house for unrelated reasons, saw this and gave
. them, cited them for having a heating system that
3 apparently was being installed, and so they had to
come before us to get an approval on that. And
4 investigation showed that this was not a heating
system, it was only a space heater to heat one
5 room for the cool months. That's what I mean,
that that triggered an appearance before the
6 Zoning Board. So this clearly if this had been on
the thing in the first place with this heating
7 system, there's no questions there would have been
problems once that thing and other things perhaps
8 were introduced.
MR. GORMAN: I guess it's sort of implied
9 that once you approve plumbing you - -
CHAIRWOMAN OLIVA: No.
10 BOARD MEMBER SIMON: Plumbing, there are
many kinds of plumbing. One cold water spigot is
11 plumbing.
MR. GORMAN: We were approved, granted in
12 error by the Building Department - - and we
recognize that now -- but we were approved an
13 indoor shower, a toilet, a sink.
e BOARD SECY. KOWALSKI: They had a half
14 bath before, a toilet and the sink?
MR. GORMAN: It's a big deal. You have to
15 blow the pipes out every winter, you don't always
know if that's going to work out. You have water
16 sitting in the toilet, it gets really cold without
heat.
17 CHAIRWOMAN OLIVA: You put antifreeze in
there, come on.
18 MR. GORMAN: Once we put the plumbing in,
the heating is next.
19 BOARD MEMBER WEISMAN: Then it becomes
exactly what you described, a year round,
20 habitable accessory structure. Accessory only in
the sense it's not attached to the principal
21 structure, and constitutes abuse.
BOARD MEMBER SIMON: Zoning law is pretty
22 clear, you can only have one dwelling on a
property. When an accessory building begins to
23 resemble a second principal dwelling, that's where
the flag comes up.
24 CHAIRWOMAN OLIVA: Big flag.
CHAIRWOMAN OLIVA: It's a beautiful job.
e 25 We all love it. But it's a no-no.
BOARD MEMBER WEISMAN: When you think
June 22, 2006
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71
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2 about a pool house, it/s a structure that's
. associated to a swimming pool. Entertaining,
3 having a shower there, even having a little fridge
for soft drinks. But that is not properly
4 labeled; that is a guest cottage. It's a year
round, habitable dwelling. Therein is the
5 problem.
MR. GORMAN: Are there any covenants we
6 can add to it? They're willing to accept any
covenants whatsoever on the deed.
7 CHAIRWOMAN OLIVA: Take out the heating
system and the indoor bath.
8 BOARD MEMBER SIMON: You couldn't get a
covenant for what you have, it would have to be
9 changed.
MR. GORMAN: So we would have to take out
10 the heating system?
CHAIRWOMAN OLIVA: And you would have to
11 only be able to access the shower and bath from
outside, it would have to be closed off from
12 inside. Jim?
BOARD MEMBER DINIZIO: I'm looking at your
13 notice of disapproval and clearly the Building
tit Department thinks that this is a second dwelling.
14 You/re asking us for that blessing, you're
appealing that decision. I think we're all going
15 to say no. Now, if you want the building to stay
up, because you're not going to have a second
16 dwelling there probably, I think you're going to
have to comply to some restrictions that will
17 comfort the Town that this is not going to be used
- - and your neighbors - - that this is not going to
18 be used as a second dwelling. I don't know. I
think you ought to think seriously about how you
19 can convince us. There's a lot of ramifications
in that. I'm not going to approve a second
20 dwelling. I saw this being built, and I said to
myself, I've said before, I/ve been here for 20
21 years. I stood in your neighbor's yard and looked
at it and said my God, there's a house going up
22 back there. And that's what it looks
like. Everything lS copasetic. Everything meets
23 the codes / although I didn't realize it was in a
jog there. I thought you had more of a side yard,
24 which would have made is it more presentable. I
tit think you have your work cut out for you to
25 convince us this is not going to be used as a
second dwelling.
June 22, 2006
72
1
2 BOARD MEMBER WEISMAN: Well, accessory
e structures generally are not slept in. The
3 purpose is a pool house. The fire department has
to know where people are living in the event of an
4 emergency. So if people are sleeping in there and
there's no C of 0 for sleeping quarters, which is
5 what makes it a dwelling, even if you have family
members for the weekend, the fire department
6 doesn't know about it because that use is not
permissible on that property. So it gets very
7 complicated. It's like safety codes as well, just
simply the fact that it's conflated use on the
8 property. It's a little more complicated than
meets the eyes.
9 BOARD MEMBER SIMON: We cannot prevent
people from sleeping in accessory buildings, but
10 we certainly aren't going to give it our blessing.
MR. GORMAN: Understood. If we removed
11 the heating system, and we walled off the shower
system so it was accessible from one door from the
12 outside, does that satisfy?
CHAIRWOMAN OLIVA: We might add a few more
13 covenants that - -
e BOARD MEMBER DINIZIO: I would want to add
14 more restrictions. I mean I would want to insure
that that building doesn't get used say from the
15 end of October until the beginning of March.
There would be restrictions that no one could live
16 In it, no one could make use of it for that
time. I'm fairly confident that another Board
17 member would agree with that.
CHAIRWOMAN OLIVA: And Jim visits next
18 door and I live down the road.
BOARD MEMBER DINIZIO: Not to say that
19 your neighbor was opposed to it because he had no
comment at all on it. And I didn't say anything
20 to him other than I was sitting there talking to
him looking at that.
21 CHAIRWOMAN OLIVA: I think some other
people are here to speak on it.
22 CHAIRWOMAN OLIVA: Mr. McNeil, do you have
something to say? And Mr. and Mrs. Latham?
23 MR. MCNEIL: I speak as a representative
of both members and trustees of the Orient
24 Methodist Church who own that property, at least
the parsonage adjacent to this person and
tit 25 immediately In front of this building in question.
It seems obvious that the applicant had
June 22, 2006
73
1
2 more in mind than what is stated, and I quote from
e the permit, "For an unheated accessory storage
3 structure, a pool house accessory. " Why did he
require such a large building since it was not
4 built in compliance with his permit it's surely
subject to disapproval. If Mr. Paroli can afford
5 what must be the biggest accessory pool house in
Southold town it is what he has built and
6 apparently is still building, and we do not
question his right to use the building as
7 specified in the building permit. But we
certainly do object to the completion and use of
8 the building as a residence immediately behind and
very close to our property.
9 CHAIRWOMAN OLIVA: Thank you. Mr. Latham?
MR. LATHAM: I'm Richie Latham, I live in
10 Orient. I may read this if it's okay. If you
have questions, stop me. A lot of these things
11 have been covered by the applicant's
representative.
12 I'm a trustee of the Orient Methodist
Church who owns the parsonage next door to 525,
13 the applicant's address. The application for a
pool house is approved by the town building
e 14 department. We went through that. Although it
seemed very large for a pool house, it was not a
15 threat to us as such. The applicant changed his
plan from a pool house to a dwelling house
16 sometime in 2005. It's like topsy, it just grew,
I guess. With this change of plan, this would
17 become in effect two dwelling houses and a pool on
a plot slightly over half an acre. It's not a
18 conversion to an existing building, it's a new
house. A new house so close to our rear property
19 line it will overpower our small lot and house.
It's already - - but with people living there. If
20 approved it would set a precedent in this
neighborhood, which by the way is in the Orient
21 historic district. If approved this building
would be a legal building forever. And some day
22 it could come back to some future board to break
this up and allow two legal lots, maybe not but
23 could be. ZBA, and I feel ZBA and Southold Town
is being held hostage by this applicant who asked
24 and received permission to build one thing and
then proceeded to develop quite another one and
e 25 looks for your approval. Mostly they get
approval. Nobody's asking anyone to tear anything
June 22, 2006
74
1
2 down. I don't think it's been done in Southold
e town. The other places, they do it. I don't
3 think we should ask for that either.
A week ago our supervisor said the Town
4 has too many illegal apartments, this would be
part of that same situation. I suggest that the
5 Board allow the applicant to keep the pool house
building and remove all that would constitute a
6 dwelling, such as heat, air conditioning, which
hasn't been mentioned, inside shower, toilet,
7 sleeping loft, living room, sinks, the toilet may
be permissible, I'm not sure. There is an outside
8 shower enclosure. Some kind of covenant like that
might run with the land, might be an answer. But
9 these things have a way of slipping into something
else, and they can't be monitored by the Building
10 Department, the Zoning Board or anybody forever.
CHAIRWOMAN OLIVA: We're working on that,
11 Rich.
MR. LATHAM: Thank you for listening.
12 CHAIRWOMAN OLIVA: Mrs. Latham?
MS. LATHAM: Good afternoon, I'm Kathleen
13 Latham. The town of Southold formulates laws for
e the benefit of our community. These laws are not
14 lightly made and they're made for good reason.
Once the laws are formulated, they need to be
15 respected, they need to be honored, they need to
be enforced. An applicant trying to get around
16 these laws is trying to make light of the
intentions of the Zoning Board. I hope we can
17 stand fast and uphold the honor of the Town of
Southold. Thank you.
18 CHAIRWOMAN OLIVA: Thank you, Mrs.
Latham. Any of the Board Members have anything?
19 BOARD MEMBER SIMON: No, I would like to
ask Mrs. Latham, however, if I could have a copy
20 of that for use for other purposes?
CHAIRWOMAN OLIVA: Mrs. Latham is known
21 for many years that when she gets up, she doesn't
speak a lot of words but each word counts a great
22 deal.
MR. GORMAN: Just a brief response. My
23 company built the building - -
CHAIRWOMAN OLIVA: It's beautifully built,
24 there's no question.
MR. GORMAN: There was no slight of hand.
e 25 We did everything --
CHAIRWOMAN OLIVA: I understand.
June 22, 2006
75
1
2 MR. GORMAN: We did everything according
e to the rules. We got permission to build it. We
3 got permission from the Building Department, and
the building department preapproved our plans. We
4 didn't do anything to trick anybody. Just so you
know, the Parolis weren't doing anything that had
5 any slight of hand involved. It was just an
assumption on our part that once we were approved
6 for plumbing, that we could put heating in there,
and then AC.
7 CHAIRWOMAN OLIVA: That's why my husband
always says, never assume anything, check it out.
8 BOARD MEMBER WEISMAN: The architects
really should have known what constitutes an
9 accessory use and something that's conflated well
beyond the legal definition of an accessory
10 structure. So the quote blame, intentional or
otherwise, is widespread, it's not strictly on
11 your shoulders or the Building Department's or the
architects, but the collective impact is that it's
12 created something that is simply not an acceptable
use on this residential property. So now the
13 thing is to figure out what to do about it.
e BOARD MEMBER SIMON: I would just like to
14 say with respect - - there's no but there - - given
Long Island and the whole context of this, I would
15 rather be a participate in the government which
has its lapses rather than one that is corrupt.
16 MR. GORMAN: I agree.
CHAIRWOMAN OLIVA: Mr. Latham, you have
17 something else?
MR. LATHAM: Just one thing. They did a
18 great job, no question about it. There's been a
man in town the past 20 years 1 and I heard him
19 say, he said to me after a hearing here, he said
Town of Southold, they let anything go here, and
20 the man is still here. He's not too active
anymore. His effects are still felt. He's a nice
21 guy and everything, but he said they don't stop
anything. He told me that, it's 20 years ago.
22 They pay a fine, and I think you've explained a
lot. The Building Department is certainly a big
23 part in this. Otherwise you wouldn't be here to
ask for a CO, you'd just move right in. At least
24 he did that. Thank you for listening.
CHAIRWOMAN OLIVA: Thank you. All right,
e 25 we will make our decision in a week, but I think
you know what it will be.
June 22, 2006
76
1
2 MR. GORMAN: It will be to wall that off
e so it's accessible only from coming from the
3 outside.
CHAIRWOMAN OLIVA: And the heat out.
4 BOARD MEMBER SIMON: And the air
conditioning.
5 MR. GORMAN: And the AC?
BOARD MEMBER SIMON: I don't know. It's
6 true, nobody mentioned it. I have it in my notes.
BOARD MEMBER WEISMAN: It's central alr
7 conditioning.
BOARD MEMBER DINIZIO: I put it as a
8 restriction. There's not going to be any
utilities in there but running water and
9 electrical. The bathroom, as far as I've done for
restrictions, there's going to be no entry from
10 the house for the bathroom, no AC, no heat, not
habitable for six months.
11 BOARD MEMBER WEISMAN: Seasonal use,
related to the season you would use a pool.
12 CHAIRWOMAN OLIVA: Seasonal use.
BOARD MEMBER DINIZIO: Or we can say used
13 as storage only. Used as a pool house, at the end
e of the season you throw all your lawn chairs and
14 lock it up and open the pool, and when you open
that up.
15 CHAIRWOMAN OLIVA: You are going to put a
fence around that pool, aren't you?
16 MR. GORMAN: I believe the fence that is
around the property was - -
17 CHAIRWOMAN OLIVA: No.
MR. GORMAN: I'll make sure. I wasn't
18 involved in the fence.
CHAIRWOMAN OLIVA: It's a nice pool, it
19 needs a fence around that pool. If there's no
other questions, I'll make a motion to close the
20 hearing and reserve decision until later.
21 (See minutes for resolution.)
22 (Time ended: 1:12 p.m.)
23
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June 22, 2006
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4 C E R T I F I CAT ION
5
6 I, Florence V. Wiles, Notary Public for the
7 State of New York, do hereby certify:
8 THAT the within transcript is a true record of
9 the testimony given.
10 I further certify that I am not related by
11 blood or marriage, to any of the parties to this
12 action; and
13 THAT I am in no way interested in the outcome
e 14 of this matter.
15 IN WITNESS WHEREOF, I have hereunto set my
16 hand this 22nd day of June, 2006.
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June 22, 2006