HomeMy WebLinkAboutZBA-11/15/2001 Hearing
SOUTHOLD TOWN BOARD OF APPEALS
TRANSCRIPT OF HEARINGS
HELD NOVEMBER 15, 2001
(Prepared by Paula Quintieri, 12/21/01)
Present were:
Chairman Goehringer
Member Dinizio
Member Tortora
Member Collins (till 9:40 p.m.)
Member Horning
Paula Quintieri, Secretary
PUBLIC HEARINGS:
5:21 p.m. Carryover Hearing in the Matter of Appl. No. 4927 – KACE LI, INC. This is
an Appeal requesting Reversal of the Building Inspector's Notice of Disapproval dated
August 13, 2001, which disapproval denied an application for a building permit for two-
family dwellings under Article IV, Section 100-42A.2. The reason stated in the Notice of
Disapproval is that the proposed project indicates several two-family dwellings on a
single parcel, and that the Code allows only one such structure per lot as a permitted use.
Zone District: Hamlet-Density (HD). Location of Property: South Side of North Road
(a/k/a/ C.R. 48) (now or formerly referred to as "Northwind Village" site), 500+- feet east
of Chapel Lane, Greenport; Parcel #1000-40-3-1. Matthew Pachman, Esq.
CHAIRMAN: Interpretation of the Section of the Code that's mentioned within that
August 13, 2001 disapproval.
MATTHEW PACHMAN, ESQ.: Yes, we are asking this Board to overturn Mr.
Forrester's denial of the Building Permit because we claim that Mr. Forrester improperly
interpreted this Section of the Code which is 100-42A.2. I hope that answers your
question.
CHAIRMAN: It does, but the main problem in one of the discussions that we had was
the amount of information that you had given us at the prior hearing, and that was based
on a conversation again that I had with your father regarding the movement of this
hearing from October to November at which point I understand and I do see opposing
council present at this time. As you know, we have appellate jurisdiction and our
jurisdiction is based upon the advertising of this particular hearing as it has been
advertised. There were times during the prior hearing that you asked me why I was
asking you not to delve into other issues, and that's a concern, based upon on the
advertising of that hearing and because, at that point, I should have actually stopped you
and said it was not germane to that particular topic and that's what I'm concerned about.
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MATTHEW PACHMAN, ESQ.: Well maybe I can clarify this, because we are only
asking for the relief that was sought in that public notice. I believe I have to review it to
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be very specific, but the information that I gave in part during the September 20, hearing
was as a background so that the Board could understand how we go here today and put
that interpretation in context. I believe that it's important background information for the
Board to have in order to put it in proper context. Mr. Chairman, I agree with you 100%
that this Board, of course, only has appellate jurisdiction except with respect to limited
circumstances of special permit with
CHAIRMAN: Of original __________
MATTHEW PACHMAN, ESQ.: Mr. Chairman, I agree with you and share your
concern about that and that's something that I did want to mention, because Mr.
Chairman obviously the only reason for Mr. Forrester's denial of the Building Permit was
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as stated in that denial and as restated by Mr. Forrester on September 20 was that under
that section 100.42A.2, the permitted uses reads, two-family dwelling and not two-family
dwellings. Because based upon Mr. Forrester's determination, as he eluded to, as he
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stated on September 20. If it had said two-family dwellings he would have issued the
Building Permit.
CHAIRMAN: Mr. Pachman, let me just stop you one second, all these nice people are
here as they were a portion of them, at that hearing and they are talking about issues that
are not germane, at this point, to this case. We are only arguing that particular issue.
MATTHEW PACHMAN, ESQ.: 100% Mr. Chairman, that's absolutely true.
CHAIRMAN: So I just want them to be aware of this issue so that, and of course we
always allow people to speak and we will continue that premise forever without a specific
time limit. But it is very important to concentrate specifically on that particular issue.
TOWN ATTORNEY GREG YAKABOSKI: So really this, a threshold question whether
or not on a lot, this lot is over ten acres, seventeen I believe, whether or not more than
one structure which is a two-family dwelling will allow permitted by a set we're all
on the same place on that correct?
MATTHEW PACKHMAN, ESQ.: Absolutely.
TOWN ATTORNEY GREG YAKABOSKI: On 100-42A.2 which is two-family
dwelling, the lot in question is approximately seventeen acres, correct?
MATTHEW PACHMAN, ESQ.: It is, it's just over seventeen acres.
TOWN ATTORNEY GREG YAKABOSKI: The determination from the Building
Department is that there is, under this particular Section of the Code, there would be one,
on that seventeen-acre lot. Mr. Forrester's position was that there would be one structure,
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which is a two-family dwelling permitted; and I believe that what had been applied for
was to put many, more than one structure, several structures on that single lot which were
two-family dwellings.
MATTHEW PACHMAN, ESQ.: Yes that is correct. I'm just checking, one section of
the Code Mr. Yakaboski. I'm just hesitating because if the word's lot or parcel. One each
lot, that's lot.
TOWN ATTORNEY GREG YAKABOSKI: Okay, and the second question that I have I
believe are in the record. I'm not sure if you have a copy of the transcript, you can have
my copy, it's on page seven there's a comment, let me read it. It says, "Well, Mr.
Chairman you mentioned something that I really don't know, don't understand it. Because
the very essence of our application here is that, as a matter of law, the Building Inspector
could not deny this Building Permit because of the approved site plan." I will copy that;
sorry I didn't have an extra copy.
MATTHEW PACHMAN, ESQ.: Mr. Yakaboski, I don't want to comment on one
particular line I made out of context. If you want to give me an opportunity to read the
transcript and then put it in context, I certainly have no problem in.
TOWN ATTORNEY GREG YAKABOSKI: Fair enough, I was just requesting if that is
your legal position just provide, perhaps in writing that your legal position is such.
MATTHEW PACHMAN, ESQ.: Sure. Let me just re-state one more time Mr.
Yakaboski and Mr. Chairman and the Members of the Board, the specific question before
this Board was Mr. Forrester's decision to deny the Building Permit application because
as he said the permitted uses under that Section reads, "two-family dwelling and not
"two-family dwellings". That's the limited and only issue before this Board. Was that
decision by Mr. Forrester based on his Interpretation of that Code, was that correct? Or
was that not correct?
MEMBER TORTORA: It is my understanding what you described tonight is what
happened. My understanding of ____________is what this application is. Just let me
finish Jerry, as far as the discussion of site plan, whether it is listed, that's not relevant to
this _______before this Board, we won't pick it up, nor will we accept it.
MATTHEW PACHMAN, ESQ.: I will certainly agree with that.
MEMBER TORTORA: So I think we're all on the same wavelength.
CHAIRMAN: I can read the legal notice again, as it was published in the newspaper.
This is an Appeal requesting Reversal of Building Inspector's Notice of Disapproval
dated August 13, 2001 which disapproved, denied an Application for a Building Permit
for two-family dwellings under Article IV, Section 100-42A.2. This reason was stated in
the Notice of Disapproval is that the proposed project indicates several two-family
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dwellings on a single parcel and that the Code allows only one such structure per lot as a
permitted use.
MATTHEW PACHMAN, ESQ.: Yes, Mr. Chairman and Mr. Yakaboski that's the word
I was looking for lot or parcel. They may be interchangeable, with respect to this
instance, but that's what I was looking for.
CHAIRMAN: Please excuse my reading, it was about that big.
MATTHEW PACHMAN, ESQ.: Okay, well that's, yes then I believe we're all on the
same page. That is what we are requesting as stated in the Public Notice. Now, Mr.
Chairman if I may just briefly go on.
CHAIRMAN: Yes, we just wanted to clear that issue up, because there was some
discussion by some neighbors concerning what we were dealing with in this application.
So that is a concern of ours, because we want to be as legal as we can possibly be in this
issue. We're ready for you.
MATTHEW PACHMAN, ESQ.: Jerry, thank you. Well, having gone over that very
important procedural point because I was going to raise that even if the Board had not
raised it initially about the fact that we had a narrow and focused issue and that's the only
issue before the Board and that's the only issue that the Board should be concerning itself
with. I would just also note that, and it's just a very quick recap the discussion that we
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had on September 20 that being almost two months ago, that I believe it was, one
Member of the Board, I believe was Ms. Tortora who very properly asked Mr. Forrester
one of the crucial questions here which is to say that in the other residential districts
permitted uses in the other residential districts as defined by the Code as adopted by the
Board of Trustees it says permitted uses one-family detached dwellings not to exceed one
dwelling each lot. Now there is no such similar qualifying language in the section that
we are dealing with. Which is 100.42A.2, and it is clear. And that, by the way, applies to
the AC, R80, R120, R200, and R400 Zoning Districts. They all have that qualifying
language. It is a simple and standard maxim of statutory construction for a Code such as
this; that where the Board of Trustees imposes living and language on other sections of
the Code.
TOWN ATTORNEY GREG YAKABOSKI: Mr. Pachman, if I may interrupt. Do you
mean the Town Board or the Zoning Board.
MATTHEW PACHMAN: The Town Board. The Town Board ______the Zoning Code.
TOWN ATTORNEY GREG YAKABOSKI: The Board of Trustees is a different board
here.
MATTHEW PACHMAN ESQ.: My apologies, the Town Board.
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CHAIRMAN: Mr. Pachman, we have to ask you to use the mike here, we're not picking
you up.
MATTHEW PACHMAN, ESQ.: Adopted on the Town Board, adopted the Code. They
adopted that living and language with respect to all of the other residentially zoned
districts, and not with respect to this district. When this Board reviews that Code, it has
to take that into account. It has to realize that when the Town Board, when the legislative
body adopts the Code and imposes living language on all the other residentially zones
districts but not here, it wasn't intended not to apply it here; and you have to read the
Code as a whole and you have to give ______to each of the words and not only that. But
if you look at Section 113.A one of the beginning sections of this Code, it says under the
heading word usage, words used the singular number includes the plural in the plural it
_____. In other words, the Code is clear and unambiguous that in Section 142A.1 there
is no distinction between using the word two-family dwelling and two-family dwellings.
Mr. Forrester denied the Building Permit on that one sole reason and it was a reason
which simply has no support within the Code. Now this meeting was adjourned for a
period of time because Mr. Young requested time to hire counsel, and obviously he has
engaged Mr. Tohill. I did have an opportunity to call Mr. Tohill yesterday and asked him
as a preview he might be in a position to tell me the nature of his presentation today, so I
might have an opportunity to prepare and Mr. Tohill very properly said that he had not
yet finalized that and had not had a final opportunity to speak to his clients and so was
not in a position to have that discussion with me. The reason I'm saying that is because
we left off so Mr. Tohill could make an accepted presentation and I am going to sit down
now and give him his opportunity to speak, and after that, we'll have to see where we are
because since I may be hearing this the very first time just as everybody on the Board, I
may be constrained to ask for additional times to consider that and to come back another
day and give further presentation or I may not.
CHAIRMAN: The Board may reserve the right to bring in Mr. Verity anyway.
TOWN ATTORNEY GREG YAKABOSKI: Mr. Pachman, in keeping with your
argument just laid out, would it also be your position that if the person owned a ten acre
lot in a Hamlet Density District under 100-42A.1 which means the use of permitted use is
a one-family detached dwellings, on that ten acre lot they could put more than one or
several one-family detached dwellings?
MATTHEW PACHMAN, ESQ.: In the original district?
TOWN ATTORNEY GREG YAKABOSKI: Same exact district. Just instead of 100-
42A.2, which we were talking about, 100-42A.1, which simply means one-family
detached dwelling, a single family home.
MATTHEW PACHMAN, ESQ.: That may be so, I'm not going to, that may very well be
so, there may be a provision in the Code that may allow that. I also want to point out, I'm
just reading the Code as adopted. I didn’t, obviously I don't mean to you about it, we're
not involved in the adoption of that Code. I just want to point out one other thing that
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this is not a novel argument with respect to this property, because as we discussed last
time, the light multi-family district that was in place in 1983, I believe, when this site
plan was first adopted had the identical percatory ______. The applicant at that time was
not required to go and apply for a subdivision. It was granted as a matter of right, the
ability to build the structure pursuant to the density calculations in the Code for that
district at that time. In the 1983 M1 Zoning portion of the Code is before the Board
because I did put in a copy at the last meeting.
CHAIRMAN: If we accept it or not.
MATTHEW PACHMAN, ESQ.: If you accept?
CHAIRMAN: All of the information you gave us.
MATTHEW PACHMAN, ESQ.: Well, it was presented to you and you have a copy of it
and I certainly think that's important for understanding that, that was the Interpretation of
the Code at that time and remains the same Interpretation today in our opinion.
CHAIRMAN: I just think there was some confusion Mr. Pachman, and we understand
that you have to create an entire record in reference to this, but it was somewhat baffling
to us and again that goes back to my discussion with your father sometime after that.
MATTHEW PACHMAN, ESQ.: We hope that after, certainly, last time's hearing and
this cliquey today that there's no confusion about what the application is about or what
we're seeking. Thank you.
CHAIRMAN: Mr. Tohill, how are you tonight sir? I haven't seen you in a little while.
ANTHONY TOHILL, ESQ.: Thank you. Good evening Mr. Chairman and Members of
the Board. My name is Anthony Tohill. I am the attorney for many of the neighbors. By
the way, on behalf of Mr. Pachman, his client, all of my clients, myself thank the Board
for meeting with us earlier than usual. I understand this to be extraordinary and it
bespeaks the interest and sincerity of the Board, I think, in trying to address this. I am
prepared this evening to address, what I understand to be the issue. I understand the
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issues on the basis of my reading and my analysis that the Minutes of September 20, as
well as the entire Zoning Board file, as well as the Planning Department's file that relates
to the property. I'm here this evening with my client, they include the following families:
Berardinos, the Campbells, the Foleys, the Grzesikds, the Mannixs, the Pheffers, the
Retzos, Sterns, Suprenant, Young and Walsh. I plan to make an oral presentation, I plan
during the oral presentation to hand up some exhibits, not too many and then I plan to
hand up memorandum with an appendix, exhibits that go from the letter A to the letter Z,
the entire alphabet and then some authorities so that you are able to understand the intent
that needs to be understood. I do plan to address not just the question of what the
absence of plurality or the presence of plurality might mean in sub-section A or sub-
section B of 100-42. In addition to that I do plan to address whether or not any result of
any decision by this Board would permit Mike Verity to issue a Building Permit for a
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two-family home on this property. So I didn't entirely follow the colloquy, I think I did,
earlier between each of you and Mr. Pachman, but I do intend to address and I do intend
to talk about whether or not there is a site plan on that property. Whether or not there are
vested rights with respect to any aspect of that site plan.
CHAIRMAN: I don't think we're going to accept that.
ANTHONY TOHILL, ESQ.: Okay, what I have to do is make a record and then when
we get to another level, one of us will be right and one of us will be wrong. In other
words when Ed Forrester wrote that there were two reasons for disallowing, one of them,
no site plan approval, and the other, that there's not more than one two-family allowed.
What you're saying is that you on the one hand and the applicant on the other can pick
now which of those reasons for denial one with appeal ignoring the other reasons for
denial.
MEMBER TORTORA: Mr. Tohill, I'll cut right to the chase. What happened originally,
there were a lot of amended Notices of Disapproval on this.
ANTHONY TOHILL, ESQ.: I read and verified and I made them assemble.
MEMBER TORTORA: Exactly, so what happened was, and frankly I couldn't even tell
you how many there were. There were a number.
ANTHONY TOHILL, ESQ.: There were four Building Permit Applications pending
right now, and those four Building Permit Applications are before you right now.
MEMBER TORTORA: No they're not. That I'll correct you on.
ANTHONY TOHILL, ESQ.: Okay, so is it my understanding that any determination
here does not permit the Building Inspector any determination one way or the other, does
not permit the Building Inspector to issue a Building Permit?
MEMBER TORTORA: Absolutely. In other words
ANTHONY TOHILL, ESQ.: The whole Board agrees with that statement?
MEMBER TORTORA: Here's what's happening here. There is no site plan subject
before this Board. Whether he has or he hasn't, that is not before this Board. That will
not be determined by this Board. This Board will not consider it.
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ANTHONY TOHILL, ESQ.: On the night of September 20 on pages 7 and 12 of the
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Transcript of September 20, page 12 Mr. Pachman said this is the exact same site plan.
On page 7, he said nothing had changed.
MEMBER TORTORA: But we will not be making any determination regarding site
plan.
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ANTHONY TOHILL, ESQ.: I didn't ask you to make a determination.
MEMBER TORTORA: The applications that were before this Board prior to the one that
was legally noticed, have been withdrawn.
ANTHONY TOHILL, ESQ.: You have a letter from Benny Orlowski dated September
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20, which is part of the record, which said there is no valid site plan, there is no Special
Exception approval for a two-family home, there is no ability to build anything at the
present time. Are you planning to address what the Planning Board said to you on your
referral to the Planning Board?
MEMBER TORTORA: We cannot address, our jurisdiction is appellate only you know
this.
ANTHONY TOHILL, ESQ.: Of course I do.
MEMBER TORTORA: And you know what this hearing was advertised for. This
hearing was advertised based on 100-42A. It wasn't based on site plan approval, it wasn't
based on a Special Exception. Those things may come down the road, I'm not saying
they won't. But the bottom line is whatever we decide, it's not going to have to do with
the Special Exception, it's not going to have to do with site plan approval, we are legally
bound to address only that which we have appellate jurisdiction before us, and the only
thing we have appellate jurisdiction before us right now is this Notice of Disapproval.
TOWN ATTORNEY GREG YAKABOSKI: As to the ramifications and the decisions
by the Zoning Board on which referred, _______the Building Inspector's ______to issue
ANTHONY TOHILL, ESQ.: I'm sorry, say that over again.
TOWN ATTORNEY GREG YAKABOSKI: INAUDIBLE.
ANTHONY TOHILL, ESQ.: You're coming across blurry.
TOWN ATTORNEY GREG YAKABOSKI: Whether or not the decision of this Board
is going to let Mr. Verity or one of the Building Inspectors issue a Building Permit is not
for this Board to decide. I wanted to clarify.
ANTHONY TOHILL, ESQ.: No, no hold on. What Ms. Tortora said is that the result of
any determination in favor of the applicant or against the applicant will not affect an
affirmative declarative statement will not permit to issue a Building Permit.
MEMBER TORTORA: In other words, our action tonight is limited, we do not know
what the Building Department does, correct?
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TOWN ATTORNEY GREG YAKABOSKI: Let me state a couple of points. One, as
you know, the Board speaks through Resolution. That's number one. Number two, as to
the modifications of a decision by this Board, I respectfully refer you to the Town Code,
Town Law as to what that would mean.
ANTHONY TOHILL, ESQ.: What is the status of the July 30 denial?
TOWN ATTORNEY GREG YAKABOSKI: Now you're on a key point
ANTHONY TOHILL, ESQ.: What is the status of it, it has two points to it. One of them
has not been appealed?
TOWN ATTORNEY GREG YAKABOSKI: My understanding of that one, that's the
one I believe referenced the site plan label. My understanding, that is no longer before
this Board.
ANTHONY TOHILL, ESQ.: What is the status of that document that's on file in the
Building Department?
TOWN ATTORNEY GREG YAKABOSKI: The Notice of Disapproval? I believe that
currently stands.
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ANTHONY TOHILL, ESQ.: That document dated July 30, and this is November 15,
stands on file with the Building Department?
TOWN ATTORNEY GREG YAKABOSKI: Then what happened, there was an
amendment to that Building Permit. And I believe the amendment, I believe the date was
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August 13 which referenced the 100-42A.2 as to whether or not Mr. Forrester was
correct in his determination and I am locked in the HD district on that particular section I
decided more than one structure, which is a two family dwelling structure, was permitted.
I believe that the determination of the Building Department which is on appeal.
CHAIRMAN: Let me just say this to you Mr. Tohill, if there is an additional new dated,
new, more forward than a normal, this is a generic statement across the board, that further
states, limits, whatever the case might be, we go by the most current one. The most
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current one that we are dealing with is the August 13 Notice of Disapproval and only
that disapproval. So to answer your question in my particular limited knowledge of the
law, but some knowledge of being here for twenty almost twenty-one years, I am telling
you right now it's mute. It's mute in my opinion.
TOWN ATTORNEY GREG YAKABOSKI: I believe what you're asking, correct me if
I'm wrong, is the status whether it was amended, whether it still stands whether there's
another appeal of the July Notice of Disapproval which mentioned the site plan, is that a
fair summation?
MATTHEW PACHMAN, ESQ.: Yes, sure.
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TOWN ATTORNEY GREG YAKBOSKI: As to that question., I think it bears to the
public, the public knows that question, and the legal ramification of that, whether it was
appealed or not anything like that, that is not before this Board. What is currently before
this Board, is a Notice of Disapproval, an amended Notice of Disapproval dated August
13, which which is the language we talked about tonight. That, again in fairness to the
public and the community at large, that was what was published, I think that's why a lot
of folks , I understand there are other issues in this case.
ANTHONY TOHILL, ESQ.: There are not other issues, they're worried because there
may be 108 units built across the street. They don't want that to happen.
TOWN ATTORNEY GREG YAKABOSKI: I believe in a continuum.
ANTHONY TOHILL, ESQ.: They want an analysis of whether or not their fears are
legitimate, and you're saying let's not deal with anything that you're here to talk about.
Let's instead deal with this theological obscurity. Is there an S missing in one-family
dwelling, two-family dwelling, but supplied in multiple dwellings in the same page of
print on that page of Chapter 100 of the Town Code. Is there an S missing? And the next
question is, can somebody here will the S into those missing words so that on any lot
that's HD you can have any number of single-family dwellings, any number, and you can
have a number of two family dwellings. But if you want to put multiple dwellings, no
not there you have to have one per 10,000 square feet, one per 20,000 square feet
depending upon the public water, public sewer connections; but one-family dwelling, any
number, two-family dwelling any number, that's what we're here to discuss tonight. That
doesn’t make any sense if, two months ago, three months ago, the Building Inspector, Ed
Forrester said wait a second you're asking me for four Building Permits on property that
doesn't even have a valid site plan approval. Are we here to hear what Ben Orlowski, the
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Planning Board Chairman said on September 20There is no site plan approval. Why are
we here? Is this truly a theological experience? Are we talking counting angels on the
head of a pin? This has no connection, then you're saying to me and to my clients, who
are by the way are tax paying neighbors, you're saying we're going to debate tonight
whether or not there's an S missing at the end of two nouns, supplied below less than an
inch below at the end of another noun, always the word dwelling; one-family dwelling,
two-family dwellings, multiple dwellings, we're going to debate back, but we're not going
to debate the fact that we can't build anything on that property, on those seventeen acres.
You can't build 108 of anything, you can't build one of anything, because the one you're
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trying to build or as you kept saying over and over again on September 20, how many of
these are you trying to build? Nobody, by the way, knows that right now. The answer is,
we'll build as many as we need to build, however, there's nothing in the code that will say
that. So that when Mike Verity issues the four Building Permits there's a limit on the
four, as a result of what you've written .
TOWN ATTORNEY GREG YAKABOSKI: I respectfully disagree with the majority of
what you just said. The question,
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ATHONY TOHILL, ESQ.: There's no special permit, how do you get an approval for a
two-family residence in the Town of Southold in any district without a special permit.
This is 2001.
TOWN ATTORNEY GREG YAKABOSKI: Mr. Tohill , you are making points right
now which go to the argument tonight. The argument tonight is whether the Code, the
Interpretation of the Code, the Code said whether or not as you just pointed out, in a lot
be it two acres or one hundred acres and you build more than one structure which is a
two-family dwelling on a lot. The last two points you made are an argument as to why
the Code should not be interpreted that way. As to the other concerns about whether or
not there is site plan approval on this lot, I understand your concerns on that point. At the
moment before this Board, that question is not before this Board.
ANTHONY TOHILL, ESQ.: Why are we here?
TOWN ATTORNEY GREG YAKAOSKI: We are here, I'm surprised you asked that
question, but I'll answer it.
ANTHONY TOHILL, ESQ.: I'm surprised I'm doing what I'm doing right now. I've
read the record, I've read every inch of the record. None of what we're debating right
now, appears in that record.
TOWN ATTORNEY GREG YAKBOSKI: Perhaps if you bear with me just for a
moment. We agree, I believe, that on August 13, 2001 there's something that's called an
Amended Notice of Disapproval issued by Ed Forester which reads at the end of it,
proposed project indicates several, amount unknown, two-family dwellings on a single
parcel. The Code allows only one such structure per lot as a permitted use. We agree on
that point, correct.
ANTHONY TOHILL, ESQ.: I don't know where you’re going with, but I do know that
if the prior one is not appealed and there is no appeal pending because of what you've
already placed on the record. I have no idea why any of us are spending all this time.
There's no sense to it. Does everybody understand?
CHAIRMAN: I understand that Mr. Tohill, I understand that. I understand what you are
saying okay. However
ANTHONY TOHILL, ESQ.: There has to be an explanation for my clients as to why the
Board will not hear any testimony with respect to the status that.
MEMBER DINIZIO: As I see this disapproval, Mr. Tohill, and it's very hard that you
can't understand it. We are being asked whether or not the Building Inspector's decision
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if we agree whether or not the Building Inspector gave, upon a decision, on August 13,
2001. Now, all the decision that we have to make is whether or not this Disapproval, we
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agree with the Disapproval or we don't agree with this Disapproval. It has nothing to do
with site plan. And we're going to send it back to him, if we approve it or we're going to
send it back to him if we disapprove it. He agreed that that they're going to have to come
back, if they chose to. Ask him to make another decision. He's going to have to base his
decision on something other what he made this decision on right now. That's what we're
clear on. It doesn't have anything to do with traffic, it doesn't have anything to do with
site plans.
ANTHONY TOHILL, ESQ.: Can I explain to you?
MEMBER DINIZIO: No you can't. I'm saying this is the only thing that I'm going to
make a decision on and I believe the rest of the Board is going to make a decision on.
The rest of it is sulfurous. I honestly am getting a little tired of hearing it. Let's get
directly to the point. Let's address this one. We don't need to address what Orlowski said.
We don't need to address any of that. Just this one piece of paper please.
CHAIRMAN: Miss Collins?
MEMBER COLLINS: We had an appeal from a denial dated last July, and that denial
said there were two reasons why they couldn't have a Building Permit. One, you can't
have multiple dwellings in that zone, as it's zoned now; and the other was there's no site
plan approval. After considerable to-ing and fro-ing, which I'm not going to try to recall
at this point, that appeal by case of that Notice of Disapproval was withdrawn. We had a
letter written by our Chairman and Mr. Pachman in August saying we understand you're
withdrawing that appeal, you're not pursuing that appeal; meanwhile Kace had decided to
drop the multiple dwelling angle of the problem and say we're going to build two-family
structures which are a permitted use. And went to the Building Department and said, we
have a new Building Permit Application, and we're going to build two-family structures
which we found were a permitted use in the zone. The Building Department said the
issue we now have before us, you can only build one on a parcel or a lot, you can't build a
bunch of them. That's what's before us and the site plan issue went away. That's why at
our hearing in September we were quite exercised at the hours that were being taken up
in reviewing this history. But, as the Chairman says, we listened, and we listened, but
that history doesn't go to what's before us. And if you want to call that a theological
argument, angels dancing on the head of a pin, perhaps so; but that's what we're here to
hear. We're here to hear what does this Code mean that's singular versus plural and that's
it. I thought everyone agreed on that tonight.
ANTHONY TOHILL, ESQ: Nothing in the record, what you're saying now, the record
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has you in particular on September 20 finally getting to the nub. I don't believe I'm
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going to credit anybody else with having done that on September 20. You said, you
mean Mr. Pachman, that a prior letter and you were referencing Victor Lessard's letter is
binding on us, and finally somebody was getting to the heart and soul of this matter. And
that was you.
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MEMBER COLLINS: And I said it struck me as a big reach. And they don't seem to be
reaching at it tonight, thank heaven.
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ANTHONY TOHILL, ESQ.: Then something happened between September 20 and
now that's not reflected in the Zoning Board's file and it's first articulated in the dialogue
that occurred starting at 5:15 here this evening. I have a right to express surprise at that,
because I'm not new to this business and I have a right to agreeing with Mr. Dinizio on
some of his observations of what might be taking place here. Let's just back up if we can
for a second. If you were to grant an Interpretation that more than one was allowed, it
will result in an issuance of a Building Permit for obviously more than one. The question
that is, how do you do that. How did you ignore what the Town Board grants in 1989,
when it says no single family residences ever, I'm sorry no two-family residences except
with a Special Exception Permit from the Zoning Board of Appeals. This is 2001, the
Code that went into effect on January10, 1989, became effective on January 10, 1989.
This is pro liter and somehow or another you're suggesting to me that either the Building
Inspector can ignore that or he can't ignore that. And I need to steer the rein with you
whether he can ignore that. And we do have to talk about that. Because obviously if
Mike Verity wasn't here in 1989 and he wasn't, and he wasn't here in 1983, and he wasn't;
and he wasn't here on other dates that might be critical to anybody understanding what
the value of that property is, and the develop ability of that property is, then it might be
helpful for us to talk to each other. Some of us have looked into to us, neighbors, counsel
it would always be helpful. Because if we're wasting our time debating whether one or
more two family residences is allowed and none, in fact, is allowed, not one. Wouldn't
that be worthwhile to have the applicant stand up and say I do understand, (A) - I have no
site plan approval for the property. (B), I have no Special Exception for the two family
residence approval for the two-family residence, not even for one. I gave an application
by the way before but I don't have an approval for Special Exception for even one. I don't
understand, and I've been at this a long time, I don't understand how you're managing to
duck that inquiry. Isn't it fundamental, isn't it required and don't you have to deal with
the fact that when this goes to court after Mike Verity issues a Building Permit, the judge
is going to say, what in the world is going on out there? The Building Inspector and the
Planning Board Chairman both say there is no site plan approval and they need Special
Exception. The Zoning Board listens altogether to any inquiry on either of those,
prohibits the neighbors from talking about it, and then issues an approval for more than
one two-family, because it rules the nest into 100-42A.2, just rules it in there as if it were
there. Mr. Chairman you pre-supposed a decision of the Board. I believe that you're
argument is, is that under one of 100-42A.2 that there should only be one structure per lot
that transfigures. I'd say that's one, not to seem hypothetically argumental, that that's a
result can happen here. Another result is that you could say you're only allowed one two-
family residence. Yet, do you do that and there's only one two-family residence, what
does one say to the neighbors who are a lot smarter than that. They know there's a
problem with the site plan. They know what happened in 1989. They know what
happened in 1985. They know about Mr. Orlowski's letter. They know about Ed
Forrester's prior letter. What does one do for them? Does one move them away the way
the S got moved into two-family dwellings?
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MEMBER COLLINS: Mr. Tohill is intentionally overlooking the point here. That is
that site plan, excuse me not site plan, that Special Exception is not required for a two
family dwelling in HD district. It's not required. It's a permitted use. So let's let that go
aside.
ANTHONY TOHILL, ESQ.: In my book, it says uses permitted by Special Exception of
the Zoning Board of Appeal, multiple dwelling.
MEMBER COLLINS: Town Houses, tow or attached houses, go up to A, we're talking
permitted uses. They're talking permitted uses. The Building Inspector's talking
permitted uses; two-family dwelling.
ANTHONY TOHILL, ESQ.: Four applications, four applications.
MEMBER COLLINS: There's four Building Permit Applications in the file, each for a
two-family dwelling.
ANTHONY TOHILL, ESQ.: If there were 108 applications in the file for, let's split it in
half because they're two-family and say 54 two-family, 108. Does anybody here standing
saying that 54 two-family dwellings is not multiple dwellings that were a subject of?
TOWN ATTORNEY GREG YAKABOSKI: This is a hearing, not a question and
answer session.
ANTHONY TOHILL, ESQ.: This is very important dialogue.
TOWN ATTORNEY GREG YAKABOSKI: This is a hearing and Member Collins has a
valid point. The question is, "Is more than one structure, say a two-family dwelling,
permitted on a lot" and the lot in question 17 acres, under, pursuant to 100-42A-2, and
under that section. That's the question. And I believe your argument and the neighbors'
argument, is that under that Section, if the owner of the property came forward and said
"I would like to tomorrow for a one-family dwelling put an application in tomorrow. On
that seventeen acre lot, I would to build a one two-family dwelling on that lot and there
not be an opposition. If, much later, after having built that one structure which is a two-
family dwelling the applicant, no sub-divisions involved, then came forward and said I
would like to put a second structure on that lot, which is a two-family dwelling then, the
folks here tonight disagree with that. The Building Inspector, Mr. Forrester at the time,
has said that that would not be permitted. Mr. Pachman, correct me if I'm wrong has said
"we believe the Code reads that we could build more than one structure which is two-
family dwelling on that lot." I believe, you and your clients disagree with that
Interpretation. The Board is here tonight and I believe your clients Mr. Tohill agree with
the Building Department's Interpretation that only one structure, a two-family dwelling
could be placed on that lot under the Code Section 100-42A.2. If you would like to make
an argument as to why only one structure, which is a two-family dwelling, I believe that's
the question before the Board tonight and I believe it's the only comment from the Board
as they will take all testimony as to why that section should be interpreted either as
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having more than one structure per lot which is a two-family building or only one
structure. I believe that was the only limiting comment made.
MEMBER COLLINS: Mr. Chairman, could I just put in a few more cents to continue
my line of responding. Mr. Tohill's making a record and I simply wanted one member
of the Board to get in the record in response to what he's saying. I've already made my
point that I think indeed the Building Department believes that a parcel on which let's
assume it were legal, on which he built five two-family houses on ten acres or whatever.
That does not multiple dwellings make. Multiple dwellings we all understand to be
condos.
CHAIRMAN: Townhouses.
MEMBER COLLINS: Townhouses. I draw the distinction between a permitted use,
two-family dwelling and a use requirement, Special Exception, multiple dwelling. The
Building Department has not said that we needed a Special Exception for what these
folks don't need to build. And my theory has been that if we agreed with the apeallants
who said we are permitted to build more than one two-family dwelling on this parcel,
then go back to the Building Department and say okay, please let us have our Building
Permit. My assumption has been that the Building Department will then read Section
253 of the Code, which says no Building Permit shall be issued for any structure in Town
except a one-family dwelling, I think I've got the right Section, without site plan
approval. This has not gone away, they simply didn't put it in that denial. We're not
vaporizing it, end of my response.
MEMBER DINIZIO: I agree, I think Mr. Yakaboski put it very clearly as to how narrow
the scope of this hearing should be. I ask you please not to cloud that issue, so I can
make a decision. Because we have to write a decision that's going to stand up probably
to a court of law.
ANTHONY TOHILL, ESQ.: That's the hardest thing you've said all night.
MEMBER DINIZIO: I would just want to add, if you could just kindly do us that favor.
ANTHONY TOHILL, ESQ.: This is so different from your file and from the record that
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was established on the 20. By the way, I wasn't here. You people were speaking and I
was reading and I'm parsing out your word carefully saying, uh huh, that person really
understood what was going on there. You've changed everything dramatically. That's
alright, you have the freedom to do that. I'm going to ask --
MEMBER TORTORA: I'm going to interrupt you right here, on page 15 of the
transcript, "Matt Pachman: Maybe we're in semantics. And I don't mean it in any way.
We're asking for a reversal of Mr. Forrester's determination based on the Board's
interpretation of that section of the Code. That's from the hearing transcript. It's the last
page. On page 14.
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ANTHONY TOHILL, ESQ.: Here's your transcript itself, the last page is number 12.
You've got different from me. Hold on a second. Let's, that's on page 12 the transcript
that's in.
MEMBER TORTORA: It might have been a draft. And the page before that it just says,
" we're asking you to review Mr. Forrester's Interpretation of the Code and to make a
determination." It's quite in the hearing. Yes we went around in circles to try to get that
out but at the beginning of this we wanted to repeat what was said.
MEMBER COLLINS: This is the coliquey between Lydia, Mr. Pachman and me. I said
I had heard something at the beginning of the hearing and Lydia said that aren't you
asking such and such and he said, he's asking what we all agreed they're asking tonight
and this other stuff is not
ANTHONY TOHILL, ESQ.: I had prepared for a different system and I can't present to
this here. I will need time to come back with a witness because I did not bring a witness
and I have no idea this was going to be the focus tonight and clearly if the Board's going
do something it's going to tick me off. I didn't get anything at all. So I would like an
opportunity to come back with all these nice neighbors, taxpayers back here, and we will
have our on the missing text. And I'm happy to do that, but I am going to make a record
that is typed in to make sure that we have the original.
CHAIRMAN: What we'll do after Mr. Pachman's presentation, we'll break for one
second and discuss with counsel and with our secretary here what specific dates we have
available. Mr. Pachman, we have just spent some half hour discussing this and I don't
know how you feel about reserving another date concerning this hearing; why don't you
give us some testimony in that respect.
MATTHEW PACHMAN, ESQ.: Well, Mr. Chairman certainly if this Board is going to
give Mr. Tohill an opportunity to present his case then remarks that I said earlier which is
to say, we made a presentation, if Mr. Tohill is in fact is going to make a presentation and
bring in a witness as he just mentioned then certainly I'm not going to go any further
tonight, but we'll stand on what I said before which I stand by the disapproval and decide
at that time.
CHAIRMAN: What we are going to do again, is take a recess after this prior to closing
the hearing, after recessing the hearing, because we must go back into the office and find
out what we have available. That's where we are.
TOWN ATTORNEY GREG YAKABOSKI: Mr. Pachman, just to repeat my request of
earlier, on page 7 of the transcript the fourth or fifth paragraph, Mr. Pachman,
ANTHONY TOHILL, ESQ.: Apparently it might be a different typed issue.
CHAIRMAN: No what we have is
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MEMBER TORTORA: One is a draft, the final Matt is page 15. The draft.
TOWN ATTORNEY GREG YAKABOSKI: Mr. Pachman, after the recess I could
specifically make sure we're on the same transcript here.
CHAIRMAN: So we will take a five minute recess at this point, and then we will finish
this, we will give you a date and then we will start the hearings.
CHAIRMAN: Motion to reconvene. Mr. Pachman, we're ready is there anything else
that you would like to say?
MATTHEW PACHMAN, ESQ.: Not at this time, Mr. Chairman. As I said before I
would like to reserve any further comments to Mr. Tohill's presentation.
CHAIRMAN: Let me just give you some quick background, and we will then give you
the date. This happens to be a very busy time of the year for us. People trying to get
foundations in, people trying to get certain things done to their homes okay at this point.
We have checked the records, we have checked our agenda for the month of December, it
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is impossible. The next available date is January 17. That is the best I can do at this
time.
MATTHEW PACHMAN: Regular time?
CHAIRMAN: Yes, it will be at, we'll try to put it on at the beginning of the hearing
process. I won't say it's the first one but somewhere in that general range or in mid
stream or whatever the case might be.
MATTHEW PACHMAN, ESQ.: Mr. Chairman I don't have my January calendar with
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me. Something about the 17.
CHAIRMAN: We’re flexible for that day or the following Thursday.
MATTHEW PACHMAN, ESQ.: If I could give a call tomorrow, there's something
about that date.
CHAIRMAN: And all we're going to do is modify that date based upon, at our Special
thth
Meeting which will be on the 29. So if you look at this situation here, we're at the 15,
the next meeting is less than a month away, and we have a huge agenda tonight. This is
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not in any arbitrary that we're setting this date. As long as it is the 17 or the following
Thursday, Mr. Pachman, which
MATTHEW PACHMAN, ESQ.: What time would that be at?
CHAIRMAN: We're going to set it around 7:00, 7:15.
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MATTHEW PACHMAN, ESQ.: Will it be at the foot of the calendar or the head of the
calendar?
CHAIRMAN: It will be very close to the horse's neck. As opposed to the tail. We will
try and get this to the point. But I do want to say this at that hearing, that I would
certainly would want to restrict this hearing to about one hour and get it taken care of at
that point.
UNKNOWN: Mr. Chairman, I didn't speak tonight but if I could hold this down to one
hour, I would be shocked.
MEMBER COLLINS: Mr. Chairman, we will re-advertise it, will we not to make it
perfectly clear to everyone what we're hearing?
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CHAIRMAN: We're telling you the 17, Mr. Pachman is informing us that he may not
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be available on the 17, okay. Let me just tell you what that does to us, if we have it on
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the 24 we do not have time to have a Special Meeting after that in the month of January.
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So the 17 is better for us. I'm just telling you that, okay. You're going to let us know.
MATTHEW PACHMAN, ESQ.: There might be a conflict on that.
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CHAIRMAN: We'll let you know. I make a motion recessing it to January 17 at 7:00
or 7:15.
End of hearing.
SEE MINUTES FOR RESOLUTION
* * *
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6:35 p.m. Appl. No. 4965 – NORMA MILLER. This is a request for a Variance under
Article III, Section 100-31A.2, based on the Building Inspector's May 21, 2001 Notice of
Disapproval for the reason that renovation of the existing accessory building constitutes a
second dwelling use on a lot. Location of Property: 12920 Main Road, East Marion;
Parcel 1000-31-14-14.
CHAIRMAN: A garage which is a structure which is detached from your house and I'll
let you add anything you'd like to add.
NORMA MILLER: I have some letters from (inaudible).
CHAIRMAN: Thank you. Is there anything else you would like to say?
NORMA MILLER: I can only say that it's been there for twenty-four years. We were
given permission to do it with the proper permits and we proceeded at considerable
expense to finish it but there some confusion over the window and then it was bogged
down. Then I wrote a letter and tried to get the Zoning, but I never got a reply and then I
have other things on my mind and I let it go. I have neighbors statements, it has been
there for twenty-four years. Everyone has no objection to it and I'm not asking to create a
cottage; I'm saying its there, please help me to recognize it and complete the matter. The
Assessor's Office considers it a cottage, and I found in the process of the researching that
I have been paying taxes on it at double the rate that I would pay for a garage. So they
consider it a cottage. I spoke with Mike Verity, and he said that it wouldn't be a big deal
to finish, if we would just finish the window and take it from that point. I found that the
B & B that I was granted last June has been a wonderful way to supplement taxes and the
upkeep on the property and I would just like to incorporate the cottage for family use.
There is no way that I can reverse it or change it back to a storage building, and let me
clean up this mess for my daughter, I would like to finish it up.
CHAIRMAN: What I was going to say was you're giving us some latitude in reference
to that situation when we deliberate and that is that you are primarily interested in this for
the family use. Is that correct?
NORMA MILLER: Yes, that is.
CHAIRMAN: Mr. Dinizio, any questions of Miss Miller?
MEMBER DINIZIO: No.
CHAIRMAN: Miss Collins?
MEMBER COLLINS: I'm sorry I didn't have a chance to go actually in the building, but
I am familiar with what it looks like and you have given us photos. I just apologize,
normally I would have looked inside. I read all this paperwork in the file. All these
memos and letters back and forth in the 1970's and it didn't cohere into a picture for me.
Page 20 - November 15, 2001
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I want to try and find out really what happened. It seemed to be pretty clear that in the
70's when you wanted to do something with this building that the Building Department at
the time, said that it was okay to have sleeping and a bath, but you couldn't have kitchen
and cooking. That seems to have been reiterated in several, I read my notes I must say
two weeks ago.
NORMA MILLER: I think they still feel they say you can have a sink or a refrigerator,
but you can't have a stove or cooking facilities.
MEMBER COLLINS: And from the pictures it appears to me there's obviously sleeping
and bath and I see a refrigerator.
NORMA MILLER: A refrigerator and sink.
CHAIRMAN: The stove has been removed.
MEMBER COLLINS: But you can't cook. Okay. So what you consider this as, what
you want to characterize it as, is a guest cottage where people can sleep and bath. The
refrigerator I suppose is a convenience for the cold soda. I'm trying to characterize what
this animal is that you're.
CHAIRMAN: Miss Collins, Mrs. Miller eluded to the fact that she has a son, did you say
you had a son or which relative?
NORMA MILLER: What I was saying was when grandchildren come out, drive out, it's
kind of far to say well go down the road and stay somewhere.
CHAIRMAN: So she has relatives that come out and she wants to utilize it for their use.
MEMBER COLLINS: Yes, okay. The denial is for renovation of this existing building
because the reason for the denial was it would be a second dwelling unit on the lot. It's
been in it's current fitted condition with the bed and the bath for twenty odd years. Have
you been using? Has all of this come up because it needs work?
CHAIRMAN: No. It came up because Mrs. Miller wants to get her affairs in order. She
wants to make sure its legal. Isn't that correct?
NORMA MILLER: I don't want to leave all of this mess for my daughter to inherit.
MEMBER COLLINS: Excuse me, Miss Miller and Mr. Chairman, that's my problem.
As far as I'm concerned, reading the file I was facing a mess. I couldn't figure out really
what was going on here.
NORMA MILLER: Everything is complete but the window in the bedroom was an
Anderson egress window. My husband wholesaled them and he was adament that he
wouldn't change the window and things fell apart. I will change the window now.
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MEMBER COLLINS: So the issue of the Building Department now that you want to get
square away on is the window? Is that it? Because you see they write us a denial that
says, denied renovation. I mean renovation could be everything up to putting on a new
roof. I couldn't figure out what's going on.
NORMA MILLER: I also agree that I'm going to change the application.
_______________
MEMBER COLLINS: So you want this for family use, it's been there all along, you
want it to be legal and they told you it wouldn't be legal unless you fix the window. Does
that encapsulate it?
NORMA MILLER: You've got it.
MEMBER COLLINS: Thank you.
CHAIRMAN: For the record structure is in good condition. Mrs. Tortora?
MEMBER TORTORA: No questions.
CHAIRMAN: Mr. Horning?
MEMBER HORNING: Again, your proposal is to change the window?
NORMA MILLER: Yes, I've spoken to Mr. Verity and he said if I have the engineer
stamp on the building that is everything is in compliance and I have all the papers that we
changed the window.
MEMBER COLLINS: Mr. Chairman I just stick in two cents, I think this is my case to
write, in another case recently I can't remember which one, where we had a cottage on a
property we put a constraint in that the cottage could not be rented except in a transaction
that involved renting your whole house, that the cottage went with it the entire property.
In other words, that this cottage could not become a rental facility, and I assume that
would be satisfactory to you.
NORMA MILLER: Yes, I'm very hopeful that someday I'll be able to use it as a third
bedroom. I want the legality and the paperwork mess finished.
MEMBER COLLINS: We had one down on Nassau Point where they had a facility like
this in a much bigger garage and a grander piece of property. It was the same kind of
concept. We wanted to make sure it was limited to being an extra bedroom for the family
by constraining and saying you can't rent it separately.
CHAIRMAN: That's correct. We'll see what develops Mrs. Miller before you leave and
we're going to close the hearing just don't leave until we close the hearing. Okay. That
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doesn't mean you have to stay here all night. Just until we close this hearing. Okay, thank
you. Is there anybody else that would like to speak in favor of this application?
Anybody like to speak against the application? Seeing no hands I'll make a motion
closing the hearing reserving decision until later.
SEE MINUTES FOR RESOLUTION
* * *
6:41 p.m. appl. No. 5030 – FRED AND MARY MILNER. This is a request for a
Variance under Article IIIA, Section 100-30A.4, based on the Building Inspector's
August 9, 201 Notice of Disapproval which states that the accessory pool house structure
is required to be located in the rear yard, and the pool house, as placed, is located in the
side yard. Location of Property: 985 White Eagle Drive, Laurel; Parcel 1000-127-9-22.
CHAIRMAN: Mr. Goggins how are you tonight?
WILLIAM GOGGINS, ESQ.: Good Mr. Chairman how are you? I am William C.
Goggins 13105 Main Road, Mattituck, New York for the applicant. Members of the
Board this is an application because there is a question as to what the side yard is and
what a rear yard is. Mr. Milner has constructed a pool house which he thought was in the
rear yard, but the Building Department interpreted to be in the side yard. I've researched
the code, there's not much research to do and I have a copy of the survey. I'm not sure
before what happened, I didn't file the application, I've just come in recently. What
happened was when Mr. Milner went to erect his pool house he spoke with the Building
Department and they said make sure you comply with the side yard and rear yard
setbacks. They told him what those setbacks were and he thought he did. If you look at
the survey, you can see where the cabana falls on the survey, but on the most easterly
corner of the pool house is right at the parallel line or perpendicular line from the side
yard running to the back corner of his house. That's how he determined that it was going
to be in the back yard. When they gave him, when they them that he was violating the
code and that it was in the side yard they said it had to be behind the deck. When Mr.
Milner went and looked at the Code and the Code at Section 100-13 on the definition of
rear yard is an unoccupied ground area fully opened to the sky between the rear lot line
and the line drawn parallel thereto. I gave everybody a copy of that section. What that
tells me, and what I told Mr. Milner was when he walked out of the back of his house and
looked up and saw the sky, that was his backyard. That's where he drew that line over to
his side yard and that's where he started to put his pool house. Therefore, based upon his
reading of the Code, and frankly based upon how I'm reading the Code too, his pool
house is in fact in his back yard. So here we are asking for a Variance to allow Mr.
Milner to have his Building Permit for an accessory structure that ordinarily is in his
backyard. I'm not sure whether it's an Interpretation or whether.
CHAIRMAN: Can I just ask you what a pool house is? What does it comprise?
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WILLIAM GOGGINS, ESQ.: This pool house, Mr. Milner would able to answer better
than I. But it's going to have walls, exposed studding on the inside and it will have
electricity. That's the extent of it.
CHAIRMAN: No plumbing facilities, no shower.
WILLIAM GOGGINS, ESQ.: Not that I know of. Mr. Milner?
FRED MILNER: Cold water shower.
CHAIRMAN: Cold water shower. Inside or outside.
FRED MILNER: It could be either or. I never had a chance to finish it, it probably will
be inside I believe.
WILLIAM GOGGINS, ESQ.: Thank you.
CHAIRMAN: Thank you. Any questions Mr. Horning of the applicant or counsel?
MEMBER HORNING: No. I'll ask the applicant. Was the deck built when the house
was built?
FRED MILNER: Yes it was, that's correct.
MEMBER HORNING: Also, why would you set up just a cold-water shower?
FRED MILNER: That's all I need really.
MEMBER HORNING: Okay, thank you.
CHAIRMAN: Mrs. Tortora?
MEMBER TORTORA: I'm trying to figure out about from the furthest most point of the
deck about how much of the cabana would be, how many feet of the cabana would be in
the side yard?
FRED MILNER: It's made for a rear yard, but basically if you look at the deck it's
completely on the far side of the yard, you're talking eighteen feet which if that cabana
had to be moved I'd probably be asking for a variance for a side yard setback on my other
neighbors because I'd be encroaching within five feet. But I did speak to the Building
Department on the issue and off the side yard it's nineteen feet and 30 feet set on an
angle. We spoke about it and I struck a line, and I put it behind the rear foundation which
actually was a crawl space at that point, which I've been doing this for twenty-five years
and no red flag has ever been raised. But apparently there was an anonymous complaint
and the Building Inspector got caught in between.
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CHAIRMAN: Mr. Milner this does not exceed the height for an accessory structure?
FRED MILNER: Actually as you plan a house, as you know the walls are eight or nine
feet tall, I cut all my studs seven feet tall specifically to keep the structure low because I
planted arborvitae which will probably be eleven to thirteen feet high and the roof line
would be probably twelve to thirteen feet high so you would never see it anyway.
CHAIRMAN: Okay, that's one story good. Miss Collins.
MEMBER COLLINS: I just wanted to clarify, I think what Mrs. Tortora was asking you
have the cabana building at a angle and you can see on the drawing that if you accept the
Building Department's position that the rear of the house is the rear of the deck, a corner
of the cabana is in the side yard. I think she was asking you, that's a pretty big cabana
building I scale it off to be about 25 x 40.
FRED MILNER: Actually it's half and half, half will pretty much in the wintertime we'll
put all the pool stuff in there and the rest is actually like a little deck and it's going to
have a nice fancy bow roof.
MEMBER COLLINS: I guess the question I was asking, I had the question in my notes
and I thought she was asking it, but I'm not sure she got an answer; which was of the total
square footage of the footprint of this building, how many of those square footage of the
footprint of this building, how many of those square feet are in what the Building
Department calls the side yard? Do you have an answer for that? What percentage of
this is non-conforming I guess is what I'm asking you?
FRED MILNER: Maybe, 10 or 15 %.
MEMBER TORTORA: It looks like a third.
MEMBER COLLINS: It looks like a third on one of the drawings; it looks like less than
that.
CHAIRMAN: You don't have to give it to us now; you can give it to us tomorrow when
you check it out.
MEMBER TORTORA: The exact dimensions for the cabana about what percentage of
the cabana is non-conforming. So that when we render a decision we could put that in
the decision and we know exactly where it's going to be in the future.
MEMBER COLLINS: My other question Mr. Chairman was, Mr. Milner when you
decided to do this you talked to the Building Department of course you applied for a
Building Permit. The date of the Permit Application was last July. The copy we got of
the permit application doesn't show whether it was approved or not approved. I gather it
was at the time it was issued.
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FRED MILNER: The pool was approved, the permit was issued and the cabana was an
afterthought. We have four kids and we knew we would be putting a lot of stuff in there
at one time. I made the phone call, I called the Building Department and I talked to the
Building Inspector told him what I wanted to do and amended to the existing permit and
told him the square footage of my property. He said stay off the side yard five feet 19 x
30 and put it behind my rear foundation which as far as I'm concerned, determines my
back yard.
MEMBER COLLINS: I understand what you intend. I just want to find out what went
on between you and the Building Department.
FRED MILNER: I spoke with Gary Fish and I'm sure if you talk to him he will
remember the conversation.
MEMBER COLLINS: I'm not trying to argue with you I'm just trying to find out who
said what to whom. You got the permit for the pool and then you realized you were
going to want to put this building in and you wanted to amend your building permit to
cover this building. From what you're telling us, I think you did that largely by sort of
telephone communication and discussion of the shape of the property. What your
attorney gave us tonight is a copy of a survey of the property with the pool and the
cabana penciled in and it says on it copy from Building Department with Notice of
Disapproval. And I guess, the way I interpret this is that after they realized what you had
done, and then this got penciled in and they wrote you a Notice of Disapproval. They
didn't see this ahead of time when they said sure go ahead. Okay, thank you. That's all I
want to know.
CHAIRMAN: Mr. Dinizio?
MEMBER DINIZIO: No questions.
CHAIRMAN: Thank you Mr. Milner. Just don't leave until we close the hearing please.
Is there anybody else that would like to speak in favor or against this hearing? Yes sir,
could you come up and state your name.
WALLACE MACOMBER: My name is Wallace Macomber and I live on the north side
of Fred Milner. I came to this hearing just to get some of the questions straightened out
pending a Building Permit issued for this cabana, which is a small building, and I hope
you go down and look at it.
CHAIRMAN: We did look at it.
WALLACE MACOMBER: I finally got a straight answer that there was a permit in the
midst of being issued. These are just some of the questions that the whole community
has been asking. I think that this is a fairly new community. I've been there four years
and I'm an old timer basically on the road. If we start letting one person do this,
everybody else is going looking to put a house wherever they want.
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Town of Southold
CHAIRMAN: I just want to make a statement Mr. Macomber regarding this. I think
you'll agree that this is upscale neighborhood and I think you'll agree also that these are
acre lots and I think you will further agree that the houses, the majority of the houses on
these properties are relatively large. And I'm not referring just strictly to the Milner's
property. I think that in the future, people are going to want tennis courts, some people
are going to want swimming pools and they will be before us, I assure you. They'll be
before us for lot coverage; they'll be before us for side yard issues. We are not going to
let people close up all the side yards; we're just not going to do it. We are going to be
dealing with this. The reason why we haven't had it is just because of what you said, it's
a relatively new community. But I assure you they will be in. Because fortunately the
lots are an acre in size, but still the houses are quite large in that community. I mean it's a
truly gorgeous community. There's no question about it. But I just forewarning you that
I assure you that people will be in.
WALLACE MACOMBER: Okay, thank you for your time.
CHAIRMAN: Your welcome. Is there anybody else that would like to speak? Yes, sir?
You can come up and state your name for the record please.
KARL KRAUS: Karl Kraus, 355 White Eagle Drive.
CHAIRMAN: Please don't refer, just don't refer to anybody, you're stating your
statement.
KARL KRAUS: I'm directly across the street, most affected by this. I heard Mr. Milner
that there was an anonymous phone call made with respect to their construction which
had been directed at me. Because I directly look at it and in no way, shape or form did I
make that call to the Town of Southold. I really don't care if they build a ferris wheel
over there. If they comply and make it decent looking. They have shrubs up. I just hope
that they do the right thing. That's all.
CHAIRMAN: In most of our decisions we usually reserve the right to look at it and we
may impose future screening if we are so inclined.
KARL KRAUS: I understand that, I hope that they do the right thing.
CHAIRMAN: Thank you. Is there anybody else that would like to speak? Seeing no
further hands I'll make a motion closing the hearing reserving the decision until later.
SEE MINUTES FOR RESOLUTION
7:00 p.m. Appl. 5028 – ANN LENCESKI. This is a request for a Variance under Section
100-239.4 based on the Building Inspector's August 6, 2001 Notice of Disapproval.
Applicant is proposing to construct a deck addition which will be less than seventy-five
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(75) feet from the bulkhead at 3700 Minnehaha Boulevard, Southold; Parcel 1000-87-3-
5.
CHAIRMAN: Good evening sir. How are you tonight sir? Would you state your name
for the record please?
EDWARD LENCESKI: My name is Edward Lenceski.
CHAIRMAN: How are you sir?
EDWARD LENCESKI: Fine thank you.
CHAIRMAN: What would you like to state for the record sir?
EDWARD LENCESKI: For the record I'm asking for a 10 x 20 deck in the back of my
house for one reason. The house is already, we had the house approved and the house is
three quarters built now. But in the back is a sliding patio door. When you go to the
door, the next step is six feet down. I had Bruno Semon come from the Building
Department told us to put it on the plan, when it came to approving it he knocked it
down. The Board of Trustees okayed it and this is where I am now.
CHAIRMAN: This is going to be an open deck, right sir?
EDWARD LENCESKI: Yes.
CHAIRMAN: Okay, Mr. Dinizio any questions of this gentleman?
MEMBER DINIZIO: No, it's going to be forty-four feet away from the bulkhead right?
Forty-four feet?
EDWARD LENCESKI: 10 X 20 Feet.
MEMBER DINIZIO: Are you forty-four feet from the bulkhead?
EDWARD LENCESKI: How many feet from the bulkhead?
MEMBER DINIZIO: The end of the deck is going to be forty-four feet from your
bulkhead.
EDWARD LENCESKI: I thought it was closer than ten feet.
CHAIRMAN: It says 53 minus 10.
MEMBER TORTORA: It says 54 on one and then 47 on another. That's why we would
like to get exactly the exact distance. The survey says 53.
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MEMBER DINIZIO: The Disapproval says forty-four feet. Well that's why I'm asking
that question.
CHAIRMAN: Will you please check Mr. Lenceski for tomorrow and give us a call and
tell us the exact distance between the proposed deck and the bulkhead
MEMBER TORTORA: To the nearest point of the bulkhead.
ANN LENCESKI: Can we use the survey for this?
CHAIRMAN: You can use the survey, you can call the surveyor if you want, whatever
you chose to do. But we want to make sure that in the decision we have the correct
figure.
ANN LENCESKI: I have the survey right here.
CHAIRMAN: We're going to go with forty-four feet.
EDWARD LENCESKI: What is the acceptable number of feet?
CHAIRMAN: 75 feet. We have many applications down in Laughing Waters.
ANN LENCESKI: The Board of Trustees was there. We have decks on both sides of us
and they're.
CHAIRMAN: That's not the point Mrs. Lenceski. What we need to know is the correct
figure to put into the decision. So just please check that and get back to us and make sure
that it is exactly forty-four feet. Because if it's forty-three feet or forty-six feet you're
going to run into a problem. You want to build a 10 foot wide deck.
(
tape cuts out and goes right into Thomas and Annette Jordan)
7:08 p.m. Appl. No. 5017 – THE FIRST BAPTIST CHURCH OF CUTCHOGUE. This
is a request for a Special Exception under Zoning Code Section 100-31B(2) for a Place of
Worship and related accessory uses, at 15945 County Road 48 (a/k/a Middle Road),
Cutchogue; Parcel 1000-101-1-14.5. Diane Herold, Architect.
(tape is cut off – no transcription for the First Baptist Church.
7:15 p.m. Appl. No. 5018 – ST. PETER'S LUTHERAN CHURCH. This is a request for
a Special Exception under Zoning Code Sections 100-31B(2), and 100-81b(1), for
expansion/additions to an existing Place of Worship, at 71305 Main Road (a/k/a Route
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25), Greenport; Parcel 1000-45-2-7.1. Zone District: Limited Business. Diane Herold,
Architect.
(tape cut out – most testimony for above missing – only this ending…..
MEMBER DINIZIO: Does this have to go before the Planning Board also?
DIANE HEROLD: I haven't discussed it fully with Mr. Kasner, I will check with him. I
think you will want _____________.
CHAIRMAN: Would you also supply us with the total square footage of this.
DIANE HEROLD: Certainly.
CHAIRMAN: So that we may make it par
(insert transcription)
7:18 p.m. Appl. No. 5020 – BRUCE AND MAUREEN CAMPBELL. This is a request
for a Variance under Article III, Section 100-33, based on the Building Inspector's
August 13, 2001 Notice of Disapproval. Applicants are proposing to construct an
accessory garage in a front yard location instead of the required rear yard at 620 Meday
Avenue, Mattituck; Parcel 1000-113-10-15.7.
(insert transcription)
7:25 p.m. Appl. No. 5027 – JOSEPH BENDOWSKI. This is a request for a Variance to
construct and replace accessory garage with nonconforming setbacks, 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. Wickham, Wickham & Bressler,
P.C.
(insert beginning part of transcription)
JERRY BUTLER(ENGINEER): The demo line factor is the existing garage which is not
a full deck garage as it exists. It's approximately 16 ½ feet deep which will not fit, maybe
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Town of Southold
a volkeswagon, I'm not sure. But to pull it forward actually interferes with the circulation
of the driveway on the site.
CHAIRMAN: And you want to leave it in that location, you don't want to bring it farther
forward.
JERRY BUTLER: Well if we bring it, this is all natural vegetation over in here with
some landscaping and Belgium block curbing and a little bit of grass and some azaleas
and things like that, that they want to try to preserve.
MEMBER TORTORA: With zero lot line?
CHAIRMAN: No, they're asking, what do they have one now and they're looking for
two?
JERRY BUTLER: There's zero now and we're asking for one.
CHAIRMAN: Miss Collins?
MEMBER COLLINS: Yes, the other question that someone here asked or you stated had
to do with the height of the building. The Notice of Denial says that the proposed height
of the building is 19 ½ feet and 18 is the limit for accessory structures under the Code. It
seems to me that in your remarks we only want six inches.
JEFFREY BUTLER: The way I measured and adjusted the building height I think it's
you can still get a car in the garage, I was about six inches over. I can live with six
inches over.
MEMBER COLLINS: You could live with an 18 ½ foot.
JEFFREY BUTLER: Yes, absolutely.
MEMBER COLLINS: I was just going to say, I personally don't think that the case that's
been made thus far for why the building has to be a mere one foot off the property line is
a strong enough case. I realize there are inconveniences involved but, you know, one of
the things we're supposed to look at is feasible alternatives and I don't feel convinced that
the alternative of moving it further away from the property line is not feasible. I just
wanted you to know that.
CHAIRMAN: Well, that goes back to my question then, I think you were going to give
us some latitude in reference to where we're going to place it then in reference to a side
yard. I mean we're certainly, you're not asking us to deny this application for a couple of
feet here I hope?
JEFFREY BUTLER: No.
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MEMBER TORTORA: What's the most you could move it to get it off that line?
JEFFREY BUTLER: The maximum that I think we could, by shortening this garage up
about six inches and then pushing it another foot I think we still could get the site to work
with the circulation on that driveway.
CHAIRMAN: What are we talking about?
JEFFREY BUTLER: 2 ½ feet.
CHAIRMAN: Okay, what are we talking about overhang now in reference to the
garage? The garage overhang is then going to pertrude into that.
JEFFREY BUTLER: The garage overhang would be one foot beyond that. So the
garage overhang would be 1 ½ feet from the property line. The garage structure would
be 2 ½ feet.
CHAIRMAN: So what we're talking about is roof gutters, storm drains, drywells.
MEMBER TORTORA: I personally agree with Miss Collins that I'd like you to really
look at some other alternatives.
JEFFREY BUTLER: Even at the 2 ½ feet?
MEMBER TORTORA: Yes, sir. It's a large lot, you have a lot of possibilities and I don't
think it's necessary.
JEFFREY BUTLER: We meet at the site?
CHAIRMAN: Yes, I'll be there. I just have an appointment in Southold at 9:45. Let's
take a round figure about 11:00. Is that alright? Unless you want to meet before then?
JEFFREY BUTLER: No, 11:00 is good.
CHAIRMAN: Alright. Now I am a fireman in the Town of Mattituck, or the Hamlet of
Mattituck, so if you hear a fire whistle, I'll be delayed by fifteen or twenty minutes okay?
Well, I'll try and tell the Chief that I have to go, just so you are aware of that situation.
JEFFREY BUTLER: Okay.
CHAIRMAN: But I should be there about 11:00. Thank you.
JEFFREY BUTLER: Thank you.
CHAIRMAN: However, we are not finished questioning you, we are now going down
the line here. Mr. Dinizio?
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Town of Southold
MEMBER DINIZIO: No, I have no questions.
CHAIRMAN: No questions? Mrs. Tortora do you have any further questions?
MEMBER TORTORA: No I don't feel that.
CHAIRMAN: Miss Collins do you have any further questions?
MEMBER COLLINS: No I've made my point, thanks.
CHAIRMAN: And George we'll report back to you what we find on Saturday.
MEMBER HORNING: I think I'm forming a bit of a consensus with my colleagues with
regard to viable alternatives that should not be within two feet or closer on the property
line.
CHAIRMAN: We'll work something out.
JEFFREY BUTLER: Okay.
CHAIRMAN: Alright.
JEFFREY BUTLER: Fair enough.
CHAIRMAN: Let's just see what develops at the hearing here. Yes, ma'am?
DONNA BENDOWSKI: Good evening, I'm Donna Bendowski. If the garage is moved
to the east, it's going to encumber on our well. The driveway area will have to be
changed and that way it'll be the driveway will be sitting right on top of our, where our
well is. I would be concerned about that number one. That's what I have to say.
CHAIRMAN: I know, and of course down at the bay it's important to have the well
where it is because you never know if you're going to get good water any other place.
DONNA BENDOWSKI: Well, that's true. And actually when we bought the house four
years ago we had to dig this well and that was the best location for it. The original well
was under the house and that was not useable any longer.
MEMBER HORNING: One further question.
CHAIRMAN: Yes.
MEMBER HORNING: On this particular document could you give an approximate
location of the well?
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Town of Southold
CHAIRMAN: Again, if you are not able to do this at this time, you can do it.
MEMBER HORNING: Consider it approximate, anyway.
MEMBER DINIZIO: The best that you can.
DONNA BENDOWSKI: This is the island, is that right, right here?
JEFFREY BUTLER: Yes.
DONNA BENDOWSKI: It's at this end of the island.
MEMBER HORNING: Put an X where it is to the best of your knowledge
approximately where it is.
DONNA BENDOWSKI: Yes, there it is.
MEMBER HORNING: Alright, thank you.
CHAIRMAN: I should make this point for everybody, and I've very rarely have made
this statement; but we started at 5:15 tonight so if you see us popping things, we're
popping a couple of mints or whatever the case might be or chewing something, we
haven't had dinner. Thank you very much, I'll see you on Saturday.
DONNA BENDOWSKI: Thank you.
CHAIRMAN: Is there anybody else that would like to speak in favor of this application?
Yes, sir? Could you state your name for the record please?
JAMES MIKELBANK: Good evening, my name is James Mikelbank. I am a full-time
resident and I live in the home to the east of the Bendowskis. The proposed garage is on
the west side so it's not involved in my side of the property line, but I would just like to
point out that when the Bendowskis came out here four years ago, that entire piece of
property was really in a dilapidated state and they have redone the house. They were
summer residents, at that time. I don't think they had the needs or the concerns that they
do now. They have moved out here full-time and are now full-time residents. The
garage that is there has a new face on, has a new cover. They've put on cedar shakes to
match the redo of the home. But it's really dilapidated underneath. I would challenge
any of you to try to put a car of this day and age into either side of this garage. It's
something that was probably built in the 40's or maybe even earlier than that. Behind the
garage, on the other side the other property's owner, there is another garage. So it is not
in the living space of the property so to speak, incumbering or getting closer to that
property line. That's really dead area, would be between the two garages that are located
on the properties. Also, I think that moving the garage forward, their driveway is very
tough to make a turn. It is a circular driveway. Their property is very long and very
narrow, and to move the brick work and the pavement and their well location I think is
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Town of Southold
asking too much for somebody that's just trying to put up a garage to keep their cars out
of the winter. Thank you very much.
CHAIRMAN: Thank you sir. Is there anybody else that would like to speak in favor?
Anybody that would like to speak against? Seeing no hands, I'll make a motion closing
the hearing, reserving decision until later.
CHAIRMAN: Again, we'll be down for the inspection and we will deal with this
th
application on the 29 at our Special Meeting. Thank you very much for coming in.
SEE MINUTES FOR RESOLUTION
* * *
7:40 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. Wickham, Wickham & Bressler.
P.C.
CHAIRMAN: Miss Wickham how are you tonight?
ABIGAIL WICKHAM, ESQ.: Good evening. I have three things I would like to address
tonight. The first is the notice issue because one of the property owners did not receive a
mailing and I did speak to their office, I faxed them the notice but if the Board would like
me to obtain legal or
CHAIRMAN: Whatever you can. Fortunately we're in luck here because we'll hold the
th
hearing tonight, close it as a matter of right on the 29. So whatever you can get to us in
between now. We find that works out very nicely because it doesn't hold it over until the
next meeting.
ABIGAIL WICKHAM, ESQ.: There are two main issues I want to address tonight. First
of all, of course, the waiver of merger issue, and secondly, I need to then is come up with
relation to this hearing which pertains to wetlands on the property. As far as the waiver
application which is before you tonight, as you can see from the materials that we
submitted, the property has been single and separate from the adjoining lot for a long
time. There had always been two tax bills and the lot is shown on filed sub-division map
which was filed many years ago. The Jordans paid over $90,000 when they bought this
particular piece of property, separately from and at a different time than their residence.
The corporation which held Title to this property in the name of which they purchased it
was desolved some time later because they didn't want the expense of maintaining a
corporation. On that liquidation the two shareholders of the corporation, Mr. and Mrs.
Jordan, became the owners of this property. At that time, that was fine, because under
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Town of Southold
Section 100-12 the lot included exemption from any type of merger. However,
subsequently the Town appealed 100-12, and therefore the lots merged. But the same
legislation also provided us with this waiver of merger application procedure where for
which we are here tonight. The merge was not self created, it was the Town which
changed the law on that and they do have a vacant land C.O. which I believe you have in
your records. I believe that the property meets the criteria for waiver of merger for the
following reasons: It meets 100-24A1, 2 and 3 Lot Recognition Criteria in that it was
created in 4/19/83 and conforms to both schedules level A. Also, because it was
approved by the Planning Board and it was shown on the sub-division map approved by
the Board before 1983. It will not create a significant increase in density, as you know,
the Harbor Lights sub-division is a very populated area. I believe it's Mr. Reist
developed a number of years ago and most of the lots are built upon. Certainly the size
of the lot compares very closely to the size of the other lots in the neighborhood, in fact
it's probably larger than some but it's squarely as you can see form the tax map, within
the side that the other lots consist of. A waiver of merger will certainly avoid an
economic hardship, and this is an economic hardship because of the amount they paid for
it and the fact that if they're not allowed this separate piece of property, it's value will be
only a small fraction of that. The fourth criteria, that the natural details of the property
will not change and no filling will be allowed. There is a significant upland area and
fortunately there's a crude area in that upland that will illeviate a significant loss of
horticulture and trees on the property. I want to address, although I don't know how
germane it is quite frankly to the issue of merger. We're talking about whether a lot
should be created or not. But when I first saw the lot, I didn't notice if there were
wetlands on it, and as it evolved I asked Bruce Anderson, who is the Suffolk
Environmental Consultant, what his opinion was. He felt that those issues could and
would be a good ask in application at such time as the Building Permit were considered
before the Trustees and the D.E.C. Mr. Anderson could not be here tonight but there is a
representative from his office here who has a statement in that regard. I note that the
Trustees submitted a letter very late this afternoon pertaining to this application. I
wanted to ask the Board was that a request that you made of the Trustees?
CHAIRMAN: No to my knowledge.
ABIGAIL WICKHAM, ESQ.: Okay. I would like to say that letter kind of came out of
the blue. We were not aware of the Trustees were considering these issues and the
owners of the property did not have a floor in front of the Trustees to address this
question or their opinion on whether this merger should be created, and I'm not sure that
it's appropriate if they didn't have all of the facts, or that we would want them to have it
in order to make a determination and because there's no project before them that it's not
really an appropriate letter. In your consideration I ask you that you record await in light
of those facts.
CHAIRMAN: Unfortunately the letter does exist, Miss Wickham.
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ABIGAIL WICKHAM, ESQ.: The letter is there, my concern is that it was generated
without benefit of factors that the applicant may have been able to point out to the Board
in making their decision.
CHAIRMAN: I understand that, but wouldn't it make sense to, that's not a sarcastic
statement, I assure you. Wouldn't it make sense to have some environmental concern
look at it and determine what percentage of the land would be wetlands?
ABIGAIL WICKHAM, ESQ.: First of all, I believe it's shown on the map, and second of
all I do have someone here from Suffolk Environmental who is going to address that,
absolutely. And more importantly I think the Building Permit process is certainly going
to have to go before the Town Trustees and the D.E.C. and considerations upset that,
______ and facts, mitigating factors, value of the wetlands, all of those issues will have to
be fully explored before those agencies. The questions of tonight is, is there a legal lot?
The next question would be is a lot that a project would be approved on from all of the
various factors including the Health Department.
CHAIRMAN: That's correct. I don't see any transmittal letter from our office, I think it
might have been self-initiated. We'll start with Mr. Dinizio. Any questions?
MEMBER DINIZIO: Yes, I agree with you that all those other issues should be exempt,
we're just looking at whether or not these lots have been merged and whether you, and
granted you've given us enough evidence that can unmerge them. I have to ask you, what
specifically made these lots merge. What specific action?
ABIGAIL WICKHAM, ESQ.: This particular action was the appeal of 100-12 of the
Code which authorized or accepted from merger lots on specific subdivision maps in the
Town, of which Harbor Lights Section 3.
MEMBER DINIZIO: This corporation was dissolved before the merger law.
ABIGAIL WICKHAM, ESQ.: Before the merger law repealed 100-12. That's correct.
So when went with the same name as the house lot next door, they were okay, they were
still separate lots.
MEMBER DINIZIO: They were still separate lots?
ABIGAIL WICKHAM, ESQ.: Yes they were.
MEMBER DINIZIO: Because they were on an accepted lease.
ABIGAIL WICKHAM, ESQ.: That's correct.
MEMBER DINIZIO: And then when they had the merger law in 1997
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ABIGAIL WICKHAM, ESQ.: In 1997, and there was a period of time after that went
into effect, but many people didn't know that that had to happen and that's probably one
reason the Waiver of Merger application.
MEMBER DINIZIO: I'm going to ask you this question, because I've been asking this
question lately okay. Do you know if you're clients subscribe to the Suffolk Times?
ABIGAIL WICKHAM, ESQ.: I don't know. I would guess that they probably do, but I
could also tell you that at the hearing on that law one of my concerns that I voiced was
that the people wouldn't get.
MEMBER DINIZIO: That's exactly why I ask that question. I've been doing it lately.
So just to make sure that we're on the right track, we're not worrying about the Trustee
letter at this pointing time. That will be worried about when you apply for a Building
Permit or whoever has this lot applies for a Building Permit, is that correct?
ABIGAIL WICKHAM, ESQ.: Oh, I don't think there's any question that there are
Trustee issues that have to be addressed at that time.
MEMBER DINIZIO: In my opinion, and I'm asking you as a lawyer, my concern is not
that right now. My concern is just the fact if this is a legal lot right now.
ABIGAIL WICKHAM, ESQ.: I think that's correct. This is a lot existing for creation
issue and the criteria that the Board has given the Code, I believe met without the
consideration of the Trustees.
MEMBER DINIZIO: And this certainly, our approval if we so chose, does not
necessarily make this a buildable lot.
ABIGAIL WICKHAM, ESQ.: That is far from the end of the line. That's correct.
MEMBER DINIZIO: Okay. Thank you.
MEMBER COLLINS: Can I make a comment Mr. Chairman?
CHAIRMAN: Sure.
MEMBER COLLINS: Actually as a practical matter, Ms. Wickham, when I have to
write one of these things and I come to that criteria about the natural details and
character, will it be significantly altered in any manner, will not be substantial effecting
nearby environmental areas, and I must say I always rely on the fact that the Trustees
have looked at the property; and say, if they've looked at the property, I'm certainly not
going to worry about that. So there's a little bit of uneasiness if we feel that the legal lot
elements of this are quite straight forward and the equities, I think are _____. A little
uncertainty about whether maybe our hearts need to hear a little more about the
environmental angles; not in opposition to this letter from the Trustees, but kind of what
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your environmental guy has to say before we are asked to pass on this. It would make
my conscience clearer.
ABIGAIL WICKHAM, ESQ.: My only concern there is I don't have a house proposal to
give specifically that in general I think that will be addressed. I also have to mentioned
that these wetlands were, in Mr. Jordan's, initially created or augmented by the fact that
the subdivision to the rear was allowed to exist with a so-called naturalized recharge
basin and who has been in syndication of the Town since the early 80's about how that is
expanding. Again, that's another issue that I think is a concern. I'll mention it here,
although that will have to come up further in specific environmental context in another
forum.
MEMBER COLLINS: Okay, I just wanted to express my concern.
MEMBER TORTORA: Who was the sunset clause on the exception, do you know Gail?
AGIGAIL WICKHAM, ESQ.: 1997 I think.
MEMBER COLLINS: 1/1/97, it's in my notes.
MEMBER TORTORA: For the exception law?
MEMBER COLLINS: The death of Section 12 was 1/1/97. Which was like about a year
and a half or so after the merger law. That was the interregnum where you could
discover that you were going to get caught in the merger law.
MEMBER TORTORA: So theoretically your loss hasn't been suffered until 1997.
MEMBER COLLINS: My notes say that the Jordans bought the improved lot in
February of '84, and they bought the vacant lot, the one we're talking about, in '88 as
Triple Oaks. Then in the end of '89 they dissolved Triple Oaks, so the names on the two
lots became identical, and you made the point that until 1/1/97 that was fine. And 1/1/97
came and went and then it wasn't fine.
CHAIRMAN: Back to Mrs. Tortora.
MEMBER TORTORA: I was surprised to see the letter from the Trustees also. I was
not aware of it. I'm a little concerned about it, however, because one of the criteria that
we are to look at is whether it will effect the environmental. You were very short on
avoiding an economic hardship, provided us with no numbers on that. Could you do that
for us?
ABIGAIL WICKHAM, ESQ.: They purchased the lot for $95,000. That was at the
market at the time. I think someday the Board can take notice that in the event that this is
not a buildable lot, and their house is entirely on the other property it does not really
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relate to that, that the property would be worth, as I said, a very small fraction. If you
would like a little state appraisal to tell you what I think that is, I would estimate in the
neighborhood of maybe $22,000.
ABIGAIL WICKHAM, ESQ.: As a sideyard, with wetlands in the back, I think that
there would be a limitation on how many accessory structures you can even put on this
property, because they could not be in the rear yard even it might be the house which is a
little bit back.
CHAIRMAN: Mr. Horning?
MEMBER HORNING: Perhaps you could tell us again, briefly why your clients when
they bought the vacant parcel bought it under a corporation name and what their intent
was.
ABIGAIL WICKHAM, ESQ.: They bought it under a corporate name probably for
investment and tax purposes. I didn't represent them at the time, but their attorney
advised them to buy it. But it became an issue of carrying a corporate expense that
wasn't necessary.
MEMBER HORNING: I mean some people buy the adjacent lot to save it from
development. Would that be the case here?
ABIGAIL WICKHAM, ESQ.: If you would like Mr. Jordan to testify, he can specify
that he bought it for investment with a view toward selling it. And I think the fact that he
paid that price would bear that out.
CHAIRMAN: Okay, we're ready for any other presentation you have.
ABIGAIL WICKHAM, ESQ.: If you could just give me a minute to respond to Mrs.
Tortora. The first criteria talks about the natural details and character of the contours and
slopes of the lot. This building would not occur in that back area, that's why it fits that
criteria while it's appraised in an environmental context didn't specifically __________
_________ and certainly there would not be substantial filling of land.
CHAIRMAN: Thank you. What else do you have to present to us?
ABIGAIL WICKHAM, ESQ.: I would like to ask the gentleman from Suffolk
Environmental to make a statement.
CHAIRMAN: How do you do sir, could you.
MATT IVANS: I'm from Suffolk Environmental for Bruce Anderson. Suffolk
Environment could not appear here today so he would like me to read a brief statement
for the record concerning this project. We stake our firms flagged lot on the survey, so it
would be more accurate. I do know that wetlands are regulated by the D.E.C. and
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Southold Town of Trustees. The jurisdictional benefit is 100 foot for those agencies as
we do now. These are the State fresh water wetlands actually the Town Wetlands with
specific minimum setbacks from what those agencies regulate within the 100 foot
jurisdictional area we seemingly issue permits for dwellings within 100 foot of wetlands
and it is our opinion that pushing up land exists on this parcel for the starting of
construction of a moderately sized single family dwelling with the essential development
of this parcel within keeping of the area.
CHAIRMAN: We're not specifically going to ask you questions, is that correct? Are
you going to make a statement or are you familiar with the property?
MATT IVANS: That was my statement.
CHAIRMAN: Okay. If we have any other questions we'll refer them to counsel. Thank
you sir. Any other questions of counsel before we continue with this hearing? No. Is
there anybody else that would like to speak in favor of this application? Sir? State your
name again, for the record?
TOM JORDAN: My name is Tom Jordan. I'm not really here to discuss the lot lines or
the legalities; but I would like the Board to take literally the understanding that failure to
demerge would be, for us, quite a severe financial impact, specifically the sale of this lot
was planned as part of our retirement income. I purchased it, as you know now, in 1989
strictly as an investment. I've made no improvements on it at all. My intent then, as it is
now, was to sell the lot. Had I been aware or notified that such an apparatus as merging
even existed, I would have acted to protect my investment then. I found out about
merging when I had someone come forward who wanted to buy the lot. At that point,
they found out they couldn't sell it. I'm not a developer, I've lived in Southold for twenty
years at the same location. I did what many of you and other people have done. I
invested in real estate for the future, and the future is here. I just hope that you understand
that situation and realize that we need the demerger.
CHAIRMAN: Just so you keep this on the straight and narrow, raise your right hand.
The information you gave us is the true to the best of your knowledge.
TOM JORDAN: Yes, it is.
CHAIRMAN: And your name is?
TOM JORDAN: Thomas Jordan.
CHAIRMAN: Thank you sir. Is there anybody else that would like to speak in favor?
Anybody like to speak against? Hearing no further comments, seeing no further hands,
I'll make a motion recessing this for the purpose of closure on 11/29 at 6:30 at our Special
Meeting. Thank you.
ABIGAIL WICKHAM, ESQ.: Thank you. I offer that as a Resolution.
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Break at 8:05 – reconvene at 8:10 p.m.
SEE MINUTES FOR RESOLUTION
* * *
8:10 p.m. Appl. No. 5022 – CATHERINE LYNCH with Power of Attorney for JANE
BEAR. This is a request for a Variance under Article IIIA, Section 100-30A, based on
the Building Inspector's September 4, 2001 Notice of Disapproval which states that the
"as built" greenhouse and frame shed addition to dwelling do not meeting the minimum
50 ft. rear yard setback requirement. Location of Property: 374 Wampum Way,
Southold; Parcel 1000-87-2-37 & 38 (combined).
PATRICIA MOORE, ESQ.: Hello, do I look like Mr. Howe?
CHAIRMAN: No.
PATRICIA MOORE, ESQ.: Mr. Howe, who I believe is the attorney who submitted the
application for Lynch and Bear, he had called and asked if I would appear on their behalf
so I am before you this evening. We have the application here which is actually a result
of the sale of the property, and it was discovered that a Building Permit that was issued
back in 1976 never came with a Certificate of Occupancy and for that reason Mr. Bidell,
who is here as the purchaser, has a contractual obligation to the party as the seller will
have to proceed in getting a Certificate of Occupancy for that greenhouse. Unfortunately
for the seller and the buyer the Code requires a fifty foot setback to the property line for
this structure, and the structure is at twenty-nine feet. When we investigated the Code,
the architect actually was researching the history of this property it would seem to me the
________ who issued the permit may have considered this actually as a side yard rather
than as a rear yard. The reason we think this is that the Building Permit application has a
ten foot setback. That clearly would have been a side yard setback at the time. Mr. Terry
is still around, but no longer the Building Inspector and the current Building Inspectors
look at this as a rear yard. That creates the difficulty and the reason we're here this
evening. It is important for both parties to get a Certificate of Occupancy for this
structure. A denial by this Board would result in a financial penalty to the seller, and
certainly a hardship to the buyer because it is a structure that they would like to retain. It
has a full foundation around it. They did obtain, again now because we're the
application for a C of O, under today's laws the seller had to go get approval from both
the Town Trustees and the D.E.C. The D.E.C. recognizes structures existing prior to
their regulations and grandfathered in. The Trustees granted the permit and now you're
the last hurdle to obtain a Certificate of Occupancy. It is a pretty straightforward
application, but if you any questions, Mr. Bedell, Nancy Steelman is here, as the architect
and I will try to answer any questions you have.
CHAIRMAN: Well the survey is accurate at the twenty-nine feet four inches the rear
property line. Is that correct?
PAT MOORE, ESQ.: It would appear to be accurate. I have to rely on the surveyor.
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CHAIRMAN: I went down and looked at the parcel on a very nice, brisk Saturday. I
could see why they would want to face the greenhouse in that location. I have no
objection to the application. Mr. Horning, any questions?
MEMBER HORNING: No, I'm afraid not.
CHAIRMAN: Mrs. Tortora?
MEMBER TORTORA: No.
CHAIRMAN: Miss Collins?
MEMBER COLLINS: I take your point about how the Building Permit application back
in October 1976 suggests that since the Building Permit was duly granted that it was
considered a side yard. This drawing on the Building Permit is not exactly to scale. It
shows a ten-foot setback that looks to be bigger than the twelve-foot side of the building.
It's not very good, but I think I'm willing to go along with the suggestion that, it actually
might not be ten it could be a sixteen or fifteen, but I think your suggestion holds water
that it was treated as a side yard and they thought they were doing what was appropriate
and it has certainly existed there for twenty-five years looking quite attractive. So that's
where I come out.
CHAIRMAN: Mr. Dinizio?
MEMBER DINIZIO: Nothing
CHAIRMAN: We'll see what develops throughout the hearing, we thank you. Again, we
th
may not get to it tonight. It will probably be addressed on the 29 at our Special
Meeting.
PAT MOORE, ESQ.: Okay, thank you.
CHAIRMAN: Is there anybody else that would like to speak in favor of this application?
Anybody that would like to speak against the application?
CAROL ANN SAUER: I would like to speak but not in favor or against.
CHAIRMAN: Okay, we'll entertain that.
CAROL ANN SAUER: I have a question.
CHAIRMAN: Hopefully we can answer your question. Could you just state your name
for the record.
CAROL ANN SAUER: Carol Ann Sauer, and I am the property just east of the property
that Bedell. So the twenty-nine foot, the structure that is twenty-nine feet off the property
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line is twenty-nine feet from my property line. I built my house in 1984. The greenhouse
was already there. The greenhouse is a low structure, glass and you can see through most
of it. I have no objections to the greenhouse, it was there before I was there. I also retain
a right-of-way over the Bedell's property and to walk from my property to the beach, I
walk right past that greenhouse. My question to you is if a variance is given for this
existing structure, does that also apply to anything else being built on that property there,
on that particular spot? I have no objection to the greenhouse, but if it turns out to be a
structure that's taller, that is not windows, it just seems to me that the greenhouse, it
would be a totally different picture from my point of view.
CHAIRMAN: You raised a very interesting question. The Board tends to, at times, put a
restriction on it that the greenhouse shall remain in its present entity and any replacement
of that would require the applicant to come back with another application.
MEMBER COLLINS: And could I add, to do anything structurally to the greenhouse,
now say for instance, to turn it into a closed porch or something more solid, would
require a Building Permit. They'd have to go to get a Building Permit. When they went
to get a Building Permit they would run into the fact that the setback does not comply. If
we okay the setback for the greenhouse so they can get the C of O that they need, that
does not in any way give them an okay for a setback for a different building on that site.
We, in fact, write that into our decisions. We say this decision does not address any other
non-conformities present or future. So I think that answers, we are aware of your
problem and I think we try to address.
CAROL ANN SAUER: I just don't want that greenhouse to turn into a two-story
structure. Okay, thank you very much.
CHAIRMAN: Thank you. Is there anybody else that would like to speak? Seeing no
hands, I'll make a motion closing the hearing reserving decision until later. Thank you
for coming in.
SEE MINUTES FOR RESOLUTION
* * *
8:17 p.m. Appl. No. 5024 – ROBERT RUTKOSKI. This is a request for a Variance
under Article III, Section 100-33, based on the Building Inspector's September 12, 2001
Notice of Disapproval. Applicant is proposing to construct an in-ground swimming pool
in a yard area defined by the Code as front yard. (The Building Department confirmed
that this lot has two front yards and two side yards, and that the Code does not define a
rear yard for this parcel based on its frontages.) Location of Property: 11165 C.R. 48,
Mattituck; Parcel 1000-108-1-2.
CHAIRMAN: Good evening sir, how are you? Could you state your name for the
record?
ROBERT RUTKOWSKI: Robert Rutkowski.
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CHAIRMAN: Would you tell us why you're here Mr. Rutkowski? Of course we know
that, but I have to ask the same question anyway.
ROBERT RUTKOWSKI: I would like to construct an in-ground swimming pool in the
rear of my house which the Town says I have two front yards.
CHAIRMAN: We've been in dispute of this for years and usually it comes up in Nassau
Point, but it happened this time in Mattituck. At no time are you anticipating enclosing
the swimming pool, right? Is this a liner pool or a gahnite pool?
ROBERT RUTKOWSKI: It's a liner pool.
CHAIRMAN: I have no objection to your application. We'll start with Mr. Dinizio, any
questions?
MEMBER DINIZIO: No, no objection at all.
CHAIRMAN: Miss Collins?
MEMBER COLLINS: No it's a rational spot and certainly operational, it is your rear
yard.
CHAIRMAN: Mrs. Tortora?
MEMBER TORTORA: You have a very common problem, you have two front yards. I
do not have any problems with it.
CHAIRMAN: Mr. Horning?
MEMBER HORNING: I'm curious, on the one diagram that we have here it has a
proposed dwelling that exists now?
ROBERT RUTKOWSKI: Yes.
MEMBER HORNING: And you did not apply for a pool at the same time?
ROBERT RUTKOWSKI: No I didn't.
MEMBER HORNING: Thank you.
CHAIRMAN: Robert are you going to do any screening around the pool?
ROBERT RUTKOWSKI: What do you mean screening?
CHAIRMAN: Bushes or anything like that.
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ROBERT RUTKOWSKI: Yes there up now, I don't know if you looked at it.
MEMBER TORTORA: On Middle Country Road, on 48.
ROBERT RUTKOWSKI: Yes, along 48.
CHAIRMAN: If you intend to deviate from that side yard of the house at 47 would you
please call us back and let us know when we write it in the decision. So in other words, if
you intend to move it over to 45, if you kept that complete line like you've drawn it in,
then there's no problem. But, think about it tonight and call us back before the end of
next week or so, so that we can write it in. Okay.
ROBERT RUTKOWSKI: Thank you.
CHAIRMAN: 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. We'll have a decision for you in about two weeks.
SEE MINUTES FOR RESOLUTION
* * *
8:20 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 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). Patricia Moore, Esq.
CHAIRMAN: Are any of you representing? Oh Pat Moore is that's right. Thank you.
PATRICIA MOORE, ESQ.: The problem here, as you are well aware, is that an
application was made by North Fork Country Club to put an addition, an extension on the
existing maintenance shed; and we were looking at the time frame that was involved and
the Building Permit Application was dated November 13, 2000. The Building Permit
was issued March 8, 2001. At that time they ______the property and they started
construction. It was after the building was 75% completed that the Building Department
sent a Notice of Disapproval essentially stopping the job and issuing the decision that's
being appealed today, which was issued September 7, 2001. You can imagine that this
was quite a surprise North Fork Country Club. They relied on the Building Department
to issue them a permit, certainly they had time to review the application. I can
understand what happened at the Building Department which was that they look at
schedule with respect to setbacks, and the setbacks here which show, I think you called it
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a rear yard, but it certainly could be considered a side yard since you have the Main
Road as a front yard setback and Linden which is also a front yard setback. Looking at a
side yard requirement, the requirement in R40 which is where the structure is situated
would allow a setback that would be anywhere from fifteen to twenty. The application
was made for a structure that is at 22 or 23 feet respectively. That's where the problem
arises. I have certain issues with respect to how the Code reads, and my first argument is
that under 102-42 this building is considered a pre-existing, non-conforming structure
with a conforming use. Back in 1985, North Fork Country Club, after the fire, obtained a
special permit for the use of the Country Club. It also incorporated all the other buildings
associated with the Country Club including the maintenance shed, because the
maintenance shed was being used, the front of the shed, is being used for overflow
parking. So the use itself is a permitted use. In the Code it says that nothing in the
Article shall be deemed to present the enlargement of a non-conforming building
containing a conforming use. So, right off the bat, this building is permitted to be
expanded as of right. The interesting thing here is that original maintenance shed was
only, I don't even know if it was a foot from the original property line. The objectants
sold the property to the North Fork Country Club, the piece that is presently where the
addition is situated. Sold the property to the North Fork Country Club, which time the
purchase was intended for the purposes of giving the Country Club room for expansion
and, in particular it's attached to the maintenance shed, therefore, that whole area is being
used as part of the maintenance operation. The existing equipment, which is now being
held inside the building was placed on the outside of the building. So the situation has
actually improved in that now the equipment is protected in this house and it is out-of-
sight. The new building, or the addition to the existing building is now at the twenty-two,
twenty-three foot setback, which is actually an improvement on a non-conformity. The
Building Department looked at the language of 131D which deals, specifically paragraph
seven, with the country clubs. But it mentions, it lists all of those particular uses, gold
clubs, membership clubs and so on. I'd ask you to read the language very carefully,
because it's interesting language that could be read in such a way that this building, the
conditions of the 50 foot setback would not apply. If you look at recreation buildings and
maintenance buildings catering exclusively to members and their guests subject to the
following requirements. That's when you look at the 50 foot setback that caused the
Notice of Disapproval to be issued. If you look at the language, it seems to imply that it's
buildings that are being used by the members. Those buildings are the ones that are
being considered for a 50 foot setback. In other words you're trying keep the activity of
the membership away from the property line, rather than what we have presently which is
strictly the maintenance shed. There is no reason for the public to go into the building
other than the front which is the overflow parking which tends to be more for the staff
and the workers than it is for the membership because that's the worse part. If you look at
the language there it would seem to imply that its taking care of all of the uses, all of the
Country Club uses, certainly its implied that its all on one piece of property given the fact
that there is an acreage requirement as part of this use. And the intention of keeping the
activity away from the property line. I don't believe that is applicable in this case, the
activity that is being conducted here is exclusive to what would be a sod farm or
essentially maintenance equipment that is cutting the grass. What I would also like to
point out is that certain alternatives were considered. An alternative of a lot line change
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with the neighbor in a way that would give them greater front yard, and in exchange for
rear yard. That proposal was rejected in part by the consultant meeting with the Building
Department and also by the neighbors. It just wasn't desirable and it would have required
several actions both by the Planning Board and possibly by the Zoning Board. Another
alternative that could have been applied here is to extend the addition of the maintenance
shed along the road, but that would run the fowl of the 60 foot rule. So regardless of
which method would have been applied here, we would've ended up before this Board.
Certainly this alternative is the least intrusive method because from the Main Road it is
ninety some feet, from the Main Road it is 96 feet and certainly it could be screened from
the Main Road. It is not visible from Linden Avenue, behind the building. So as far as
the impact and the effect on the character of the neighborhood, it is essentially not visible
to the neighbors. The only person who is effected here is the one neighbor, Mrs.
Surozenski, but again that piece of property was sold by that family to North Fork
Country Club. Part of the problem is that the Surozenski's house is a few feet from the
property line, even though if you look at the tax map the property itself is quite wide, it's
wider than the parcel that was purchased by North Fork Country Club. But the fact is
that the house, a pre-existing, non-conforming structure is in another _______, and its
setback very few feet from the property line. So the hardship in a sense, is self-created.
The house is there and there's nothing that can be done about it. At this point, because
the Building Department made the mistake, whether or not they made a mistake is still to
be considered because if you read the language in the Code it could be that you interpret
this as not requiring a Variance altogether. Let's assume that a Variance is required, that
mistake cost North Fork Country Club it doesn't cost the Town a dime. They have almost
completed the building there, about 75 – 80% completed. They have expended, so far,
about $75,000. The demolition costs of this structure would be in the range of about
$15,000, so they're looking at $90,000 in expense, all based on a Building Department
error. Which was discovered ten months after the issuance of the Building Permit. For
you and me, if we objected to something that you did, we'd have sixty days in which to
complain. When the Building Department does it, it's arguable whether I'd like to look
into the issue but. But certainly the equitable argument and the legal argument should be
considered here. There is a certain amount of fairness that you rely on the Building
Department and you spend money in relying on the issuance of the Building Permit and
then to discover that they're in error and the impact on the applicant. We have several
members of North Fork Country Club here, and if you have any questions I'm sure they'll
be some issues that are raised and I'd like the opportunity at this time.
CHAIRMAN: Before you leave Mrs. Moore, I had the distinct pleasure going down and
looking at the site. I had a discussion with the superintendent, Mr. Rod Dickerson, who is
present tonight. I also had a discussion with Mr. Stype, who's the incoming president of
the North Fork Country Club. I discussed with Mr. Dickerson the overall use of this
facility. He has indicated to me that it is for dead storage. That it will not contain any
heat. That it will contain some lights and the purpose of the building is to store
equipment that is presently outside, extensive equipment that is specifically left outside
because they don't have room. It is therefore not, to my knowledge, a mechanical
facility. A mechanical facility is the facility around the corner. When looking at this
building I saw no door leading into the mechanical facility. I saw only doors on the
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exterior of the building, planned doors, the doors weren't up the floor of course is not
poured. I, therefore, am going to view it and unless I am incorrect about this
interpretation as being a storage facility. I am going to get even a little more technical
than that and that would be that if a mechanical unit was placed in that facility and the
battery went dead, the greatest thing that you would see there either one of those new
jump things that they use to jump the battery, or some other vehicle or unit that went over
to start the machinery to move it out of that building and bring it around to the
mechanical side of the building. Is that correct to everybody's knowledge?
PATRICIA MOORE, ESQ.: Yes.
CHAIRMAN: I just want to make that clear because I want the Board to be aware of
that situation and that was my discussion with Mr. Dickerson and Mr. Stype.
PATRICIA MOORE, ESQ.: And you raised an important and very astute point which is
that when you look at the definition or when you look at the language of 131B it talks
about maintenance building and this is essentially not what they're describing is not a
maintenance building, it's a storage building. Therefore, as an additional argument in
support of this application that that type of storage building is not even, is not considered
as one the type of structures that would require the fifty foot setback. And the Building
Department was, in fact, correct when they first issued the permit that the setbacks were
appropriate given the Zoning Code and it's schedule.
CHAIRMAN: Not to reiterate again, I see no mechanical facility in the building for the
purposes of heating. I don't even see significant electrical drops for the purposes of
anything other than to plug in units if they had to be heated for any particular reason or
whatever the case might be, the unit itself not the building itself.
PATRICIA MOORE, ESQ.: Also in support of what you just said there is a very good
photograph here that shows the inside of the building and the vehicles that they are
storing in there. It is precisely what you described, there is no mechnical equipment at
all, the only thing that you see are overhead garage light, just the box that is the automatic
door opener. So I would like to put into your record a photograph of the inside of the
building, as well as, we have exterior photographs to show the setback that's in question.
CHAIRMAN: We'll start with Mr. Horning, any questions of these gentlemen up here or
counsel?
MEMBER HORNING: Sure, just briefly, the application for the Building Permit is dated
November 13, 2000. The Building Department approved it, August 8, 2001
PATRICIA MOORE, ESQ.: March.
MEMBER HORNING: Alright, that answered one of my questions. Then they went
back and re-considered it, and in September this doesn't go.
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PATRICIA MOORE, ESQ.: I don't really, I don't know what prompted them to look at it
again. But when they looked at it, they reconsidered it. Keep in mind that during this
period of time, we had a change of Department Heads at the Building Department. So
certainly what one Department Head considered it in the Code, the other Department
Head disagreed.
MEMBER HORNING: Those variations of interpretations with individuals within the
Building Department might have contributed to that.
PATRICIA MOORE, ESQ.: That's certainly a possibility.
CHAIRMAN: Mrs. Tortora?
MEMBER TORTORA: I'm a little puzzled on one thing. The Building Department is
treating this as a principle building?
PATRICIA MOORE, ESQ.: I don't know, keep in mind that it's unusual that it's pre-
existing, sits separately on a piece of property that again, was subject to special permit, so
now it is a permitted use. So whether it has, it is considered a principle building or an
accessory to the golf course, it doesn't seem to, it wouldn't differentiate with respect to
the Schedule A that is applicable. We either have the Schedule A that deals with an R40
zoning district in a setback. I've looked at the setback requirement, even as a principle
building, the setback as a Schedule A. So it would fit under that criteria. The problem
arises where they look at the under the definition of, under the conditions of a club, it has
that fifty foot setback from a lot line and regardless of what you call it.
MEMBER COLLINS: In other words it's the requirement in the Special Exception that
raises the setback issue.
PATRICIA MOORE, ESQ.: It's under that particular use.
MEMBER COLLINS: It's under the use read by a Special Exception, and your
contention is they got Special Exception covering the whole property, not withstanding
the fact that Linden Lane runs down the middle. And they got that at the time they had to
rebuild after the fire. I just want to make sure that's what your point is. And what you're
saying is, if this thing that they're building is not subject to the Special Exception rules
then it matters not from a setback point of view whether it's a principle or an accessory, it
works either way. It's the requirement for a Special Exception that the Building
Department says applies is what creates the problem there. Is that right?
PATRICIA MOORE, ESQ.: Yes well, in a sense that they're looking at it as a
Maintenance Building under the umbrella of the uses that are listed in that under the
Special Exception, as a Maintenance Building. That's the only reason I can understand
why they changed their mind. They looked at that and said oh, maintenance building,
oops, we made a mistake.
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MEMBER TORTORA: What would be the difference, is it a maintenance building or a
storage building?
PATRICIA MOORE, ESQ.: Well they specifically say maintenance building or in the
Code it says maintenance building, it doesn't say storage building. I'm not even sure that
maintenance building is intended to apply to this scenerio, only because it's intended to
be all part of the same property. It is maintenance building where the guests could
congregate or could visit. I think that that's what the language in that position would
seem to apply. How it could be interpreted, but Chairman Goehringer points out that if
it's not a maintenance building then it's some kind of a storage building. That's definitely
not listed in the Special Permit list of uses, as requiring a fifty-foot setback.
MEMBER TORTORA: I'm just having difficulty understanding why it's not an
accessory building.
MEMBER COLLINS: Because it's not on the same lot.
CHAIRMAN: And it's merged to the mechanical building, which is really an accessory
building. It's probably in normality it's a primary structure. It's the only primary
structure on that piece of property.
MEMBER TORTORA: What is a garage? A garage is a storage building for cars. This
is a storage building for equipment.
CHAIRMAN: Look at the reality of the property again, okay. The reality of the
property was that we had two uses there. We had a piece of property in front of you, I'm
giving you some historical background. A piece of property in front with a gas station,
okay which is now a real estate agency. In back of this building, with all of it's changes,
it's always been a mechanical area for North Fork Country Club, since it's inception.
Sure it's gone through transformations and changes, but does it house people? Not for
overnight use, but it does house people on a daily basis for mechanical use. So, in effect,
it's like a garage, an auto car garage, in which they fix tractors and all the things they use
functionally for the golf course.
PATRICIA MOORE, ESQ.: Except the addition is for dead storage.
CHAIRMAN: Okay, we go on to Miss Collins.
MEMBER COLLINS: Just a property question. You told us that the land, the westward
part of this parcel was purchased by the Country Club from the Surozenskis and I have
the assessors card and it looks like that was in 1990. That is, I'm just getting the jest of
how the pieces fit together. That's the parcel that on the tax map shows up as four. But
then we see that earlier last year the club shows to merge 4, 8 and 7.1 and it's now called
8.1 and it's now all one parcel. That's what we're looking at I do believe. Because this
survey, with the nice picture on it, refers to county tax map parcel 109-3-8.1 and that's a
merger of what had been smaller pieces.
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PATRICIA MOORE, ESQ.: And also, historically, just keep in mind there was a
homestead on the property and some other accessory structures.
MEMBER COLLINS: But the parcel that was sold by the Surozenskis to Country Club,
ten or eleven years ago, is that nice skinny rectangular strip running down from Main
Road on which this addition is now being built with twenty something or other feet
between it and the property line. I just wanted to make sure I got that straight. Okay,
thank you.
CHAIRMAN: Mr. Dinizio?
MEMBER DINIZIO: I'm still confused as to why it just isn't an accessory structure, but
it's clear that either way it meets the setbacks. I'm puzzled as to the reason why anybody
would change their mind. That's all I have.
CHAIRMAN: Thank you. We'll now go on to the remaining portion of the hearing. Is
there anybody else that would like to speak in favor of this application? Is there anybody
that would like to speak against this application? Mr. McLaughlin how are you tonight?
KEVIN MCLAUGHLIN, ESQ.: Very good thank you, how are you? I have some, a
letter and some exhibits that I would like to hand up copies to the Board. I represent the
Surozenskis who own property immediately to the left of the subject property. After
listening to the presentation, I think we have go back to the law that is on the books, the
one that caused the problem in the stop work order and that is Section 100-31B7. If you
look at the law it is clear what the setback is for buildings on gold course property. It is
fifty feet from any property line. How a Building Permit was ever issued here is beyond
my understanding. I cannot believe it. It says any building must be set back at least fifty
feet from any property line except the street line, it has to be set back 100 feet. And
when you think about it, it makes perfect sense. And particularly for this building it
make perfect sense. The idea that this building is not obtrusive is ludicrous. Anybody
who has been to this property and seen this 90 x 28 foot building within 22 feet of the
property line knows how obtrusive it is from my client's property. The law is clear, the
Building Department made a big mistake. But we can't go back now and start arguing,
because it doesn't matter. Is this an accessory building, is it a principle building, what is
it? What is it used for? It doesn't matter, the Code is clear. It must be set back fifty feet
from any property line. This building, this huge building, in and out of which constantly
run backhoes and tractors and maintenance equipment from early in the morning when
golf courses start until later on into the evening, is within twenty-two feet of the property
line. They have four huge bay doors opening up on the west side of their building right
onto my client's residence. In order to access those four doors, they swing these big
pieces of equipment around and, in fact on occasion, cross over the property line in order
to get access to this building. To label that non-obtrusive is beyond my imagination. I
can't believe that anyone would ever say that. Let me give you a little history of the
relationship between North Fork Country Club and my clients. My clients sold them the
piece of property that we're discussing and if you look on the copy of the survey attached
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to a letter from the Country Club of February 19, 1999, you can see that strip of
property half of which has been colored in and the remaining part runs to the south from
there. My clients sold them that property. It was not the intent of my clients to sell them
that property so that they could put a huge building on there. They knew, and in fact,
represented the North Fork Country Club knew what the setback was to put a building.
After my clients sold them the small strip, somewhere in the mid 1990's the Country Club
came to them with the idea of possibly doing a lot line change. Whereby my clients
would end up with all of the road frontage on the main road and they, being the Country
Club, would end up with both halves of, the back halves of both of those parcels. So we
would have a parcel, a much lighter parcel up front, they would have a wide parcel in the
back. The reason for that was obvious, they knew they needed a parcel like that in order
to be able to build what they wanted to build to house their equipment. My clients owned
the property, Mrs. Surozenski with her brother at that time, there were some discussions,
they weren't sure they wanted to do this property switch. If you look in the hand out that
I gave you, to a letter that the North Fork Country Club sent to my clients in February
1999 to the survey attached, that's when they made a formal offer to make this lot line
switch. My clients had balked at it, but they made this formal offer. If you look at the
bottom of the first page of that letter, you'll see the path that the Country Club has taken
from the very beginning. Let me quote from that letter, "should we fail to achieve our
objective detailed above," which was that property line switch, "it is our intention to
utilize the entire property we now own as storage and/or parking for club employees with
the driveway entrance from Main Road. A not very veil threat, you better do it the way
we want to do it or we're going to use our property to the most disadvantageous possible
use for your property. They made that threat to my clients in 1999, they came to me and
they said, we're thinking about making this lot line switch, but we really don’t like the
way we're being approached and being bullied. I had discussions with an attorney
member of the Country Club at that time, and I indicated to him, A) my clients didn't like
the approach that was being taken, and B) they didn't like this threat that if they didn't go
along with it they were going to utilize their property however they chose to and it didn't
matter what detriment it had to us. I discussed with him the fact that you couldn't use that
property for those purposes. You couldn't open storage of your equipment within twenty-
five feet of a property line that the Town Code provides. I discussed with him the fact
that there were setbacks and that setbacks for Golf Course Buildings were much more
substantial than setbacks for regular properties. We have to get away, this is not a
regular property, it's treated specially. It's Country Club property, it's a fifty foot setback.
My clients decided at that time not to go along with this proposed lot line change. About
a year later, the Country Club sent a letter to my clients, this is on April 25, 2000, the
height of the real estate market on the North Fork, offering to purchase their property for
$90,000. Again, a low ball effort to try to get the property away from my clients. My
clients ignored that. Sometime thereafter and before anything started in the way of
construction on the property, my clients went, the brother was no longer part of the
ownership of the property and my clients went back to the Country Club and said, you
know we thought about it and maybe this idea of a lot line change would make some
sense. Maybe we can do this. North Fork Country Club told them, we've changed our
minds, we're no longer interested in doing this, we've got other plans for our property.
So, as far as my clients were concerned that was the end of it. They knew what the
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Zoning Code allowed. Representatives of the North Fork Country Club knew what the
Zoning Code would allow them to do to their property. Despite that, they filed for a
Building Permit. What's really interesting to know is a copy of a survey that they used in
filing for that Building Permit and I've given you a copy of that. It's a survey by John
Ehlers dated August 12, 1999. What it shows is, the proposed building at the extreme
southerly end of the property, far removed from my clients house, Xed-out and the
addition to the existing masonry building 28 x 90 feet hand written in. So what the North
Fork Country Club did was they decided to site this 90 x 28 foot building as close to my
clients property and house as they could. They put it right on top of the house and to
make matters even worse, they set four huge bay doors facing right toward my clients
house, in and our of which large equipment runs daily. My client who lives on Shelter
Island and just rented out the house then stood up, his mother-in-law passed away, came
over not knowing anything. Never have had any notice, never knew anything was going
on and saw that there was a building under construction there. To solve the mystery of
how the Building Department got re-involved in this, my client knew that the building
was much too close to the property line. He bothered to look at the Code, he knew. He
questioned the Building Department and said hey guys their building this huge building
virtually on top of my house. How is this happening? He assumed they must have gotten
a variance or something to be able to do this. But he'd never gotten any notice. The
Building Department looked at it and they go, Oops, we made a big mistake. We gave
them a Building Permit that allowed them to build within twenty-two feet of the property
line, when the Zoning Code is clear if any building is part of a Country Club has to be
fifty feet from a property line. Now I ask you, who's been hurt the most by this? I
understand that the Country Club has expended money. But if you look at the history of
these properties you'll see they did this at their own risk. They knew, or certainly should
have known that building was improperly sited. They knew that they were building right
on top of my clients house, but they chose to go ahead and do that. There was a huge
mistake or some other problem with the Building Department that allowed the Building
Permit to be issued. It should've never been issued, it's totally illegal and it gives them no
right to continue. To show you the arrogance of the Country Club, they were told to stop,
then they were allowed to put doors in. They are occupying this building daily. Running
equipment in and our of that at all hours of the day with no C.O. They don't care.
They've never cared. All they want is the building they want and be damned with
anything else. They don't care. They'll operate this building as long as you'll let them.
They have backhoes and tractors sitting within feet of my clients' property within feet of
the windows on the east side of their house idling; running constantly, fumes, noise. This
is not an innocent applicant coming before this Board for relief. They don't come before
you with clean hands. If you look at the Code, it is clear what the requirements were and
there's a good reason for these requirements, so people like my clients' neighbors of these
kinds of operations don't have to have huge buildings right on top of them, don't have to
put up with the noise and the pollution at all hours of the day and night that is natural for
a Country Club to have. That's why these buildings are supposed to set away from
residences and from lot lines, so they don't cause a problem that this building obviously
does. And to site it on the property and the location that they did, is unconscionable. My
client's property, that house has been there obviously since prior to 1957, when Zoning
came into effect. It's a pre-existing house, and yet they chose to site this huge building,
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out of which heavy equipment is run in and out on a constant basis as close to my client's
property as they could, and as close to the house as they could. They changed their mind,
they could've put it back there and it still would be illegal, and obviously it wouldn't have
the fifty foot setback, but it certainly wouldn't have the impact that it does on my client's
property. I've asked you, Members of the Board, think about if you owned this property
and if you had this size building built on top of your house with machinery running in
and out. With machinery having to pull at least up to, and at times, across your property
line in order to gain access to the doors to get into this, what has euphemistically, in my
opinion, been called dead storage. Dead storage is real alive and active in that building,
in and out, every machinery coming up to your property line. Coming within a couple of
feet of your house. I ask you to think how you would feel if this was your property? I
would ask you to treat my clients the same way you'd want to be treated if somebody was
doing this to you.
CHAIRMAN: Anything further Mr. McLaughlin?
KEVIN MCLAUGHLIN, ESQ.: Both my, the Surozenski's are here and also their
tenants are here. I think some of them would like to address the Board at this point.
CHAIRMAN: Would you state your name for the record sir?
RICHARD SUROZENSKI: My name is Richard Surozenski. I own the property in
question on Main Road in Cutchogue. When we first sold the property to the North Fork
Country Club, one of the first things the lawyer gave us at the closing was a copy of the
Zoning Code. I kept it all these years, and I thought it was going to solve this whole
thing. But evidently, it's not. It's in black and white, Mr. Cron the attorney at the time,
gave me this Zoning Ordinance. I'm not familiar with Southold's Zoning, as Mr.
McLaughlin said a little while ago. When the building was being constructed, I thought a
Variance had been given. I had called a friend in Southold and he told me you would
have had a notice, if a Variance had been given. That's when I acted, and called the
Building Inspector up, I can't remember his name, I read him the Code, he said I'm aware
of the Code. Then, all of a sudden, I get called the next day and they stopped
construction work on this building. Then I knew there was a mistake somewhere. I
thought everything was going to be okay. After the building was shut down, I understand
the next day after they put a stop work order, large doors were installed, after the stop
order was put. I don't know what's going on over here, I'm looking out for my wife's
welfare in the future so that the house that she grew up in and in my opinion it's just an
eyesore next door and it could've been handled a different way. I approached the Club,
and I asked them if they would like to exchange properties prior to this building being
constructed, and their answer was they'd changed their minds and would do something
different. They never told me they were going to build this thing and it's there now. I
would ask the Board to please sympathize with us to see what our problem is. Thank
you.
CHAIRMAN: Thank you. Yes ma'am would you state your name for the record please?
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STEPHANIE KENNEDY: Stephanie Kennedy, I'm the tenant. I want to give you some
snapshots, and I'm not a very good photographer, my view of this situation. I live there,
I'm housebound. A number of years ago I was in an industrial accident. I have chemical
burns on my throat and lungs. One of the reasons I moved out to Southold was because
you are environmentally conscious and clean fresh air. Everyday I'm assaulted with
exhaust fumes. During the warmer weather, half of the windows in my house have to
remain closed because fumes get into the house. Even now, with the windows closed, it's
an old house, it's a fifty year old house there's air leaks and it's drafty exhaust fumes still
come in. Two bedrooms face that beautiful building, that they call dead storage. Maybe
I don't understand what dead storage means because ______________ told me the same
thing, after ignoring me for ten days, there was activity over there, I walked over to who
appeared to be the man in charge, I asked him what was happening and he said there was
a stop work order. He said they were going to be using it for dead storage; and I said,
okay I have concerns about things being moved in and out. I have a breathing problem, it
can put me in the hospital. He said, oh no, dead storage, no problem. He said don't
worry about the way it looks, once they put the garage doors in it will look a lot better. It
th
doesn't, it's a cinder block building. That was on the 19. I moved in the weekend of the
th
bombing, so I was there about ten days. On the 20 I woke up, two big white vans pulled
up from the garage door company, halfway onto my property, mostly on their property,
one was kind of on the cesspool and busying at work, by the end of the day, four garage
doors were up. This was the day after the man told me there was a stop work order. I
said, I don't know what I'm supposed to do about it. They were parking, I guess it was
employees cars, haphazardly on the piece of property adjacent in the front on the street
line of Main Road, where they have the sign posted now for the hearing tonight. Just
haphazardly when they started the cars up, when they were leaving or going out to lunch
or whatever they were doing, again I had exhaust fumes and I did not have that and still
don't have it from the cars going down on the street. I'm subjected to it on the other side
of my house. I can't go out into the back yard, I start wheezing, I have lost many a night's
sleep because, unfortunately, emphysema and chronic obstructive pulmonary disease
tends to be at it's worse after the sun goes down. So it caused me severe problems and
I'm at my wits end. They come in and out and purposely, it seems, the garage bay that is
closest to the bedroom windows is favorite garage door. That one's always open. I can't
understand, there are four bays facing the property, and there is a garage door on the
south side, which does not interfere at all with me. It would not be blowing exhaust
fumes at me, and if they were going to use for dead storage, which is what everybody
keeps telling me it's supposed to be, not daily use, why can't they use that southern garage
bay and seal over the ones that are causing me a problem? It's been a fully functional
th
working garage since they put the garage doors in. It started on the 26, they had finally
gotten all of their stuff in, then they shuffled it around for several days and put this big
thing here and put that one over there. All the way across my lawn; one of those pictures,
unfortunately I'm not that close and I'm not a great photographer, they pulled all the way
forward because they had a big _________ on the back I don't know what these things
are. And in backing it into the garage they had to come all the way up onto my lawn onto
the cesspool. By the time I snapped the picture, he was backing up, but he was still
clearly on the property. I been thrown out of bed before 7:00 in the morning, which
surprised me, it was a Monday morning, boom, what is that. When I walked into my
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kitchen there was a big backhoe driving down. I'm like give me a break, at least wait
until 8 or 9 o'clock. At least by 4:00 or so they have it all packed away so that everybody
can go home. But still, all day long the garage door is open, I never know when
somebody is going to come or not come. When they finishing using it they come back.
My dog is tied, when I need some piece of mind I put the dog out. The dog is tied so it
can't go over the property line over the property line. But I still have to stand in the house
and watch, because I don't know if somebody is going to drive around and swing the
vehicle and run over it, it's a little dog. I tried to write myself notes, because I get very
nervous talking in front of people and now I'm just standing here shaking.
CHAIRMAN: We will address all of your concerns ma'am.
STEPHANIE KENNEDY: One day I was in the bedroom making up the bed and I did
have the window open and a turquoise truck belonging to them, a dump truck or whatever
kind of truck, came zipping by within three feet of the window. It nearly scared me to
death, I sat there shaking for about an hour. If there was no screen in that window I
could've reached out and touched the side of it. I tried to snap a picture of the tire track to
show you how intrusive and how close that is. I mean, we're talking money when we're
talking about the Surozenskis we're talking about the Country Club. I'm talking about
my health. Something has to be done about that, notwithstanding the problem. That's
what I wanted to say.
CHAIRMAN: Thank you.
SHARON SUROZENSKI: My name is Sharon Surozenski. I just want to say that that's
been my home forever, I lived there, I was born there, I was raised there and I want to
keep that house for me and my children's future. The way that they are treating me, I'm
not going to be able to keep that house up if I can't get tenants in there to help the
mortgage. And I wish my tenants consideration too. Thank you.
CHAIRMAN: Thank you.
PATRICK KENNEDY: My name is Patrick Kennedy. My wife, I came home from
work and my wife told me about the dump truck that went past the window. She was
shaken and very upset. I go over there and I talk to Rob, and I explain it to him. And I
go over there thinking maybe it's one of the workers. He doesn't have control of that, but
I will make him aware of it and ask him that it doesn't happen again. He looks at me and
says, well the property line it goes this way, it goes that way, it doesn't matter. I don't
have much to say, but the blatant disrespect for all, and the people. I came here because I
understood you people were very environmentally concerned. I don't see it. Thank you.
CHAIRMAN: I don't know what that statement was Mr. Kennedy, I don't understand
how you can say that we're not environmentally concerned. We're concerned about
everything. Every issue that's before us tonight, we're concerned about. And certainly it's
extremely important that your wife testified because she has the health problem. So
please lead this issue that we're not concerned. Miss Moore?
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PATRICIA MOORE, ESQ.: Just one clarification, did you move after September 11?
STEPHANIE KENNEDY: I moved in (inaudible)
PATRICIA MOORE, ESQ.: Because it's noted that the building was already up by that
time. They moved in
STEPHANIE KENNEDY: I wasn't told that there was a structure there.
PATRICIA MOORE, ESQ.: Okay, there's just some points that I would like to respond
to that the tenants had mentioned. To begin with, the backhoe, tractors, the equipment
that you see inside the building was previously stored outside. Not new equipment, the
existing equipment and it's always been on that property, stored on that property and the
impact of it would be lessened by keeping it inside than might being able to store it
anywhere on the property. They certainly would've have been entitled to store it exactly
where the building is presently. The issue of what everybody thought or didn't think, had
the Surozenskis sold the property with covenants or conditions that prohibited the North
Fork Country Club from putting in structures a certain distance from the property line.
That would've been something that they could've accomplished. They could've been
imposed conditions, in fact I recently reviewed a contract that was based on a lot line
change that had been done and one of the conditions of that lot line change was that there
was ________ structure within a certain distance of a property line. So that was
something that was within their control and they could've imposed but they didn't. It is
an existing facility, what else would you use a property for if not to possibly expand your
existing facility. So it was within their control and what they're trying to do is penalize
North Fork Country Club for using the property that they bought from them. With
respect to lot line changes, there was a lot line change that was offered. They rejected the
lot line change. To tell us that after the fact, they came back, yeah alright we'll do it.
They were offered that alternative. That alternative was considered, they chose not to
take that option. North Fork Country Club, therefore, continued to consider other
alternatives. A solution here, which would solve all of the, certainly all of the activity
that they're concerned about on this property, is to put up a six foot fence. North Fork
Country Club has absolute right to put up a six foot fence along the property line. I
would suggest that the Board ask for the Surozenski's survey, because I think what you're
going to find is that the house is very close to the property line. And, in fact, all the
activity has been occurred within the North Fork Country Club property, it looks close.
There are no stakes there to show where the property lines are and certainly the tenants
could, in all honesty and certainly incorrectly, but believe that the North Fork Country
Club was trespassing on the property when, in fact, it is their property. So it would be
helpful if you had a survey to show where their property line is and I think you will find
that the house is very close to the property line. One thing that we hadn't discussed with
North Fork Country Club was to put up a fence that way they would have, it would block
any kind of visible, from seeing the structure. It would block any odors that they
perceive coming out of the building, from this equipment. And they would, at that point
have no problems with any vehicles that would inadvertently cross the property line or
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trespassing by the workers as well. So that would solve pretty much 90% of the
problems that have been raised here. As far as the Surozenski is a one story house, so a
six-foot fence would block out, visually block out the whole building from any window
that they have on that side. So that would certainly mitigate any impact that they have
with respect to the addition.
CHAIRMAN: Mrs. Moore, I might suggest also that you give us a couple of options on
fences and a couple of options in landscaping to go inside that fence.
PATRICIA MOORE, ESQ.: Inside?
CHAIRMAN: Meaning toward the storage building. In other words, if you intend to put
the fence on the line and if you intend to slat the fence, then give us a slatted fence plan.
If you intend to plant arborvitae, if you do stockade fence, I mean there's an issue with
stockade fence because it shuts air down as opposed to a chain link fence that's slotted.
Or if you choose to plant arborvitae on the opposite side of the fence or a row of
evergreens that continuously maintain it.
MEMBER TORTORA: Take a look at the access to the Club, they, and not using the
northern bay because regardless of who said what to who, and who did what to who, and
who didn't abide what, you've got a problem. And you are here for a variance, that's the
bottom line, not the neighbor, you.
PATRICIA MOORE, ESQ.: I understand that, although it is to be seen whether or not a
variance is required. But if you get to the point where we believe that variance is
required, keep in mind that a fence, let's assume it's a stockade fence, because that would
certainly block any odors from crossing the property line, then it would block the entire
area and the bays would be irrelevant whether they're opened or closed.
MEMBER TORTORA: Except a stockade fence is not going to remove all of the noise
and the stockade fence, and the very fact that you're having to put up a stockade fence is
that the building would not, the only other alternative is to try to work out something
between the neighbors and the Country Club and come back to the Board with any
suggestions that you can work out together. Because something certainly has to be
worked out on this one, it's not a good situation.
PATRICIA MOORE, ESQ.: That was certainly an offer I made before the beginning, but
I'll raise it again.
CHAIRMAN: Any other questions of council at this time from the Board?
MEMBER DINIZIO: I think requiring arborvitae or something on the east side of that
fence would keep ________the garage doors. I am still not totally convinced that the
Building Inspector, or they didn't do this, I should say the Country Club they relied on a
valid Building Permit or what perceived to be a valid Building Permit up until a point
where they got a stop work order. My sympathies lie there, although I understand the
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health reasons, I understand all that, but somewhere along the line there has to be
something we can do to allow the to utilize the building to some extent, and still give
these property owners next door what they need, not maybe what necessarily what they
desire, but what they need, which is some privacy and perhaps some noise abatement.
I'm not totally opposed to having the arborvitae on the other side. I think that would be
improvement. I would like to see a survey of their, if you could supply it.
PATRICIA MOORE, ESQ.: No, that's why I asked the Board to
KEVIN MCLAUGHLIN, ESQ.: If you look in your packet on the survey that's provided
with a letter from the North Fork Country Club, it's not actually a survey of our property
but it does show the house. Maybe I can show you on
CHAIRMAN: Kevin why don't you just give us an idea of how close that house sits on
there.
MEMBER DINIZIO: What I would like to do is see it, if this is the house but what is the
footage?
KEVIN MCLAUGHLIN, ESQ.: No this is the house, this is where the new building is.
This is the property that was sold to them in 1990. This is the house, it is within --- Well
I think you can tell that it's within a couple of feet, two or three feet of the property line.
CHAIRMAN: How far away from the property line?
KEVIN MCLAUGHLIN, ESQ.: I don't know exactly, because there's no measurements
on there, but I would guess it's within
CHAIRMAN: Four feet?
KEVIN MCLAUGHLIN, ESQ.: Yes.
PATRICIA MOORE, ESQ.: This the property North Fork Country Club purchased from
Surozenski. That is the Surozenski house presently, so you can see that it's a couple of
feet
CHAIRMAN: Are we going to go with four feet? Can you site it a little bit and give us a
shot? Alright, let's deal with this juncture, we have both councils up at this point. Let's
close the hearing tonight as to verbatim, let's have you discuss whatever you can discuss
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in reference to a concrete, possible alternative between now and the 29. If you feel that
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on the 29, at least two days before that you need us to re-open the hearing from
verbatim to verbal, I'm sorry from non-verbatim to verbal to verbatim, then let us know to
work out a specific _______. But if it can be worked out through the writing aspect, we'll
accept that also. That's what we would like to do, conceivably. That's where we are.
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PATRICIA MOORE, ESQ.: I think what Kevin and I should try to do is work
something out that we try to mitigate some impact that you're clients are experiencing
and possibly some kind of fence/landscape.
KEVIN MCLAUGHLIN, ESQ.: I'm not at all sure that a fence is going to take care of
most of the problems. If somebody knows a fence company that can stop the odors from
coming across the property line, I'd like their name and address because it's not going to
work that way, it doesn't work that way. One thing I would ask the Board to do if they
could, without going to see this particular site, I don't think you can appreciate the
closeness of the buildings and the size of the building that they've constructed there. I
think it would behoove anyone that has to, that may have to make a decision in this case
to actually visit this site and see what it looks like.
MEMBER DINIZIO: Kevin I have to tell you, I was down there today, and I thought,
without having my bookwork, the building itself was about two feet off the property line.
Now I'm looking at twenty-two feet, okay.
CHAIRMAN: But you were saying that the house is close to the property line.
MEMBER DINIZIO: Right, but the house, when I go down there my thinking is that the
house has more side yard than what's actually been presented here.
KEVIN MCLAUGHLIN, ESQ.: No it has a very small side yard, but it's been there since
the early 1950's. It's not a surprise to anyone, particularly not a surprise to the Country
Club who bought the adjoining property and knew exactly where the house was related to
the property line.
MEMBER DINIZIO: Well if you're looking at it the other way, they sold the property
with that property line.
KEVIN MCLAUGHLIN, ESQ.: At a time when it was clearly the Code, and is still
clearly the Code, in my opinion, that they couldn't build a building within fifty feet of
that property line.
MEMBER DINIZIO: That I can't argue with you, because we have one thing in the
midst. We have someone, other than the applicant, other than the neighbors, has made
what perceives to be a mistake, at least a mistake. Maybe even a gross, mistake. But,
nonetheless, we have a concrete building that's already been built, that's in place, relied
on from an issuance of a Building Permit from the Town, and now what I want to do is
mitigate that shy of you saying to me, bulldoze it and move it. So we have to come to
some agreement, I don't know what it's going to be but I've seen people, certainly
lawyers, be very creative.
KEVIN MCLAUGHLIN, ESQ.: I'm just suggesting to you that I don't think a fence
remedies all of the problems.
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MEMBER TORTORA: What about evergreens, what we're saying is figure out what
would solve it, short of taking it down.
MEMBER DINIZIO: I could see this thing starting up someone coming out of there, and
not coming back and in five minutes those fumes are gone. That thing is out doing it's
thing, it comes back at the end of the day, five minutes of fumes and it's gone. That's
what I see.
KEVIN MCLAUGHLIN, ESQ.: That's not what happens.
MEMBER DINIZIO: Well then maybe that, there could be some of that taken care of,
you know what I mean? I don't know how you enforce that Kevin, you know as well as
me, but certainly those are the kinds of things that we could look at that that are going
make this a very easy problem to solve as opposed to ripping down the entire building.
CHAIRMAN: We had an application over in Kleeves Point which is across from the
other Country Club and, as you know, those lots are relatively small and narrow and the
houses have gotten bigger over the years. A gentleman and a lady put in a swimming
pool in the rear yard, and nowhere am I comparing the swimming pool to this facility,
okay. Within seven feet they did the most lavish landscaping plan that you have ever seen
in your life, because they wanted to keep that swimming pool in its present location
because of the well and cesspool, of course they have Town water and the cesspool is in
the rear yard. Rear yards are shallow, and if it requires a landscaping plan, it requires a
landscaping plan and that's the issue. What I'm asking you to people to do, who have the
distinct pleasure of knowing exactly what this town is all about and knowing that we
have a Country Club that keeps some of the most beautiful greenery I've ever seen in my
life on those fairways, to build us a plan that everybody's going to live with. Because the
only thing that's going to keep odor from going over is, as Mrs. Tortora said, greenery;
and it's going to stop the view, it's going allow the light to go through, it's going to do all
of those things that I don't think a fence would be adequately able to do. I'm not saying
you shouldn't have a fence, you should have a fence and this should all be intertwined
within that situation. And I'm just saying to you that there is a possibility there.
KEVIN MCLAUGHLIN, ESQ.: There are possibilities to explore, not limited to what
we've discussed so far.
CHAIRMAN: Of course, we're asking you to open the line of communication. That's
what we're asking you to do.
MEMBER TORTORA: If you could come up with, what we're saying is we've got a
problem and we want to solve it between neighbors. The burden is on the Country Club
to help solve it to live with the neighbors.
KEVIN MCLAUGHLIN, ESQ.: Thank you.
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CHAIRMAN: Okay so the question ladies and gentlemen of the Board is do we leave it
open or do we close it, I mean could we close it to verbatim?
MEMBER COLLINS: I'd leave it open Mr. Chairman there's a lot of loose ends here.
CHAIRMAN: We'll leave it open; see what you come up with in the next two weeks. I
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think we're closing the other one at 6:00, 6:30. Let's put this one on for 7:00 on the 29.
We thank everybody for their testimony and for their courtesy and safe home. Happy
Thanksgiving, early. I offer that as a resolution ladies and gentlemen
9:40 p.m. Appl. 5029 – ROBERT KRUDOP. This is a request for a Variance under
Article XXIV, Section 100-243A, based on the Building Inspector's September 26, 2001
Notice of Disapproval. Applicant is proposing to move one dwelling to a new location
with a side yard setback at less than ten (10) feet, at its closest point, and to relocate an
accessory framed garage in a nonconforming location, at 170 Tuthill Lane, Cutchogue;
Parcel 1000-96-1-8. The reason for the Disapproval is that a nonconforming building
containing a nonconforming residential use in this Light Industrial Zone District, shall
not be enlarged, reconstructed, or structurally altered or moved.
CHAIRMAN: This is Appeal No. 5029. Mr. Krudop how are you tonight sir? I don't
think I've had the pleasure of meeting you. I've known your father for years of having
been a teacher in the school that I attended and I see him sometimes on a timely basis,
either going to or exiting over there in Riverhead and I give him a wave. What would
you like to tell us?
ROBERT KRUDOP: One of the things I did is I bought a piece of property near the
landfill and it has three existing structures; two, one-family residences and detached
garage. When I bought the property I found out that the house was 4 ½ feet over the
property line on somebody else's property. So what I did is, I said well I'll take care of it,
don't worry about it, we'll buy the piece and I'll take care of it. Whether we try and move
it or change the property line or move it. I'd like to move it. I'd like to bring it onto the
property and clear everything up. It is the easiest thing for me to do. The house is built
on an actual crawl space. I'd like to put a full basement underneath so there's easier
access to the utilities and the garage is in dire need of repair as well. I'd also like to clean
up the property, I've been doing that, I've take out three thirty-yard dumpsters already.
I'm constantly in on it. I want to make it the place gorgeous. It has been an eyesore for a
number of years. I picked one up in Mattituck and I'm looking to do another one in
Cutchogue. I'd like your approval to do it.
CHAIRMAN: Can I just ask you two questions, regarding the survey of Mr. Ingegno's I
noticed the wing on the one-story frame house is not there anymore or are you taking that
off?
ROBERT KRUDOP: I'm decreasing the size because the way the structure's built,
actually both of them are built there's trouble _______. You can actually go underneath
and look at them. I don't like that half of the house, so what I wanted to do is decrease
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that in the future and enlarge the driveway area to have access to the garage. If you've
visited the site you actually have to creep around to the garage itself it doesn't have a
straight run. It doesn't look just right, it looks overcrowded as well. And what I wanted
to do is I wanted to increase the back porch area that I'd like to rebuild and bring the roof
line in on a straight even keel instead of having dropped roves and everything, I want
everything nice and straight. Pitches and valleys don't really work too well when you
have a house built ____________.
CHAIRMAN: Now the new location of the new garage is 24 x 32?
ROBERT KRUDOP: Yes.
CHAIRMAN: Is there a possibility of moving that any farther toward the house that we
just discussed and by putting the house on say 5, 6, or 7 feet on to the one you're going to
move?
ROBERT KRUDOP: I do have a little bit of a problem because of the septic tanks for
that house that we are discussing with the wing that I'd like to remove. The septic tanks
are probably within 8 feet of that garage. By moving it, it's really tight to do that. That's
why it shows 8 feet off the property line of the house. I could possibly give you maybe
another foot.
CHAIRMAN: Okay.
ROBERT KRUDOP: But it's really tight there.
MEMBER TORTORA: Show us where the septic is, to start with my questions.
ROBERT KRUDOP: Actually there are two, there's one that's _______. There's one
right here, and one right there.
MEMBER TORTORA: So I guess the question that Jerry and I are both asking is how
much further in on the property.
ROBERT KRUDOP: I can go probably about three, actually just 2, but I could probably
got about 3 and bring it over and bring this over a little closer to the septic. Worse case
scenario is I can give you, how much can I give you? How much do you need?
MEMBER TORTORA: Well okay, let's (inaudible)
ROBERT KRUDOP: No they're all occupied. This is what the structure looks like now.
CHAIRMAN: And it's going to be renovated to take that wing off.
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ROBERT KRUDOP: It's not going to happen right away. I have to re-root the garage
and this house first. And then I'll be constructing, probably about a year long, if not two
year long project.
MEMBER HORNING: What do you jack it up and put it on rollers?
ROBERT KRUDOP: Actually, that first house the one I'm proposing, the little one, what
I wanted to do is I'm going to detach this front piece because actually they have 2 x 6's
spreading over 24 feet, which is odd construction. It makes it excellent for moving, don't
get me wrong, but the back half has several add ons, frankly this middle section is
actually built out of original 2 x 2's, 2 x 4's and its extended 2 foot on center, and it's not
very, then it's over this way 2 feet, and _____off of that and go out 10 feet, and
______off of that and go another 10 feet. It's not very conforming. What I'd like to do is
replace everything. I just had plans drawn would you like to see the plans for the house?
CHAIRMAN: Surely.
MEMBER TORTORA: The real question here is why can't you locate this house in a
conforming area?
ROBERT KRUDOP: Where?
MEMBER TORTORA: Okay.
CHAIRMAN: In front of the garage.
ROBERT KRUDOP: I can't put it in front of the garage because then you don't have
access to the building.
MEMBER TORTORA: That's what I want to know.
ROBERT KRUDOP: That's why I'm kicking out the wing actually to access the
driveway area.
MEMBER TORTORA: The door to the garage is
ROBERT KRUDOP: To the left.
MEMBER HORNING: But you're proposing to decrease the nonconformity.
MEMBER TORTORA: And the lot coverage.
ROBERT KRUDOP: We're over 20%.
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CHAIRMAN: It's not lot coverage it's an encroachment is what it is. Okay. Just give us
the plans Bob and we'll look at them, not now but. Do you have an extra set you can
drop them off tomorrow.
ROBERT KRUDOP: I have a question for you.
CHAIRMAN: Okay. This is north house.
ROBERT KRUDOP: This is the house with the garage in front of it.
CHAIRMAN: The same house, this is the north house the one closest to the _____.
Go ahead, what's the question?
ROBERT KRUDOP: If you make your decision tonight, this is the first time I ever came
up before a Board.
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CHAIRMAN: We don't make our decision tonight our decision may be made on the 29.
We have 62 days to make a decision, but we never take 62 days. Because what happens
is it runs into the next series of hearings. So we will be addressing this probably on the
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29.
ROBERT KRUDOP: Do I need to be present?
CHAIRMAN: No you do not need to be present.
ROBERT KRUDOP: You basically just vote on it and say yes or no?
CHAIRMAN: Yes, well it's a deliberation. You're welcome to come.
ROBERT KRUDOP: What day is that?
CHAIRMAN: Thursday, two weeks from today.
ROBERT KRUDOP: Fortunately I work at night, so as far as me attending ________.
CHAIRMAN: So we'll just say it's not necessary. You can't testify, you can't even really
speak about it. We're just going to sit around.
MEMBER TORTORA: We talk about it.
CHAIRMAN: Through a deliberation procedure.
ROBERT KRUDOP: Then you make your decision and then you
CHAIRMAN: Reduce it to writing and then we send you your decision.
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ROBERT KRUDOP: When is that?
CHAIRMAN: Five to seven days after we make the decision, we reduce it to writing.
ROBERT KRUDOP: Five to seven days after you what?
CHAIRMAN: Make the decision, we reduce it to writing.
MEMBER HORNING: You could call the office the next day.
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ROBERT KRUDOP: So what's that the 30?
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CHAIRMAN: 30.
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ROBERT KRUDOP: 30, okay thank you.
CHAIRMAN: Okay let's see what else. Does anybody else have any questions of Mr.
Krudop at this point? These are both rental houses Bob?
ROBERT KRUDOP: Yes, these are rental houses.
CHAIRMAN: Okay. What do you intend to use the garage for?
ROBERT KRUDOP: Actually, I own five houses and no garage. It's kind of hard to
keep supplies and with everything else, and trucks _______________.
CHAIRMAN: Any other questions of Mr. Krudop, anybody? Okay, we'll see what
develops throughout the hearing. Please don't leave until I close this hearing.
ROBERT KRUDOP: Okay.
CHAIRMAN: Is there anybody else that would like to speak in favor of this application?
Is there anybody else that would like to speak against the application? Seeing no hands,
I'll make a motion closing the hearing reserving decision until later.
SEE MINUTES FOR RESOLUTION
* * *
9:50 P.M. Appl. No. 5026 – INLAND HOMES, INC. (KAVANAGH). This is a request
under Code Section 100-26 for a Lot Waiver to Unmerge property shown on the Suffolk
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County Tax Maps as 100-110-3-31 from 1000-110-3-32. This request is based on the
Building Inspector's September 24, 2001 Notice of Disapproval which states that Lot 31
has merged with an adjacent lot to the north (1000-110-3-32) pursuant to Section 100-25
which lots have been held in common ownership during a period of time after July 1,
1983. Location of Property: 4400 Pequash Avenue and 95 Midwood, Cutchogue, NY.
Patricia Moore, Esq.
CHAIRMAN: Mrs. Moore, how are you again.
PAT MOORE, ESQ.: Fine thank you. This is an application, which it really hurts to
make because I represented Inland Homes when they purchased this property. Before we
went to contract, we always put a provision in the contract that property subject to being
proven to be single and separate and either a Building Permit or Health Department
approval. We went through the process and, unfortunately, the way I read the single and
separate search I didn't know that the title company had not looked in to the fact that
whether or not that Margaret Henry was alive or dead. This situation is the two
properties, as you recall when you went to look at it, that there's a house on one piece and
a vacant lot that is adjacent to it. The house faces one street; the vacant lot faces another
street. So from all the external observations of this property, it would appear to be a
single and separate parcel to be built on later. The single and separate search shows that
the properties were owned by three people on one parcel, one person on the other; and
one person died and apparently the second person died bring the two properties into
common ownership. When the Kavanaghs, who sold to us, bought the property they were
not aware of what had occurred. They bought the property believing it was single and
separate; sold it to us with the title search that we believe it to be single and separate.
Low and behold when we go for a Building Permit, Mike Verity says, somehow he reads
the single and separate search and says is Margaret dead or alive? Well we think she's
alive. We ask the title company to start searching surrogate court records, and we
eventually find out that she died somewhere, other than Suffolk County, in Florida or
wherever. That resulted in the problem that we have before you. The merger law, thank
goodness it exists because I can come before you explaining the situation. But it's a very
frustrating provision in the law, which everybody does everything imaginable to keep the
property separate except the fact that we all die. At one point or another, we're going to
be gone and sometimes the merger cannot be avoided. This is the situation, and I did
everything that I thought was possible to make sure that my client was buying a single
and separate property. I have to admit it was my mistake. I'm here paying for it so far; I
just don't want to have to pay for it in its entirety.
MEMBER TORTORA: I read through the file and the thing that baffles me is prior to
your client, Mr. Kavanagh, Reverend John Henry sold this property to Kavanagh in 1998.
How could he sell this property by himself, if he believed that Mary Kavanagh was alive?
PAT MOORE, ESQ.: You would have had to get the deed because that's the only way.
When I looked at the deed I went huh, oh my god! That he was joint turn with right of
survivorship, that's how it happened. If you look, everything was made in the shade here.
You have J. P. Henry, you have Reverend John P. Henry and you have John Henry, so
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you've got the names that are very similar and it just, I didn't catch it and I look at these
all the time.
MEMBER TORTORA: In other words, if I own property, George and I own property, I
think we pay Bill off and sell it to Jerry.
MEMBER HORNING: Without being involved.
PAT MOORE, ESQ.: Exactly, right.
MEMBER TORTORA: So please tell me how that happened?
PAT MOORE, ESQ.: How do I know, I wasn't looking at; I wasn't get a title from
Kavanagh. I got title from Mary, I'm sorry from both of them. Mary owned the house.
So they tested if it was single and separate, they checkerboard it when they do title. So
they knew enough to keep them separate.
MEMBER TORTORA: But Reverend Henry when he sold to.
PAT MOORE, ESQ.: Maybe with a power of attorney, I don't know. I'm trying to figure
it out, please I could kick myself, I lose sleep at night sometimes with these single and
separate searches because I sit with then and I draw little arrows and I'm following lines
alright now when, who transferred when and what. 99% of the time I get it, this one time
I.
MEMBER TORTORA: I'm not sure that it happened on your watch, but I would have to
believe that Reverend Henry did know Margaret was dead when he sold the property to
Kavanagh.
CHAIRMAN: I hate to say it, but he sold it because Margaret was dead.
PAT MOORE, ESQ.: There were three of them that owned it. I feel sorry for a husband
and wife. Husband owned one and wife owned the other. If I bought a property with my
husband I don't know who I would give the property to avoid the merger because I can't
predict if one of us isn't going to get hit by a Mack truck tomorrow. I don't have a
problem, I don't own anything.
MEMBER TORTORA: Apparently Reverend Henry did know that Margaret was dead
when he sold in 1998.
PAT MOORE, ESQ.: But Kavanagh didn't.
MEMBER TORTORA: Obviously Kavanagh didn't. So here we are.
PAT MOORE, ESQ.: So here we are.
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CHAIRMAN: Any other questions of Miss Moore from the Board? You're not going to
ask the question about the Suffolk Times again are you? We'll see what develops
throughout the hearing Miss Moore.
PAT MOORE, ESQ.: All right, thank you.
CHAIRMAN: Is there anybody else that would like to speak in favor of this application?
Is there anybody else that would like to speak against the application? Yes, sir. Could
you come up and use the mike please.
JOHN KLUKO: My name is John Kluko, I live at 400 Midwood Road. I was not
notified but, obviously, I know of the proceeding.
CHAIRMAN: How far down Midwood Road is that?
JOHN KLUKO: I'm one house away from, it might even be 55 Eastwood Drive or 400
Midwood, I'm on the corner lot.
CHAIRMAN: So you are contiguous to this lot?
JOHN KLUKO: I'm not contiguous.
CHAIRMAN: Oh, you're on the opposite.
JOHN KLUKO: I'm on the opposite corner.
CHAIRMAN: Oh, okay.
JOHN KLUKO: My biggest concern if this lot is cleared, is that my in-laws will have a
clear view of my driveway and know when I'm home. They told me tell you that.
MEMBER TORTORA: I'm totally sympathetic, so no more, that's good.
JOHN KLUKO: I totally sympathize with Ms. Moore, and obviously she missed it. I
think we all agree that she missed this title. I don't know if the same can be said about
Mr. Kavanagh. What hasn't been brought out is that Mr. Kavanagh is a real estate
attorney. What hasn't been brought out is that Father Henry listed the house and the lot.
I think he wanted $160,000 or something for the house and another $80,000 for the lot.
But Father Henry knew enough, and I don't think Father Henry made a misrepresentation
as a catholic priest when he knew he couldn't build on it, he sold the lot to Mr. Kavanagh,
the house and the lot for $125,000 in 1998. Now in 1998 you'd be hard pressed to get a
corner lot with a nice house, beautifully landscaped in Fleets Neck with a private beach.
Now what they would like us to believe is that the $125,000 was half for the house and
half for this lot. Somebody mentioned before that, was it all for privacy or investment.
Mr. Kavanagh knew that he couldn't build on it. When his title company, I don't have a
copy of Mr. Kavanagh's title search, but I would assume if we did, they would've picked
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up on it. I'm almost positive. I don't know if anybody got title insurance on any of these
transactions. Somebody has a remedy for this civil liability. Somebody has it. I don't
think it rests with this Board. I don't think this Board has jurisdiction over this type of
matter. I believe it should be in Supreme Court. And if Supreme Court feels that the
matter should be served by the Zoning Board, then perhaps maybe the Zoning Board
could take it up. Obviously somebody made a mistake. If somebody hadn't made a
mistake, we wouldn't be here right now and the half acre lot would stay the half acre lot
forever. But now somebody made a mistake and the residents of Fleets Neck are now
here fighting to not have a house put on it. Somehow there's an inequity there. I mean
we shouldn't have to prove why there shouldn't be a house there. I don't know if there's a
hardship to the builder. I'm assuming the builder has built dozens of homes in this area
over the past twenty years, I don't know. What is the hardship, what's to prove. Does he
have to provide W-2's, does he have. There was a mistake. Maybe there's a settlement. I
reviewed the file briefly this morning, I think the contract of sale, Mr. Kavanagh
represented that the lot was a buildable parcel. Maybe the purchaser has to go after Mr.
Kavanagh, I don't know. Maybe it's the title search, I don't know. It's not the residents of
Fleets Neck. It's not Father Henry, god rest his soul. I guarantee, Father Henry knew
enough that he wasn't going to sell $125,000 for a buildable lot and a beautiful house in
Fleets Neck, it just wasn't going to happen. We've had these applications before in our
neighborhood and you can see, most of these people here are from Fleets Neck. We have
a gentleman, Montoroli, he had open heart surgery, he wanted to split his lot he needed
the money. Nobody cared. Another gentleman bought a lot, a buildable lot, next to his
but he bought it in his name and it merged. He bought it for his daughter. He brought an
application to unmerge, nobody brought up a problem with that. I don't think anybody
would've even thought if Mr. Kavanagh had come in and tried to unmerge them, although
living in Locust Valley with a Glen Cove law practice, that probably wouldn't have
happened. I don't know. Maybe he couldn't prove the hardship. I don't know. Again,
what we've been hearing tonight is move the building a few feet this way or something
happened or before we even build, should we knock it down? I'm submitting to you now,
there hasn't been built. There was a mistake. We caught it. We all read stories in the
Suffolk Times, there was a blue check or a red check and the building shouldn't been
leveled and it should've been a storage structure. The lot is still there. Nobody has broke
ground. If we build on it now, we know there's a mistake. I don't think that it's this
Board's wish to clear title of the property. Think about it. Everybody who owns one of
these lots now, could sell it to their builder brother. And the builder brother will come in
and say, look I bought it, I was told it's clear title, I don't know. Are you going to make
the connection that the builder is the brother. Is the guy under an assumed name. How
are you going to know. This opens a Pandora's box. The merger provision was for
hardship. It was for people that owned the property back in 1983, the lots got merged
and now you're saying, well I need the money, it's twenty years later. Yes, fine. You
caan even make the case that if Mr. Kavanagh had sold it to Inland Homes then you could
say well, chances are or if Father Henry had sold it to Inland Homes chances are Father
Henry might have gotten the hardship and sold it eventually to Inland Homes and there
would've been a house there anyway. There was never going to be a house on this
property. There's only going to be a house on this property if you allow it. I really
believe this issue belongs in Supreme Court, at least first. You talk about attorneys
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working out settlements. Maybe it has to be some kind of settlement here. Maybe Ms.
Moore, Mr. Kavanagh and Inland Homes and I don't know, the estate of Father Henry. I
don't know, maybe there has to be some kind of settlement. But this doesn't seem right.
CHAIRMAN: Thank you. Is there anybody else? Yes, sir?
CARL VAIL: Carl Vail, I'm a resident of Fleets Neck and my wife is one of the co-
owners of the adjacent property. I would just like to state that I don't believe that Mr.
Kavanagh and Inland Homes is entitled to this type of relief. They are not really entitled
to a Waiver of Merger. If they want to come before the Zoning Board they should be
applying for a sub-division. That's all I can say.
CHAIRMAN: Thank you. Miss Moore anything else?
PAT MOORE, ESQ.: The Waiver of Merger has certain standards. I think we fit every
single one of those standards. It will not result in a significant increase in the density of
the neighborhood. This is one lot. It is facing Fleets Neck Road. It has a building
envelope that has been approved by the Health Department and will be one residence.
The house, the Kavanagh house has access on Midwood Road. It has it's own separate
entrance. It has been there, that's the pre-existing house. If Mr. Kavanagh got a break or
some favorable price on the property, he certainly put a lot of money into it. He's
renovated the house, that's obvious from looking at it from the outside and from my own
conversations with Mr. Kavanagh. At least Mr. Kavanagh believes he spent money on
this house. So we're talking about one residence in an area that is predominantly
developed. If you look around at the old lots in this area, very few are undeveloped. It
would recognize a lot that is consistent with the size in the neighborhood. It is equal in
size, if not larger than some of the homes in the area. The house that Inland Homes has
proposed will be in conformity with the character of the neighborhood. The footprint that
we have meets all the zoning criteria. The waiver will avoid economic hardship. Inland
Homes paid good money for this property, $80,000 for this property. We had someone
who was interested in building on it. Had a beautiful home that had been picked out and,
unfortunately, was involved in the September 11 tragedy and we let her out of the
contract. We did not feel it was, given the circumstances, we didn't force them to
proceed with any contracts. The natural details and character of contoured slopes of the
lot will not be significantly changed or altered in any matter, and there won't be any
filling of the land or won't affect the flooding. This property is wooded, it's flat; from all
observation it’s a separate, buildable parcel. It's not like we're talking about a property
that had been used for an accessory garage; or had been cleared for the purposes of use as
one parcel. It has remained in its same condition as any other buildable lot in that area.
I'm upset by the fact that its suggested that we have to go to Supreme Court to go through
thousands of dollars of litigation and civil settlements on this, when there is a relief valve
in the Zoning Code that gives Inland Homes relief which we have here this evening.
CHAIRMAN: Mrs. Moore will you supply us with Tax Map #110 with as many as the
lots that you can show us that are unimproved at this time? You don't have to do that, of
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course, you have around until the 26 to do that. You just stop by the Assessor's Office
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and discuss with them which one your unimproved. And I'm not necessarily referring to
the east side of Pequash Avenue, I'm referring to specifically the areas between West
Road and Holden back to Pequash, in that general range there. The lots which face West
Creek Drive are somewhat different than the waterview lots. And in Holden it has a
different conformity, west of Holden is a different conformity. The conformity in that
general range of Southern Cross, Pinewood, portions of Dix Point and so on and so forth.
All within that immediate range. We would appreciate that. Yes, sir?
JOHN KLUKO: Could I just follow up a couple of points if I could?
CHAIRMAN: Yes.
JOHN KLUKO: I would just like to call the Board's attention to a letter that's in the file
from Edward and Madeline Boccia, whose property directly abuts the lot we're talking
about here. They're in the identical situation. They have the same size lot that was
merged and I believe, according to their letter, they were denied. And they owned it in
1983 when it was merged and they were denied. So if you allow this one in, they're next.
I apologize to Ms. Moore if she doesn't feel that Supreme Court is the necessary venue,
but you have a contractual default here. Mr. Kavanagh, whom I'm sure if he was, I don't
know if he's been contacted, is smart enough to know he wouldn't have any rights. He
made a representation it was a buildable lot, it now an non-buildable lot. Has the Board
inquired why there was a closing before there was building done?
MEMBER TORTORA: There wasn't any Building Permit.
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JOHN KLUKO: The closing was on the 6 of September and the Disapproval came on
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the 24 of September.
PAT MOORE, ESQ.: I can tell you. The contract was subject a single and separate
search and it was subject to Health Department approval. It was not subject to a Building
Permit. So we have the single and separate search. We believe it to be single and
separate. We got Health Department approval and we closed. So that's.
JOHN KLUKO: But again, how could Father Henry have sold the house to Mr. and Mrs.
Kavanagh, if his mother was not deceased? Kavanagh knew it, he knew it. Is that going
to come out at this hearing? No, because it's the improper venue for that to come out.
But under cross-examination, for demand for discovery, from Mr. Kavanagh's closing
documents, it's going to be flagged. What happened to Mrs. Henry, where is she?
MEMBER TORTORA: But the Town has given the Zoning Board authority to review
these merger requests.
JOHN KLUKO: Okay, that brings me to another, I'm sorry.
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MEMBER TORTORA: I don't necessarily want it, more than you want us to have it.
But that's the way it is. If you don't agree with our decision, anyone can file an Article 78
in court, and that's the way it would get to the Supreme Court.
JOHN KLUKO: But is that my burden?
MEMBER TORTORA: No, it's not our burden either. You keep talking about Supreme
Court.
JOHN KLUKO: But we're talking about the unmerging process. The application for
merger states that I hold such and such land which abuts, that's not the case here. That's
not the case. Mr. Kavanagh owns one lot, Inland Homes now owns the other lot. Your
form for an unmerger doesn't even apply. What they're looking for is a nunc pro tunc
approval from the ___for the state. It just doesn't make any sense. There's going to be a
house built where there should've been no house built. So what happens, Inland Homes
gets a big profit on their home, Mr. Kavanagh gets $80,000 and Ms. Moore gets the legal
work and who gets hammered.
PAT MOORE, ESQ.: Mrs. Moore is doing this pro-bono, because Mrs. Moore should've
caught that it wasn't single and separate.
CHAIRMAN: Didn't Mr. Kavanagh get the $80,000?
PAT MOORE, ESQ.: Yes, it's a done deal.
CHAIRMAN: It's a done deal. Right.
JOHN KLUKO: And whose problem is that, the residents of Fleets Neck? It's tragic, but
you're going to fix it. The Zoning Board of Appeals is going clear title to this land.
CHAIRMAN: I think you're missing the point of clearing the title, the title is clear. I
think you're missing the point of
JOHN KLUKO: You're going to allow them to build a house where there should not
have been a house.
CHAIRMAN: There's been no vote taken sir.
TOWN ATTORNEY GREG YAKABOSKI: What it comes down to, I'm Greg
Yakaboski, I'm the attorney for the Zoning Board. What it comes down to is under the
Merger Law 100-25 of the Code, it is not a question of how the Board is defined it is a
term of art. They're simply saying that the term of art that we use at the moment is
simply not appropriate to this case. What it is and what we refer to 100-25, and 100-26
describes when lots merge with certain exceptions that don't merge, and the last thing is
there is a procedure that the applicant makes the appeal which is how the applicant is here
tonight there is a set of criteria and the set of criteria is set forth in 100-26. 100-26 and
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what Miss Moore is referring to is there is four criteria that the Board evaluates and looks
to, and then based on the facts of the case, there's those set of criteria, makes a decision
whether to grant the applicant relief in this particular Zoning Code. So what Miss Moore
argued is, we meet the criteria in that original ______, but you would then try to argue we
don't meet the criteria.
JOHN KLUKO: But again, if the applicant is not even the appropriate party, then I have
to bring the Article 78, if the Board should rule against the residents. That's the bottom
line.
CHAIRMAN: I'm not even sure you have a standing sir.
JOHN KLUKO: I don't have standing?
TOWN ATTORNEY GREG YAKABOSKI: You're right, if the Board basically if the
Board chose the route which you did not like. Then it would be up to somebody who did
not like that decision to challenge the Board to correct it. Whether or not your repute
that, certain people have the right to do it, certain people don't.
JOHN KLUKO: So the Board doesn't have the authority to say, well we don't think that
we're the appropriate party for this particular case.
TOWN ATTORNEY GREG YAKABOSKI: No the applicant has the absolute right to
bring the application to the Board. And you have the absolute right to stand there and
say, I don't think it meets that particular criteria.
JOHN KLUKO: That's fine, I understand. Could I ask the criteria for hardship?
MEMBER TORTORA: That's one of the questions was asked of Miss Moore. Is she
could provide us with A) and appraisal of the property?
PAT MOORE, ESQ.: An appraisal is what a good faith purchaser would pay for it. So
we've actually got an $80,000 that was what the property was purchased for. That's a
current price. If you want what the other properties have sold for, that I could certainly
get you.
CHAIRMAN: It was just sold in September right.
PAT MOORE, ESQ.: Yes, we just bought it and shortly after closing we got the.
TOWN ATTORNEY GREG YAKABOSKI: Inland Homes is in contract?
CHAIRMAN: They bought it.
PAT MOORE, ESQ.: Oh, yes we had a contract for the construction of a single family
house. Now the person was choosing a particular house that was valued at $300 or
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whatever the price was. That was a very nice house. Could I go to Inland Homes and
say, would you build me a $150,000 house. Sure.
MEMBER TORTORA: The price of the property is what's in question.
PAT MOORE, ESQ.: And the price of the property is current and it was a fair arms
length exchange.
CHAIRMAN: There is a lady in back of you that would like to speak. You have to use
the mike ma'am.
ELIZABETH VAIL: My name is Elizabeth Vail and I'm an adjacent property owner.
Being that the property sold in September for $80,000, just the lot, I'm still trying to
understand how the Kavanaghs they bought the house and the lot for $125,000. You
don't have to be too smart to realize that.
CHAIRMAN: Ma'am, money has nothing to do with this issue, it has to do with the
building issue. We understand
ELIZABETH VAIL: No, the point I'm trying to make is that I'm not really bringing up
the hardship thing, I'm trying to bring up the understanding that they had to, just from
that part structure know that that piece of property was not a buildable lot. So, at that
time, the market was pretty high also. That's the point I'm trying to make, I'm not trying
to make a hardship or anything I'm just saying anyone could, how could you buy a house
and an adjacent lot for $125,000 and think, he had to know that that piece had been
merged. It's just a logical thing and then to sell it for $80,000 less than three years later,
it just doesn't jive. Thank you.
CHAIRMAN: Thank you.
PAT MOORE, ESQ.: I would like to point out that the price that the Kavanaghs paid for,
we don't know what the negotiations, the priest had a vow of poverty and money didn't
matter to him and the $125,000 was fine because it was going to go to whomever. So
whatever the price was, now Inland Homes did not know what price Kavanaghs paid for
the property. I could assure you of that because we never looked into it. He was willing
to pay $80,000; Kavanagh was willing to sell it for $80,000. Even the value of the
properties in the area, that was a fair price. So, unfortunately, Inland homes is here
because they're the purchaser and is the one who would be hurt by this. They're trying to
punish Inland Homes for Kavanah getting a very good deal. Three years ago the
economy was not that good, it was before the boom. It would be fair to say that
waterfront property quadrupled in the time that some people have owned it and we're not
penalizing a buyer for that. I believe that that issue is irrelevant and what people knew or
shouldn't know or didn't know, again is irrelevant to what we're doing, the application we
have before you.
CHAIRMAN: You're going to supply us with that information?
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PAT MOORE, ESQ.: I will get that information.
CHAIRMAN: If any member of the community wants to see that information please
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come to our office. We need to have that by the 27 Mrs. Moore.
PAT MOORE, ESQ.: It may be a lot of work that I may not be able to get to you for the
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29 meeting. If I don't we'll just ask that it'll be there (pause), I'll do my best it's just that
Thanksgiving week falls.
CHAIRMAN: Oh yes, I forgot about that. Well if we don't have it in the appropriate
time, we just won't make a decision that night.
CARL VAIL: I just have one question. Wasn't it Kavanaghs job to apply for a waiver of
merger here, because he was the owner of the property that sold it to Inland Homes?
CHAIRMAN: No, he no longer owns the property.
CARL VAIL: But he was supposed to do that.
MEMBER TORTORA: But the only way you would find out though is if you apply for a
Building Permit. That's the reason this is before us tonight. That's how, to put it bluntly,
Kavanagh got away with it. The person that's getting hurt in this is Fleets Neck and
Inland Homes. The person that got away with it, Kavanagh. The fact that he didn't apply
for a Building Permit, he never came before our Board for a Waiver of Merger. Had he
applied for a Building Permit for that property, the Building Department (inudible).
JOHN KLUKO: The recourse for that should fall back on Mr. Kavanagh or the title
company.
MEMBER TORTORA: But the problem is, who's here tonight, the Zoning Board of
Appeals, Fleets Neck and Inland Homes.
PAT MOORE, ESQ.: The credification, so everybody knows, a title company does not
do that type of search. The title companies don't insure against any kind of zoning issues.
CHAIRMAN: That's correct. Ma'am you raised your hand in the back?
CAROL GUNN: My name is Carol Gunn and I'm a Fleets Neck resident. I happened to
be in real estate about three years ago, at the time that Father Henry's house was on the
market. At that time, that house was on the market with the idea the lot adjacent to the
home was not a buildable lot, it was all one parcel. Thank you.
CHAIRMAN: Thank you ma'am. Is there anybody else that would like to speak?
Seeing no further hands, I'll make a motion closing the hearing and reserving the
decision. We are awaiting, however, the information from Mrs. Moore. If we don't
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receive that in a timely fashion, we will just make a decision sometime after the 29. We
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are not bound to make a decision on the 29, we have sixty-two days to make a decision
at the close of this hearing tonight. I offer that as a resolution ladies and gentlemen.
SEE MINUTES FOR RESOLUTION
* * *
10:35 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 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 before us Appeal #5039, which is the Interpretation which we
discussed with you two meetings ago. Just so I have this for the record who are you
representing the Walzs?
ERIC BRESSLER, ESQ.: Yes.
CHAIRMAN: Okay, and are you incorporating this particular into their file or are you
keeping them two separate files?
ERIC BRESSLER, ESQ.: This is a two-pronged application.
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CHAIRMAN: So you don't really care what we do with it.
ERIC BRESSLER, ESQ.: No, but I would ask you to, I don't care from an internal point
of view but I going to ask you first to consider the Interpretation because if you interpret
it in the way that we are requesting, the matter is over. If you do not address the
Variance. If you interpret it some other way then you may have to address the issue of
the Variance. Which is why the last time we were together I ask for a leave to do this so
that you could consider it as a whole and in the proper order. I think I have only one
other jurisdictional document to add to your file, that is the Affidavit of Posting.
CHAIRMAN: That's wonderful.
ERIC BRESSLER, ESQ.: We are here before you on this combined application which
see in the first instance the Reversal of the Determination of the Building Inspector which
disapproved the application for a Building Permit. The basis of the Disapproval was
Section 100-242A, nothing in this article shall be deemed to prevent the remodeling, the
reconstruction or enlargement of the nonconforming building. Well that's what we
forgot, provided such action does not contain any new nonconformance or increase the
degree of nonconformance with regard to the regulations pertaining to such buildings. So
what we have here is an issue as to whether or not the application creates a new
nonconformance or increase the degree of nonconformance; and specifically of those two
the Building Inspector relied upon the later part of that particular section in any
Disapproval he stated that the second story addition represented an increase in the degree
of nonconformity. So that's what we're talking about tonight. What is an increase in the
degree of nonconformity, and before we get to that I guess we have to answer the
question which the Code does not, which is what is the degree of nonconformity because
if we don't know what that term means then we certainly can't know what an increase in
the degree of nonconformity is. It can be any number of things based upon that crystal
clear language used in the ordinance. Let's state with what it always has been historically
before this Board. I think I eluded to that briefly at the last meeting when I referred to the
Shannon case and the rule that this Board applied which is that the degree of
nonconformity where you have a nonconformity, say a side yard since that's what we're
dealing with here, is measured by the closest point of the building to that side yard. This
Board's rule was that there would be no increase in the degree of nonconformity provided
that the work remain within a line drawn through that point and parallel to the side yard.
What does that mean? That means that if you had a building and the setback was ten feet
and the closest point of that building was four and a half feet, but the building was angled
such that that four and a half feet came on a corner, you draw a line through that corner
parallel to the side yard and that would be four foot line. You could in essence turn the
building some number of degrees and as long as you didn't get closer than the closest
point that would not increase the degree of nonconformity, and I think inclusive in that
determination was the definition of degree in nonconformity which was what was the
closest point.
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MEMBER TORTORA: Mr. Bressler, I'm going to stop you right there. In the Shannon
case I do not believe it was the Zoning Board of Appeals who made that determination. I
believe that was the Building Department's determination.
ERIC BRESSLER, ESQ.: I refer to the statements on the record that I put before you at
the last hearing, where Members of the Board reflected the fact that if a line were drawn
through that point that would represent.
MEMBER TORTORA: In the Shannon case I believe that what happened, the Building
Department determined that there was no Variance required on the point that you were
taking and correct me if I'm wrong let's go through it together, there was no Variance on
that one side yard because the line existed as nonconforming, therefore they could fill it
in. That was no before our Board in that case in the Shannon case, is that correct?
ERIC BRESSLER, ESQ.: However, if you read the Minutes of that particular hearing,
which I sited at the last meeting and handed up a copy you will note that the Board
approved that particular standard.
MEMBER TORTORA: It wasn't before us. It wasn't before us; it wasn't incorporated in
our Decision.
ERIC BRESSLER, ESQ.: Nonetheless, it was stated by Board Members.
MEMBER TORTORA: But there was no vote taken on this.
ERIC BRESSLER, ESQ.: That may very well be, however, the Board stated that was the
rule that would be applied.
MEMBER TORTORA: That was the rule that the Building Department had presented to
us. The side yard that was before us was on the east side of the property, not the west
side which you're referring to. This is what came over from the Building Department
from us.
ERIC BRESSLER, ESQ.: Mr. Chairman do you have those minutes that I introduced?
TOWN ATTORNEY GREG YAKABOSKI: If I may just interject here to move things
along. I think that the legal technical that Mr. Bressler here, that the ZBA speaks through
Resolutions and its Decisions. Individual comments by Board Members is not part of the
decision. I think that there was no formal decision in the Shannon case which was on that
particular date, a formal Board decision.
ERIC BRESSLER, ESQ.: So I believe with respect to that, respectfully that it was. But
that's neither here nor there. That's the position that I'm taking and it is my position that
not only was the Building Department approving that but that was the standard that was
adopted in this Town. A second possibility that could exist with respect to this particular
degree of nonconformity could be that a building that ran parallel to the line, say four feet
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away, was nonconforming to that extent and that the nonconformity would be measured
along the building line as opposed to a line that is drawn parallel to the building line.
That is to say if the building were parallel to the line then that's where the nonconformity
would be; but if the building were angled the nonconformity would run along where the
building line went. That's a second possibility. The first possibility is regardless of the
orientation of the building, you take a line to the closest point and you run that parallel.
The second possibility is you take the building itself and the nonconformity line, if you
will runs along the line of the building. So that if it's four and a half, five and a half, six
and a half, at it's angle, that's where your nonconformity is. We don't take a line through
the nearest point and run it parallel, that's a possibility so in the case of a building that
were parallel, the walls were parallel to the line, the line of nonconformity would run
along the line. If the building were turned, the nonconformity line would follow the
footprint of the building. That's a second possibility as to what the degree of
nonconformity could be. It is my understanding that regardless of which of those two
interpretations was used, that it was the building footprint. Regardless of whether a one-
story or if you were going up two stories, the degree of nonconformity would not increase
because whether measured by a line parallel or the actual footprint it never got closer to
the side yard. That's what the degree meant, and if you wanted to put that in numerical
terms, if it were ten feet in lieu of four feet, you would have a 60% nonconformity, if you
only had four instead of ten. Those are two things that it could be. I asked Mr. Verity if
he wouldn't show up tonight and talk about what the Building Department actually
believes. I don't see him here but I did have the opportunity to talk to him about what the
Building Department felt that gave rise to this Disapproval. Since all the Board Members
are aware we plan to go up inside the footprint. So for our purposes we don't need you to
do an interpretation whereby you take a line through the nearest point, we're content to
have it be within the footprint. Because that's all we're doing. So we're not calling upon
you to necessarily chose between the twisted building and the parallel building. We think
that's a rational determination. Because whether you're one story, two story or thirty-five
feet, you're not getting any closer to that line, therefore the degree of nonconformity is
not increased. I suppose that another possibility would be _____. The third possibility
would be that if you're going up from the first to the second story, then you couldn't go
inside the ten feet at all. And then if you were first story were four feet from the line,
then anything closer to ten would be an increase in the degree of nonconformity. You
could say that, but the Building Department's not saying that. Are you with me on that
one?
TOWN ATTORNEY GREG YAKABOSKI: I'm with you on that one, I'm just going to
respectfully suggest my advise to the Board in public here, that is I understand you talked
to the Building Department but with all due respect, I think if the Board wants to hear
from the Building Department, they should have the Building Department in.
ERIC BRESSLER, ESQ.: Well they're going to hear form me anyway.
TOWN ATTORNEY GREG YAKABOSKI: We won't with that particular topic as to
what Mike might have said or did not say.
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ERIC BRESSLER, ESQ.: Well we're in an administrative hearing and I'm going to say
what he said to me. He's not here, I invited him to be here and quite frankly this has been
held over a number of times and not all of them are chargeable to us. My client's want to
get done. So I asked him, I said so if it's not what I say is the Shannon formula, if it's not
the actual footprint formula and it's not the fourth one, where you can't encroach any
more on the second story, what is it? And what he said was, well what it is, you can go
up but you can't go up on the footprint line. You have to be in. I said, okay, how far in
do I have to go. He said, I don't care, you have to go in. I said well one foot in, six
inches in. He said you have to be in. Well it seems to me that if this Board wants to
interpret the meaning of degree of nonconformity, that's one interpretation you can't
adopt, because that doesn't make any sense. It seems to me that of those four, that's the
one that doesn't make any sense at all. You could philosophically argue for the first one
and say, if that frame is four feet away and you don't get any closer than four feet you're
okay. I could live with that. If you take the second one, and say as long as you stay
within the footprint and you don't get any closer than that you're certainly not increasing
the degree of nonconformity. And I could live with that. That certainly made sense. But
I don't see how permitting something an inch or two inches or a foot in is a rational
interpretation, and I think if you think about it and you look at the shape of the building,
you're accomplishing absolutely nothing; except as Mr. Brown will tell you, an
architectural nightmare. He said what am I supposed to do with that little thing that I step
back. I don't want to have a little flat place, that means I have to build a roof, that means
I have to have an overhang. That means I have to go crazy doing these things.
MEMBER TORTORA: Mr. Bressler this is actually the third time I've heard this, we
heard this from an architect the last meeting. I would kind of like to have Mr. Verity
present. Are you saying that essentially what he said was that if the existing
nonconformity is at four feet and you built something on the second floor or an addition
at four feet six inches, then that would not be in conformity?
ERIC BRESSLER, ESQ.: That that would be fine. He took the position.
MEMBER TORTORA: Did you ask Mr.Verity to be present?
ERIC BRESSLER, ESQ.: I invited him last time to be here, and he didn't stick around. I
invited him this time respectfully to be here. That's the position that he's taken. And I
talked to others who modified their plans and have gotten approvals on that basis. And
respectfully I don't think that that's an appropriate determination. Now why? Let's think
about this. In terms of the degree of nonconformance, as long as you're not getting any
closer, that's what I think the Code is aimed at. Although I didn't draft it and nobody here
drafted it, it seems to me that if you look at 100-242A, provided such action does not
create any new nonconformance. Well what's a new nonconformance? Well, maybe
now you have a front yard problem. Maybe now you have a rear yard problem. We don't
have that. Or contra cite with that a degree of nonconformance. Well if you're at four
feet and you don't go any closer than four feet, then the degree of nonconformance is not
changing; and that's how we would urge you to read this particular ordinance. I think that
in reading it you have to address the Shannon issue though, because there's a lot of stuff
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floating around out there and I think you have to clarify whether it's going to be the
footprint or whether it's going to be a squared off footprint. It seems to me with the
appropriate answer to that question is the actual footprint. Because you don't want
anything closer to that line in terms of distance that's already there and if it's four feet
here, five feet here, six feet there, seven feet there, you ought to maintain that. I think
you ought to be able to maintain it as you go up, because you are not getting any closer to
the line. What I've done in an attempt to illustrate that is, and I gave it to Mr. Brown
because I'm a terrible artist and I asked him to draw those four scenarios and I will label
them A, B, C, D; and A is the, I'll call it the Shannon issue; B is the straight building
footprint; C is where you're setback two or three inches and you can see it looks almost
identical to B; and D is where you're not allowing anything to be done within the set back
area on the second floor. So you can see over here with the twisted one you can see how
you can draw that line to the corner.
MEMBER TORTORA: This was the side yard from before. Not this one.
ERIC BRESSLER, ESQ.: Well, I think if you look at this and the deck decision together,
I respectfully think that the issue of the twisted thing comes before you. This one is what
we are urging you to adopt. Here's the building, here's the line and as long as you stay
within the footprint you're not getting any closer.
MEMBER TORTORA: You’re going up.
ERIC BRESSLER, ESQ.: You're going up.
MEMBER TORTORA: Air space doesn't count.
ERIC BRESSLER, ESQ.: Well no, because you're not getting any closer, you're already
here. We don't have a pyramid law. If we had a pyramid law then I'd say to you, okay
let's deal with it; but the Town and it's wisdom has not chosen to have a pyramid law.
MEMBER HORNING: Brief us on a pyramid law if you would.
ERIC BRESSLER, ESQ.: The pyramid law is something that originated in the
Hamptons. The pyramid law, you all know what pyramids look like right. And the
pyramid law is drafted in terms of distances and angles such that the higher you go; the
less massive you are as you go up. Thus the pyramid. So that at the top of the thirty-five
feet so you don't have the box-like structure. Any architect worth his salt is going to give
you a modified pyramid, at least in my opinion. And I think if you look at Mr. Brown's
drawing, you will see that there is somewhat of a modified pyramid. He doesn't go up
box-like and give you a flat roof; and, of course in the Hamptons that's what caused the
problem. Everybody was going up box-like with flat roves and it looked like hell quite
frankly, so they said no, we don't want that we want a pyramid law and the effect of a
pyramid law is to have to have the gabled roof and the setback. So if you look at our
drawing you will see that on the left side you have exactly that. You have a shed and
then up and you're well within that. On the east side, where there's no objection you
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have, again, a gabled roof coming down and then you have a piece where it goes up
above the first story; and, in fact, that's what is causing the problem here not the
complaining neighbors' side. Because the complaining neighbors' side is D, because
there's a gable roof over here that's disappearing and we're replacing it with a shed. So at
any point that you look along the west side as the shed goes up and you get rid of the
gable it's actually less intrusive on the west side. It's only the east side that's creating a
problem for us here. Mr. Brown can speak to that with the drawings, and I talked to Mr.
Verity about it, and there is no problem on the shed side. In fact, it's much less massive
and it falls within any interpretation you want to have. The east side is a little bit of
problem because we are going up for a distance and then we're gabling it over. I think
that B is the appropriate interpretation, as long as you don't do anything going up and you
stay within that footprint you're going to be okay because you're not increasing the degree
of nonconformity. The distances remain the same. I don't think that A is an appropriate
result, although I had seen it applied, and the Building Department seems to have
abandoned that. I think that's what degree means, and I would urge you adopt that
particular interpretation. Under that interpretation the determination of the Building
Inspector should be reversed, because we are within the footprint on one side and we
have no problem on the west side. That's what I think the issue is, and I think that it's an
important issue. It's an important issue for several reasons. First, because there is a lot of
it going on; and the Building Department has apparently flip-flopped. I think we can all
agree on that, even though we may disagree on what actually came before you. We know
the Building Department has flip flopped and they're creating a lot of difficult problems
for everybody. Number two; the solution that has been urged by the Building
Department is no solution at all. It doesn't do anything. If the Building Department had
adopted some sort of a rational solution, and I don't know how they could, absent
legislation, there would be this dysfunctional equivalent of a pyramid law. Well maybe
that would be something I could understand. But I can't understand this, this makes no
sense architecturally, it makes no sense to the neighbors it only creates additional
difficulty, confusion and hardship. So I would urge you to reject that. I think also,
philosophically it doesn't make any sense. How could it not be okay there but it's okay
there. That to me doesn't make sense, either you're increasing the degree of
nonconformity or you're not. Because if you don't go any further you're not increasing it.
The alternative is D, which is the permit nothing area. I think that would be great
mischief, because then nobody would be able to do anything and the Board would be
inundated with all kinds of applications. That would really be violent. So I think for
now, pending what the Town Board may or may not do, I think B is an appropriate
middle ground that satisfies everybody's needs. That's all I've got on the Interpretation
argument and I think that the drawings illustrate what we're asking you to do. I don't
know whether you want to get the questions or you want to take testimony on that issue
before I
MEMBER TORTORA: It's very hard without Mr. Verity, with all due respect, because
the Board has talked about the difference the reading of the Code over the last six
months, but in his defense I would like him to speak for himself. It is a very important
issue. I see there's an architect here that also has another application before us.
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ERIC BRESSLER, ESQ.: Well you know my problem is, with all due respect to Mr.
Verity this is the second time I've asked him to please be here. I know this thing was
kicked over from July and my people need to get this done. I have Mr. Brown here who
can speak for this. I know Mr. Strang is familiar with what they're doing down there. I
understand that the Board may want to hear from him. I don't know that, I think it would
be interesting probably to verify what he said. I'm certain that he will. I don't know that
is just positive to your determination. I think you people have a pretty clear idea of
what's going on here. I think you have a pretty clear idea of what you're choices are. I
think that probably the choices that are laid out there are all the choices. The only other
thing that I can think of is something that has no basis whatsoever in any fact or law and
that's what Mr. Verity could come back and say; well it had to be set back at least a foot.
And my answer would be well why not a foot two inches. Why not eight inches. There
is no rationale to that. It seems to me that the scenario that I've laid out for you had to
encompass in one way or another what he's going to say. Because there are no other
choices. So I would urge you to put some finality on this, to say my clients are frantic
understates the case. I don't think there are any other choices. If you have any questions
for me, or if you want to take testimony on this branch of the application, I'm happy to try
to answer your questions or have Mr. Brown answer any questions you may have.
CHAIRMAN: I think we're fairly familiar with what the new changes are on the Walz
house. Have you reduced any of this Mr. Brown, any more than the copy that you had
given us?
ROB BROWN: As I've indicated in the past, we felt and strongly feel in the process of
the design we took the impact on the neighborhood with a great deal of seriousness and
have done, in the design process, everything we could to mitigate any impact which I
believe that we have done and maintained the integrity of the building. Any less impact
on the east side of the building would render a good portion of that space and have a
serious impact on.
CHAIRMAN: You haven't given us, all you showed us was the original copy with the
part that you have now changed. We don't have the actual plan of the new proposed
change.
ROB BROWN: Those were the plans that were originally submitted.
CHAIRMAN: What I saw was the easel type with the new plan shown. I didn't see it in
a hard copy situation.
ROB BROWN: Did you get a set of blueprints?
CHAIRMAN: I don't think we have blueprints of the new plan, no.
ROB BROWN: There's the, maybe I'm misunderstanding. The new plan that was
originally presented was the plan that was presented later in easel form.
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CHAIRMAN: Oh, I'm sorry.
ROB BROWN: There was no change to that.
CHAIRMAN: There was no change to that plan?
ROB BROWN: Not with the impact.
CHAIRMAN: So the plan that I have in the file is the plan?
ROB BROWN: That's correct. The other one is a three-dimensional representation of
what that would look like.
CHAIRMAN: That is the plan that takes the house on the west side into consideration
for the changes.
ROB BROWN: In fact, what is now a gabled roof facing the west, has been reduced to a
shed with an eave that's actually lower that the eave of the gable.
CHAIRMAN: I misunderstood, I thought that that easel that you showed us was a third
plan, or a second plan.
ROB BROWN: It was always the same plan.
CHAIRMAN: It was always the same plan, I apologize.
ERIC BRESSLER, ESQ.: What is shown on the west is the removal of that gable and the
shed roof on that side to try to minimize the impact; and I think, Mr. Chairman, if you
look at that side particularly it is almost dead perimeter with a very short knee wall and
then you go right up to the roof again. So on that particular side, that is just about as
minimal as we can get, in fact there is basically no usuable space added on that side out
of consideration to that problem. If the space hadn't been counted for somewhere, hence
our problem on the east side. If we were to do something similar on the east side then we
end up with essentially a lot of muddy, or not much of anything at all.
ROB BROWN: In fact on the west side, I don't think that the Building Department had
any objection to the design. That was not part of what they objected to.
ERIC BRESSLER, ESQ.: It's just that each side's problem we have over there with
basically no objection from the neighbor.
CHAIRMAN: Alright I need to study that just to make sure that that sits right in my mind
and so I'll close the hearing, we'll close it to verbatim tonight and I'll close it as a matter
of fact at the Special Meeting just so if I have any questions I can call Mr. Brown
regarding the review of that. I glad you brought that, because I sincerely thought there
was a modification there in between those two.
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ROB BROWN: I'm sorry if I didn't make that clear.
ERIC BRESSLER, ESQ: I think one of the things you might be thinking of Mr.
Chairman was that the drawing that I was looking at was drawn in such a manner and at
such an angle that it didn't look like what it was supposed to look like. And over on the
west side, because of the angle at which it had been drawn, it looked like the walls were
not in exactly the same place; and I think that you asked Mr. Brown to re-do that over
here to eliminate that problem. Do you recall that?
ROB BROWN: No, because actually the problem is the east side. The problem on the
east side is better represented by the other view. This was intended just to show the
situation on the west side.
CHAIRMAN: Okay.
MEMBER TORTORA: Just before we close the hearing,
CHAIRMAN: We're not closing it, we're going to leave it open just so I can review this.
MEMBER TORTORA: Since it is kind of a two-prong, do you want to address the other
variance?
ERIC BRESSLER, ESQ.: Yes, I was wondering whether you wanted to take any adding
other testimony or anything on the first issue before we go on.
CHAIRMAN: No we're done on that.
ERIC BRESSLER, ESQ.: Okay, moving on to the variance aspect, we touched on that
briefly last time and I think in that regard, we introduced an area map, did we not, that
was marked with numbers and yellow markings? I would like, at this time to hand up
other graphs which are keyed on the back, or do you have those, that are keyed?
CHAIRMAN: I have them.
ERIC BRESSLER, ESQ.: Do you have them all?
CHAIRMAN: I don't know, I can't tell you.
ERIC BRESSLER, ESQ.: I don't know whether they're all keyed on the back or not.
CHAIRMAN: Well why don't you do this.
ERIC BRESSLER, ESQ.: I'm going to offer these up. They're all keyed on the back to
your key map that indicate. Those are your photos in total that are keyed on that
particular map that indicate the area of the surrounding neighbors. Number one, the
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character of the neighborhood, that's what I just introduced, the photographs and the area
map. The character of the neighborhood is not going to change. The area, as you know,
consists of small non-conforming lots with non-conforming setbacks. That's what it's like
down there. Many of the waterfront houses are one and a half and two stories, as the
applicant requests here. So it clearly would not work a change in the character of the
neighborhood. The nearby properties are not going to suffer a detriment, so let's talk
about the neighbor to the west. We already know from the exhibits that were introduced
the last time, do you have those? You know that the house to the west is not going to
suffer a detriment with respect to light and air due to the location of this particular house.
The roof lines going to be less severe on that side, in fact, it's going to be beneficial to
that particular neighbor. There is no impact on the house to the east and the neighbor has
no problem. So, in sum, the nearby properties are not going to suffer. The Board can
readily see that the applicant has no alternative but to expand upward. They're certainly
not going to ask for greater variance on the side yard, and we can't go forward and we're
not going to go back; so we've got to go up, just like everybody else has done. Is the
relief requested substantial? No. The relief requested is not substantial, why not? Well
because the footprint is not going to change, the setbacks not going to change the west
side doesn't require any sort of relief and the east side only requires with respect to the
second story before the roof starts going down. So we're not asking for a lot, we're only
asking on the other side. Will it have an adverse affect on the physical or environmental
conditions of the neighborhood? No. The footprint's going to remain the same. There
are no other environmental factors implicated, since the footprint's the same there are no
run off problems, there is not a greater lot area coverage issue. The difficulty is not self-
created, because we have no place to go but up. It is a small, as originally built place and
I believe that the applicants are entitled to more. I think that Mr. Brown has done a nice
design. He has attempted to minimize, at least with respect to the objecting neighbor, the
impact; while, at the same time, maintaining a nice shape basically perimetal in shape
which preserves and protects the character of the neighborhood because it is similar to
what's there. We believe that if the Board finds that the Interpretation, the ordinance, is
not as we proposed then surely the Board should grant us a Variance so that we don't
have to set that wall back a little bit. Mr. Brown has indicated to me that that's going to
create all kinds of architectural problems; and I don't want to go back to the Building
Department and amend this plan to create something that architecturally doesn't make
sense, and from a neighborhood point of view adds absolutely nothing. It will not affect
the characteristics, it will not affect the impact, it won't do anything other avoid a hyper-
technical application of the ordinance. That's why I believe that you should ground your
decision at the first instance of the first prong of this application and get rid of, what we
believe, a pernicious, not malicious, but a pernicious trend that we see developing here of
all these things coming before you; and the alternative being the design in many cases,
that makes no sense whatsoever and does not serve the purpose of what the Zoning
Ordinance is designed to try and preserve, in what I consider to be a hyper-technical
application that really has no substance. If the Board has any questions, I would be
happy to entertain them.
CHAIRMAN: I believe, Mr. Bressler, that when one constructs these additions that it's
very difficult for the neighbors to understand. I would hope that between now and the
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time that I close this hearing in two weeks, that Mr. Brown speak to the neighbors who
are sitting in the rear of the room, and explain to them exactly the way that roof line is
going to affect them if it does affect them and how this thing is going to work. There are
times in this world, and in this Board, when we can't reach a certain agreement. But,
knowledge is a great thing; and I would really ask him to do that so that we could, at
least, cover any furrows that have not been covered at this point. That's just an opinion at
this point, I can't force anybody to do anything. That would be greatly appreciated. We
had him put up those boards so that we know what the height is. In my discussions with
the neighbors, they are still very much concerned about the affect of their air, the affect of
their overall value and how this project is going to affect them. We're talking seasoned
neighbors, we're talking neighbors that these are not people that move in and move out on
a yearly basis or a bi-yearly basis, or every five years. They've been there for a long
time, just as the Walzes have and they still have a distinct concern. I'm not speaking for
them, I'm only relating conversations that I've had with them regarding this. I think it's
important that they understand exactly what that situation is.
ERIC BRESSLER, ESQ.: We are certainly willing to undertake that Mr. Chairman, and I
think there was one other point that I neglected to bring up, and that is that I think this
Board, if you get to the Variance issue, this Board has granted Variances under similar
circumstances and I would site just this for the record, incorporated by reference read
from #4971 Frentzel in which relief similar in some respects the relief was granted in
those decisions and I don't want to get into them in detail. I do believe that the point is
well taken, and I think that Mr. Brown and I will undertake to do that with drawings to
try to explain just what the situation is.
MEMBER TORTORA: Mr. Bressler, the map that you handed to us, would it be
possible just to put one page together with a paragraph explaining to the different when
the Board Members review this?
ERIC BRESSLER, ESQ.: Well certainly.
CHAIRMAN: We have Miss Collins was not feeling well tonight, she had to leave and
for us to cause any misconception, it would help.
MEMBER TORTORA: It would help all of us.
CHAIRMAN: That's a good point Lydia.
ERIC BRESSLER, ESQ.: I'll ask Mr. Brown to reduce that to a manageable size and
then.
MEMBER TORTORA: Just one little paragraph. That would be appreciated.
CHAIRMAN: Mr. Brown?
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ROB BROWN: If I may, I think the Board knows me well enough to know that whatever
is deemed necessary by the Board to clarify this issue, I wouldn't hesitate to help the
Board in this matter. Regarding your statement before, it raises the question in my mind,
is there anything that I can do to explain to the Board exactly what's going on here.
Things that you might not understand at this point.
CHAIRMAN: Well, that goes back to my other question. That's the difficulty of not
having a rendering in front of you. I'm not asking you to create a model for me okay, but
that's what usually eliminates all of the problems. The next thing I asked you to do was
put the poles up so that we knew how high we were going. But without the rendering in
front of us, this is the difficulty of what we see. Perception is a very important part of the
presentation at this point, and that's why I'm telling you where the problem lies. Because
there are misgivings, and I created that same problem tonight by explaining to you,
thinking that you modified the second plan where, in effect, you didn't modify the second
plan. The perception was that you changed that wall on the west side, which in reality
you didn't change the wall.
ROB BROWN: That was always the design.
CHAIRMAN: Yes, and I'm glad that you brought that up, because this is the problem
that we have in pre-existing neighborhoods. If we were building on a five-acre lot, we
granted a house over here, right across from Kace in fact, that's 10,600 square feet. It's
on 2.5 acres on the Long Island Sound and they're going to build a 8,500 square foot
house on one side and 8,600 square foot house on the other side and they're all friends,
they're all related, they're all in the same corporation. No problem, we don't need a
rendering they know what they have, this is what it's going to look like, this is what's
before us, this is what's going to happen. But here we have pre-existing neighborhoods.
These were neighborhoods where these houses at one time sold for $85,000. They now
sell for half a million or more. Money should have no real object tonight because you
heard me say that you heard me say that regarding that situation of $125,000 and it went
on and on and on. It has nothing to do with it, it was done three years ago, it's a mute
point of how much these people paid for the house. What I'm trying to say is when a
person has their entire livelihood in this piece of property, and they honestly,
conscientiously feel that this is going to affect them, then it is encumbered upon us, and
maybe that's one of the reasons why I'm people orientated, to try and solve as much of the
concerns that they have from this particular dais as we can do. Because, some people are
just not paper orientated, they just can’t look at the piece of paper and say that this is the
way that this situation is going to be, in comparing an existing one-family, one-story
house to now what we refer to as a two-story, or a portion of a two-story house.
ROB BROWN: I agree with you entirely. What I'm asking you is given the overlay
drawing that I presented at the last meeting. Does anybody on the Board have any
questions about those, about what they represent and about what's intended with the
construction?
CHAIRMAN: No I don't have any concerns about that, but I still have difficulty
understanding and super implanting that new roof line on the existing structure. And
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ZBA Public Hearing Transcript(s)
Town of Southold
that's, of course, one of the mistakes I made by saying that. I don't mean to be redundant
tonight over this whole issue, okay. Because I honestly thought you changed that roof
line on the west side.
ROB BROWN: If there is anything that I can do to explain the project to anybody.
CHAIRMAN: I would really, honestly appreciate you contacting or having them contact
you and discuss this whole situation. I'm sure they're going to speak tonight anyway. Do
you want to say something Ralph? Come on up Ralph. This is now, Mr. Martin, six
hours and ten minutes.
RALPH MARTIN: I don't envy you folks. In a moment I'll ask my wife, with the
Board's permission, to bring something forward for their visual interpretation. Ladies
and gentlemen I will try not to take up too much of the Board's time reiterating our
previously voiced concerns regarding the addition of a second story to the Walz house.
However, I would like to submit these pictures showing the impact this addition would
have on the views from our house and entryway. The photo showing the views from our
porch in #1 and bedroom in #2 were taken outside with my back to our windows rather
than trying to take them through the glass. The picture taken from the sewing room #3,
thru an open window. The overall view, #4, taken from our walkway indicates very
clearly how large this new structure would be. Upon approaching our entryway and
looking up you would only see their house. The sky would be virtually obliterated, we
feel our pictures of their proposed addition taken from directly next door, not from down
their driveway or from out on the beach as with the picture taken by their architect give a
much more accurate representation of the height of the proposed structure. On
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September 20 the Walz architect presented graphs based on information provided by
Brookhaven Laboratory showing only a minimum amount of light and fresh air would be
lost as a result of the proposed opening argument. The point I'm trying to make regarding
that issue is this, at the present time our bedroom windows in our house face the Walz
house are curtained on the lower half for privacy. If, however, their house is enlarged up
with this plan we will be forced to lower our shades completely so that they cannot see
downward into our bedroom. Therefore, the lowering of our shades will result in less
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light and air coming into our windows. Also, on September 20 Mr. Brown presented in
a rather cavalier fashion a map to denote the location of existing two-story homes in
Gardners Bay Estates. Upon closer examination of this map it appears that none of these
houses except for one is built on a single narrow lot less than 50 feet wide front and back.
All are larger double or triple lots except that which is owned by Trenchnay which is on a
30 foot wide lot. According to the survey submitted by the Walzs, their lot is less than 47
½ feet wide on which has been built an approximately 30 foot wide single story house.
They now wish to add a second story. I cannot see how this could not be considered
totally overpowering and overwhelmingly large for that small narrow lot. Mr. Bressler
requested an Interpretation of the Southold Town Building Code as it pertains to existing
dwellings and non-conforming setbacks and Reversal of the Building Inspector's Notice
of Disapproval. May I suggest that in your considering whether or not a second story
addition within the footprint of an existing, non-conforming dwelling increases the
degree of non-conformance you consider the following. Perhaps if some of the second
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Town of Southold
story additions that were constructed on already non-conforming buildings were not as
humungous and as hideously out of place as they are, re-examination such as this would
not have to take place. Waterfront homes built here many years ago took the advantage
of almost every inch of land were built very close to one another. Keeping them as low
as possible, at least helped them be somewhat less imposing and more in keeping of the
overall look intended for Gardner's Bay Estates. Because the Walz's existing house is on
the highest portion of the slope of land between our two houses, their one story house is
approximately the same height as our house, which is considered to be a story and a half,
not a two-story as indicated by information supplied by the Walz's architect. Adding a
second story to this will surely result in an overwhelmingly top heavy look on a very
small piece of property. I feel that look is more in keeping with the South Shore not the
North Fork, and certainly not Gardner's Bay Estates. It seems to me that whatever
hardship the Walzs alledge, they have completely self-created. Inasmuch as they have
managed to vacation in this house for approximately twenty years with no previous need
for expansion; with regards to four bedrooms and four bathrooms that we understand are
proposed, the Suffolk County Department of Health Service Sewage Disposal System for
single family residences approval under Section 5-120 Tables 1, 2, 3 and 4 states that
new construction having one to four bedrooms requires a minimum septic tank capacity
of 1,000 gallons with a minimum legal surface area of 27 square feet. Also with a depth
to ground water of 11 to 17 feet, a minimum requirement of two pools, six feet deep and
eight feet in diameter or three pools four feet deep and eight feet in diameter are required.
Inasmuch as these are the minimum Suffolk County Department of Health requirements
for a four bedroom residence, I would like to know where the new and/or enlarged septic
system will be constructed on a small piece of property. In addition, there are other
considerations, such as distance to water supply lines, property lines, etc. Will the
Southold Building Department seek approval of the septic system from the Suffolk
County Department of Health, and if not, why not? I would also like to know if the
Town Trustees have made a determination of jurisdiction regarding this construction due
to its closeness to of tidal water. I also find it quite puzzling if not amusing, that during a
hearing before this Board in the Spring of 1999 regarding another resident wishing to
expand their home, Miss Abigail Wickham representing Gardners Bay Estates
Homeowners Association asserted that and I quote, "if they want a bigger house they
should get a bigger parcel." In conclusion, ladies and gentlemen of the Board, it is
obvious the Walz have been in touch with a number of residents in Garners Bay Estates,
in an effort to gain support for their addition. However, with the exception of Mr.
Edward Forth, whose house is but three feet from the easterly side lot line, not one of
their supporters has a residence immediately next to the Walz house. Also, none of them
are year round residents and, therefore, would not have to look at this overly large
structure on a daily basis as I would. In fact, because they do not live here all the time,
they may not even look upon their residences in these Estates as home the way I do. I
would like to give you a copy for your files of my comments this evening, as well as a
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copy of those made at the June 7 hearing and thank you again for taking our concerns
and opinions into consideration. Thank you, ladies and gentlemen.
CHAIRMAN: Thank you Mr. Martin. Mrs. Walz, how are you?
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Town of Southold
MRS. WALZ: Good evening, I just want to let you know, my husband has just retired.
We are residents of Southold Town, we love Southold Town; we've owned the house it
will be twenty-three years as of January, and we are selling our home in New Jersey. I
have grown up here, I'm fifty-five years old. My father bought the cottage in Southold on
Mill Creek the month after I was born. I have never ______in Southold Town. We were
not permanent residents before because what I did for a living and what my husband did
for a living would not allow us to live here. Well, now that's changed. That is the reason
for our expansion.
CHAIRMAN: Sir? Please state your name for the record.
FRANK THORPE: I am Frank Thorpe. I know (inaudible) Mr. Chairman. I spoke with
one neighbor, I didn't all the neighbors down. I've been here for sixty-three years; a
permanent resident, a voting resident for over twenty-five years. I live here full time. I
live granted three houses away from the Walzs, but they get a complete view of my
house. They've been to my house, they've seen my deck, part of my deck is in complete
view. There's my brother, whom I also represent, Edward Thorpe, who lives right next
door; whose house is not three feet but five feet from the property line at its closest point.
He has absolutely no objection to this. So I just want to make it clear that there are others
of us who are there full time and have been there for many, many years. There is my
family, my grandfather and two other gentlemen who developed Gardners Bay Estates.
We had, with the exception of these few lots, we instituted Zoning long before the Town
ever noticed it. After these few lots were sold it was realized that they were building too
close to the property line. So in the deeds of almost every other lot that was sold in
Gardners Bay Estates the closest you could every build was eight feet. We recognize
that, maybe too late.
CHAIRMAN: Mr. Thorpe I just want to mention to you that my conversations are not
limited to just the neighbor on the west side. This is a conglomeration of concerns, as
you know and as you have seen that we have had these hearings, at least six hearings a
year. In other words, in six month intervals depending how they flip flop, we will usually
have a hearing at least half the time on Gardners Bay Estates. These are all concerns that
we are dealing with. I am dealing with this neighbor only because he has an actual
concern, in his opinion. I am trying to minimize that concern to the best of my ability. I
have not been successful in doing that, and that is the reason why the only other concern I
can have is have the architect talk to him to the best of our ability.
FRANK THORPE: I would appreciate that very much.
CHAIRMAN: Yes. Good evening, I'm Norma Martin I live next door. I just want to say
very briefly I find it very interesting and very nice that your idea of possibly getting
people all of us together in an effort to array our fears. Its unfortunate that although
_____in obtaining this house they went to every, to some of the neighbors I shouldn't say
every, but to many, many neighbors and we were totally relieved and not approached.
The one weekend that they chose to come to our home, I understand, was of course the
weekend when there wasn't any car in the driveway so they knew we weren't there. They
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Town of Southold
have never spoken to us, although they've spoken to other neighbors months in advance.
We knew what was going on because the neighbors told us not to _______. And I know
that its not part of this, but I just wish that we could've been approached and maybe its
not too late, but it would've been nice and it would've eliminated a great deal of all of
this. Thank you.
MEMBER TORTORA: Its getting late, so unless its really relevant to the issues here
please.
ROB BROWN: Just briefly Ms. Tortora, I think the issues that were raised with respect
to the Health Department and Trustees are properly taken up by with Health Department
and Trustees, if such issues actually exist and we're not going to address them. I think to
the extent that a member of my firm made an argument before this Board, I'm sure she is
100% justified in making the argument she made and was probably right and was the
signature in this case whatever it was she argued. I need that in the record with any
comment of who talked to who, they obviously dispute and we're just going to leave it at
that.
MEMBER TORTORA: Alright.
CHAIRMAN: Thank you. Okay, I'm recessing this hearing to the regularly scheduled
meeting. It will be closed at approximately 6:30. I will review those documents that I
was so indicated by architect Brown that I didn't understand, so to speak, and I'll make
that, I'll justify that in my own mind and if I have any questions I'll call you.
ROB BROWN: If there's anything you need.
CHAIRMAN: So that is the standing, have a safe home, or get home safe everybody and
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have a happy holiday. We will start deliberating sometime thereafter the 29. Either that
evening or sometime thereafter. I offer that as a Resolution ladies and gentlemen.
SEE MINUTES FOR RESOLUTION
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Prepared by Paula Quintieri