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HomeMy WebLinkAboutZBA-11/29/2001 Hearing TRANSCRIPT OF HEARINGS SOUTHOLD TOWN BOARD OF APPEALS PUBLIC HEARINGS HELD NOVEMBER 29, 2001 Present were: Gerard P. Goehringer, Chairman James Dinizio, Jr., Member Lydia Tortora, Member Lora S. Collins, Member George Horning, Member Also present was Linda Kowalski, Secretary to ZBA. 7:30 – 7:35 p.m. Appl. No. 5021 - THOMAS P. and ANNETTE JORDAN. This is a request under Code Section 100-26 for a Lot Waiver to Unmerge property shown on the Suffolk County Tax Maps as 1000-79-4-25 from 1000-79-4-26. This request is based on the Building Inspector's August 22, 2001 Notice of Disapproval which states that Lot 25 has merged with an adjacent lot to the north (79-4-26) pursuant to Section 100-25 which lots have been held in common ownership during a period of time after July 1, 1983. Location: 1550 and 1680 Brigantine Drive, Southold. CHAIRMAN: We received some correspondence from you Ms. Wickham? ABIGAIL WICKHAM, ESQ.: Yes. CHAIRMAN: What would you like to add, subtract? ABIGAIL WICKHAM, ESQ.: I note that the agenda gave me about fifteen minutes time, which is about 300% more than I usually get. So I feel compelled to say something. CHAIRMAN: Are you referring to the normal agenda, or our Special Meeting Agenda? ABIGAIL WICKHAM, ESQ.: Your normal agenda I get five minutes, I get fifteen tonight. CHAIRMAN: That's only because I've been reading a little faster. MEMBER TORTORA: It's never stopped anybody before. ABIGAIL WICKHAM, ESQ.: I know that, and I guarantee you that I'll be quicker than the other two fifteen minute hearings. I just wanted, in addition to what I submitted, to call to your attention an aspect of the deed that was not mentioned at the last hearing which pertains to the ownership. Lot 55, which is the house deed, is in the name of Thomas and Annette Jordan his wife, as tenants by the entirety. While Lot 56, which is the vacant lot, is in the name of Thomas Jordan and Annette Jordan as tenants in common. I don't know if the Board has ever ruled on that issue but I would like to submit that perhaps that would constitute a single and separate ownership since, under the Town Code definition of common ownership you must, the person has the same percentage of ownership. On the house on the vacant lot, where they own tenants in common, they each own an undivided 50% interest. On the residents parcel which they own as tenants by the entirety by virtue of the fact that they are married under the State of New York, they each own a 100% interest which cannot be divided or partitioned as the tenant being common hands. So I would just like to submit that as an additional argument that the lots are, in fact, single and separate, in which event the merger may not in fact even be necessary. CHAIRMAN: Very interesting. MEMBER DINIZIO: I noticed that when I was going through it. PAGE 2, NOVEMBER 29, 2001 ZBA PUBLIC HEARING TRANSCRIPT ABIGAIL WICKHAM, ESQ.: And I'm sorry I took up all this time. I was looking at the prior deed. I should also add to the record, the prior deed to the vacant use was in tenants in common but that was changed before the merger occurred in 1997. That's all I have to say. MEMBER TORTORA: I'm not sure I understand. Because the husband and wife New York State Common Law that each own 100%? ABIGAIL WICKHAM, ESQ.: A tenants by the entirety is the lead form of ownership between only married people, and neither can separate it, and they each own the entire ownership. Where in tenants in common, which is how the lot is held, they each own a 50% ownership and neither one can sell it, sell their 50%. CHAIRMAN: That is assuming that there is a marriage contract. If it were a common law situation, how would that affect it? ABIGAIL WICKHAM, ESQ.: I honestly don't know the answer to that. But they were married in the State of New York. I'll put that in the record. I would submit that it doesn't apply. MEMBER COLLINS: I think that's a nice lawyerly argument. MEMBER DINIZIO: I noticed the difference, I thought that they didn't know the actual answer. One is 100% ABIGAIL WICKHAM, ESQ.: It's the same names, but it's not the same percentage of ownership. When I looked up the common ownership definition. MEMBER DINIZIO: So the house lot is each owned 100%? ABIGAIL WICKHAM, ESQ.: At tenants in the entirety, yes. CHAIRMAN: Miss Collins you don't want to reflect anything? MEMBER COLLINS: At length? CHAIRMAN: No, we sincerely hope not. If you want to, I'll MEMBER COLLINS: Oh no, I told Ms. Wickham I think that's a nice lawyerly argument that appeals to me. In fact, I think there's substance to it. CHAIRMAN: Mr. Dinizio, no other comments. MEMBER DINIZIO: Well like I said, I wrote and I didn't know that and I just glanced over it because I had no idea what the difference was. I mean, if that's the case, I mean certainly I wrote it to approve it, so it wouldn't make any difference but I think I should re-write at least add this part in. ABIGAIL WICKHAM, ESQ.: And I'm sorry I didn't mention it at the hearing. MEMBER COLLINS: Actually I'm amazed I didn't notice it. It's the sort of thing I notice. CHAIRMAN: Well that's the reason why we had this second hearing. Sometimes there's a benefit of having a second hearing. Okay, we thank you. Is there anybody else that would like to speak in favor or against this application? Seeing no hands I'll make a motion closing the hearing, reserving decision until later. PAGE 3, NOVEMBER 29, 2001 ZBA PUBLIC HEARING TRANSCRIPT SEE MINUTES FOR RESOLUTION * * * 7:35 p.m. Appl. No. 5023 – NORTH FORK COUNTRY CLUB. This is a request for a Variance under Article III, Section 100-31B(7), and Article XXIV, Section 100-244B, based on the Building Inspector's September 7, 2001 Notice of Disapproval. The reasons stated in the Disapproval is that Building Permit #27135 was issued in error because the building is located at less than 50 feet from the rear lot line, is 96+- feet from the Main Road, and that the building addition exceeds the 20% lot coverage limitation. Location of Property: 300 Linden Avenue (a/k/a Moore’s Lane), Cutchogue; Parcel 1000-109-3-8.1 (7.1 and part of 4). Zone District: RO Residential Office, and R-40 Residential (northwest corner). CHAIRMAN: We have read some correspondence from both the applicant's attorney and the attorney for the opposition. What would you like to add? PATRICIA MOORE, ESQ.: We're almost there, we were out in the hallway and were hoping to resolve it in such a way that coming up with some compromises and conditions. We had given you a plan. Mr. McLaughlin had sent a letter which we had some concerns with. We'd like to have an opportunity to continue this for the next meeting; because what Mr. Surozenski asked is that we go to the site. He wants to be able to visualize what we proposed and North Fork Country Club will certainly honor his request to continue this to the next hearing. CHAIRMAN: Yes, I was over there the other day and took some measurements myself. That's fine, so we'll th PATRICIA MOORE, ESQ.: Maybe we can get on the next, the December 13? CHAIRMAN: Yes, but you're going to be late so I'm just warning you about that. If for some reason something happens because it's during the Christmas season, we'll call you and say come on down here real fast. th PATRICIA MOORE, ESQ.: Or if you should put in a special meeting before the December 13 meeting, certainly let us know. CHAIRMAN: No, there won't be a second meeting. We're booked beyond. BOARD SECRETARY KOWALSKI: I would say about 8:25, say 8:20. CHAIRMAN: Just don't hold us to that time. PATRICIA MOORE, ESQ.: I'll be holding up the process so th CHAIRMAN: I'll make a Resolution to continue the hearing on December 13 at 8:20. SEE MINUTES FOR RESOLUTION * * * 7:40 p.m. ROGER AND LESLIE WALZ. Location of Property: 2505 Old Orchard Road, East Marion; Parcel 1000-37-6-5: (1) Appl. No. 5038 - This is an Amended Appeal for an Interpretation of the Southold Town Zoning Code, Section 100-242A, requesting a determination that additions and alterations within or over the footprint of existing dwellings with nonconforming setbacks do not create any new nonconformance or increase the degree of nonconformance with regard PAGE 4, NOVEMBER 29, 2001 ZBA PUBLIC HEARING TRANSCRIPT to the zoning regulations, and Reversal of the Building Inspector’s May 2, 2001 Notice of Disapproval. Code Section 100-242A states that: Nothing in this Article shall be deemed to prevent the remodeling, reconstruction or enlargement of a nonconforming building containing a conforming use, provided that such action does not create any new nonconformance or increase the degree of nonconformance with regard to the regulations pertaining to such buildings. (2) Appl. No. 4962 - (Carryover from September hearing calendar). Appeal requesting a Variance under Article IV, Section 100-242A, based on the Building Inspector’s May 2, 2001 corrected Notice of Disapproval. The Notice of Disapproval states that the existing structure has a nonconforming setback of three feet from the easterly side lot line and 6.5 feet from the west side line, and as a result, the second-story addition represents an increase in the degree of nonconformity. CHAIRMAN: We have the person in charge of the Building Department, Mr. Michael Verity, with us tonight. Is there something that you want to say as an opening remark Mr. Bressler? ERIC BRESSLER, ESQ.: No. CHAIRMAN: No? Okay. Mr. Bressler I just want to say something, I'm commending you, and your presentation was very well done regarding this Interpretation two weeks ago. I think that over the years, and this is not in any way a criticism of you, I don't think you and I have ever had any ill words, even when you subpoenaed me to Federal Court. So I'm just asking you that if you ask the Building Inspector a specific question tonight, we're here to gather information we're not here to interrogate anybody. That's what we are asking. ERIC BRESSLER, ESQ.: No problem. CHAIRMAN: I hate to say that on the record but okay. Mr. Verity we thank you for coming and could we ask you to come up here and use the microphone? I'm not going to get into specific sections of the Code, but we do thank you for coming to clear up some of the issues that we've had from Notices of Disapprovals from your office. Those particular Notices of Disapproval indicated that in non-conforming buildings with non-conforming setbacks that your office has denied those specific applications for specific reasons and you've mentioned the Code in those particular areas. There was an indication that there was a change in this between the two administrations. My discussion with you is that there was no change in effect during the prior administration, and we're referring to the administration of the prior head of the Building Department and the present situation there really has been no change. MIKE VERITY: That's correct. CHAIRMAN: That's correct. You may want to expound on that in some way, but I'm sure my Board Members want to ask specific questions. MIKE VERITY: If you want to ask a question, I can answer it that way if you want to get specific. CHAIRMAN: Okay, Lydia? MEMBER TORTORA: On several occasions Mr. Verity. MIKE VERITY: You can say Mike, Mike is okay. PAGE 5, NOVEMBER 29, 2001 ZBA PUBLIC HEARING TRANSCRIPT MEMBER TORTORA: Well actually Mr. Verity is, because recently we were accused of being too informal. MIKE VERITY: Okay, that's fine. MEMBER TORTORA: So I'm trying to be very, very formal. To make a long story short, there has been a lot of hearsay by applicants, by attorneys and their representatives that there has been a change in the manner in which the Building Department interprets whether a structure or a proposed addition is, in fact, is inconceivably of non-conformity. It has also been said that if you have, for example, a 40 x 50 foot house which is four feet from the property line and you want to build an addition that is 3.9 feet from the property line that you ________with the Building Department has a new interpretation does not feel that this would be a degree of non-conformity. That's one issue I just wanted to ask you about. Is that so? MIKE VERITY: Yes 3.9 would be a problem if you had an established amount of 4 feet. Now if you were referring to 4.1. MEMBER TORTORA: Yes, 4.1 I'm sorry. If you wanted the line to be 4.1 inches and the existing setback was 4 feet would that, in your mind, enter an increase of non-conformity? MIKE VERITY: Not in my mind, no. MEMBER TORTORA: How do you measure increase of non-conformity? MIKE VERITY: Basically if you say we have a side yard of three feet and they want to continue with that three feet down the line however far, I would say that could be an increase in non-conformity and that's the way the Department's done it with the previous head. Prior to that any existing or pre-existing setback you could maintain that, continue that on up along the property line and up without a problem. Then that was changed and now it's continued as Mr. Forrester originally changed it to which would be, if it were a three foot line if you did not increase that you could build what you wanted to build. But if you're going to increase that degree of non-conformity, you would not be allowed. So whether it was an inch, whether it was two inches, whether it is three feet that's the way it is interpreted. MEMBER TORTORA: How do you define the word increase? In other words, in the Town we measure things, we measure lot coverage whether it be an increase or decrease in lot coverage in terms of square footage is that right? The Assessors look at the property and they say X, Y Z square footage. So how you determine volume, in other words, does volume constitute an increase? MIKE VERITY: Technically, yes. We deal with also, for instance, if someone had 24% lot coverage and they wanted to build at that 24% or beyond that, obviously you'd have to go for an appeal. We try to, when someone has an existing house and they want to knock it down and re-build, we do not allow them to continue at that 24%. We would ask them to not increase the non-conformity and decrease it and still they had it at 24% so why would 22% be an increase it wouldn't be an increase. There is really no clear determination whether it's volume, whether it's height, whether it's length, width. MEMBER TORTORA: So it's area. MIKE VERITY: That's the way we're viewing it, yes. PAGE 6, NOVEMBER 29, 2001 ZBA PUBLIC HEARING TRANSCRIPT MEMBER TORTORA: The physical area. So the area determines the increase in the percentage of lot coverage the area that determines the lot coverage is the area that we are assessed and what I'm trying to say is if I have a 45 or 50 foot house that is four feet from the property line and I tripled the size of that house have I not increased the area? MEMBER COLLINS: How did you triple it Lydia, did you go up? BOARD SECRETARY KOWALSKI: I just want ed to get Mike's response, what was your answer, no you had? MIKE VERITY: Yes, you have. MEMBER COLLINS: I wanted to know how Lydia tripled it. MEMBER TORTORA: There are two different ways you can triple it. You could go up and we could put the identical house. MEMBER COLLINS: You could expand its footprint or you could go up. Right? Have you stipulated that your house was non-conforming, that 45, 60 that the setbacks were non- conforming. We started with that. Okay. So that you're asking Mr. Verity was, you have a house that the setbacks are non-conforming and you make it bigger is that an increase in the degree, that was part one of your question. I meant bigger in terms of square footage. Her next question was, if she increased the house by going up. MEMBER TORTORA: In other words, I'm trying to determine this is an area in my own mind, Mr. Verity, that is not clear. It's not a cut and dry issue by any means. But one thing that is clear is there has to be some method of determining where the existing degree of non-conformity is. There has to be a starting point. That starting point measured by a foot, is that a reasonable thing to say? Or is it reasonable to look at the area, the area which is non-conforming. So those are some of the questions I'm looking at in my own head. I'm looking at for many, many years all the legal talks about footprints. One of the _______words and I think it's still used quite a bit, that a structure that as long as you did your alterations within the existing footprint of the structure that did not increase the degree of non-conformity. There is no real cut and dry formula, so that's why I'm asking. But it's your thinking that if we, for example, here's our house and our house is still four feet from the property line, now if I want to put on a second floor addition and I stay within the existing footprint, is that an increase in the degree of non-conformity? MIKE VERITY: You said the house is non-conforming? MEMBER TORTORA: Yes. MIKE VERITY: Side yards, whatever they may be? Yes it is. MEMBER TORTORA: If I want to go up? MIKE VERITY: Yes it is. MEMBER TORTORA: Now if I want to go up and the existing side yard setback is non- conforming at the four feet and on the four feet I want to make my second story at three feet six inches, would that be – four feet six inches. MIKE VERITY: Then you're further away, that would not be an increase in non-conformity. MEMBER TORTORA: That is what we had heard. That's what I wanted to confirm. PAGE 7, NOVEMBER 29, 2001 ZBA PUBLIC HEARING TRANSCRIPT MIKE VERITY: And that's the way it's been prior to me, with Ed Forrester. That has not changed. MEMBER DINIZIO: Wouldn't it still be non-conforming? MIKE VERITY: Technically, Jim, if you want to say that, I don't want to add another twist to this but, if there were a less than 20,000 square foot lot you have to have ten on one side, fifteen on the other if you want to draw those two zones of ten feet and fifteen feet in any area in the ten or fifteen regardless of what your existing setbacks, yes that would be 100% in a perfect world. But I don't think that's any proper way to deal with. MEMBER DINIZIO: I guess I'm trying to follow the logic of why you consider going up is not a non-conformity. In other words, if a principle structure is thirty-five feet, anything over thirty-five feet that's non-conforming? MIKE VERITY: Yes. MEMBER DINIZIO: And your using a side yard setback to control a non-conformity in the bird hold sense. I'm wondering just how you come to a point where if it's built four feet, using Lydia's, because I'm at least as dense as she is, if not more, how four feet of a fifteen foot setback say or ten foot, minimum ten foot setback is non-conforming but at five feet suddenly you can go up. How do you come to that? MIKE VERITY: Basically what you're telling me you had allowed a vertical to be continued but not horizontal. MEMBER DINIZIO: Well I'm just trying to follow the logic of how you measure vertically utilizing the horizontal setback. You're denying a person a horizontal setback. MIKE VERITY: We're denying it equally, whether it's horizontally or whether it's vertical. MEMBER DINIZIO: But wouldn't it follow if it's non-conforming at four feet then it's non- conforming at five? MIKE VERITY: Sure if it was in a perfect world, yes. MEMBER DINIZIO: Just, what I'm trying to get is where is the guidelines that say it can be four feet one inch or it can be four feet one inch, where is the point that allows it to suddenly become conforming? MIKE VERITY: The guidelines are the Board that are sitting in front of me. MEMBER DINIZIO: No, but see there's a problem with that, because we can't change the law Mike. We can only interpret what we. MIKE VERITY: And that's what we're asking for, we're asking for it to be interpreted. Because that's the way we view it. MEMBER DINIZIO: It hadn't always been that way. I'm just trying to MIKE VERITY: Actually at one time when I first started here, if you had three feet, you could do whatever you wanted. MEMBER DINIZIO: You could go straight up. PAGE 8, NOVEMBER 29, 2001 ZBA PUBLIC HEARING TRANSCRIPT MIKE VERITY: Yes, any which way you wanted to go, whether it's three feet, four feet, five feet, whatever it was you could just follow it and continue as long as you didn't exceed your lot coverage. MEMBER DINIZIO: And I can't recall being on the Board and ever denying anybody that. If there were a change in policy on the Building Inspector's end I have to know the reasons for that. MIKE VERITY: Yes, it was changed, like I said from when I started, then Ed took over and it was changed. But it's continued with that from that point forward the same as Ed. I haven't changed back and forth. We're trying to logically work this out. MEMBER DINIZIO: I think maybe we ought to make a decision like we made the last time with, of course it was ignored, but we made the decision on who in the first instance, remember the Building Inspector made that decision. We have applicants coming to us and saying but the Building Inspector said if I move it in an inch then I have it. That's okay, but where is that written that that can be. MIKE VERITY: I understand that. MEMBER DINIZIO: I know how you made your decision and I even know what it's based on. There's probably a decision somewhere that said it came down and someone lost and this is what they're doing. I'm having a hard time following just what the standard is that you're going to follow. I know that Lydia has that same question. MIKE VERITY: I understand exactly where you're coming from basically, we're trying every case that we have in front of us Jim, we're making the same decision on. We're keeping it consistent with everybody, we're not, like I said a squirrel in the road, we're not going back and forth. We want to keep it like that, fair for everyone. I hate to put it in the Board's lap, but it's really, I don't think I have the power to make that decision. I would love to. I think you have to make it, I think we're following the letter of the law. MEMBER TORTORA: The letter of the law is if you, we've been asked for an interpretation of the Code. Actually we've been asked to reverse the Building Department's rendering of this. With an Interpretation of the Code, one of my favorite things that I can remember where the language of the law is clear, there is no need for an interpretation. So we have to look at the language of the Code, in my mind, an increase in the degree of non- conformity. So how we define increase and degree. That's why I had asked you about the area, the volume, the air space, the vertical space, the horizontal space, the existing footprint where it increased. I did want to know, I didn't want to hear an attorney say this is the way the Building Department. We like to get it from you first hand. CHAIRMAN: Miss Collins? MEMBER COLLINS: Mr. Verity did you say, I think you did, but if a house has a non- conforming setback and the folks want to put a second floor on, which is a common thing, but if they want to put the second floor on flush, just go straight up and it had a non- conforming setback then clearly you are going to say that's an increase of non-conformity; and I think the logic there would be the reason you have setback was to keep buildings from being too close to other peoples property lines. I guess the notion, the policy notion is, a one-story house that's too close to the property line is what it is and if it becomes a two-story house and it's too close to the property line there's more of it. That's an argument that appeals to me and I think it's an argument I could make in public and hold up. One thing that has become muddy here, folks have come in saying what they were proposing is to put a second story on but they weren't going to be flush. They were going to go up with a bit of a setback, either for architectural reasons or because they believed PAGE 9, NOVEMBER 29, 2001 ZBA PUBLIC HEARING TRANSCRIPT rightly or wrongly that this would get through the Building Department without being called an increase in the degree of non-conformity. That's a new wrinkle, a new slice on this, because, it's new to us, because until very recently I would say until only a year or so ago, we never saw a request for a variance where what somebody wanted to do was put on a second floor. That's why Mr. Bressler is here saying how did this come to be. How come clients are now finding they can't put a second floor without getting a variance. In the simple case where you want to put one on that's flush, it's easy to talk about, it's easy to describe, you know what it is and it's kind of a straight forward issue and I think you folks have taken a policy position in applying the law that going straight up with a non- conforming setback make more of it and it's an increase in the degree. The muddy area is if going straight up is an increase in the degree of non-conformity, whether we agree or not, but if it is, is going not quite straight up an increase in the degree of non-conformity we have no way of answering that. That's what I think Lydia was getting at. We don't have an answer for it. MIKE VERITY: That's the reason why we're going to penalize someone that has an existing setback of three feet, a lot of the three feet, four feet, whatever it may be were created there was Zoning, before we had a Building Department. It's the policy of the Building Department not to penalize anyone that's going to decrease the degree of non-conformity. We're trying to improve a bad situation already, if I can say a bad situation. MEMBER COLLINS: Thank you for saying that, because I'm glad we go that in the record that we can read, because at least it follows the logical line here. You're saying if, in going up, you actually reduce the incursion of the building onto the forbidden space, you actually cut it back a little bit upstairs that that is not an increase and it's probably a, you could say a decrease, I understand your reasoning I'm glad to get it here, I have no idea whether I agree with it, I'm just very glad to get it out clear. MIKE VERITY: So basically, MEMBER TORTORA: So then the same principle would apply, situated diagonal on the property and my house is like this and one of the corners is four feet, I could extend my house 4.5, 4.3, 4.7 but I could use anything over four feet from that side of the line, is that right? MIKE VERITY: Right MEMBER COLLINS: May I interrupt? It's Gaddis, it's not Shannon. Of course, I was not here, I left, I unfortunately became ill not at the prospect of discussing this case, but and left before we got to this case at our last hearing. I have read the transcript and I've listened to the tape and I know what went on. Everybody is calling it Shannon and it was Gaddis. I brought along my Gaddis file and it was really a classic because the house was set at an angle on the lot, so one corner of the house was really close to the adjacent lot. That was the easterly side, and the folks came in bought the property, tore down the house and wanted to put up a new bigger, better house. What they did was they took advantage of the, then view, in the Building Department that Lydia just enunciated, which was, if you're this little corner of the house is four feet from the property line, you can draw a line four feet from the property line the entire length of the house and use it and it was used they didn't actually build a massive wall but it had, it was like a zigzag wall and it came out. In other words the property owners next door now had a four-foot, a lot more four foot set. MEMBER TORTORA: I actually voted against this because, if it's not ruled long the question that the Building Department, did it increase the degree of non-conformity of that house? PAGE 10, NOVEMBER 29, 2001 ZBA PUBLIC HEARING TRANSCRIPT MEMBER COLLINS: We thought so, we were very glad, I was very glad to see the Building Department change, they were as Mr. Bressler knows, sued. I was very glad to see the Building Department change its view and start calling such, saying that you couldn't take advantage of one little spot and boot strap it to an enormous. MIKE VERITY: Wasn't that Bloom? CHAIRMAN: No Bloom a little MEMBER COLLINS: No Bloom's a cottage. In the Gaddis case, as we both remember it quite well, that little house that dragon's tooth was on the east side and because the new house never exceeded that four foot existing little corner setback, the Building Department didn't call it, there was no need for a variance on that side and it was the neighbor on that side who got very angry and sued. On the westerly side, they had an existing 14 foot 9 inch setback where they needed a bit more and they ultimately came in proposing a 13 foot setback, but it was a corner just like the existing one. I wrote the decision I remember the reasoning. I don't feel that we, in fact, blessed the rule we simply accepted the fact that the way the Building Department ruled on these things was if you had an existing 14 foot 9 foot setback you could go out that far and take advantage of that and our decision simply said well they want 13 feet and that's not a big difference and we gave it to them. We were not, contrary to what Mr. Bressler said in an earlier hearing, we were not making a ruling about that we were just acknowledging that that's how the Building Department read this and we lived with it. We also denied the proposed front porch. In another case, on our own initiative, we did something about this and that was Frentzel out in East Marion. Frentzel wanted to carry an existing non-conforming setback in a case you gave earlier, they had a house with a non-conforming setback and wanted to expand the house another twenty feet back there and carry the non-conforming setback all the way back and the Building Department did not deny it under the same theory. We actually, on our own initiative feeling quite daring, forced them to increase the setback a bit on the new part of the building. MIKE VERITY: So it decreased the non-conformity. MEMBER COLLINS: Decreased the non-conformity. We did it on our own initiative, and again, I was personally very glad to see the Building Department start to take the view that you can't boot strap from an existing setback to take it from here to China. I wanted to get some of these thoughts on the record so that when I read I'll know what they were there. I have personally welcomed the Building Department's view, although ambiguities are a nuisance. But I think the Zoning Board of Appeals should have more of an opportunity in these kinds of cases to have a say, and the neighbors should have more of an opportunity. CHAIRMAN: Let me just say one unique thing about Peconic Bay Boulevard and that is that if you look at the way that that property was laid out, there are really no perpendicular property lines except for the road if you can construe the road to be straight. So that further adds a little edge to the whole situation in general, although the Gaddis house was the building so the view was toward Robins Island or toward the east. MEMBER COLLINS: Jerry I know I've spoken a little too much, let me just ask Mr. Verity and kind of round out the record. We did clear the record on your view and your interpretation about going up and that's clear. I think, when you were talking with Lydia before that you also made clear in the record that I just want to repeat it, the Building Department's view about not going up but simply setbacks. I think you answer to this Gaddis case where you have a corner that's non-conforming, that you would not think it was appropriate for them to take that setback and run it the entire length, in other words fill in the gaps. You would not think that was appropriate, I thought that was what you said. I think that covers my loose ends. PAGE 11, NOVEMBER 29, 2001 ZBA PUBLIC HEARING TRANSCRIPT MEMBER DINIZIO: Staying with that, if the four-foot setback were, or if they wanted to add onto that side, they could, they just couldn't exceed four foot one inch. MIKE VERITY: They would have to decrease the non-conformity. It doesn't really say an amount. It doesn't give an amount, so they're not increasing it, they're decreasing it whatever the amount may be, if it's one square foot. CHAIRMAN: But if you thought that decrease was significant enough to trigger a variance you would still deny it? MIKE VERITY: No I wouldn't. MEMBER DINIZIO: He's saying he can't. MEMBER TORTORA: The existing non-conformity is what exists, twelve hundred square feet, five hundred square feet of the house is non-conforming. In my mind, it doesn't matter whether you're going up, out catty-corner or perpendicular, if you're increasing it the bottom of non-conformity, you're increasing the non-conformity. So whether it's a little game of whether you're four feet three inches, or not that, in my mind, is time to circumvent the intent of the Code and the intent of all dealings in Code in dealing with non- conformity is the eventual elimination of non-conformity. MIKE VERITY: So basically, MEMBER TORTORA: So in other words, when you tell me it's okay if I go with the existing non-conformity of four feet, then it's okay if I go four feet because I'm decreasing the degree of non-conformity, no you're putting on an addition, in my mind, that is increasing. All you're saying is your decreasing the new non-conformity. MIKE VERITY: You made a statement about it disappearing. Isn't that exactly what this non-conforming law was written for? So it would eventually eliminate, we're slowly creating that over time. MEMBER TORTORA: How? MIKE VERITY: Each time they have to step it back or step back in an area, it decreases. CHAIRMAN: Still it's a decrease is what you're saying. MIKE VERITY: We could argue this fact MEMBER TORTORA: In other words, what you're judging, you're judging the new addition. You're saying this is a new addition, it's non-conforming. So there's two ways of judging it, there's the new addition, which is non-conforming, which is increasing the existing degree of non-conformity, as long as it does not comply with the Code. MIKE VERITY: So basically, the way we should view it. MEMBER TORTORA: No. MEMBER COLLINS: No we're just arguing. MEMBER TORTORA: Let me caution you, I am one Board Member, we all are going to discuss this, believe me. It's simply my opinion and I'm kind of thinking out loud after discussing this with the other Board Members I may come out somewhere else. PAGE 12, NOVEMBER 29, 2001 ZBA PUBLIC HEARING TRANSCRIPT MIKE VERITY: It's very hard to interpret this part of the Code because I mean if you set a guideline for every case you couldn't do it, because each property has it's own individual characteristics. MEMBER TORTORA: That's why the first question I asked you was what is your method of measure, area, square footage, what is your method of measure? MIKE VERITY: It's all of it together. MEMBER TORTORA: You can't do that though. In my opinion, you have to have the same kind of basis for determination that you do in determining. MIKE VERITY: Which we do. MEMBER TORTORA: Of lot coverage, the assessors they base your assessment based on your square footage in a formula. MEMBER DINIZIO: Like I said I think either we do an interpretation on that that he can follow or they sit down a Code Committee and they write it down. MEMBER TORTORA: Jim, we could do both, we could do an interpretation that would force the Code to change. MEMBER COLLINS: Lydia a little cliquey here, the square footage concept, I hadn't really thought of it in those terms, until you said it, of course, tonight. But suppose you had a house that had a wing on it that was too close to the lot line, it's only a wing the west of the house is far enough back. CHAIRMAN: You had that on MEMBER COLLINS: No, no, don't confuse me with the facts Jerry. The house has an element to it that is too close to the lot line and what they want to do is they want to put on a new kitchen and that involves building out on that side of the house but not as far out as the existing non-conforming porch or wing they just want to add to that side of the house. But it will be non-conforming; it will just be further back from the lot line than the existing non-conformity. Under most of the rules that we've had in this town, that would be okay because of this existing wing of the house is ten feet from the line and you need fifteen if along that same wall of the house you want to add a kitchen and it's going to be something between ten and fifteen, like twelve, it's going to be further back; your view would be although it's not as close to the lot line as the existing house, you are adding to the total non-conformity of the structure measured in square feet, that's your theory, square feet's easy. If it's upstairs, you just double it. That's an interesting way of looking at it, that the non-conformity is not from here to here. MEMBER TORTORA: I'm trying to look at ways we look at other parts of the town and, as I say, in terms of lot coverage, in terms of area, in building measurements. MEMBER COLLINS: It's also true that in a lot of our decisions, for instance, in the one we did tonight on Milner the question was, to what degree is his pool house non-conforming and we were interested in the square footage of that corner that was over the backyard line, and I think that's how we were thinking. MEMBER DINIZIO: But we're talking established setbacks here and we're also, I think it's a really good reason why the law does say footprint. I think I can argue that footprint is the standard and beyond that, and certainly when it comes to height or volume as you say. I PAGE 13, NOVEMBER 29, 2001 ZBA PUBLIC HEARING TRANSCRIPT think that height has a non-conformity which is 35 feet or whatever it happens to be. No matter how close to that line or what the setback is the footprint, height is controlled by a different set of standards. MEMBER TORTORA: I am leaning very heavily towards the footprint thinking. MEMBER DINIZIO: We have to discuss that, there has to be something we can MEMBER COLLINS: Jimmy you just said that the law talks footprint, but our statute doesn't say footprint anywhere. MEMBER DINIZIO: No, but we always based it on, it's always based on the footprint. MEMBER COLLINS: No, I understand, I just wanted to get that out. MIKE VERITY: All the decisions are based on square footage. We keep going back to square footage, you can't increase or decrease the non-conformity without decreasing the square footage, correct? MEMBER DINIZIO: Are you talking volume or are you talking footprint? There's two different, if you have a house on a lot that's building 24% of that lot, can you put a second story on that house if you stayed in the same footprint? MIKE VERITY: Yes. MEMBER DINIZIO: It's non-conforming, it doesn't conform to the MIKE VERITY: If all the setbacks conform, but you're telling me MEMBER DINIZIO: It doesn't conform to the 20%. MIKE VERITY: Okay, if the existing house is at 18%, and has the proper ten-foot and proper fifteen-foot. MEMBER DINIZIO: It has all the proper setbacks with the exception that it builds 24% of the lot. MIKE VERITY: That's right. MEMBER DINIZIO: That's the non-conformity, now can you build a second story on that house? MIKE VERITY: Technically, no. MEMBER DINIZIO: Because you're measuring the volume of that height. MIKE VERITY: We're measuring the square footage, and that's what I said before, the square footage needs to be dropped back. BOARD SECRETARY KOWALSKI: Is it square footage for setback or square footage for lot coverage? What's the square footage for? MIKE VERITY: That would be for lot coverage. BOARD SECRETARY KOWALSKI: For lot coverage. Even though you're not covering more of the lot. PAGE 14, NOVEMBER 29, 2001 ZBA PUBLIC HEARING TRANSCRIPT MEMBER DINIZIO: No, you're not, you're not increasing. MIKE VERITY: Now you're mixing apples with oranges. MEMBER DINIZIO: Actually we're not Mike because it's still non-conformity. MIKE VERITY: I understand what you're saying. MEMBER DINIZIO: You have to treat them all the same. CHAIRMAN: Bayshore Road is a good example of that because that's what you have and that's what's existing on Bayshore Road now. Unfortunately, it has existed and why we've gotten to this point is because that's what everybody is doing in these districts, be it Gardiner Bay Estates, be it Bayshore Road, be it Sigsbee Road, be Peconic Bay Boulevard, it doesn't make any difference. They're taking substandard lots and they're blowing the house to the max if they can possibly blow it with or without a variance. MEMBER TORTORA: That's the big problem here. MIKE VERITY: Yes, I understand and each one is its individual case. I can give you an example just quickly; I'll just give you a hypothetical. Say we have an existing house that has two front yards, non-conforming, a side yard non-conforming, a rear yard non- conforming it's 24%. The person knocks the house down, comes in at 22% and one yard non-conforming. Is that four non-conforming? MEMBER DINIZIO: I say he doesn't get 20%. MEMBER COLLINS: He doesn't get anything at this point. MEMBER DINIZIO: That's what I say, he ripped that house down. CHAIRMAN: We've had that problem too. MEMBER DINIZIO: Right, we've had that. McAllister was a classic example, he was told by the Building Department to tear the house down, he tore it down, and we told him. MIKE VERITY: Well we have a lot more work for you now. A lot. We're trying to stay within the letter of the law and like I said, be consistent with everybody, whether it's lot coverage I understand exactly where you're going but it's hard to just, case by case would be a lot easier to do. MEMBER TORTORA: But with something like this, MEMBER DINIZIO: This is the lawnmower rule, you know that one where you, it's the same thing, it's so ambiguous. MIKE VERITY: But that's five people here saying we hate it, five people over here saying we love it. Who's right and who's wrong? CHAIRMAN: I just threw some ground rules Mr. Bressler you're going to make generalizations based upon what Mr. Verity said to the Board? ERIC BRESSLER, ESQ.: I was going to address the Board in the first instance. I think that maybe the degree, at least from my point of view with a greater focus to everything that's been said here it seems to me that we haven't heard the answer to Mrs. Tortora's question PAGE 15, NOVEMBER 29, 2001 ZBA PUBLIC HEARING TRANSCRIPT that she posed at the very beginning. That a lot of bobbing and weaving and ducking, in a very nice way, but we haven't heard the answer. I have an answer, and I told you what my answer is and I haven't heard anything to the contrary. The answer that I gave has several very positive attributes to it. Number one, it's certain. Number two it's easy to understand and number three it's easy to apply. And what that is is, I think it's what Mr. Dinizio was talking about, the measure, when you're talking about a side yard, is how far away you are. That's what you're dealing with. We're not talking about areas or volumes or anything else, we're not talking about lot coverage, we're talking about how far away you are. MEMBER TORTORA: Footprint? ERIC BRESSLER, ESQ.: Footprint. We're talking about how far away, because I know this Board, in talking about the degree of non-conformity on a side yard for the sake of argument is ten and you allow five? That's 50%, that's what we look at. That's how you determine whether its, and I urged you in the first instance to adopt that because you have to answer your question Ms. Tortora, if you're going to do this analysis. If you don't answer that question, you don't have a yard stay. I think once you do that analysis, then I think it comes down to this and this is what I'm hearing, here and this is what I'm not hearing. What I'm hearing is that having, as you say going up, is not okay but if you go back one inch it is okay, or two inches or three inches or five inches. I've heard no legal or philosophical justification as to why that would escape your reasoning Ms. Tortora and that's diagram C which I urge you to reject because nobody has ever adopted that rule here. Now, doesn't it just come down to this then, if this is what the Building Department would have you do? Isn't this a simple sixth grade arithmetic problem where you can have three different things? You can have less than, you can have more than, or you can have equal to. When the Building Department tells us that if you go four feet one instead of four, that's less than. I say, if you stay at four feet, it's not an increase, it's not more than. The rule they applied before was rational. The Code says you don't increase the degree of non- conformity, if you keep it the same; you're not increasing it. The benefit of this rule is again, it's simple, it's easy to apply and with all due respect it doesn't lead to a Mickey Mouse situations that the Board Members were asking about. Well, what difference does it make really, whether it's four feet or four feet one inch except it makes architects like Mr. Brown go crazy, because now he has to design a one-inch overhang. So, I think what I've heard in here certainly doesn't persuade me that that particular rule is an interpretation that we should adopt. I think we should adopt a yardstick the distance of what we're talking about. I think we should adopt a yardstick. MEMBER TORTORA: You're talking about B, not A, B? ERIC BRESSLER, ESQ.: B. MEMBER COLLINS: I got lost slightly. ERIC BRESSLER, ESQ.: I'm not urging A. MEMBER TORTORA: B is the one I'm closest to and I think Jimmy is closest to. We call this a footprint. ERIC BRESSLER, ESQ.: B is the footprint rule A is gaps. MEMBER TORTORA: Now let's go through the footprint rule clearly. The footprint rule says, and we've applied this to all the Board Members are well aware of this, the footprint rule says that if you have a non-conforming setbacks you can do an addition, renovations whatever within the footprint, the existing footprint of that house. That also means that you can extent upward to the allowable height limits, and that's called the footprint rule which we hear so much about and, is that the one you're talking about Jim? PAGE 16, NOVEMBER 29, 2001 ZBA PUBLIC HEARING TRANSCRIPT MEMBER DINIZIO: Oh yes. What Mike is saying is that we're going to see a lot more, because they, we think from the lot line back. You think from the house to the lot line. There's two different ways of thinking, but now I understand what you're saying. We don't think that way. We think the increase in amount ability is one inch. If you're at four and you're supposed to be at ten, _________ so is seven, so is 9.5. ERIC BRESSLER, ESQ.: That's why that one doesn't work. I think either that or you adopt a fifth point ruling and chuck it completely and I certainly don't want you to do that, because that would reach havoc. It would be inconsistent with god knows how many years of what you've done in this Town and, at least from my research, what happens pretty much Island wide. I took the occasion to talk to one of my fellow attorneys who practices in Brookhaven, and what I got back was yes, different. It's certain, everybody knows what it means and it doesn't put you in situations where, to avoid coming before you folks, we have to step this thing back. So what does that mean in our case? What it means in our case is, on the side of the objective neighbor, I don't have to do anything because I'm not doing anything. I'm going to put up a gable and I'm shedding and I'm okay. The neighbors on the other side, I'm going to step it back an inch. BOARD SECRETARY KOWALSKI: I think there is an old interpretation in writing from the former Board of Appeals by letters. In fact, Jerry had signed a few of the letters; it said that the footprint is allowed to be square off on the corner. MEMBER DINIZIO: I remember doing that, that was one of the first things I learned from Jerry, was, if you want to put a deck in that little BOARD SECRETARY KOWALSKI: corner and square it off MEMBER DINIZIO: You could. It would come to us. It wasn't necessarily a rule. BOARD SECRETARY KOWALSKI: No it was an interpretation. MEMBER TORTORA: In other words, people took advantage; since I was on the Board, we had the footprint rule and what actually happened was it would be a little tiny corner of the house like it was cut out. You could square that off, that's nothing. Then the corner got bigger and the corners got odder, and then we got to Gaddis where we had just one little corner sticking out. ERIC BRESSLER, ESQ.: I guess if I had one question for Mr. Verity, I guess it would be this, if the rule that's being applied by the Building Department is, instead of four feet it's got to be four feet one. What ultimately is that accomplishing as a practical matter? You say that it's decreasing the amount of non-conformity, but doesn't that exalt form over substance? And before you answer that, if you were to take the position, that, you know what Eric that's a silly example. I didn't really mean that it was one inch. It has to be a foot. Well you can't urge that either, because that ain't written anywhere and that's the really the philosophical difficulty with that argument. It's neither fish nor fowl, and you can't pin yourself down to anything in that never, never land. I think that A, the Gaddis rule I don't think you should apply and I could make a very strong argument and certainly would have; but that is wrong because you're going somewhere where there never was anything at all. MEMBER TORTORA: Like the squaring off rule. ERIC BRESSLER, ESQ.: That's right, there never was a line from the building to the line, at that point, and I think that the rule that I'm urging, like I said, is sensible, it's easily applied and it avoids the mischief that's created by putting an artificial overlay on something that PAGE 17, NOVEMBER 29, 2001 ZBA PUBLIC HEARING TRANSCRIPT is a practical matter if you ride down the road is going to have no effect whatsoever on the appearance or in with the goals of the rafters of the Code. I think, for that reason alone, you can reject that. No, I don't have a question, but if I were to put the question I guess that would be it. I think the Building Department has explained it's position and philosophically I find it not supportive and I think ultimately the Board could find a yard stick and say equal too is not greater than like it happened year, after year, after year. CHAIRMAN: We thank you gentlemen for coming in. ERIC BRESSLER, ESQ.: Is the hearing closed? CHAIRMAN: We are going to close it very shortly. MIKE VERITY: One more thing if I may Jerry. Just to finalize this for myself. If we had a non-conforming setback at four feet, and we needed ten on that side and so on in order to put a second floor one, and they were at ten feet with the second floor, is that an increase in the non-conformity? MEMBER TORTORA: Aren't you conforming then? MIKE VERITY: But you're still adding to, I'm going back to your, the way you were viewing it. You're still increasing the square footage of the non-conformity. BOARD SECRETARY KOWALSKI: Is the ten-foot required by Code? MIKE VERITY: Yes the ten-foot is required by Code and you're at four feet and you drop back to ten feet, but technically you're still increasing. Well, that's the way I'm visualizing what you explained to me. MEMBER TORTORA: In other words, you're not increasing the non-conforming area. MIKE VERITY: Okay. CHAIRMAN: The footprint of the ground floor of a non-conforming lot. MEMBER TORTORA: Here is our house, our house is non-conforming, but you're way over here. MIKE VERITY: So why is way over here different than one inch or one foot? MEMBER TORTORA: It's conforming, so how can you be increasing the degree of non- conformity if the new MIKE VERITY: Because the house is always non-conforming, anything you do to it will increase the non-conformity. ERIC BRESSLER, ESQ.: If that were the case then the Code Section would have no meaning. MIKE VERITY: That's what I'm getting at; we can interpret this how many different ways. MEMBER COLLINS: I think, Mr. Verity, that was a very nice example there because the problem that Mr. Bressler MIKE VERITY: Because you're talking square footage, you questioned the square footage before. I just increase square footage. PAGE 18, NOVEMBER 29, 2001 ZBA PUBLIC HEARING TRANSCRIPT MEMBER TORTORA: We're talking area. MIKE VERITY: So basically, if we were not at ten and fifteen, or twenty and forty-five, or twenty and twenty-five then anything inside of those areas would have to go. MEMBER COLLINS: Our example here was a house with a non-conforming setback. We want to put a partial upstairs on it. The partial upstairs is going to be small enough; it's like a ______story up above the living room or something. Small enough that it doesn't cover, by any means, the whole house. And, in fact, upstairs the setbacks are conforming. Now the house itself is still a non-conforming house because it has non-conforming setbacks. Lydia's measurement of square footage of non-conforming structure hasn't increased because what's upstairs conforms to the setbacks so there' s no increase in square footage of non-conforming building. And the problem that came up before when folks were following the line of the Building Department and theorizing through if going straight up on a non-conforming setback isn't good, but going up a little bit back is okay because it doesn't increase the degree of non-conformity and the question Mr. Bressler raised was how do you know how much enough. I mean is an inch enough, or do you need a foot or do you need and the example we just had we went back so far that we go rid of the problem and there was no problem. So I think it was really, we went right to the end of the logical scan, that adding a second floor either going up within the footprint is okay, which is what you're arguing, or going up within the footprint if the footprint is non- conforming is not okay and the question is how much do you have to come back and that's a very, very gray area that had everybody bothered but in this example we solved it by going all the way back and complying. MEMBER DINIZIO: I'm going to tell you where Mike disagrees with you. He's saying that that's an increase in the square footage. MEMBER COLLINS: of the house. MEMBER DINIZIO: the square footage of the house and I would say this that the square footage of the house can never be non-conforming, okay. It can never be non-conforming if it's built within the Code. In other words, if it's 35 feet high, if all of the setbacks are proper it can't be non-conforming, the square footage. I'm talking about 1600 square feet on the bottom or an 800 square feet on top. That you can never go non-conforming with that. The only in Town that uses that is the Assessor. He uses the volume of that house to tax it. But setbacks and non-conformities, and that is my opinion but I think it's how I read the Code, doesn't have anything to do with volume of that house. It doesn't have anything to do with bathrooms or MIKE VERITY: You don't have to convince me because that's the way I am looking at it. MEMBER DINIZIO: So the increase in the non-conformity when you add a second story, whether that second story meets the Code, in other words setback or does not exceed the established setback it's still conforming. It's still no matter how you look at it. So four feet, is four feet at eight feet high or 35 feet high. MIKE VERITY: So I'm doing one step better, I'm even saying you go back an inch and we're even increasing MEMBER DINIZIO: But like the jagged house I think we did go astray, I say myself as I looked at that decision that was crazy, that we increased the non-conformity. MEMBER COLLINS: We didn't decide that. PAGE 19, NOVEMBER 29, 2001 ZBA PUBLIC HEARING TRANSCRIPT MEMBER DINIZIO: I know but I mean we looked at that MEMBER COLLINS: We had no say in that at all. MEMBER TORTORA: The Building Department never disapproved that Jim. MEMBER DINIZIO: But what I'm saying is I would've agreed with it at the time. I would've agreed with their decision, the Building Inspector's decision to let them have that permit. MIKE VERITY: Yes, that's where it all started Jim. That's why you're seeing now the disapprovals that you are, for that reason, because we do have stay consistent. We don't want that to happen like this. MEMBER DINIZIO: If that particular application, had that person come in, I would think that it's non-conforming at four feet and if it goes back at an angle and some point that house is five feet that's still non-conforming. If that goes back to seven feet, that's still non- conforming. At anything on the other side of that seven foot is an increase of non- conformity. That is how I always thought the law worked. When I looked at that, I thought, yes that makes sense but it really doesn't. I know that's what got us into all this trouble. We need to put it down in writing, there's no doubt about it. BOARD SECRETARY KOWALSKI: But it was also something else when you have a non- conforming house if only a part of the house is non-conforming is and part of the house could be conforming. So we always work with that area, that yard area that's non- conforming it could be just a front yard, and the rear yard may be fine. CHAIRMAN: Can we wrap this up gentlemen? MIKE VERITY: Sure. ERIC BRESSLER, ESQ.: Just to summarize our position, I think that is the yardstick and I think that's the measure and as long as we don't exceed that I think you're okay. The rule has a lot to recommend it. It's up to you then, I think you should adopt it. I don't think you should allow slope for slope. It's going to create more problems, and I think one of the Board Members or more said if the legislative body doesn't like that, then they can do something about it. But I think to the part from the footprint, at this time, is somewhere you really don't want to go, and obviously, from my client's point of view I think you should clarify it and adopt it and if the legislative body wants to, god forbid, put a definition in the Code as to exactly what that means, they can do that. Or if they want to put a pyramid ruling, they can do that. There's all kinds of things they can do. I think that they, that type of solution, I think in the short run, the rule that we urge you to adopt has much to recommend it and it's not built out of tissue paper, there is substance to it. It's something you can rely on, and it's on the applicant I have the last word. CHAIRMAN: Thank you for sitting down Mr. Bressler. MIKE VERITY: Jim, in your last statement he just described the footprint rule and you just were 180 degrees on that footprint rule. MEMBER DINIZIO: No, no. I agree 100% with what exists. MIKE VERITY: What exists on five feet was no good. MEMBER DINIZIO: No, what I'm talking about is the angle, that one application, that house was built as an angle to the property line and what happened they took a line from the four foot and drew a four foot line all the way along the property line, that's what they did and PAGE 20, NOVEMBER 29, 2001 ZBA PUBLIC HEARING TRANSCRIPT then they jutted out and they said. No that I disagree with, that's an increase. But they could've taken that house and built up or squared it off to keep that angle the same way and still not become non-conforming. I think that could've happened. So, I think the footprint of that house is very important for us to, because that doesn't change it's there, it exists and it's measurable and everything else is subjective. Yes, to an extent everything else is subjective, but where that foundation is MIKE VERITY: Yes, there are two different – one time we were together on that, now we're totally apart. MEMBER DINIZIO: That's where I've always come from; you could go up from that point to anything that's not non-conforming. BOARD SECRETARY KOWALSKI: But the Board still has to put their decision in writing. This is not a decision. MIKE VERITY: No what I'm saying is we started together on the ends, and now we're further apart than when we started. MEMBER DINIZIO: No, that's where I've always been. No I think that footprint is where I want to be. MIKE VERITY: He's allowing the footprint, I was allowing back from the footprint and that still wasn't good so then the footprint rule can't work, if that's the case. MEMBER TORTORA: No, I'm not sure you're understanding. The footprint rule is something – here's the footprint of the house. MIKE VERITY: No I understand the footprint, now that it goes up, okay, but if I go back an inch it's not good? MEMBER DINIZIO: You can go back an inch. MEMBER COLLINS: What does go back an inch mean? MEMBER DINIZIO: You can't go forward. MIKE VERITY: Yes, exactly. MEMBER DINIZIO: No, you can't go, but that was what I pointed out before, you think one way we think the other. You can't go any closer to the property line okay than is already established by that setback. MEMBER TORTORA: You said a different word. I thought you meant back, meaning you can't go back from here. MIKE VERITY: And I don't have a problem so basically I'm not making your decision, but it's following the old, the way the Building Department used to MEMBER TORTORA: Exactly, and what that means though is here where I legally agree with Mr. Bressler, what that means is the existing footprint of the house has a ________ notch here, you can't fill it in and the reason why is because the notch turns into a corner, turns into a point and turns into MEMBER COLLINS: turns into a fortress. PAGE 21, NOVEMBER 29, 2001 ZBA PUBLIC HEARING TRANSCRIPT CHAIRMAN: turns into a house, another house. MIKE VERITY: I understand that. MEMBER TORTORA: I guess the real horror thing here is you've been thinking out loud and really (inaudible) MIKE VERITY: Yes, it really is. MEMBER TORTORA: Yes, and we're looking to something that can remain consistent, that's reasonable and that we can use as a rule. MIKE VERITY: Other Townships have a pyramid rule, that might be something that could be considered in time? MEMBER TORTORA: (inaudible) MIKE VERITY: No, I'm just making a statement, that's all. CHAIRMAN: Thank you again sir. MIKE VERITY: Okay. MEMBER COLLINS: Thank you very much. TALKING AT ONCE: MIKE VERITY: very helpful CHAIRMAN: We're going to hear from Mrs. Martin. MIKE VERITY: I hope so. MEMBER DINIZIO: It's in writing, because you do think a different way. MIKE VERITY: We could argue it three, four different ways, so hopefully we can all work Together on it. NORMA MARTIN: I'm Norma Martin and my husband has an EMT class and is unable to attend. But just wanted to let you folks know in the past two weeks what has taken place. When we ended we said all the concerned parties regarding the Walz's application were to get together in an effort to try to lay out fears, answer questions and so forth. On st Wednesday, the 21 of November, the day before Thanksgiving at 1:44 in the afternoon, Mr. Brown called us and left a message indicating that he had been advised by the Chairman of the ZBA to contact us in an effort to set up an appointment to discuss the Walz project and answer any questions we may have. He concluded the message with perhaps I'll call rd you back on Monday. On Friday, the 23 at 9:40 in the morning we returned his call and indicated that we would be more than happy to meet with him and the Walzs and Mr. Bressler, should they so desire, at their earliest convenience. We asked if he would let us know when would be a good time for all of them and we would make every effort to be available. At 1:45 that afternoon Mr. Brown called us back and advised us that the Walzs were unable to come out since they had closed up the house for the winter and have other plans. If they have, in fact, closed up for the winter it will be the first time that I can remember in twenty years that they've left furniture outside, haven't put up their storm shutters and have left the kitchen window ajar. Mr. Brown said that he was their PAGE 22, NOVEMBER 29, 2001 ZBA PUBLIC HEARING TRANSCRIPT representative in this matter and my husband replied that he'd discuss it with me and th _____. Tuesday, the 27 we indicated that was okay and Mr. Brown said that was okay and th we were to call and let him know what we decided. On Monday the 26 at 1:15 in the afternoon we contacted Mr. Brown and advised him that we saw no point in meeting with him without the Walzs being present. We explained that inasmuch as they are the applicant's for the variance, and we are the next door neighbors which whom it was suggested they open a line of communication and respond to whatever questions we may have, it seems reasonable to expect that they would want to participate in whatever discussions took place. Also, it's possible that we may have some questions that Mr. Brown may not have the answers to. We have indicated our willingness to sit down and discuss in an effort to resolve the problems that exist, but it seems pointless to take everyone else's time at a meeting that the Walzs have declined to attend. That's all I have to say, would you like a copy of this. CHAIRMAN: Surely. Mr. Bressler, this is an issue that I had discussed and only briefly touched on and that is, if we had a rendering of this property as it is to be built, it would clear up so many areas of concern. So that people would be able to see what these things are going from. In other words, what's going to happen to the property next to them? We asked this applicatant or the agent of the applicant at that time, who was the architect, who was told many, many times at this hearing, is really a very wonderful individual as well as his partner, to put up these boards to see what the height situation is. But that still doesn't indicate the rendering of what it's going to look like; do you know what I'm saying? We've had applicants come in here with smaller projects and much larger projects, they have the rendering done. Now the person next door or the neighbor in the back has a concrete view of what this building is going to look like. Maybe one one hundredth the size of what the building's going to look like, but they can at least visualize what it's going to look like on their side, as opposed to the other situation and that is one of the major problems that we are experiencing today with this expansion theory that we have apart from the discourse that went on here. I'm not putting you on, laying you out on the carpet, I'm just saying to you that these are some of the problems that exist when we deal with these issues. I understand the shed type of roof now, okay, on the Martin side. I'm not sure I agree with it totally, at this point, but certainly we probably could've eliminated a whole hearing here if we had a rendering made out of cardboard so that we could understand exactly what the house was going to look like. It would make it much easier for us to understand. I'm just mentioning that to you. I'm not necessarily asking you to for a response, I'm asking, I'm not necessarily asking for a response from you, but I'm just telling you that that's some of the problems that we have. Hearing no further comment I'm open to make a motion closing the hearing reserving decision until later. SEE MINUTES FOR RESOLUTION * * * PAGE 23, NOVEMBER 29, 2001 ZBA PUBLIC HEARING TRANSCRIPT End of hearings. Transcript Prepared By: Paula Quintieri