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HomeMy WebLinkAboutZBA-01/25/2007 Hearing 1 2 - 3 4 5 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 TOWN OF SOUTHOLD COUNTY OF SUFFOLK ZONING BOARD OF APPEALS STATE OF NEW YORK --------------------------------------------x TOW N o F SOU THO L D Z 0 N I N G o F A P PEA L S BOA R D --------------------------------------------x Southold Town Hall 53095 Main Road Southold, New York January 25", 2007 9:30 a.m. Board Members Present JAMES DINIZIO, Chairman RUTH OLIVA, Board Member GERALD P. GOEHRINGER, Board Member LESLIE KANES WEISMAN, Board Member MICHAEL SIMON, Board Member LINDA KOWALSKI, Board Secretary KIERAN CORCORAN, Assistant Town Attorney ~ COURT REPORTING AND TRANSCRIPTION SERVICE (631) 878-8047 1 2 e 3 4 5 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 CHAIRMAN DINIZIO: Good morning. The first hearing is for Kevin and Lesley Milowski, Number 5987. A variance is requested under Section 280-14 based on the Building Inspector's September 15, 2006 Notice of Disapproval concerning a proposed addition to the existing single-family dwelling at less than the code required minimum 60 feet from the front yard lot line, at 1371 Cox Neck Road, Mattituck. It appears to be an existing setback of 52 feet; is that correct? Is that correct, the house is already built? MR. MILOWSKI: It's 53. I think that was the code setback when I built the house. CHAIRMAN DINIZIO: The house exists basically. I'm trying to establish that the house is already there. One of your plans said 52, which is fine, and you're asking for 30 feet? MR. MILOWSKI: Actually, that setback line when we built the house, I didn't realize it but it would be considered the side yard, if you're looking at the house, and never realized that it was the front yard. And I had a similar situation when I put the pool in the back, and Victor Lasarde was the Building Inspector in the town and allowed me to do a pool because it was in my side yard. That's when I realized that's the front of my house, okay, that's the front of my house, the side of my garage and that was approved by Victor then. So then I was told that I had two front yards. CHAIRMAN DINIZIO: Could you come up and stand at the podium, and you are Mr. Milowski? MR. MILOWSKI: Yes. CHAIRMAN DINIZIO: Basically, I mean I see this now as 51.6 feet existing and you're asking for 30. Now, the notice of disapproval says approximately 30. So, if we grant 30 feet, you will have to live by that. MR. MILOWSKI: Right. CHAIRMAN DINIZIO: Michael, do you have anything on this? BOARD MEMBER SIMON: Not at the moment, Jim. CHAIRMAN DINIZIO: Jerry? BOARD MEMBER GOEHRINGER: Kevin, is this a one-story garage or two story? MR. MILOWSKI: It's a one story. It's a COURT REPORTING AND TRANSCRIPTION SERVICE (631) 878-8047 2 1 e 3 one story with a storage space. It's not a full two story or whatever. BOARD MEMBER WEISMAN: We have the 2 plans. 8 BOARD MEMBER GOEHRINGER: I just didn't know if you modified it in any way between now and the time -- MR. MILOWSKI: It's the same. I think it was the same height as the existing garage that's there now; it's just the gable's turned because there's a height on the building plan. BOARD MEMBER GOEHRINGER: The only reason I asked that question is sometimes it's easier to encapsulate everything in the decision even though it's attached to the house. BOARD MEMBER WEISMAN: The section will probably call it out. I can extrapolate it, this is to scale. I'll measure it when I write the finding so we know exactly the height. It's not called out on here. It may be in your application. I think you just state the same height as existing. MR. MILOWSKI: Yes, I think it is in the application. BOARD MEMBER WEISMAN: The garage is attached and you're simply going to convert your existing garage into interior living space. I just wanted to ask you do you think it will be necessary -- those beautiful large pine trees? MR. MILOWSKI: They're staying. Actually, my business is excavation and landscaping, and I'm putting in more trees. BOARD MEMBER WEISMAN: You're pretty set back from your neighbor but still they're beautiful trees. MR. MILOWSKI: No. I planted those trees. BOARD MEMBER WEISMAN: So you don't want to kill them. MR. MILOWSKI: No, I want to add to them; I want to plant more trees, I don't want to take any down. BOARD MEMBER WEISMAN: Okay, I have no further questions. Thank you. CHAIRMAN DINIZIO: Ruth? BOARD MEMBER OLIVA: Are you going to have heat in the upstairs of the garage? MR. MILOWSKI: No. BOARD MEMBER OLIVA: So you don't mind if 4 5 6 7 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 3 1 8 we put that in as a condition, no heat? MR. MILOWSKI: No. BOARD MEMBER OLIVA: No plumbing? MR. MILOWSKI: No, no, plumbing. BOARD MEMBER OLIVA: It's a nice spot. BOARD MEMBER WEISMAN: beautiful. MR. MILOWSKI: Thank you. CHAIRMAN DINIZIO: Okay, I guess that's all we have. Do we have anything else to add? I'll ask if anyone in the audience would like to speak for or against this application? If not, I'll make a motion to close the hearing and reserve decision until later. (See minutes for resolution.) 2 e 3 4 5 6 7 9 16 CHAIRMAN DINIZIO: Next hearing is for Kathleen Bower, Number 5981. Request for a variance under Section 280-15, based on the Building Inspector's September 19, 2006 Notice of Disapproval concerning an as-built accessory shed located in a yard other than the code required rear yard, at 12710 Soundview Avenue and corner of Horton's Lane, Southold. We heard this application last month, and the applicant was going to come back to us, res take it and possibly consider moving it back a little bit; is there anyone in the audience that wishes to testify? BOARD SECY. KOWALSKI: I don't believe she 10 11 12 13 e 14 15 came. 17 CHAIRMAN DINIZIO: Have we heard anything concerning this? I don't recall seeing any revised? 18 19 BOARD SECY. KOWALSKI: I haven't heard anything and nothing was submitted, so she may need more time to just move it or stake it. BOARD MEMBER WEISMAN: Nothing has been done on the site. BOARD MEMBER OLIVA: Nothing. BOARD MEMBER GOEHRINGER: Nothing has been done, I went too. BOARD MEMBER OLIVA: It's there. It's sitting right on -- the Shady Lane is really like -- 20 21 22 23 24 BOARD MEMBER SIMON: No, this is Bower. BOARD MEMBER WEISMAN: The shed, the blue shed that's on Horton's Lane, the carryover, they were going to look at how much further. e 25 January 25, 2007 4 1 8 BOARD MEMBER OLIVA: I didn't know whether they were going to come back this time or not. BOARD MEMBER SIMON: They were going to explore possibilities for moving the shed. More information as to cost and so on. BOARD MEMBER OLIVA: They were going to let Linda know when they were ready. BOARD SECY. KOWALSKI: The Board extended it a month, and I would recommend you extend it another month or two. BOARD MEMBER WEISMAN: That's fine. CHAIRMAN DINIZIO: Okay. BOARD MEMBER WEISMAN: So continue to adjourn the hearing. BOARD MEMBER OLIVA: Yes, I'll make a motion to adjourn the hearing to next time. BOARD MEMBER SIMON: Second. CHAIRMAN DINIZIO: All in favor? (All Ayes.) CHAIRMAN DINIZIO: Opposed? None. Motion carried. 2 e 3 4 5 6 7 9 10 11 12 e 14 CHAIRMAN DINIZIO: Since we have time before the next hearing, do you want to do our resolution for Special Meeting to be held Thursday, February 8, 2007 at 6:00 p.m. Town Hall Annex, North Fork Bank Second Floor, Executive Board Room? (See minutes for resolution.) 13 15 16 17 CHAIRMAN DINIZIO: We'll make this resolution for Regular Meeting scheduled for Thursday February 22, 2007, at 9:30 a.m., Town Hall. 18 19 (See minutes for resolution.) 21 CHAIRMAN DINIZIO: Next hearing is for Robert and Susan Somerville, request for a variance under Section 280-124, based on the Building Inspector's November 15, 2006 Notice of Disapproval, amended January 3, 2007, concerning proposed additions and alterations to the existing single-family dwelling with a front yard setback of less than the code required 35 feet, at 595 Oakland Court and Shady Lane, Southold. Apparently the requirement of 35 feet, you're asking for 28.8 feet on Oakland Court and 15.4 feet on Shady Lane; is that correct? 20 22 23 24 e 25 January 2!i, 2007 5 1 6 MR. LEHNERT: Yes, that's correct. The largest part of this variance as you know is on Shady Lane. In the front of the house, actually on Oakland Court, is an open portico and we want to infill the bottom section of the house. It's a high ranch and that's going to require an inch or two of relief. BOARD MEMBER OLIVA: What do you want to do exactly in the back? Because you've got one like lower and the other -- MR. LEHNERT: Like I said it's a split level it's going to be a two-story addition in the back, turning into a one-story addition on the second level for a new kitchen space. BOARD MEMBER WEISMAN: And an open deck. MR. LEHNERT: Yes. CHAIRMAN DINIZIO: I just ask that the Board members take a turn at asking the gentleman questions so he could answer them properly. Ruth, you could continue if you like. BOARD MEMBER OLIVA: I just have, could you give me the name or the number of your client, he has a pond back there and I'm just interested in the netting that he uses because I have a koi pond, and it was such a good operation I'd like to get that. MR. LEHNERT: I could get that for you. BOARD MEMBER OLIVA: But otherwise, no. Just that your shed, of course, is sticking out into Shady Lane, which is nothing more than grass and woods. BOARD MEMBER SIMON: Who owns Shady Lane? MR. LEHNERT: I'm not sure who owns Shady 2 e 3 4 5 7 8 9 10 11 12 13 e 14 15 16 17 18 Lane. 19 BOARD MEMBER SIMON: It's a private lane as opposed to a right of way. BOARD MEMBER OLIVA: It's a paper road, you couldn't even drive through it because the trees are in the way. MR. LEHNERT: I mean, there is a homeowners association down there. I don't know if they own it or if it's a town owned paper road. 20 21 22 23 24 BOARD MEMBER WEISMAN: It would appear that there's no real access to the water through that anyway, so probably no one uses it. BOARD MEMBER GOEHRINGER: I'd like to answer that question. If it does not have a tax e 25 January 25, 2007 6 1 6 number on it, if it is not being assessed, it's either an unknown owner or it's the Town that never has recognized it. CHAIRMAN DINIZIO: I'd like to ask a question about that, Jerry, perhaps you'll know. Should we require them to move that shed? BOARD MEMBER GOEHRINGER: Well, I had certain reservations about that, Mr. Chairman, I looked at it. I think if the homeowners association never asked for it to be moved probably you can say that the shed is significantly not on the property and that if in the future the shed deteriorates to such a point it's got to be moved to a conforming location. That's one way of addressing it. CHAIRMAN DINIZIO: That was my concern too. I would like to state in the approval or nonapproval, however we go, that we do not give any credence at all to the location of that. That we grant no approval whatsoever. BOARD MEMBER SIMON: It's not part of the application. CHAIRMAN DINIZIO: Right. We should notice that it's there because it is on our map. We should notice that it's unusual that it's there and we're not granting anything that says it should be there or not there; is that okay with you? MR. LEHNERT: That's fine. BOARD MEMBER SIMON: I believe just to amplify that a little bit. I'm not sure it's our jurisdiction, conceivably the Building Inspector could very well have noted this and dealt with it. I'm not sure it's appropriate for us to call our attention to something that the Building Department never called attention to. CHAIRMAN DINIZIO: My concern, Michael, was that it somehow gets interpreted by somebody that we granted that shed. I wanted to avoid that because my first inclination was to actually write a letter to the Building Inspector and say, here's the shed, what do you think about it? I mean, the applicant certainly is admitting that it shouldn't be there and he doesn't own that land, and I don't know if it's true. Maybe we should be writing the letter, but I offer that as a solution for us to recognize that it is there and we don't think it's legally there. 2 e 3 4 5 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 7 1 7 BOARD MEMBER WEISMAN: I think that's reasonable. I wouldn't actually intervene if its preexisting nonconforming. I don't know if it's preexisting; it probably isn't. But it's a nonconforming structure and it's certainly having no impact on anything at the moment. So I think simply noting that we're not granting approval for the nonconformity is sufficient. I had a question. You also are going to create a new portico over the front entrance and it's called out at 28.8 feet, and it's actually depth is 7.92 feet; it doesn't say what the -- well, you could actually subtract the house itself is 34.9 feet from the road, from Oakland, so if you add -- subtract 7.9, you know what the setback is and what the existing setback is. Are you adding to that because you have steps there now? MR. LEHNERT: We're tearing those steps down and putting that portico in place. BOARD MEMBER WEISMAN: But it's not going to be any closer to the road than what it is now. BOARD MEMBER WEISMAN: How much closer? How much closer will it be because that has to be in the findings? MR. LEHNERT: I'm guessing from the old one about three feet closer and the existing steps corne out past the front of the house. BOARD MEMBER WEISMAN: That's what I mean, yes, because it's not clear what the difference between what's existing and your additional number of feet. MR. LEHNERT: numbers. BOARD MEMBER WEISMAN: helpful so they're entered in indicate how much variance on variance we're granting you. BOARD MEMBER GOEHRINGER: It mayor may not be in my draft, so you may have to enhance the draft. The draft will be done tomorrow night prior to my leaving. MR. LEHNERT: I can update the drawing and drop it off to the office tomorrow. BOARD MEMBER WEISMAN: Fine. Is that all right, Jerry? BOARD MEMBER GOEHRINGER: Assuming I get it, I don't mean that sarcastically. BOARD MEMBER WEISMAN: As long as we have I can give you those 2 e 3 4 5 6 8 9 10 11 12 13 e 14 15 16 17 18 19 That would be because we need that front yard to 20 21 22 23 24 e 25 January 25, 2007 8 1 5 that information. BOARD SECY. KOWALSKI: If it's part of the record we add it in the final. BOARD MEMBER GOEHRINGER: Right. CHAIRMAN DINIZIO: Anybody else have anything to ask? Michael? BOARD MEMBER SIMON: No. CHAIRMAN DINIZIO: Jerry? BOARD MEMBER GOEHRINGER: Yes, I propose hay bales during construction, which is a normal situation on the water. MR. LEHNERT: We have the DEC and the Trustees. BOARD MEMBER GOEHRINGER: That will be embodied within one of the conditions? MR. LEHNERT: It's already in one of the conditions of the previous. CHAIRMAN DINIZIO: It's also well noted that the Trustees have required dry wells and that will be part of ours. Okay, if no one has any further questions, I'll make a motion to close the hearing and reserve decision until later. (See minutes for resolution.) 2 e 3 4 6 7 8 9 10 11 12 13 e 14 CHAIRMAN DINIZIO: Next hearing is for Fidco. Request for a special exception, based upon Code Sections 260-48 (b)6 and (b)8, concerning a proposed conversion of the existing building to recreation facility and nonprofit meeting hall, in this B General Business Zone district. Location of property: Fox Lane, Building 98 and Greenwood Road, Fishers Island. Is there anyone who wishes to be heard? Yes, sir, can you state your name? MR. SPOFFORD: My name is John Spofford. I am the president of the Fishers Island Civic Association, which is the builder/operator of this center. We're a Type B New York State corporation, and we're not-for-profit under the IRS regulation 513B, recognized as a public charity. And I sent you, not with all these other papers, but a fund-raising booklet. BOARD MEMBER OLIVA: It's beautiful. BOARD SECY. KOWALSKI: Thank you, we saw it yesterday. MR. SPOFFORD: If you have any questions, I would be happy to answer them as far as the nature of the project -- and any building 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 9 1 2 questions. CHAIRMAN DINIZIO: When I went through the file, it seemed to me like you're going to the Planning Board and all nine yards and it seems to me like you have permission to use 40 spaces from your neighbor I guess for parking, it's a consideration? MR. SPOFFORD: Actually it's a slight pick up in that, we did send out all the return receipt requested, all that stuff, and we were supposed to send the things over here and unfortunately the postal service between Fishers Island and Southold is somewhat problematic and they were returned to us last week, something to do with the post office box. e 3 4 5 6 7 8 9 e 14 BOARD SECY. KOWALSKI: You have to do the PO Box and the whole zip code otherwise they won't deliver it to us. MR. SPOFFORD: You know more about that than I simply do, but we did fax all the receipts. CHAIRMAN DINIZIO: Okay. So we don't know if we have the notices. BOARD SECY. KOWALSKI: They also agreed to send them overnight, the original set. MR. SPOFFORD: The faxes of the original . receipts and the affidavits, all those will be faxed to your office. CHAIRMAN DINIZIO: We should be able to tell by the dates. So, I'll ask Michael if he has any questions? BOARD MEMBER SIMON: My understanding, and I may be wrong about this, this is the only reason you're before this Board as well as the other Board, the Planning Board, has to do with a gap in the town code that doesn't list this as one of the approved uses of right because it's not a commercial building. MS. RUTHERFORD: It's zoned as business. BOARD MEMBER SIMON: And because this is not a business, it's a question of whether you can have a nonbusiness. MS. RUTHERFORD: This particular use BOARD MEMBER SIMON: I guess it's a puzzle, special exception for outside the numerated list. CHAIRMAN DINIZIO: No, Michael. In our law there are uses, permitted uses that don't require special exception. Then there are uses 10 11 12 13 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 10 1 2 that require special exception; recreational use in a B business zone is required on a special exception permit that must be granted by this Board. It's in the code. BOARD MEMBER SIMON: I know it's in the code. I'm just trying to figure out why the code is the way it is. This is not really relevant to the application. Our recreation is something that the Town is not sure it wants to allow in a business district and that's why they require special exception? CHAIRMAN DINIZIO: No. From my experience, it is that you try not to use your limited business space with uses that are not business uses. BOARD MEMBER SIMON: In other words, if this were privately owned and run for a profit, there would be no problem. CHAIRMAN DINIZIO: Yes, of course, it would be a business, but it's not, it's community. If you guys think you can make a profit at it -- no, but anyway, that's the reason why. It's in our code. BOARD SECY. KOWALSKI: There's also the other standards for special exception, screening and buffers, parking, CHAIRMAN DINIZIO: That's the subject of this hearing is to insure that you can meet those. e 3 4 5 6 7 8 9 10 11 12 13 e 14 15 16 MR. SPOFFORD: Right. And that's all been 17 done. 18 CHAIRMAN DINIZIO: I've been through it, it looks like you're applying everything that needs to be applied for a special exception. BOARD MEMBER WEISMAN: I have a comment I would like to make. Michael, you're finished? BOARD MEMBER SIMON: Yes. CHAIRMAN DINIZIO: Hold on, Jerry? BOARD MEMBER GOEHRINGER: I take a more pragmatic approach, and of course I have absolutely no objection to your proposal, but I just need to ask the question. Anything innately in the building that would be removed from the building that would be construed to be a violation of health, safety and welfare; in other words, is there asbestos abatement that's going to be done in the building? MR. SPOFFORD: Yes. The history of the 19 20 21 22 23 24 e 25 January 25, 2007 11 1 2 building is it was put up, we think, in the '20s by the Army. And when they closed down Fort Wright in 1947-48, the buildings there were essentially stripped, and the only asbestos that's in there is a very small amount, some pipes that go one part of the area, but the main heating system was taken out a long time ago, and we have had a preliminary person come look at that, but that will all be done as far as the project. BOARD MEMBER GOEHRINGER: So that will be done and once that's done and the air monitoring and the removal of that, that will be the only toxicity that would be construed to be in the building at this time. Because this is a building that's going to be used no longer as a warehouse, it's public use. That's the reason I'm asking the question. MR. SPOFFORD: Public use. BOARD MEMBER GOEHRINGER: That's the reason I'm asking the question. Is there anything else that you think of that innately would be a violation of health, safety and welfare of this building? MR. SPOFFORD: We have to put in two fire escapes for the second floor and all of that. BOARD MEMBER WEISMAN: And sprinkle. CHAIRMAN DINIZIO: Whatever the code says it will be required to do, so that's a building inspector kind of thing. BOARD MEMBER GOEHRINGER: I'm just saying a special exception deals with health, safety and welfare and a violation of health, safety and welfare. So I'm only asking the question, again, I have no objection to this. MR. SPOFFORD: We have been through this and talked about it with two, three sets of engineers and all that will be taken care of. CHAIRMAN DINIZIO: Okay, Leslie? BOARD MEMBER WEISMAN: Yes. I just want to go on the record to say I wish we had this kind of facility on the mainland here. I commend the architects with very sensitive, adoptive reuse. The plans are very nicely laid out. It's primarily partition walls, some partition walls and just some structural stuff around the elevator core and stuff like that. It's very nicely done. And I think it's going to be a great amenity for for the community. e 3 4 5 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 12 1 2 BOARD MEMBER SIMON: May I ask, where is the money funding coming from this? MR. SPOFFORD: You mean, where is the money or how much? BOARD MEMBER SIMON: Not how much but the e 3 4 sources. 5 MR. SPOFFORD: It's been all private individuals and private foundations, and we have raised to date just north of three million. BOARD MEMBER SIMON: It's all been raised presumably from Fishers Island residents? MR. SPOFFORD: And they would be happy to have you participate. BOARD MEMBER SIMON: Thank you, I appreciate that. CHAIRMAN DINIZIO: Ruth, do you have anything to add? BOARD MEMBER OLIVA: No, I think it's a wonderful thing you're doing over there, and I compliment you on doing it and I compliment all the people that have had that much interest in doing this. They put their money where their mouth is. MR. SPOFFORD: It's an odd place and people are really passionate about it. BOARD MEMBER OLIVA: I wish we had that 6 7 8 9 10 11 12 13 e 14 15 here. 16 CHAIRMAN DINIZIO: I'm going to ask Michael, would it be okay if we moved this approval or disapproval now, it's your application? BOARD MEMBER SIMON: I have no problem with that. CHAIRMAN DINIZIO: We could grant it now and the gentleman could go home and do his thing. BOARD MEMBER SIMON: You mean to expedite the process in order to save the two weeks? CHAIRMAN DINIZIO: We could write the decision when -- BOARD MEMBER SIMON: in violation of any rules. CHAIRMAN DINIZIO: BOARD MEMBER SIMON: Do any special hearing by law? CHAIRMAN DINIZIO: No. We can make our decision now, but most of the times the concern is that the person writing the decision hasn't got his thoughts together. As long as that's not 17 18 19 20 21 22 I'm not sure it is. we actually need 23 24 e 25 January 25, 2007 13 1 2 BOARD MEMBER SIMON: Also because this is the kind of project that is evaluated on the plans we already have rather than on site visits which none of us probably has made and discussion controversy and all overriding points of view. I have heard no dissenting opinions which could influence this decision. MR. SPOFFORD: Have any of you been in the building? CHAIRMAN DINIZIO: No, I have been to the building. MR. SPOFFORD: The last two years we have had the Town engineer, I don't know, a bunch of people. e 3 4 5 6 7 8 9 BOARD MEMBER OLIVA: Jamie Richter. CHAIRMAN DINIZIO: Myself. BOARD MEMBER OLIVA: We were so busy looking at other things we didn't even get lunch. CHAIRMAN DINIZIO: Actually, I discussed it with the Town engineer while we were over there. So I'm going to entertain a motion that we grant the special permit as applied. (See minutes for resolution.) 10 11 12 13 e ------------------------------------------------- 14 CHAIRMAN DINIZIO: We have about three minutes to the next hearing. Maybe we could just discuss the open meeting memo that I passed out at the last meeting. I got all your replies and they all seemed to go right onto the way I thought about it. I think that it's certainly, if you read the whole thing it sounds kind of Draconian, and there are some things, being a small community you're not going to be able to apply, but I would like for us to always keep that memo in mind as we're going about our business during the course of our inspections and things like that. BOARD MEMBER OLIVA: Jim, I think the last page really summarizes it really well, the fourth one seems to encapsulate it, doesn't seem quite so Gestapoish, and it says the same thing basically. CHAIRMAN DINIZIO: Yes. So I think my concern basically is that we don't, we insure that the records is created in public. I want to go a little further than that in a couple of months. You know, that we give the applicant the opportunity, every opportunity to hear what we have to say, what our opinions are at the public 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 14 1 2 hearing. I am trying to work on perhaps having someone from the building inspector, perhaps a person who actually does the notice of disapprovals come here during our meetings to explain the notice of disapproval. I think that it will help clarify the application to the audience and to us. In the past it's been like perhaps the applicant has been looking at -- how do I say this gently -- he thinks he submitted all the information he needs and suddenly he's being asked for more without the benefit of a reason why. And I just want our Board or our members, if they want more information that that information be sought at the hearing and not during the course of the run up to the hearing. We'll let the applicant make their request based on what they wish to submit to us, and we will ask for all the information that we want in the hearing. BOARD MEMBER SIMON: Doesn't that raise a problem for the activities of the office, Linda's office? There's a lot of correspondence, a lot of phone calls that go on between the submission of the application and the meeting because typically many of them are incomplete in ways that ought to be pointed out before we can review it. CHAIRMAN DINIZIO: Michael, you're absolutely right and I'm not speaking to Linda. I'm speaking to the five Board members. That we don't try to make the record, we let the staff make the record, and then we base it on whatever they hand to us on the day that we come and give our questions. And I'm not opposed to, if we think that they need plans or they need something else that we think has been missed, holding a hearing until they give it to us. I'm not opposed to any of that but I do think and I have heard that it's a little bit over the line if a Board member is putting stuff in the record before the hearing. BOARD MEMBER WEISMAN: In the file you e 3 4 5 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 mean? 23 BOARD MEMBER SIMON: I wasn't aware that that happened. BOARD MEMBER WEISMAN: Who puts stuff in the file prior to the hearing? CHAIRMAN DINIZIO: I'm not saying that someone's physically doing that, I'm saying that when we want something in the file, we're not 24 e 25 January 25, 2007 15 1 e 3 going to say, Linda, get this. We're going to come to the hearing and we're going to say to the applicant -- and we can agree or not agree -- listen, we need this in order to make a decision or I need this in order to make a decision or -- BOARD MEMBER OLIVA: But Linda already has a whole list of everything that should be complete. CHAIRMAN DINIZIO: That's correct. And we will use that file that Linda prepares for us. 2 4 5 6 7 8 BOARD MEMBER OLIVA: And she does a good job doing it too. CHAIRMAN DINIZIO: She does. Any more information that we need in that file, we're going to ask during the hearing. BOARD MEMBER OLIVA: I thought we did. CHAIRMAN DINIZIO: Not before the hearing, during the hearing. BOARD MEMBER SIMON: Here's the situation that I could anticipate happening, let's suppose 25 years from now and Linda has happily retired, and there's someone working in the office without the experience and knowledge about all the things, would that person be free to consult with Board members or take suggestions from Board members, you know, when Linda was here, she always asked for A, Band C and that's something that we really should have before we have a hearing. You're wanting to rule that out. It's true, Linda needs none of us, but that's an unusual situation. CHAIRMAN DINIZIO: No. I don't think that's beyond the scope of what I'm saying. I'm just saying that if we have information that we are privy to, that's not in the file already, that is when we put that in the file it should be during the public hearing. We bang the gavel and instead of having Linda running around, and we're asking that be put in the file. Perhaps the applicant, if we feel we need that to make a decision, that the applicant put that in the file, that the applicant go and get it. Go wherever they need to go to get the information in order for us to make a decision. So when the application's complete and Linda says it's complete, then it gets put on the agenda, and we have the hearing. BOARD MEMBER OLIVA: That's exactly what 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 . 25 January 25, 2007 16 1 9 we're doing. BOARD MEMBER WEISMAN: That's exactly. CHAIRMAN DINIZIO: I'm just clarifying. And after that, when that application's complete and we get the packages and we look through the package and we think there's something's missing BOARD MEMBER OLIVA: That's when we put it down as notes to ask the applicant. CHAIRMAN DINIZIO: I just want them at the hearing to do that not before. BOARD MEMBER WEISMAN: You're basically saying you want to continue. CHAIRMAN DINIZIO: I just want to clarify that's what's happening. BOARD MEMBER WEISMAN: way, information gathering has to do with Open Meetings Law. part of the deliberation. CHAIRMAN DINIZIO: No, you can gather all the information you would like, I think that probably you can't sit with three Board members to discuss that information. But you can come to the hearing and actually say whatever it is you have gathered, put it into the record. BOARD MEMBER WEISMAN: Definitely. CHAIRMAN DINIZIO: That's basically all I'm asking for. I'm more or less asking that the staff do the gathering of the requirements for the information, voluntary if Linda looks at an application and sees that they need a variance for another front yard that that be Linda's purview or tell the person to go back to the building inspector and do what they need to do to correct that notice of disapproval. Because she can certainly say which applications are ready and which ones are not. I have asked that if she has a question, ask me and we'll make a decision on it. I'm hoping to go in the same direction we went with the memo to the Planning Board. We had a discussion on that, we hashed it out and I'm hoping to go that same way. If it's not something that we're putting testifyable information but rather a procedural kind of thing, should we ask for this now, should we let it go. My tendency is if Linda doesn't think it's ready to go but the applicant insists upon going, the applicant goes. Then, when they get out of the hearing, we ask for Fine, fine. By the nothing whatsoever As long as it's not 2 e 3 4 5 6 7 8 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 . 25 January 25, 2007 17 1 9 the information. They have to do what they have to do. Stop trying to help the applicant by making it worse than it is. So we can start the next hearing. The next hearing is Sandy Ground, LLC and S. Perry. Request for a variance under Section 280-18 to reduce a lot to less than 40,000 square feet in this R40 Zone, based on the applicant's submission of an application to the Southold Town Planning Board under subdivision code Chapter 240 for a lot line change. The proposed lot line change with increase the improved lot, Parcell, located in the Hamlet Business Zone District from 10,498 square feet to 29,088 square feet, plus 3,228 square feet of area of flag and right of way to Parcel 2. And we will reduce the residential Parcel 2 from 49,967 square feet to 24,891 square feet plus 3,258 square feet of right of way and 3,228 square feet flagged area, also within the boundary of the parcels. Location of property is 57190 Main Road and private right of way. Pat? MS. MOORE: Good morning, also happy new year. My first time before the Board. I have Sandra Perry here. You obviously know her business, she has a physical therapy business on the Main Road. The parcel to the south, surrounding her to the south and west of her piece was made available and Sandra paid for it, bought it. The goal in that acquisition was to improve her commercial property and create what would be a lot line change. The existing parcel now was created and planned with one dwelling. We're going to keep it as a one dwelling but split the residential portion of the lot from the commercial portion of the lot by a lot line change. There are various benefits to that. One is that the residential parcel will be kept totally separate from the commercial development. Another aspect of it which will be an improvement is that the right of way which presently is part of the overall parcel will be created as a flag lot and the access will also be reserved purely for residential. The house to the south uses that right of way and he keeps it completely separate from the commercial piece. The third aspect of it will be that when the commercial portion, which actually the zoning line falls about 200 feet into this parcel -- 2 e 3 4 5 6 7 8 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 18 1 9 BOARD MEMBER OLIVA: Into which parcel? MS. MOORE: Into the proposed -- what we have as Parcell, which will be merged to the commercial piece, the zoning lines fall -- BOARD MEMBER OLIVA: Okay, so you're making the commercial one larger, very good. MS. MOORE: Yes. We're making it all conforming. So overall we think it's a good plan and again, when the property became available, really she didn't have any choice. Sandra Perry is a very good physical therapist. She does a lot of good for the community and there's a need for her services and her business has been very successful, and we all see that the parking really was necessary. So, when she came to me I said unfortunately it's a no-brainer, you have to, it's something you need to do. In the creation of this lot line change, we will in fact be making the residential parcels smaller. When the lot was created, it did account for it had the right of way included in the acreage and we provided for Linda, I think it was a very good suggestion, a very good request, to give you the exact square footages of everything. You got it from John. It's very clear and again it will be your decision if you thought that the right of way should not be a flag, which I don't think that anyone would recommend, but that square footage is provided for. So you have everything a la carte. All the square footage is provided. MS. MOORE: In the creation of that residential parcel, in this instance I wish to testify as a property owner in the neighborhood. I have direct knowledge, I live at 370 Terry Lane. This is my community. So, I swear as an officer of the court that I will speak honestly with respect to any of the facts here, but what I did was I took a tax map. The parcel here, really, the tax map is of this parcel takes in pretty much the hamlet area. What I did was I took a photocopy of Terry Lane and Town Harbor, which is really the community. I have three pages for you. I will point out also that on the north side of Main Road, the first page shows there is a proposed multi-family residential development that I'm sure you're aware of. It will be a senior community. Again, I think that those services will need more services and the services will be 2 e 3 4 5 6 7 8 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 19 1 9 even greater. The second page is actually Terry Lane. Founders is at the end. I pointed out my house. Our neighborhood consists of really it's -- I would say it's 50-50 year round, but I think it's getting more and more year round. It has been a well-established community since the '70s. Most of the parcels there were created as 500 parcels and then they were sold as double-sized parcels, but they are mostly half acre lots. The community is a wonderful community, very diverse, people of all incomes and all areas of business. We have a very diverse community. And I think that the size of the lots, the development of the area, the homes are modest, some waterfront homes are spectacular, my home is relatively modest, the third page is Founders, Old Shipyard and Town Harbor, and again, I would point out that all these parcels, I believe it's 100 percent of that development, is half acre in size if not smaller. So, the parcel that we are proposing is really consistent with the community. It also would be a difficult parcel to develop as a new zoned parcel because you inevitably have to develop something that would be a multifamily, commercial mix; that's not what Sandra needs; that's not what she wants. And it really will lead to more density I think than what she's proposing. What she's proposing is a professional office for her use in her office and a single family develop dwelling behind. That's the character of our area. Also keeping in mind the larger the lot, the larger the building envelope. Again, I pointed out that homes in that area vary in size, but most are relatively modest. They are nice homes, valuable because all of Southold is valuable, but the size of the lot and the size of the home are not McMansions in any way. They're in keeping with the sizes of the parcels. So, in our efforts to do this lot line change we think we're creating a lot that really would be just like every other lot in the neighborhood and also correcting a site plan problem with this unincurred commercial property because she does need more parking and her business is just growing in such a way that she is really crunched in there for all the services that she provides. 2 e 3 4 5 6 7 8 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 20 1 8 So I'm here to answer any of your questions and she's here, and I think there might be people here as well. CHAIRMAN DINIZIO: Well, I just had a couple questions. Because I can't quite tell from the record, it looks like you're following the zoning district line MS. MOORE: precisely. CHAIRMAN DINIZIO: And I think you mentioned just now how not useful that piece of HB as a residential lot would be to anybody. MS. MOORE: Yes. It would end up being something that I could visualize a commercial area in the front, either misuse, commercial, residential use and then the parking for it behind be allowed to encroach in a residential by a certain footage. I -- we can't creatively think of what kind of development, I guess given enough time we could go through the uses in HB. We could say, yes, we could do this, that and the other. That's not what we're doing. We want really a pretty straight, white-bread type of development here. Professional office in the front and a straightforward, single-family dwelling behind. CHAIRMAN DINIZIO: Certainly, based on that line. MS. MOORE: Yes. The lot line I guess ultimately could change, but encroaching, if we make the residential lot larger, we have the zoning lines falling over the property lines, which doesn't make sense, and when the time comes that Sandra can do her site planning for the commercial space, the extra space there is really helpful because it adds room for screening and buffering. CHAIRMAN DINIZIO: I mean, is it your intention to increase the size of that building now? 2 e 3 4 5 6 7 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 MS. MOORE: Her plan is, yes. MR. PERRY: This is nerve wracking. CHAIRMAN DINIZIO: How do you think people feel when they come to you? BOARD MEMBER OLIVA: Good, that's what they feel. MR. PERRY: Half of that property would be business, and I don't know if you have seen my parking lot in the back; I want to bump the 23 24 . 25 January 25, 2007 21 1 5 building out to that spot and go a little bit to the west. I need a bigger space. I have formed a new partnership with Christina Barry, we're also going to be the North Fork Breast Cancer -- I don't know if you knew that. We're going to certify we're the only two certified physical therapists for 50 miles, and we're getting more and more business and very private things, and I need a private space. And I don't have that now, so I need to add onto the business for that I really need bigger parking. We're actually parking now in the dirt, and I need to spread that out. It's all very important to me that it look nice. So I would want to keep any lines with the current colonial look. I'm not looking to put anything big, flashy whatever. I'd probably add maybe 1,000 square feet to the building. CHAIRMAN DINIZIO: Let me ask, you might not be able to answer this question but I just want to ask. will adding onto that building require that you need another variance; do you have any idea? MS. MOORE: I don't think so. I haven't looked at the setbacks, but I don't think so. I believe hamlet business setbacks are pretty generous. CHAIRMAN DINIZIO: I mean, I looked at it, I didn't see it, but I figured if you would stand there long enough you would have some idea. MS. MOORE: You know, right .now the front yard is the only setback, and I don't recall the hamlet business front yard setbacks off the top of my head. BOARD MEMBER SIMON: I think it's like 20 2 e 3 4 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 feet. 20 CHAIRMAN DINIZIO: Well, there's prior approval, you have ZBA prior approval for something. MS. MOORE: On business? CHAIRMAN DINIZIO: I don't know what it is, I know I looked in there there's a prior approval for something. MS. MOORE: I saw building permits and things like that. I didn't research it. I wasn't working on it at the time. I know there were alterations that were permitted and I have COs, '93, '97, something like that. 21 22 23 24 e 25 January 25, 2007 22 1 5 CHAIRMAN DINIZIO: No, this is '75. MS. MOORE: No, that I know about. CHAIRMAN DINIZIO: It's a little confusing as to whether or not it's these two lots or two different, separate lots. MS. MOORE: The zoning application was affecting the parcel that we have before you with a lot line change Sandra Perry's building, I think it's preexisting and then it had alterations done in from '93, '97 and 2000. I think it got the CO 2001. 2 e 3 4 6 7 9 CHAIRMAN DINIZIO: Okay. Ruth, do you have any questions? BOARD MEMBER OLIVA: No, not at all, I think it's great. CHAIRMAN DINIZIO: Leslie? BOARD MEMBER WEISMAN: I just want to say for the record, Pat, I think you have summarized very, very articulately and accurately all the compelling arguments for granting this variance. If ever there was a reason to create a nonconforming size in a residential lot and accurately -- all the compelling arguments for granting this variance. If ever there was a reason to create a nonconforming size in a residential lot where an appropriately scaled house will eventually be built in this area, and where you get rid of the confusion of split zoning, which we just did on a property in Mattituck, it makes a great deal of sense. And I think Miss Perry's providing a very valuable service to the community and I look forward to very important expansion in the kind of health care you can provide for us. CHAIRMAN DINIZIO: Jerry? BOARD MEMBER GOEHRINGER: Are you asking us to determine where we want the right of way, if we want it included in Parcel 1 or Parcel 2? MS. MOORE: We submitted it on the map to the Planning Board initially, and the way we submitted it to the Planning Board was with a flag. So that is what we gave to you. Ultimately because it's a variance request, we could voluntary say, we approve this, but we believe a flag should be part of the right of way. Sandra would prefer that not be the case because if in fact a residential lot is sold in order to finance her improvements to her building, it will not 8 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 23 1 6 impose liability on the commercial piece, the residential aspect that is purely residential on the two parcels, the one that's existing and the one that we're proposing to create. So that is always your option, I think, as a matter of your discussions at the Zoning Board. And that's why the lot areas were given to you that way. Also it clarified what -- because John Metzgar's numbers for square footage, the way he did it -- and I understand why he did it -- the acreage of what he calls Parcell, the 29,088, did not include the right of way area. So in sending up certified notices, I think it clarified what exactly are the sizes of the lots excluding so there would be no confusion. 2 e 3 4 5 7 8 9 13 BOARD MEMBER OLIVA: right of way or a flag lot? MS. MOORE: Flag. BOARD MEMBER WEISMAN: Which would mean that instead of 24,891 square feet, which would be without the right of way, you want to create a flag lot that's 31,377 square feet? MS. MOORE: Yes. Exactly. BOARD MEMBER WEISMAN: For the BOARD MEMBER GOEHRINGER: From estate point of view, I think that's a smarter idea. MS. MOORE: Absolutely. CHAIRMAN DINIZIO: Certainly from a setback point of view, it's helpful. MS. MOORE: Also site planning it too. Because we think that she has the DOT curb cut for her business, and when she does some modifications we anticipate that her curb cut will be the curb cut that's used. The residential doesn't need curb cuts, doesn't need anything for the residence. And we don't want to have anybody think that we're going to use that right of way as part of our access for the commercial use. I just don't think it's proper planning to begin with nor the liability. CHAIRMAN DINIZIO: Michael? BOARD MEMBER SIMON: I will play the curmudgeon as speaking from this explanation of this project. First of all, it's just as a tiny verbal point, it's not clear to me that when you are taking a 50,000 square foot conforming residential lot, and asking that it be turned to Do you want it as a 10 11 12 e 14 record. a real much 15 16 17 18 19 20 21 22 23 24 e 25 January 2~, 2007 24 1 8 30,000 square feet that that is a no-brainer. It may be compelling, but it's not a no-brainer. MS. MOORE: No, no, no. If you listen to my point. My point is that I said to her when she came to me and said should I buy this piece because there's already parking on it. BOARD MEMBER SIMON: Oh, I would agree about that? MS. MOORE: That was I don't think you have a choice because you need it for -- BOARD MEMBER SIMON: So it's not the whole application? MS. MOORE: No, no, no, believe me. BOARD MEMBER WEISMAN: If that were so, you wouldn't be standing here. BOARD MEMBER SIMON: The second point, my last was misdirected, was that as an attorney, you must know that the fact that the applicant's business is an excellent one and has a marvelous reputation and is useful and valuable, is not exactly a legal argument for granting the variance. In other words, it's got to be granted on its own merits which we are considering. MS. MOORE: But I think it's a relevant point because when you have an existing business and building and lot that can be made more conforming, I think that that is what we're suggesting by a lot line change. We didn't come in asking for a two lot subdivision. We're asking for a lot line change. BOARD MEMBER SIMON: But the lot line change has the effect of requiring a variance for a residential lot, and that is at least part of the issue, and maybe the major issue. What I didn't look clear about, I'm sure it's in the file, if there were no buildings on the lot and we just simply had the zoning map, what is the acreage that is in the HB or the general business and what is the acreage in the R40? MS. MOORE: That's what the map shows. BOARD MEMBER SIMON: Okay, I don't see the numbers. MS. MOORE: All right, the AC parcel, the AC zoned land is 29,088; and the residential zoned parcel is 31 -- BOARD MEMBER SIMON: That's under the plan, as planned. MS. MOORE: And Jim asked that question, 2 e 3 4 5 6 7 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 2'J, 2007 25 1 7 is your lot line change at the zoning line. BOARD MEMBER SIMON: It is tracking the zoning map itself. MS. MOORE: Exactly. BOARD MEMBER SIMON: residential where it's zoned business to grow to wherever MS. MOORE: Correct. BOARD MEMBER SIMON: Okay, well, I think that distinction is an important one because it is not creating a residential expanded business lot at the expense of R40. It's not trying to change zoning lines, it's only trying to change lot lines. And under those considerations I think there's much merit to the proposal after all. CHAIRMAN DINIZIO: As usual, Mike, you made it crystal clear. Anybody else need to be heard on this for or against? BOARD MEMBER GOEHRINGER: Gentleman in the So it's saying put residential and allow it is allowed. 2 e 3 4 5 6 8 9 10 11 back. 13 CHAIRMAN DINIZIO: Okay. MR. NOVICK: My name is Barry Novick. I live on Town Arbor Lane. I'm one of the wonderful people that live in Founder's Landing that this morning you made reference to, and I know Miss Perry is a wonderful business and a good person as well. My objection to this is that I feel by pushing -- I realize that the town business line is beyond what Miss Perry is currently conducting her business, and she wants the lot line change in order to be able to create the size of the business, but in essence, that's pushing back into the residential neighborhood the actual use of hamlet business. And I feel that the highest and best use of residential is residential, that will impact negatively on the residential property values with the immediate neighbors and the community as well. So, I feel that zoning should be designed for the well being of all; some compromise is possible, but I think in essence here what's being asked for is something that will make a situation that will negatively impact my residential values as well as those of the neighborhood. CHAIRMAN DINIZIO: Can I ask you this question, sir? Miss Perry, the applicant, could, if they wanted to, just merge those lots and build her building as large as she wanted to as long as 12 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 2'2, 2007 26 1 9 she conformed to the district that she was in. MR. NOVICK: Well, when you say merge the lots, are you talking about Parcel land 2? CHAIRMAN DINIZIO: If she merged those lots, it's one big lot, we're not talking about two lots. She's going back to where business is allowed. So she's not increasing the district. She's not asking for a zone change. MR. NOVICK: Well, by merging the lots, she would eventually have to get a variance or a change of zoning? CHAIRMAN DINIZIO: No. She would just be able to build a building on the business piece of property the size that that business piece of property is, which is what she's asking us to do. MR. NOVICK: Okay. I don't think I'm totally appreciating what you're saying because what I'm saying -- and tell me if I'm wrong and perhaps I am -- is that only a portion of the surrounding lot, which I'm calling Parcel 2, that's most of that is R40. What I'm saying is to be successful, to do what she wants to do she needs to use, further use the hamlet business portion of her, of that lot. CHAIRMAN DINIZIO: Yes. Which she could legally do. BOARD MEMBER WEISMAN: She can do that 2 e 3 4 5 6 7 8 10 11 12 13 e 14 15 now. 16 CHAIRMAN DINIZIO: She has every right to use the hamlet portion if she doesn't have two lots, if she has a single lot. Basically she's asking -- she's not asking us to extend the zoning district or to make business come any closer to any residential property because she's already allowed to do that. MR. NOVICK: She's allowed to do that, but what is the relevance of the 49,000 square foot portion of the property being pushed back to 30,000? CHAIRMAN DINIZIO: She wants to utilize the entire commercial piece of that property for commercial use, and also gain the benefit because she has two lots now, of having a residential lot, which will be somewhat smaller, but certainly not large enough to build a mansion on. And the Town basically would gain from that just because of that -- because the size of that lot would be smaller. 17 18 19 20 21 22 23 24 e 25 January 20, 2007 27 1 5 But I heard you say, and I wanted to clear that up, that the impression that she was expanding the business district, and she's not. She's not. She's not expanding the business district; she's just expanding what she can use of the business district. MR. NOVICK: Would that require a variance? BOARD MEMBER SIMON: No. She's simply more fully utilizing what she is entitled to utilize, what she is underutilizing at the moment. 2 e 3 4 6 7 9 MR. NOVICK: I understand, thank you. CHAIRMAN DINIZIO: No, thank you. Anybody else wish to speak on Sandy Ground? Then hearing none, I'd like to entertain a motion to close the hearing. (See minutes for resolution.) 8 10 11 12 CHAIRMAN DINIZIO: I will entertain a motion for a 10 minute recess. (See minutes for resolution.) 13 15 CHAIRMAN DINIZIO: Next application is for Arthur Aiello, a request for a variance under Section 280-122 (100-244) based on the Building Inspector's June 16, 2006 notice of disapproval concerning a proposed 16' by 20' accessory garage which increases the lot coverage over the code limitation. 615 Marlene Lane, Mattituck. I noticed in the record that there is a prior ZBA denial for a 20 by 20 foot shed. And it looks like your lot coverage is going to be -- you're asking for lot coverage of 24.2 percent; is that correct? MR. AIELLO: That's correct. CHAIRMAN DINIZIO: I got on the survey 24.2 percent, so we're going to assume that's what you're asking for. Okay. If you would like to, sir, tell us what you have in mind. MR. AIELLO: Sure, can I first hand the papers? What happened is I misplaced the registered mail, but I got all the neighbors to sign. BOARD SECY. KOWALSKI: Yes, he mentioned that. He did send them out by mail, just lost the postal receipts, so, yes, we'll take that. CHAIRMAN DINIZIO: You got them back, e 14 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 28 1 2 though. 6 MR. AIELLO: Yes, but then I lost them. BOARD SECY. KOWALSKI: He'll supplement that next week. CHAIRMAN DINIZIO: So you're going to do another mailing? MR. AIELLO: Yes. CHAIRMAN DINIZIO: So we're going to have to wait for that to come in? MR. AIELLO: Yes, you'll have to wait to finalize that. BOARD SECY. KOWALSKI: Well, not do another mailing, he's going to do another affidavit and explain that he's attaching the neighbor's receipts instead of the post office receipt, it's a letter signed by the neighbor saying that they have already received them by certified mail, instead of having the post office stamp receipt because you can't replace those post office stamped receipts. So you just can't make a decision until you get that. Unless you research another mailing. CHAIRMAN DINIZIO: No, I'm assuming that the affidavit is basically him testifying that he mailed these things and they received them, right? BOARD SECY. KOWALSKI: Yes, that's the affidavit Mr. Aiello will be giving us. When you finish today, go over to the other building and get a blank form, the affidavit mailing form, because you still have to fill that out and submit that. CHAIRMAN DINIZIO: Okay, Mr. Aiello, now that's cleared up. Does anybody else have any questions? Do you have anything else that you would like to say? MR. AIELLO: The overage, it's not really doing anything on the environment. Behind me is 550 feet of woods and a lawn and then a house. So 650 feet in the back, there's nothing else to interrupt, no woods or anything like that and also, basically for hardship to take all my grandChildren's toys and put them in the cellar, not to trip on the steps and whatnot. CHAIRMAN DINIZIO: What is it that causes the lot coverage to be so large; is it the house? BOARD MEMBER WEISMAN: Let me clarify . 3 4 5 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 that. CHAIRMAN DINIZIO: No, I want him to January 22, 2007 29 1 2 explain, I know. MR. AIELLO: I had to come to a variance because I was over 52 feet because the architect made a mistake on the room size on the back of the house, it was over 52. So I went for a variance on that and then that's it. CHAIRMAN DINIZIO: So you had a house, you put an addition on -- MR. AIELLO: I gave the house away and I built a whole new house. BOARD MEMBER GOEHRINGER: I think the key here was that the greenhouse was existing so you had no control of -- BOARD MEMBER WEISMAN: Well, limiting the size of the greenhouse at the last hearing. MR. AIELLO: Right. BOARD MEMBER GOEHRINGER: I wanted Leslie to be aware of that because she wasn't here; is that correct? e 3 4 5 6 7 8 9 10 11 e 14 MR. AIELLO: Yes. You gave me a choice at the last one of the glass room or the garage at that time. But, of course, the glass room was attached at the time. CHAIRMAN DINIZIO: Right. It was there existing. Then the Board turned down the 20 by 20 garage. BOARD MEMBER WEISMAN: But in addition there was a condition that there would be no increase in lot coverage in the future for additions to the dwelling. It did not, however, stipulate in that finding that you could not increase the lot coverage for an accessory building and you increased it to 20.89 percent with the sun room. MR. AIELLO: That's the stoops and everything. supposed to be counted, but so they were counted. BOARD MEMBER WEISMAN: But not the driveways. MR. AIELLO: Not the driveways. BOARD MEMBER WEISMAN: You are now proposing a one-car garage that's 20 by 16 by 18 foot high with four foot setbacks from both property lines; is that correct? I have to write the draft findings, I want to make sure my facts are accurate. with the driveway and The stoops weren't there was an overhang 12 13 15 16 17 18 19 20 21 22 23 24 e 25 MR. AIELLO: Yes. See, I went four feet January 2~, 2007 30 1 5 because I have trees there. I don't want to take the trees down. BOARD MEMBER WEISMAN: Right. And you have very nice arborvitaes screening your house from the neighbor's property in addition to the wooded area in the back. MR. AIELLO: I try to keep it very nice. The neighborhood's expanding on Marlene -- BOARD MEMBER WEISMAN: I don't think you can effectively build a smaller one-car garage really. And it is certainly a modest height at 18 feet. It's going to be simply a frame structure. MR. AIELLO: Yes, I'm going to try to make it possibly cedar like the house. BOARD MEMBER WEISMAN: I have no further questions. CHAIRMAN DINIZIO: Ruth? BOARD MEMBER OLIVA: No, I think he's stuck with what he's got, and I can't blame him for wanting to have a garage just to put his car in and some extra storage. Although it does exceed the lot coverage which I usually am not too happy about, but you have a small lot. So I have no questions. CHAIRMAN DINIZIO: Jerry? BOARD MEMBER GOEHRINGER: No, I have no objection to the application. But I would like to reinforce the fact that you had a problem the last time because you had the greenhouse, and it was a certain size. MR. AIELLO: They couldn't change it because of the roof line. CHAIRMAN DINIZIO: Michael? BOARD MEMBER SIMON: Yes. Would you agree that the short answer to the question that was originally asked I guess by Jim, is why is there a problem with lot coverage; the short answer is because the house is so large. It's a relatively small lot, and without a variance there's not room even for a one-car garage, which is the case because the house is fairly substantial on a modest sized lot. For example, I have a two-car garage and an adjoining shed and a lot smaller than yours, and I'm under 20 percent. So it's the size of the house. MR. AIELLO: Right. BOARD MEMBER SIMON: Then the question is, of course, I understand the argument for need for 2 e 3 4 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 27, 2007 31 1 9 storage, and I also understand the desirability of a garage; right now there's a paved driveway that goes up only as far as the house, that driveway would have to be extended so you can get to the house. MR. AIELLO: Well, it could be bluestone, it could be anything. BOARD MEMBER WEISMAN: If anything, technically impervious coverage is not counted with regard to lot coverage. It's a very large front driveway, which is paved semi-circular, then there's the side driveway, and then that will be going to the back of the property. If you had to choose between a shed as an accessory building, which was big enough for your storage purposes, or the garage, which was not big enough for anything more than a car, which would you choose? You don't have to answer that question but that would be useful for me to know that because if the Board decides that somehow that even 16 by 20, which is modest for a garage, is not modest for an accessory structure, you could build a 10 by 14 accessory structure for storage and be within the mandatory lot coverage. See, I'm waiting for a storage argument as to why you need both given the crowdedness of the land. MR. AIELLO: The garage that I propose now is 16 by 20 which would fit my car and any lawn furniture and any little cars that are motorized for grandchildren, it would fit in the 16 by 20. BOARD MEMBER SIMON: Right. But if the Board decided it was too big given the size of the lot and you had to deal with either the size of the garage or an accessory structure for the storage of the children's things, which would you go with? MR. AIELLO: Well, how small would the garage be? BOARD MEMBER SIMON: To bring it down to say 22 percent lot coverage. CHAIRMAN DINIZIO: Could I clarify, Michael? BOARD MEMBER SIMON: Yes, please. CHAIRMAN DINIZIO: Their lot as it exists now without the garage is over the limit already. BOARD MEMBER SIMON: Yes, a little bit 2 e 3 4 5 6 7 8 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 over. January 2;I, 2007 32 1 6 CHAIRMAN DINIZIO: Yes, 22 percent. BOARD MEMBER SIMON: 21.4. CHAIRMAN DINIZIO: So, he's asking to increase that, he got a variance for that already, for the lot coverage that he's over now, BOARD MEMBER SIMON: Yes, and he wants an additional. CHAIRMAN DINIZIO: Now he has come in again and is asking for additional lot coverage for the garage. My question to that was why, and his answer was he built the house too big. BOARD MEMBER OLIVA: Around the sun room. CHAIRMAN DINIZIO: Anything else, Michael? BOARD MEMBER SIMON: No, I just wanted to raise that as a question. CHAIRMAN DINIZIO: Do you have anything else to add, sir? MR. AIELLO: That's it. CHAIRMAN DINIZIO: Okay, anybody else wish to speak on this application for or against? I would then like, hearing none, ask for a motion to close this hearing? (See minutes for resolution.) 2 e 3 4 5 7 8 9 10 11 12 13 e 14 15 CHAIRMAN DINIZIO: Next hearing is for Russell and Florence Pellicano, a request for a special exception under Section lOO-31B of the Southold Town Zoning Code. The applicants-owners request a bed and breakfast use, incidental to the owner's occupancy in this single-family dwelling; for lodging and serving of breakfast to transient roomers, as an accessory use. Location of property: 9680 North Bayview Road, Southold. Sir, please state your name. MR. PELLICANO: Russell Pellicano. CHAIRMAN DINIZIO: What would you like to say about the application? MR. PELLICANO: We would like a bed and breakfast for ourselves. BOARD MEMBER OLIVA: I just ask, are your windows the correct size for a B & B? You can check with the Building Department for that. MR. PELLICANO: I think the windows are more than adequate. BOARD MEMBER OLIVA: Thank you so much for letting me in. The house is just beautiful and the rooms are lovely. I think also we do require 16 17 18 19 20 21 22 23 24 e 25 January 2V, 2007 33 1 9 that you have some sort of a ladder in case of a fire that they can get out of the windows then the Building Department will tell you about exit signs and so forth? MR. PELLICANO: There's a little egress on the bedroom. BOARD MEMBER OLIVA: It's a fold-up ladder, just go under the windows, doesn't take up any space. It's lovely, thank you. It was a privilege to see your house. CHAIRMAN DINIZIO: Okay. Leslie? BOARD MEMBER WEISMAN: Good morning, Mr. Pellicano. Nice to see you again. This information is to be entered into the record. I have to write the draft findings so again, I am checking my facts here. You are on 11.31 acres and the surrounding dwellings are your relatives; is that correct? MR. PELLICANO: The one in the back. BOARD MEMBER WEISMAN: On property that you subdivided for that purpose. What you're basically doing is finishing off the second floor above the garage in order to put in a guest room suite on that guest room floor. There will be three guest rooms up there, all on suites in addition to one suite over the garage that's independent of a connection to the interior. MR. PELLICANO: Right. BOARD MEMBER WEISMAN: Let me see what else I need to ask. I certainly think that it will be an amenity for the community. I fully believe that having places for people to come and visit that don't require additional structure and is using up more open space and allow them to experience the residential and rural quality of the north fork as we love it is a very good idea, much better than building hotels and motels. MR. PELLICANO: We really like it out 2 e 3 4 5 6 7 8 10 11 12 13 e 14 15 16 17 18 19 20 21 here. 22 BOARD MEMBER WEISMAN: Well, you certainly have a substantial involvement in your community. BOARD MEMBER WEISMAN: The property is beautiful and so is your house. As long as you meet all the code requirements, which of course, you will have to do, and I'm sure you realize that. I don't have any problem with granting the particular use for that property. I think it's very well suited for that purpose. 23 24 e 25 January 2ff, 2007 34 1 9 BOARD MEMBER GOEHRINGER: If there's ever been a special exception application, this is the one, we're not worried about parking, we're not worried about backing out on North Bayview, the main concern of this one very simply is whatever the Building Department, as Miss Oliva has indicated, there has been an increase, however, in the window sizes, and in reference to egress and I think probably that's what she was mirroring when she was referring to that. I don't know if you'll be subject to that. That's my opinion. CHAIRMAN DINIZIO: Michael? BOARD MEMBER SIMON: It just seems like a fairly persuasive application. I have no questions. CHAIRMAN DINIZIO: I have no questions either, other than to say that it seems that you do meet all the requirements for a bed and breakfast. So is there can anyone who wishes to speak? Yes, ma'am? MS. MURRAY: My name is Karen Murray. I live on 9350 North Bayview Road. My husband and I and our neighbors Ron and Arlene Smith just had a couple questions. First, is the exception just for the current number of rooms or could the house be made larger at some point to add some rooms with this exception? CHAIRMAN DINIZIO: Well, a bed and breakfast could be up to five rooms. They would have to come back because we're granting what we have on the map right now. MS. MURRAY: And it doesn't permit any other business usee CHAIRMAN DINIZIO: No, they can't have accessory apartment. There are things in our code they will have to meet those requirements that they can't have because they have a bed and breakfast. One is an accessory apartment. They couldn't have an accessory apartment in that. MS. MURRAY: Okay, and my neighbors Ron and Arlene Smith are in Florida and can't be here and wrote a letter. I don't know if I should read it. 2 e 3 4 5 6 7 8 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 CHAIRMAN DINIZIO: welcome to read it. MS. MURRAY: Okay, they are at 9390 North Go ahead, you're e 25 Bayview. January 2G, 2007 35 1 8 "The subject's request for a special exception to convert their single-family dwelling to a bed and breakfast causes us concern. At its closest point our property line is approximately 16'7" from their gravel driveway. Our house is approximately 150 feet from said driveway. At this point and for several yards along their driveway there is simply no natural screening to help absorb the noise of their current car and truck traffic. The noise would be exacerbated by the additional traffic that a bed and breakfast would bring. This could be remedied by adding some evergreens along the driveway where this void occurs." 2 e 3 4 5 6 7 9 There's a second concern, I don't know if I should read the whole thing. CHAIRMAN DINIZIO: Go ahead, read it. MS. MURRAY: "In addition because our properties lie so close to the proposed bed and breakfast, our other concern is the potential for their guests to walk through the woods and trespass on our property. There is also a large pond on our property. We do not want exposure to any legal action should one of their guests be injured on our property. However, this could be mitigated by installing a four foot high black or green chain link fence or an acceptable alternative between our two property lines. This would certainly be a better deterrent than filling the woods with 'No Trespassing' signs, which are an environmental blight and not always honored. "At this time we must with hold our endorsement of this proposed special exception request until our concerns have been addressed. Since we are out of town, since we will be out of town, we will have someone representing us at the meeting. 11 This is Arlene Smith and Ronald Smith. CHAIRMAN DINIZIO: So you're representing 10 11 12 13 e 14 15 16 17 18 19 20 21 them? e 25 MS. MURRAY: I'm their neighbor, they asked me to bring the letter. CHAIRMAN DINIZIO: So they don't want to hold the hearing up and have someone, a lawyer represent them at the next meeting? MS. MURRAY: They just wanted me to present this to you. CHAIRMAN DINIZIO: So they're not asking 22 23 24 January 22, 2007 36 1 9 to hold the hearing? MS. MURRAY: No. BOARD MEMBER SIMON: Can we have copies of the letters? CHAIRMAN DINIZIO: Yes. Ruth? BOARD MEMBER OLIVA: How far did they say they were from the property line? MS. MURRAY: The Smiths say their property line is 16'7" inches from the gravel driveway. BOARD MEMBER OLIVA: To the west? CHAIRMAN DINIZIO: Specifically they're talking about a property line, not a building, which is one hundred and some-odd feet away. BOARD MEMBER SIMON: 150 feet. CHAIRMAN DINIZIO: So let's not get that confused. MS. MURRAY: So they're basically worried about the noise and about the pond. BOARD MEMBER WEISMAN: Let me be sure, are they east or west? MS. MURRAY: To the west. BOARD MEMBER WEISMAN: I saw that building 2 e 3 4 5 6 7 8 10 11 12 13 there. e 14 BOARD MEMBER GOEHRINGER: Can I just ask, are they facing the road or are they on the flag lot? 15 MS. MURRAY: We're down the road, down a gravel road that parallels to the pellicanos. BOARD MEMBER GOEHRINGER: So you're in the 16 back. 17 MS. MURRAY: We're in the back, the Smiths are 18 BOARD MEMBER GOEHRINGER: In the front. Who has the pond; they have the pond in the rear of their property? MS. MURRAY: It's between them and North 19 20 Bayview. CHAIRMAN DINIZIO: Is this a natural 21 pond? 22 MS. MURRAY: Yes. CHAIRMAN DINIZIO: I just read a case law on ponds and actually it was Reader's Digest, that the property owner is actually responsible for insuring that that is safe. The neighbors can't possibly be expected to worry about whether their children or whatever are running about. I don't know that that holds too much weight with me personally. If they think a fence, they actually 23 24 e 25 January 2~, 2007 37 1 9 have stated publicly that they state a fence would help there, perhaps they now probably should consider that because on the record they have been -- but that's only my opinion; does anybody else have any comments on the letter? BOARD MEMBER WEISMAN: Well, I'll ask a question, I must say that 150 feet away from the house is substantial. For a house to be located that far from a property line is substantial. It's not as though they're very close. I assume that with three guest rooms the amount of traffic will be quite minimal and seasonal. MS. MURRAY: Three or four guest rooms? BOARD MEMBER WEISMAN: Four altogether. Mr. Pellicano, let me just ask you a question at this point. You have heard what your neighbor is concerned about. How would you feel about the possibility of putting in some additional evergreen screening along that driveway to mitigate some noise and view? MR. PELLICANO: If you look at it in the summer time when it would be the same -- BOARD MEMBER OLIVA: You can't see it. MR. PELLICANO: It's very well wooded and unless they chop down some trees -- I will comment on this, though. This particular couple, they have hunters come on their property, which actually trap animals across our property. BOARD MEMBER OLIVA: He's not supposed to do that. MR. PELLICANO: I understand. We have complained about it. So I'm sure that this has precipitated this complaint. CHAIRMAN DINIZIO: Okay. ASST. TOWN ATTY. CORCORAN: If I could just speak very briefly on the issue of the liability. Generally speaking, it's the respective rights and liabilities between the neighboring property owners to figure out who is responsible for trespassing liability resulting from that, et cetera. It is to the extent it's relevant to this Board that you have to consider the neighborhood. You have to consider how close properties are and whether uses are compatible with the surrounding neighborhood. So it's not irrelevant. It's relevant whether somebody's close to another and whether people are going to be wandering onto other properties and whether 2 e 3 4 5 6 7 8 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 2~, 2007 38 1 7 that creates a dangerous condition. You don't need to talk about who is liable for what. That's between them and the type of activities they're conducting, and the type of conditions on their property. But it is relevant for you to consider whether a use is appropriate for the surrounding neighborhood. CHAIRMAN DINIZIO: I apologize for making that statement too. Michael? BOARD MEMBER SIMON: No. Just a clarification. Are you saying that with regard to the point about the fence, it's a question that you might be seeking a condition from the applicant to put up a fence to protect people from going into the Smiths' pool? MS. MURRAY: You know, they're my neighbors. They asked me to deliver a letter. I just want to be a good neighbor and help them out while they're in Florida. They said this could be mitigated. BOARD MEMBER SIMON: And we could be clear on this and say it doesn't make clear mitigated by whom, fine. Whether it should be mitigated by the applicant or mitigated by the Smiths themselves. BOARD MEMBER GOEHRINGER: I think the point in question is liability and regardless of who is responsible for it, it's where the liability started and where the liability stops. If you can't clearly define what your property lines are, and they're not delineated, then really doesn't know what the situation is. We have in the past asked people to put up such environmental fences as a split rail fence in between the property lines. What it very simply does is in the agreement that you have with your guests is, please don't proceed any farther than the split rail fence. MR. PELLICANO: Don't go on the left side. BOARD MEMBER GOEHRINGER: Right MR. PELLICANO: We have 11 acres on the other side, so I really don't think they would go over there. As far as the pond goes, most of the times it's a mud hole. BOARD MEMBER WEISMAN: It's not terribly appealing. Not Walden exactly. BOARD MEMBER OLIVA: Just this time of year, in the summer time it probably dries up. CHAIRMAN DINIZIO: My point is I don't 2 e 3 4 5 6 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 2~, 2007 39 1 9 know if we need to condition anything based upon that letter. I think requiring the person who has 11 acres of land to put a fence up between a property line, we in the past we have had bed and breakfasts that are on half acre lots that we didn't have to deal with a fence. I just wanted to be fair to you to tell you how I felt about it because quite honestly, I think if the Board doesn't feel that they want to require any screening on that, I certainly don't either. But I don't think it's an unreasonable request. Does anybody else have anything else they would like to add? Do you want to hand that up? MS. MURRAY: Sure. It's just, I think we coexisted pretty well. Everybody is pretty quiet and respect each other's privacy. It's just, you know, our only fear was how much additional noise or traffic it would be, and if it's limited to just this use. CHAIRMAN DINIZIO: No, I think your point was well taken. Personally I don't like the idea of bed and breakfasts in residential zones. I have been clear about that quite a few times. I think it is a business and it should be in a business place. You're asking for strangers to corne into a neighborhood that wouldn't normally be there. But the Town law allows it and therefore, I think as long as he meets the criteria, which he obviously does or will have to required by the code, I don't think we have much recourse. ASST. TOWN ATTY. CORCORAN: The permit will limit the use to what's applied for and it's actually a renewable permit each year. So if someone exceeds the scope of the granted permit, you can certainly bring that to the Town's attention and that would be grounds to potentially not renew the permit. BOARD MEMBER SIMON: Also if there were abuses of a different sort, that could also be grounds for not renewing. If the guests were running rampant over the neighbor's property, would that be a factor? CHAIRMAN DINIZIO: It's a tough nut. We're not really granting that, Michael. BOARD MEMBER SIMON: Just following up on Kieran's point, it gets reviewed under reapplication. And if there were problems, could be problems of the sort that the Smiths' letter 2 e 3 4 5 6 7 8 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 2~, 2007 40 1 6 anticipate, those could be reviewed by the reviewing board at that time; is that correct? ASST. TOWN ATTY. CORCORAN: It is potentially relevant. If it turned out to be an egregiously not relevant use for the neighborhood at that time. Jim is correct that if you meet the criteria, essentially, it's a use as of right by permit. But this Board does have discretion to continue or not continue. CHAIRMAN DINIZIO: I always brought up, it could be Billy Bob's Beer Drinking Bed and Breakfast, it could be a guy who has a bed and breakfast -- BOARD MEMBER WEISMAN: He doesn't look like Billy Bob. CHAIRMAN DINIZIO: I know this gentleman's not going to be that. It was always my point the Town opens themselves up to a variety of interpretations of what a bed and breakfast are. Yes, they could come before us, if someone came back, I certainly would consider, hey, they're getting up at 4:00 in the morning every morning, but maybe that's part and parcel, where you could deny that application. But we only have that opportunity, they have to go back to the Building Inspector. ASST. TOWN ATTY. CORCORAN: It's somewhat of a ministerial function but if you have a problem, you could bring it to the Town's attention. BOARD MEMBER WEISMAN: This is an owner occupied application. And I'm sure that the Pellicanos want peace and quiet in their own lovely dwelling as the neighbors do. And I'm certain that it will be properly run and an amenity for the community, and I think it's an appropriate use for the residential zone. It's one thing that if it's being run by a manager who's there and the owners are not residing in it, then you can legitimately look at it as primarily a business use. But when it's owner occupied in a residential zone, it seems to me it's appropriate. CHAIRMAN DINIZIO: Okay. Do you have anything else to add? MS. MURRAY: I don't. CHAIRMAN DINIZIO: Certainly, if it was a manager, Leslie, it doesn't meet the code. I would like to entertain a motion to grant it as 2 e 3 4 5 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 2ff, 2007 41 1 2 applied. BOARD MEMBER WEISMAN: It's mine to write so, if you want to move it, I'll second it. BOARD MEMBER OLIVA: I'll move it. (See minutes for resolution.) e 3 4 6 CHAIRMAN DINIZIO: Next hearing is for Phillip and Linda Kermanshahchi concerning a request for a variance under Section 290-14, based on the Building Inspector's October 20, 2006 notice of disapproval concerning an as-built addition to the single-family dwelling with a setback at less than the code required 60 feet from the front lot line, at 7213 Peconic Bay Boulevard, Laurel. Is there anyone who wishes to speak on behalf of this application? MS. MOORE: Pat Moore. CHAIRMAN DINIZIO: After going through the record, I see you have an existing setbacks of 22.9 feet, and you're asking for 14.4 feet? MS. MOORE: Actually after the surveyor we'll stick to yours only because it's a significant structure measured from the eves. Originally the notice of disapproval was based upon a measurement which was measured at the approximate measurement, and now we have a survey in the file that actually gives us an exact. BOARD MEMBER WEISMAN: 15.2. You're going by this survey by Corwin? MS. MOORE: Yes. CHAIRMAN DINIZIO: Read the date into the record, please. MS. MOORE: Yes, it is originally dated November 8, 2004, updated October 22 2005. We're trying to determine if we could apply the average setback rule in this case, but the houses that are along this road, they actually don't front this right of way, but the measurements I thought were relevant anyway. So we included it. I have Mr. Kermanshahchi here if you have any questions for him. This piece of property is unique in the sense that it is originally part of the larger parcel that was owned by the Roman Catholic Diocese of New York. It was a girl's camp. So that was the original use of this property. In '77 it was subdivided and this particular lot was created among four other lots. 5 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 2~, 2007 42 1 5 The building that was here was converted to a girl's bathhouse originally and it was converted to a residence by the prior owner. Mr. Goehringer, being a Mattituck resident might recall Mr. Parini because he seems to have been a character. He apparently collected scraps of wood and other things and used it to piece together this structure. So when Mr. Kermanshahchi purchased the property, it really needed major renovations from top to bottom, and every time he pulled a wall, he would find it was made with some other piece of material that is not usually used for construction. So it's been a challenge for him. We are asking for an as-built because he is a weekend warrior, and he did not realize that the roof line change and he was covering over what was a carport at the time that should have come in for a variance and for a building permit. Certainly at the time it was discovered that there was a need for a building permit, he came in and started the process. Whether he comes in now as-built or comes in prior, the design probably would not have changed dramatically because the only place for this garage is where it's proposed. The house interior, if the garage goes into the living space that is not the bedroom. To put this garage any where else would have attached to either open windows or to bedroom. I think I pointed out in my written application, the opposite side that would have made it conforming to the addition of the existing dwelling is attached to the children's bedroom and that's not an appropriate place for a garage and access. The existing structure is preexisting, as we pointed out the existing structure is at 22.9. I give him credit for retaining what is a really charming original structure. He has done -- you haven't gone inside but inside he's done a really remarkable job keeping to the character of the original open spaces that was the original -- BOARD MEMBER OLIVA: I think bath house. MS. MOORE: Play house, and then as it was altered by Mr. parini. I think the application speaks for itself. We did get various supportive -- I got phone calls in support of this application by Mr. Danson, Mr. and Mrs. Danson. Mr. Danson called -- he is the property owner to the north and owns the property to the east as 2 e 3 4 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 43 1 2 well. 9 BOARD MEMBER GOEHRINGER: The house facing Peconic Bay Boulevard? MS. MOORE: Yes, it's pretty far back. Kragle was the subject of a variance application that was granted for a similar request, an expansion of the garage. That particular application again, there was more room, the house was new construction and it had been placed properly on the property we, on the other hand, are dealing with a preexisting, nonconforming structure. The right of way is well maintained. Everyone participates in keeping it in pretty good condition. It's adequate in size, and I did, as I pointed out the survey that was prepared by Mr. Corwin, does show the position of the two small houses that are shown as benefit, those two properties actually had received variances a very long time ago. And those houses, the one closer to Peconic Bay Boulevard, has a setback to the road of 3.1 feet, and the parcel to the north of it or further down the right of way, has a setback of 5.7 feet. Those two parcels have access through their own right of way. But that shows you some of the character of that area, which is a lot of preexisting, nonconforming structures and those homes appear to have been some bungalows, second homes that I believe at this point have been converted to year round use. If you like, I can answer questions at this point. I have given you a lot of written material. CHAIRMAN DINIZIO: Michael, how about you? BOARD MEMBER SIMON: I am concerned about the kind of a test or criterion for granting as-built variances, and one argument that we used is to ask the question of what would we have approved in the first place. And you point out that a variance was given in 1995 for a brand new structure which was only 20 feet where there was 60 feet required. You want to argue that this is a variance that would have been granted or should have been granted had it been applied before the current owner began working on it a couple years ago? MS. MOORE: Well, yes. But predominantly because that was already a carport, and as I pointed out, the carport you can still see the e 3 4 5 6 7 8 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 2J, 2007 44 1 6 underlying structure below this. Once the Building Department stopped -- they stopped everything, including the old frame of the old structures that is under it. So that was the area, the whole house is already preexisting. It was designed with that as the garage entrance, the utility room and everything else. So that is the area where the garage would have gone and where an application to this Board would have been made where it is now. BOARD MEMBER SIMON: Are you saying that the carport was a preexisting, nonconforming structure, and since from the point of view of zoning, a carport isn't distinguishable from an attached garaged -- MS. MOORE: Yes, the carport really was I call it a carport, it was an unenclosed garage because it had two walls. The interior walls were existing. It had a roof. It had a partial opening because they used wood and things to enclose it. BOARD MEMBER SIMON: But it was part of the structure. MS. MOORE: It was part of the structure. In order to fulfill a properly CO'd building permit compliant garage, you have to put in foundation, and you have to put proper fire rated separation between the car storage, the mechanical and the house. So all those things are being done properly, and that is a space that would be required. So while I'm pointing out that yes, I know the criteria, that if you didn't know the as-built, you look at it as if it wasn't there. Prove to me that it would be appropriate there and that's what I'm saying, that that is the appropriate location for the garage. BOARD MEMBER SIMON: Given that there is already a carport. MS. MOORE: The house is designed on an angle and that is the area where the nonresidential living space is. Also, I would point out that the roof lines here, you are dealing with again, a preexisting structure that had very choppy roof lines, and the way it is designed is very nicely done, and it incorporates part of the old structure. So it's a one-story with some extra -- where the peak is to allow for some extra storage in the roof and garage area, 2 e 3 4 5 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 45 1 9 but it is a one-story structure. So it's quite large, so the demolition and to rebuild. BOARD MEMBER SIMON: Or to put the garage behind the house. That's the better, as would suggest, is a detached garage rather than an attached. MS. MOORE: Yes. The other alternative would have been a detached garage, but the need for the correction for some of the utility rooms, and the fire separation that were inadequate, he needed to do something with that space, and it made sense financially to incorporate the garage into the renovations in the correction of the existing structure. Yes, if they could have built a detached garage on their almost three acres here to build on, but the overall design -- BOARD MEMBER SIMON: Right. But one point, if it didn't happen that this house, unlike some of the neighbors fronting on the right of way, would you need a variance? What sort of variance would you be needing if, in fact, it were not seen as fronting on the right of way? MS. MOORE: You would need a side yard at that point. I think you're at a 20 foot setback on a side lot, so we clearly have 25 on the one side, we would have 20. So instead it would be a side yard. BOARD MEMBER SIMON: Instead of 16 or 15? MS. MOORE: Right. Again, this is towards the end of the right of way. This is a very private development. There's really no through access here. So while this is a front yard setback, as you point out, it's looks more like a side yard. BOARD MEMBER WEISMAN: The neighbor at the end of the right of way isn't the one against it, and they support this application. MS. MOORE: They were very thrilled when Mr. Kermanshahchi and his family bought this property because they certainly cleaned it up here. The number of dumpsters that Mr. Parini's wife had to use when her husband not only collected things, he was a pack rat. I don't know Mr. Goehringer, do you remember him? BOARD MEMBER GOEHRINGER: Mr. and Mrs. Parini were friends of mine. MS. MOORE: I only had hearsay, so I hope I didn't insult. 2 e 3 4 5 6 7 8 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 22, 2007 46 1 6 BOARD MEMBER GOEHRINGER: No, no, no. Mr. parini was a postman in the city and when he came out here, he became a collector of everything. He was actually a wonderful individual. And died tragically, it was horrible. But the one thing one has to look at is the neighborhood and the density on the piece they live on, and they own the chapel, which is next to it or adjacent to it, and that is really the only other parcel that would be impacted, and the house, from its original structure has not changed much. I hope that Mr. Kermanshahchi took out the fish tank that was in the ceiling that he used as a sky light -- not you, sir, Mr. Parini, because I questioned Dominick about that when he did that. MS. MOORE: And the shower door too. MR. KERMANSHAHCHI: That was a shower door not a fish tank. And he did that troth -- right, but it did still have the aluminum rim around the edge. BOARD MEMBER GOEHRINGER: Please excuse me for mentioning that because I did question Dominick about that. BOARD SECY. KOWALSKI: Sir, what is your name for the record? MR. KERMANSHAHCHI: Philip Kermanshahchi. MS. MOORE: It's very cleaned up now that you don't see what it was before. BOARD MEMBER GOEHRINGER: If you don't mind some day you may see me come over and just introduce myself again, and I would like to again, I use the word reinforce the old and compare it to the new, if you don't mind. MS. MOORE: It really is a beautiful BOARD MEMBER WEISMAN: Beautiful job. BOARD MEMBER GOEHRINGER: I was there but I did not go in. BOARD MEMBER WEISMAN: I did actually have a question, though. We're provided with kind of a foundation plan or a footage of the existing dwelling because the only thing before us is the proposed enclosure, garage, which I have no objection to at all. But I wonder, the only thing noted because we don't have full plans for an entry other than through what I think is your child's bedroom is the existing stoop to the house that is in the carport that essentially will be now in the garage; do you have an additional entry 2 e 3 4 5 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 2~, 2007 47 1 2 because it's not in the plan for a front door that's not in the front garage? MR. KERMANSHAHCHI: Actually, other proper door into the house. We sliding glass doors to come in on the off the patio. BOARD MEMBER WEISMAN: Isn't that furnished as a small bedroom at the moment? MR. KERMANSHAHCHI: That section? BOARD MEMBER WEISMAN: Yes. MR. KERMANSHAHCHI: No, Mrs. Parini kept is as a sun room, which we have also. BOARD MEMBER WEISMAN: Okay, so you're past your slate patio. MR. KERMANSHAHCHI: bedrooms. BOARD MEMBER WEISMAN: Because it wasn't noted, and I assume most people, although it's a small house, have some sort of public entry that's obvious to get, so on, if your garage door is closed, how do you get in? MR. KERMANSHAHCHI: My wife and I are still debating which glass door should become a door. there is no use the side south side e 3 4 5 6 7 8 9 Yes, you bypass both 10 11 12 13 e 14 BOARD MEMBER WEISMAN: Exactly. As an architect I just had a curiosity question. I think you have done a beautiful job with the siding. MR. KERMANSHAHCHI: Suggestions are 15 16 welcome. 17 18 CHAIRMAN DINIZIO: Okay, anybody else? My question when I first looked at it was why can't he put it in the back; if he put the garage in the back yard, he would have to come all the way around to the front of the house to get into the house. MS. MOORE: He would have had to do something with that side because, as I said, it was already designed as the entrance, you came in there, so you go into that hallway/kitchen area. The other areas, the only other living space is the sun porch, and you would end up having to put a garage on what is now a beautiful wall of windows. So it would change. BOARD MEMBER WEISMAN: Then you would have to have a big long driveway. CHAIRMAN DINIZIO: Okay, Michael got that out of you; so is there anything else that you 19 20 21 22 23 24 e 25 January 2?, 2007 48 1 e 3 would like to add? MR. KERMANSHAHCHI: BOARD MEMBER SIMON: house now? MR. KERMANSHAHCHI: Basically during the year we come on the weekends but when the kids are out of school, we live out here. CHAIRMAN DINIZIO: Okay, anybody in the audience wish to comment on this application? Hearing none, I will entertain a motion to close this hearing. (See minutes for resolution.) I love living here. Are you living in the 2 4 5 6 7 8 9 CHAIRMAN DINIZIO: Next hearing is for Henry Ruggiero, concerning a request for a variance under Section 280-122 based on the Building Inspector's October 26, 2006 notice of disapproval concerning alterations and/or reconstruction of an existing sun room, which will increase the degree of nonconformance when located less than 15 feet on a single side yard. ZBA interpretation is the Walz application. Location of the property: 425 Calves Neck Road, Southold. Anybody wish to comment on this application? MS. MOORE: Pat Moore on behalf of Mr. and Mrs. Ruggiero. This is Mr. and Mrs. Ruggiero's property. It's a very minor application. This is an existing sun porch and they're renovating the house. They're changing the pitch of the roof in order to do a nicer job of the architecture of this building to make that sun porch conform. So the variance is really minor, it's about one foot additional of nonhabitable space. It's just a roof line change. Everything is staying the same. I thought, it's such a minor application, I thought maybe you guys might consider looking at your directive of coming for a variance every time you do a slight alteration, and I would encourage you to look at how people are coming in under the Walz decision to see if you have a nonhabitable minor alteration to a preexisting where you are conforming to the height requirements that you don't have to come before you for such a variance. But I don't want to complicate this application, but I thought it would be a really easy one that you could help the Building Inspector's requirements when you have a very small -- you 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 2~, 2007 49 1 e 3 might have a foundation change, we had one of those from a slab to a crawl space or a roof line change where again, the key component is it's not habitable space; you're not increasing the degree of nonconformity, that you're using the space more and therefore creating more of an impact on your neighbor. You're really just changing a design element that is conforming otherwise. BOARD MEMBER GOEHRINGER: The word is diminimus and we can't do it. CHAIRMAN DINIZIO: I would certainly encourage you to write something down, Pat, and maybe send it to me and let's see if we can't somehow corne across because you know what, for the life of me I can't figure the wording to get us out of this Walz thing. MS. MOORE: The Walz dilemma. CHAIRMAN DINIZIO: Yes. So if you have any ideas, I certainly would be open to do it. MS. MOORE: I would be happy to maybe in 2 4 5 6 7 8 9 10 11 12 my -- 19 BOARD MEMBER WEISMAN: You did write something? MS. MOORE: In my documents I did suggest some language. BOARD MEMBER WEISMAN: You did. MS. MOORE: Which for the Building Department I think they use common sense or they like to use common sense, but with the Walz decision you haven't given the parameters to use that brain that they have been given. BOARD MEMBER WEISMAN: I have to agree. This is really a situation where unnecessary time delay and cost is involved where it is so diminimus. And I think the key is it is nonhabitable, you're absolutely right, and as long as it's within the existing footage. It's such a small number, going from what is it 9'11" to 11'3" simply to change the pitch and put on a rail, it's going to certainly enhance the architectural character of the structure immeasurably. BOARD MEMBER WEISMAN: And I have no problem with the application. Jim, I think you're right, we should try and follow up. CHAIRMAN DINIZIO: I agree. I think that we should not address that in this application. MS. MOORE: No, in other ways, you guys, I would prefer that you do it internally with the 13 e 14 15 16 17 18 20 21 22 23 24 e 25 January 2~, 2007 50 1 2 Building Department I just don't know how. Actually, most of these rules are coming out of cases and interpretations. So we do that all the time. e 3 5 BOARD MEMBER SIMON: That's where legal rules come from, cases. CHAIRMAN DINIZIO: In any case, does anybody have anything else to say on this application? MS. MOORE: We actually would like it as I said, this is diminimus, if you could grant this application right away. CHAIRMAN DINIZIO: I was going to suggest that unless the Building Inspector has something to say. BOARD MEMBER SIMON: I still have a couple of questions. CHAIRMAN DINIZIO: Hold on, your name is, 4 6 7 8 9 10 11 sir? 13 MR. KRUP: Philip Krup. I have known Henry and Susan for the last eight years. They have owned the house for about 12, and all they're doing is trying to improve it for the community, increase the property values for the neighbors. It's from the '70s and we're trying to keep that 1940s character when the houses in the neighborhood were built. CHAIRMAN DINIZIO: Does anyone else have anything else they would like to say? BOARD MEMBER SIMON: Just for clarification in the application it is specified that there's 107 foot increase in the area of the property; where is that, overhang? MS. MOORE: What you're talking about right now, the roof like now is like this (indicating), we're raising it slightly and there's a balcony. That is the square footage. BOARD MEMBER SIMON: The square footage is where the room is over -- it's not a change in the footprint, because 107 square feet is not really square feet of the ground plan. The existing footage stays the same. It looked like it was the same size, couldn't figure out where 107 feet was. Regarding the thing is you cannot define "diminimus." That's the whole meaning, the indefining1y small, but that's a whole other question. Jim? CHAIRMAN DINIZIO: I'm sorry, Mike. 12 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 51 1 7 BOARD MEMBER SIMON: I'm just not completely happy with the idea of voting this right now, simply because the idea of scrutinizing it closely in the light of discussion as much as we have been singing in unison, I'm not sure that that's sufficient. ASST. TOWN ATTY. CORCORAN: The point is, a point is that if for everything you vote on, and approve, that then triggers a five day requirement to issue the decision. So it's great, and it's expeditious for applicants to have this Board to grant applications at the hearing, but they are then putting a burden on themselves to issue the styled written decision within five days after they do that. So I just want the Board to be mindful of that; that's state law. CHAIRMAN DINIZIO: I was aware of but this is Michael's decision so if he's BOARD MEMBER SIMON: Am I writing one? Given the time it takes me to write get it to Linda and back and forth. CHAIRMAN DINIZIO: That's fine. BOARD MEMBER SIMON: I had forgotten the five days. CHAIRMAN DINIZIO: I would suggest then that we incorporate some of the change, that we take the time. MS. MOORE: That's fine. We're moving forward, doing the renovation, maybe you could just send a message to the Building Department. ASST. TOWN ATTY. CORCORAN: It doesn't work that way. CHAIRMAN DINIZIO: that to be quite honest. days. that, not -- this it, and 2 e 3 4 5 6 8 9 10 11 12 13 e 14 15 16 17 18 We really can't do It's going to be 14 19 20 MR. RUGGIERO: We are continuing with the rest of the buildings. We're renovating it, we're going to do a small addition that had already been approved. This was approved originally as well but then they denied it, why, I don't know. I don't know a month after we received our building permit. The only thing that has delayed me is ordering windows and supplies for the house usually takes four to eight weeks. That's one thing I haven't been able to do is order windows for. They do mostly use it in the summer time and in the windows, so I would like this project going before the spring. 21 22 23 24 e 25 January 25, 2007 52 1 8 BOARD MEMBER OLIVA: Why can't we okay it? MS. MOORE: Would it be a problem for the Board if we said that this design it acceptable so that we could order windows? BOARD MEMBER SIMON: I don't think that ASST. TOWN ATTY. CORCORAN: I think you're getting the sense from the Board that you don't have it until you have it. CHAIRMAN DINIZIO: And I would be unwilling to say -- MS. MOORE: All right, fine. BOARD MEMBER SIMON: The vote is what counts, legally. I sense from the meeting is what you can infer. That's the best we can do. CHAIRMAN DINIZIO: So I think we have it all cleared up that we're not going to vote on it today. 2 e 3 4 5 6 7 9 10 16 BOARD MEMBER OLIVA: We're not? CHAIRMAN DINIZIO: No. BOARD MEMBER GOEHRINGER: Why not? CHAIRMAN DINIZIO: Michael's not ready and the five day requirement would be pressing to come up with a written decision. ASST. TOWN ATTY. CORCORAN: After you close the hearing, you have 62 days to vote and make a decision, but once you vote and make a decision, you have five days to issue that written decision and file it with the town clerk. CHAIRMAN DINIZIO: So, I suppose if someone else is willing to write it, is that a problem? BOARD MEMBER SIMON: I guess as a matter of procedure except in some other cases including the ones that we dealt with today is the idea, it's certainly been the practice to write a draft opinion and then circulate, discuss and vote on it. Here we're voting before we write the draft decision. CHAIRMAN DINIZIO: I tell you, Michael, the two we voted on today and BOARD MEMBER SIMON: Right. And that's why I say, I have no problem with those, but the idea of extending that is the slippery slope. MS. MOORE: I thought you had more than the special permits. CHAIRMAN DINIZIO: No. BOARD MEMBER SIMON: That's strictly up or down, things without conditions and so on. 11 12 13 e 14 15 17 18 19 20 21 22 23 24 e 25 January 25, 2007 53 1 e 3 CHAIRMAN DINIZIO: Right. So it is a little different. So I'm all for closing the hearing and wait until the 8th. BOARD SECY. KOWALSKI: Also there's a time frame when you file an application, if you give a letter with your application, the Board members will get it, and they will consider whether they should have something prepared ahead of time if there's a time emergency, when you file the application, which can explain your time. ASST. TOWN ATTY. CORCORAN: Everybody's got one. CHAIRMAN DINIZIO: Unfortunately that's what happens. MS. MOORE: Okay. CHAIRMAN DINIZIO: So I will entertain a motion that we close the hearing. (See minutes for resolution.) 2 4 5 6 7 8 9 10 11 13 CHAIRMAN DINIZIO: This is an application for W. Bruce and Mary Ann Bollman. Hearing reopened for the purposes of receiving documentation and testimony relative to LWRP code Chapter 268 Local Waterfront Revitalization law. This is an application concerning a request for a variance under Section 100-244 based on the Building Department's February 3, 2005 Notice of Disapproval, concerning an application for a building permit to substantially remove or demolish existing dwelling, and to construct a new single-family dwelling (1) at less than 10 feet on a single side; (2) at less than 25 feet combined side yards; (3) with lot coverage exceeding the code limitation of 20 percent; and (4) at less than 75 feet from the bulkhead. Location of property: 1755 Trumans Path, East Marion. My understanding is that the Court had ordered us to reopen the hearing based on the fact that the LWRP was not made part of that record; is that clear, that is all we're here for today? ASST. TOWN ATTY. CORCORAN: Essentially, the court remanded it and directed this Board to comply with the LWRP, which is Chapter 268 of the Town Code. 12 e 14 15 16 17 18 19 20 21 22 23 e 25 CHAIRMAN DINIZIO: received that and that is the record. ASST. TOWN ATTY. CORCORAN: That's what Right. So we all now currently part of 24 January 25, 2007 54 1 6 we're here for. CHAIRMAN DINIZIO: Okay, is there anyone here that wishes to speak on this? MR. ARNOFF: Harvey Arnoff, Roanoke Avenue, Riverhead, New York, good afternoon, Mr. Chairman, and Members of the Board. I think I'm going to be brief, which is unusual. I believe the Board's correct, if the ruling is dealt with it's the chicken and the egg type thing, in other words, the argument was made that the Board did have the LWRP after the decision and that the LWRP did not have any impact on what this Board had done. And the Court said, notwithstanding that fact, procedurally it had to come back here because the LWRP had to be considered. Now, the LWRP that was issued was the same one that was issued back in or reissued in '06 saying that it was issued '05 and it was considered by the Trustees. Now, we have, and I believe Mr. Bertani is here with the builders in case the Board has any questions of him, we have to the extent possible complied with the LWRP recommendations. In fact, it is my understanding there were some recommendations in regard, to -- one of the main recommendations was in positioning of the septic system. But if you look at the survey, you will see that there is a well within a certain radius of the 100 feet. So we could not reach the 100 feet without having to deal with the drop. Similarly, Miss Gould has placed her water pipes along the property line. So, if we further move our septic system back along the side of the existing building that is still there, we will be within 10 feet of her water lines, which then also has the Health Department issue as well. Be that as it may, this was a Trustee issue. In fact, the recommendations in the LWRP say specifically as recommended, the Trustees require that the septic system be relocated a certain distance and their discretion -- and then apply their discretion. The Trustees did that. The Trustees had this document in their position and they made certain recommendations that we complied with, which meant moving some pools back further and relocating the pools, which we have done. CHAIRMAN DINIZIO: Can I interrupt for a minute because it's my understanding that the LWRP 2 e 3 4 5 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 25>, 2007 55 1 6 says that your application is consistent with the Town Code. So-- ASST. TOWN ATTY. CORCORAN: Let me clarify that. The LWRP coordinator has recommended that you find it consistent. This Board must make a determination of whether it's consistent. But that's a recommendation of the staff member. CHAIRMAN DINIZIO: Okay. This is new to us. So basically your explanation now of this septic system is based on what he's saying about minimums. MR. ARNOFF: That's correct. And the Trustees, in fact, dealt with that issue. So what I think is important is when what you said, Mr. Dinizio, when you opened this. Is that we're not revisiting this application. I mean, I could do that this afternoon, but you've heard a lot of testimony in regard to this, and the question is does the LWRP impact or change what the Board's prior determination is. In other words, if they revisit all the facts that they had before and applied the LWRP to it, is there going to be any significant change. It's the position of the applicant, there is no change, and that this does in no way affect what the Board's determination was. 2 . 3 4 5 7 8 9 10 11 12 13 . 14 15 I will leave it up to Mr. Bressler I think at this point to make all the comments he chooses to make, and then perhaps, I may ask for leave to address you again. CHAIRMAN DINIZIO: May I just ask, may I just clarify one more thing with you? Because we had a hearing; we made a decision and we granted alternate relief, and my assumption is that the applicant has complied with that alternative relief. 16 17 18 19 20 MR. ARNOFF: There was a stay issue, there was an Article 78, there was a stay. We could not comply. We are willing -- the answer is we are willing to comply with this Board's determination. CHAIRMAN DINIZIO: Because this is what I want to ask, the foundation that I see there now, that's the same foundation that was there before we made the decision? BOARD MEMBER OLIVA: CHAIRMAN DINIZIO: No, it's been moved. It's the one that 21 22 23 24 . 25 complies to our standards? BOARD MEMBER OLIVA: It complies to January 25, 2007 56 1 2 ours. e 3 MR. ARNOFF: We got permission if you recall to put the interim stop-gap in to stop erosion. 5 CHAIRMAN DINIZIO: That I understand. MR. BERTANI: That's the one you asked us to put in. 4 CHAIRMAN DINIZIO: That's the footage we 6 asked. 7 MR. BERTANI: That you what's there. The only reason because I believe the decision other decision was made. CHAIRMAN DINIZIO: specified, that's we're here is was made before the 8 Right. We didn't have 9 all the information. MR. BERTANI: And the Trustees did already comply, or made us go with the maximum we could get -- CHAIRMAN DINIZIO: Right. MR. BERTANI: with the septic system, which we did do and they granted us the permit based on that. CHAIRMAN DINIZIO: Okay, thank you. Mr. Bressler? MR. BRESSLER: Good afternoon, Mr. Chairman and Members of the Board. If the matter before the Board was only so simple as put by Mr. Arnoff. Although I do appreciate the brevity in his remarks. It's not quite as simple as it appears. Let me address what the issues are. The gravamen of the reversal of the Supreme Court, which did not address, by the way, the merits, the gravamen of the reversal was that the LWRP was not done and it had to be done, and it had to be considered by this Board before action could be taken. That much is clear. However, to extrapolate from that and say well, now we've done the LWRP and we've already had a hearing, and by the way, the Trustees have acted, is not the answer to that question. The thing that bothered the Court and the thing that shored the basis for our argument was without the LWRP in front of this Board, it could not and in fact did not consider the recommendations that were contained in that document, which this Board was required to do. And whatever the Trustees in their wisdom or otherwise decided to do, has 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 57 1 9 nothing to do with this Board. This Board has the discretion within the legal limits to act, and it was required to consider what was in the LWRP and act. That's why we're back here. So that this Board can do that. Now, assuming that the Board is willing to do that, we then turn to the LWRP and ask, what's in it. What should we consider on this application that we didn't consider the last time around? And that brings us to the LWRP itself. An interesting little document in that it's dated December 20th. It's somewhat similar to what was sent to the Trustees, and there is a notation "resubmitted January 19, 2007." It isn't exactly the same, in fact it's different in several telling aspects. When we first turn to the introductory paragraph where there is a description of what this is, and unfortunately that's just not right, the applicant requests an amendment to move the footprint of the dwelling 2.6 feet east. Well, that's not what the application was, that's what this Board granted. Well, why is that important? It's important because when you read it, apparently the LWRP coordinator was under the impression that this was a simple movement of a footprint 2.6 one direction or another and that's not what's before the Board. What's before the Board is the fact that the thing was torn down completely, the foundation removed, and an application made to rebuild in a nonconforming location. That's what's before the Board. So the coordinator got that wrong. Now we turn to the second paragraph. The Town of Southold Board of Trustees issued a permit for the action on April 21, 2004. Well, that's plainly wrong. How could that be possible? The action was only made by the Zoning Board of Appeals last year. The Trustees did not issue a permit for moving this thing 2.6 feet. So there's another fundamental misunderstanding on the part of LWRP coordinator. The foundation of the proposed structure currently exists. Well, at the time in January 19, 2007 that's true because Mr. Arnoff pointed out that was done at their peril pursuant to the order of Justice Costello. The order said go ahead, but you're not going to gain any vested 2 e 3 4 5 6 7 8 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 58 1 5 rights, you're not going to gain any advantage by doing that. So whatever I decide or whatever the Board decides, you can't use that and raise a hardship argument. We turn now to the next paragraph, there's a reference to a 6.3 wood wall, we won't see that on the survey anywhere, presumably they're referring to some other wooden wall, I'm not sure. And now we can come to the most interesting part of the LWRP assuming that the coordinator actually understood what it was that was before him. He says it's generally consistent provided -- and I'll call that an if -- it's generally consistent if the applicant demonstrates that the policies are applied to the greatest possible. Notice that now that's a little bit different than some of the other consistency reviews that the LWRP coordinator has done. In similar circumstances where you're too close to a wall or bulkhead or other areas of water, the LWRP coordinator says it's inconsistent because it's too close. Here he says, well, it's consistent but only if you move it back as far as you can. So then the question becomes, well, is it moved back as far as it can be to avoid hazards; in 4.1 Al, AB, avoid hazard by citing structures that maximize the distance from coastal erosion hazard areas; is that what happened here? It wasn't before the Board the last time around. And then you go to the last page, and that's rather peculiar since this memo is addressed to you, it made the recommendation that was addressed to the Trustees. And I don't know what that's all about, maybe it's the word processing, but it seems apparent that there wasn't a lot of thought put into this and it doesn't really address what's before you. But that having been said, let me just get over to the prior LWRP, December 20, 2005, the first paragraph suffers from the same defects that I mentioned before. Then you go to the second paragraph, the structure currently exists. On December, 2005 that structure didn't exist. It had been removed completely. So seems to me again there's a pretty grievous misunderstanding as to what this is about. So now, have we maximized the distance; have we done that; is that the least amount of variance as possible? We don't think so. We 2 e 3 4 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 59 1 5 don't think what the Trustees think really matters. So is it the least? No, it's not the least. If you look at the survey, the hundred foot requirement that Mr. Arnoff referred to, and if you look at the septic system that is along the side, if you look at the survey Mr. Arnoff's comments about 10 feet from the water line, the proposed plan already has installations 10 feet from this water line. No reason you can't move them back parallel. There's no reason why this structure can't be moved further back. Indeed, if you look at the little addition to the footprint, I'm sure the Board remembers what the reason for that was, that's for a furnace that couldn't be down in the basement. Well, guess what, now you don't need that. You can move the thing back. You can do it. And that will then be consistent with the recommendation of the LWRP. Now as Mr. Corcoran's correctly points out, that is a recommendation and it's this Board's duty to look at the recommendation and determine what they want to do about it. But it seems self evident that under these circumstances to require a movement as far away as possible from the water, particularly because you're in violation of the 75 foot setback is sensible. And we've heard nothing that leads to believe that there cannot be some accommodation in that regard. For the Board to the prior LWRP determination Number 5893, where I believe you had a setback from the bluff and there the LWRP said it's inconsistent, you got to move it further back, you got to move it as far as you possibly can. So which is it going to be? I think it really doesn't matter one way or another, I just wish he would be a little consistent in his consistency reviews and tell you which way it's going to be. But the long and the short of it is it's got to be moved back as far as possible, and I think we have that evidence on the record that can allow you to do that with no violence to the project. The foundation went in at the applicant's own risk, so there's no hardship here. And I think if the Board were to take this recommendation into account and revisit it with that in mind, which is what the Supreme Court had in mind, it's no skin off their nose, and then it becomes much more consistent with the policy and 2 e 3 4 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 2$, 2007 60 1 5 it epitomizes the variances to the extent that -- the last thing that I want to say is that to the extent that this Board determines it's going to grant a variance that does fly in the face of a policy of the code, which is to eliminate over time nonconforming uses, but if it's going to grant a variance, clearly it should be as small as possible. And I think that also militates in favor of some movement. CHAIRMAN DINIZIO: Can I just ask you, I want to give you the opportunity to convince me that our first decision, which was not this and not that foundation as it currently exists, but we actually granted a house in that location that it is right now. MR. BRESSLER: 2.6 feet over. CHAIRMAN DINIZIO: Right, we granted on the original foundation a house. And we considered all that -- I'm just giving you an opportunity to try and convince me, second bite of the apple so to speak -- that making that decision based on the information that we had and now based on the new information that we have, which basically says the same thing that we considered. The LWRP is saying that it is consistent, certainly we don't have to rely on that solely, but certainly can agree or disagree with its findings. How do we then overturn our existing variance that we already granted based on this new information that we have, which is the LWRP? MR. BRESSLER: I think that the LWRP is flawed as evident as may be, nonetheless, gives the ability to do that. It says it's consistent provided it is sited as far back as possible. Now, that requires this Board to do two things, number one -- three things, but number one is easy. Obviously, you need to have it in front of you at the time. Number two, we're going to consider that LWRP, and we are going to adopt in substance the recommendation of the LWRP, which is that in these situations structures should be sited as far as possible back. And that wasn't before us at the time. It's before us now. CHAIRMAN DINIZIO: Can I just say something? I mean, I think in our decision, we did say basically that we thought that this structure where we were granting it, that's when they had the old foundation, was consistent with 2 e 3 4 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 61 1 9 the laws of the Town and what the hardship that they presented. MR. BRESSLER: But you did not have before you the LWRP. CHAIRMAN DINIZIO: Right. But I'm looking for something in here that says that now we kind of -- we should base our decision on the LWRP, when it doesn't say anything about -- say anything more than we already considered. MR. BRESSLER: It says that it should be as far as possible. Now, I don't believe that on the record that you adopted that piece. What you adopted, or what it appears from the decision, it looked like you went through the balancing test. But you did not look at it through the lens of the LWRP which says you don't simply balance. The LWRP says that you push it back as far as you can. And in reading your decision, I don't think that this Board had in mind that standard, or if it did, it didn't enunciate that standard and say we're going to filter those four tests through the standard of it has to be as far back as possible. That's how I believe it's now different from the legal point of view. ASST. TOWN ATTY. CORCORAN: If I may, I think you're both right. I think we're talking we're also talking about two different things. When you talk about move it back as far as possible, there's two ways to consider that. There's one under the variance criteria you're supposed to grant the minimal variance necessary, and I think the Board did consider that in granting its variance, what I think Eric is seizing upon is the LWRP language that says you should maximize the distance from the coastal erosion line. Now, this project is outside the coastal erosion hazard area, but I think Mr. Bressler's point is that there's room further back on the property to make it further away from that area. So I think this Board mayor may not have considered erosion and flooding issues in making its first determination. Either way, in making this determination, it should. MR. BRESSLER: It should. And to the extent the Board considered it wasn't reflected. ASST. TOWN ATTY. CORCORAN: It wasn't enunciated, as you said. 2 e 3 4 5 6 7 8 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 25", 2007 62 1 e 3 MR. BRESSLER: So in my effort to try to persuade you, I would say that that was a factor which was not addressed by the Board in its prior decision, and yes, in terms of the balancing test but no in terms of maximizing distance it may not be in the zone, but you still have to maximize that distance, and I think that's a factor that the Board on the record did not take into account, and I think that if the Board adopts this, then I -- 2 4 5 6 9 BOARD MEMBER SIMON: I would like to ask a question, slightly different, but are you -- something that wasn't mentioned but I think is quite relevant is that one of the major factors, as we know, in the original granting of the variance had to do with the hardship, right, the hardship with regard to having to move a then thought to be acceptable foundation and when that turned out to be wrong, then the whole thing opened up. The whole thing opened up, we had a rehearing, and the decision was made that since there was going to be a new foundation anyway to move it 2.6 feet to the east. What you may be arguing is -- are you, that the Board could at the same time be have considered that since there was going to be a new foundation anyway, the hardship condition which prevented us from considering moving it further back as well as to the east was not considered by the Board at that time. And what your argument is, am I right, in the light of the LWRP consideration is that reminds us that that's something we could have and should have done; is that your argument? MR. BRESSLER: That is another way to come at it because you're right, you didn't have the LWRP in front of you which made that recommendation, and I dare say that because the foundation is put in was without prejudice, you are free to consider the argument that you just enunciated freshly in light of the LWRP. So the answer to your question is, yes, you should have considered it in light of the LWRP, but you didn't have the LWRP in front of you, but now that you do you can consider that argument afresh in light of the so-called consistency. BOARD MEMBER SIMON: could have considered moving without the LWRP at the last Would you say that we it further back even hearing because of 7 8 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 2', 2007 63 1 2 the '75 foot rule? But then I take it your argument is that the LWRP gives it additional force behind that argument which might have been taken more seriously had we had that LWRP report. MR. BRESSLER: That is exactly why the Court remanded it, and it said at one point the Board didn't have before it the LWRP, and I'm not going to second guess what the Board mayor may not have done had it had that LWRP, whatever it may say and now we see what it says, whatever it may say, the Board did not have the benefit of that before it. So they could not possibly have considered that at least on that basis. Now the Board has the ability and the obligation in the first instance to decide what it will do, and if it decides to adopt it then it has to decide which to apply to this particular property. There's no argument that document, and you can look at the survey as we did, that the 100 foot doesn't apply, the 10 feet doesn't apply, things have changed and that's my argument in response to the Chairman's invitation to persuade him that something has changed. Something has changed and the very reason is the LWRP is important is so the Court can consider it. He said it's not enough that the Trustees looked at it, and for whatever reason they had, but this Board's got to look at it. I think not only would it be consistent with the LWRP to move it back, to be consistent with the nonconforming use provisions of the code, gradually pushing these things back into further conformance. CHAIRMAN DINIZIO: Thank you, Eric, and thank you, Michael, for clearing that up. Anybody else have any questions? MR. BRESSLER: I would ask that my presentation be incorporated by record. CHAIRMAN DINIZIO: By all means. BOARD MEMBER GOEHRINGER: My only suggestion is that I think we should take this testimony today, and since this is an application that is quite involved, and then discuss it at the -- e 3 4 5 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 CHAIRMAN DINIZIO: Mr. Arnoff? MR. ARNOFF: There are a couple of comments I'd like to make, and I think the point is well taken that the -- first of all, let's be very clear. My client put up a foundation to stop e 25 January 25, 2007 64 1 8 erosion, we did it at our own peril. I told the Board that and clearly it's not something which this Board should even consider. Whether it's there or it's not there at this point is truly irrelevant to this Board's determination. And I don't want this Board to think that we're here trying to bootstrap ourselves to that thing. We agreed in court that that was why we did it, and we did that at our own risk. Now, having said that, we have a situation here where this Board did consider maximizing the distance from the water. We heard, and I remember it echoes in my head, Mr. Bressler ad nauseum going into maximizing the distance from the bluff, why can't it be pushed backed further, why can't it be pushed back further. This Board heard of argument after argument after argument of that issue. So let us not forget, we certainly can go back to your minutes and you'll find those arguments, and they're there and this Board considered them. They didn't have the LWRP report in its hand when they heard that argument, and yes, this Board can revisit that issue again with that document in hand; however, that document is purely advisory. This Board can disregard it, adhere to it, modify it, do what this Board wants. And yes, additionally, it would be foolish of me or anyone to come before this Board and say, well, the Trustees acted, well, the Trustees are an independent board. We all know that every board in this town is independent. And you certainly are free to make rulings that are your rulings independent of whatever the Trustees did. I mention what the Trustees did because I think it's persuasive, it's something the Board should have before it, and it's something the Board should consider when it determines what it wants to do. Now, the report of the LWRP Mr. Bressler finds fault with, he finds fault with the language, this Board is capable of looking into the recommendation; they heard the testimony. By the way, there is no change. For this Board's determination, there is no change in fact from today and when we were before you the last time. Remember, and I think, Mr. Dinizio, you're right, there was a house, there was an existing house, an application came before you, you gave approval, when they went to remove the house foundation 2 e 3 4 5 6 7 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 65 1 9 collapsed, and they were left with the situation of coming back before you again. That's the situation. We're no different today than we were then. So this Board had in its cannon all of the necessary information it needed to make a determination. The only thing it didn't have and the Board and the Court correctly said, it didn't have the LWRP so that it could say yea or nay or whatever it wanted to do in regard to the LWRP. But the question the Board must ask itself is does what is embodied in the four corners of the LWRP impact in such a manner on what this Board previously decided as to make it or convince this Board to change its prior determination. That's really the pivital question, and I submit that it does not. Thank you. CHAIRMAN DINIZIO: Okay. Does anybody have anything, any questions? BOARD MEMBER SIMON: I just have a question for Mr. Arnoff. MR. ARNOFF: Okay. BOARD MEMBER SIMON: Would you think it's fair to say that you're suggesting we should take the Trustees more seriously, and that Mr. Bressler is saying we should take the LWRP more seriously since those two entities seem to be in disagreement with regard to this project? MR. ARNOFF: I don't think they're in disagreement necessarily. I think what the Trustees did was they took the LWRP recommendation and went to the applicant. And they said, how can we do something to bring it closer and the cesspools were subsequently moved. So I think if I were this Board I think you should take everything seriously. I don't think you should take the LWRP as the Trustees' determination necessarily any -- one more seriously than the next. I think you should even take what Mr. Bressler said today as seriously as you take anything else. I don't think anyone, anything requires or deserves greater consideration. This Board has to separate the wheat from the chaff, that's its job. CHAIRMAN DINIZIO: Okay, one more time. MR. BRESSLER: May I speak just 10 seconds just to that question? CHAIRMAN DINIZIO: Yes. MR. BRESSLER: I think the statute 2 e 3 4 5 6 7 8 10 11 12 13 tit 14 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 66 1 9 requires that you take the LWRP a tad more seriously than the Trustees because that's your statutory mandate. Whereas, what weight you give to the Trustees is up to you. So that's my answer to that, and with that I think the Board ought to be fairly clear as to what the issues are before it as Mr. Arnoff, and I basically agree on what the underlying issue is. CHAIRMAN DINIZIO: Okay. All right, is there anybody else on the Board that would like to make a comment? Add anything else to the record? Anybody out in the audience? Linda, you? BOARD SECY. KOWALSKI: No. CHAIRMAN DINIZIO: Okay, then I'd like to entertain a motion that we accept the information we have and close the hearing. (See minutes for resolution.) 2 e 3 4 5 6 7 8 10 13 CHAIRMAN DINIZIO: Next hearing is for William Lehmann and Alice Lehmann. Request for a variance under Section 280-13A (100-31A) based on the Building Inspector's July 28, 2006 notice of disapproval which states that the proposed garage is not a permitted use on this vacant property located at 725 Rabbit Lane, East Marion. Is there anyone in the audience that wishes to speak? MR. CUDDY: Good afternoon, Charles Cuddy on behalf of the applicant William and Alice Lehmann. As the Chairman indicated, this is a lot on Rabbit Lane in East Marion. In fact, the Lehmanns own two lots. They own a lot that's directly adjacent -- excuse me, directly across the street. Rabbit Lane is a ten foot wide gravel and dirt path. And the Lehmanns have owned this property for over 30 years. It's been used in its current manner, two sides of the street, for more than 40 years. Now the question I think is whether it can be used as an accessory lot. And I would point out to the Board that there are other parcels adjoining this parcel that have a garage on one side and a house on the other side. The Lehmanns and all of the people on Rabbit Lane that have two parcels, one on each side, essentially used both parcels. This parcel has been used as an accessory type of use, and I will put in just a minute a copy of your Board's decision in 1976, as 11 12 tit 14 15 16 17 18 19 20 21 22 23 24 tit 25 January 27, 2007 67 1 2 an accessory site. There was a swimming pool that was built upon it that's now been filled in. The Lehmanns have used this continuously as an accessory lot. They have what was shown on the map which you have or a survey, a botchy court. They have a horse shoe set-up in the back. They have two sheds on it where they keep garden equipment. They have a barbecue pit. This has been for them part of their existing household as it is for the other people who reside on both sides of that road. The road itself is presently owned by Mr. Chase, a corporate association. Parts of this road though, currently are not owned by the association, but are in the name of the owner of the lot, which would make it a single lot right across. That's not true here, unfortunately for the Lehmanns they have been owned continuously on both sides. What I would like to hand for the Board is that 30 years ago this was deemed an accessory lot. It's been used as an accessory lot continuously by the Lehmanns. And I would like to hand up to you both the property record card to show the swimming pool was permitted in 1976 and also a copy of the Board's decision. And since I'm handing it out up, I will also hand up at the same time the permit of the DEC, which was issued for this, which is the two-car garage, and that's been issued just recently. The Trustees have not acted on this because they refuse to act until this Board acts. So we're going there next hopefully. I would just indicate to the Board that it appears to me from having been to the site several times that this is a use that the Lehmanns felt was incident to their lot and their prior owner thought was incident to their lot and that is to use both sides. You'll note that the smaller side is where the house is, and there's no room to add anything to it. The larger lot is this lot, which is approximately 15,000 square feet, and it faces on Lake Marion. The garage will be back a great distance from Lake Marion. It will be much closer to the road. It doesn't interfere with anyone that's there. I would say to you that certainly it wasn't created by the owner. It's been there. There's very little alternative for them; if they e 3 4 5 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 2?, 2007 68 1 2 want a garage at all, they have to put it on on this lot. It virtually has no impact on the neighborhood. Everybody else either has garages either on their lot or on the adjoining house. So therefore, I would ask the Board to recognize it as an accessory lot and grant the Lehmanns the proposed garage. CHAIRMAN DINIZIO: I just have one question, probably not a question, a clarification. That lot is a building lot. You could build a house on that lot if you so chose. How would you feel about making it not a building lot? Is there any compelling reason? MR. CUDDY: Well, I can understand that question. I would hope that if they build a garage, they certainly would say that they would not build a house on it. But it occurred to me that someday in the future, somebody might take down the garage. If the garage wasn't there, certainly at that point it would be a buildable lot. CHAIRMAN DINIZIO: Well, it is now. BOARD MEMBER SIMON: It's a buildable lot. MR. CunDY: It is a buildable lot right now. The Lehmanns and I have had this conversation and because when you look at it you say wow, that's a buildable lot. I don't think they would mind saying that as long as they have the garage there, they're not going to build a house. CHAIRMAN DINIZIO: All right. BOARD MEMBER GOEHRINGER: So that's a temporary sterilization. MR. CUDDY: Yes. CHAIRMAN DINIZIO: Michael? BOARD MEMBER SIMON: In fact, I was going to ask the question about whether it was a buildable lot. As a buildable lot, the Lehmanns could, for example, build a house of their own or they could put it up for sale as a buildable lot. So it comes as a question of what kind of use of lots is this Board of the Town willing to encourage given the pressure on people building new houses. Here's kind of a hypothetical, somebody saw a wonderful buildable lot approvable, maybe half acre, quarter acre, and they decided to buy it simply to put some kind of an accessory building on a lot which had no principal e 3 4 5 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 69 1 5 structure. I mean, obviously they would need a variance for that. I guess I'm interested in your comment on that as a policy issue. MR. CUDDY: Well, I would understand that differently than I understand the Lehmann situation. The Lehmann's is somewhat unique. Their lot is directly across, and I'm not talking about just -- BOARD MEMBER SIMON: Right, I understand. MR. CUDDY: I mean it's virtually connected. I mean the road is no more than a driveway when you go down. BOARD MEMBER SIMON: I know. MR. CUDDY: So I would think in the case that you're posing it might be different than in the Lehmann's case. BOARD MEMBER SIMON: I was thinking that there might be somebody who would say, there's an empty lot; I think I'd like to have a house on the lake; and they say, is it for sale. Well, no it's owned by somebody who wants to build a garage on it because it's opposite his house; I mean, that would be the issue. MR. CUDDY: But I think here you certainly could argue. I think I could come in and say to you we might need some setback variances, but we could put a house with a garage on it. BOARD MEMBER SIMON: Yes. But I'm talking about an independent -- MR. CUDDY: And I'm saying here, they're willing to say, at least on the basis as long as they have the garage that they're not going to build a house on it. Could someday that happen, yeah, I guess it could, it could happen today. I mean, certainly we could have been here talking about a house and a garage is on the lot. What they're saying is we recognize that. We don't want to put a house there. We're not going to put a house there. Believe me I have had this conversation. BOARD MEMBER WEISMAN: Mr. Cuddy, have you discussed at all, I mean, on their residential portion, on that piece of property there's a one story building there that looks like a cottage. BOARD MEMBER OLIVA: 22 by 19. BOARD MEMBER WEISMAN: Yes. It's being used as a residential piece. Have they thought 2 e 3 4 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 70 1 5 about the possibility of reversing that, of making that their garage and building a small cottage or something on the other lot? MR. CUDDY: Only because they like their house that's there and the cabin cottage has apparently been used by members of their family during the summer time. And they would like to keep that, and I understand that. BOARD MEMBER WEISMAN: That's obviously really a second dwelling. On the same piece of property which is a preexisting. MR. CUDDY: They have a CO for that. BOARD MEMBER WEISMAN: It's fine, it's a permitted use. I mean, that's the other option of course. MR. CUDDY: Then they would hope to keep it the way it is basically because they have lived there for many, many years, and they have used it in the fashion that it is presently set up as, which is the house and the cottage next to it. BOARD MEMBER OLIVA: Where do they put their cars now? MR. CUDDY: On the vacant lot. BOARD MEMBER OLIVA: They just drive in. MR. CUDDY: There's a little gravel drive there and they can put a car there. BOARD MEMBER WEISMAN: And they have got a camper or something there. MR. CUDDY: Right now that's a trailer from their son-in-law, Jeff that's temporarily there. That's where they put their cars. BOARD MEMBER WEISMAN: Where was the swimming pool? I thought, yeah, they were granted the right to do it. I thought, hey, they never built it, they built it and filled it in? MR. CUDDY: Yeah, they filled it in. I guess they either didn't like it or it became a nuisance for them. BOARD MEMBER OLIVA: Probably so close to water as it was they probably had problems with it. 2 e 3 4 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 CHAIRMAN DINIZIO: Hold on folks, one at a time here. Jerry, I think you have a question that's probably pertinent to this. BOARD MEMBER GOEHRINGER: Town Attorney Corcoran, Mr. Cuddy posed a very interesting question. This is a lot down on Marion Lake. It's a legal 15,000 square foot buildable 24 e 25 January 25, 2007 71 1 2 lot which the Board in 1976 granted an accessory swimming pool, which is no longer on this piece of property. We don't know if it was in the ground, above ground, it certainly wasn't too far down in the ground because it's pretty close to water there. Mr. Cuddy proposes the possibility of legally sterilizing this lot during the period of time that the construction of a garage, which is an accessory structure, would exist. If the applicants or subsequent owners in the future chose to demolish this garage, because the garage would be in the same location that the house would be in based upon the size of the piece BOARD SECY. KOWALSKI: They're going to build the garage. BOARD MEMBER GOEHRINGER: They would build the garage, and the garage would be accessory on another lot, but only because of the road in between there and their house. The question is, if we allowed to build it on a conditional basis, conditioned on the fact that when they're willing to build the house they would legally demolish the garage with a demolition permit, and then be granted the issuance to build a house on the site. BOARD MEMBER OLIVA: What if it's sold e 3 4 5 6 7 8 9 10 11 12 13 e 14 though? 15 CHAIRMAN DINIZIO: I'll go further than that and ask our town attorney if it's legal for us to grant an accessory structure on a piece of property without a principle. ASST. TOWN ATTY. CORCORAN: That's contrary to your prior decisions. I mean, the most recent was a couple years ago you had someone come in and want to build a tennis court on a piece of property without a principle structure and you said no. If you want to change that decision, that's something you should think about. But I don't see how this particular, I would assume you would propose to do it in covenants of some kind that would be recorded. But essentially you're saying, we want to have an accessory structure by itself until such time as we want to build something else. And that would be pretty much true of anybody who came in. MR. CUDDY: Except that this lot has been recognized as an accessory lot, and that's the difference. ASST. TOWN ATTY. CORCORAN: It's 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 72 1 5 recognized as an accessory lot? BOARD MEMBER SIMON: What does the code say about accessory lots? BOARD MEMBER OLIVA: It's a buildable lot. CHAIRMAN DINIZIO: They put a prior swimming pool on it granted by this Board. MR. CUDDY: Itself is a building lot but we're asking that we only have a garage on it as opposed to a house and a garage. BOARD MEMBER OLIVA: I'll be honest with you, I have great difficulty with agreeing with you to put just an accessory garage no matter what the covenants are. It is a buildable lot and there are too many if, ands or buts that can be put into it. I feel it will run into problems later on. The intentions might be fine and I'm not saying that intentions are not. But things, circumstances sometimes change, and then there will be a garage on a lot that is really a buildable lot, and it's used as an accessory -- no. 2 e 3 4 6 7 8 9 10 11 12 15 MR. CUDDY: The reason obviously they're doing it is because they can't put one on the lot with the -- BOARD MEMBER OLIVA: I understand that but they have been parking their cars over there anyway. MR. CUDDY: But it's my point to the Board is it's been used as an accessory lot. This is not just a lot that is just off by itself and somebody comes along as was posed -- this was a lot -- this is lot that has been used continuously as an accessory lot. It's used by these people on a recreation basis all the time. It's used to keep their equipment, their farm or garden equipment actually. It's been used by them to park their cars on it. And it's been used by this Board in 1976 granting a swimming pool on that lot, recognizing that it's an accessory lot. The history of this is very different than most applications. BOARD MEMBER OLIVA: I understand that but still and all that was 1976, and this is 2007. Times have changed, rules and regulations have changed. BOARD MEMBER WEISMAN: Thirty years ago was a long time. ASST. TOWN ATTY. CORCORAN: You mayor may 13 e 14 16 17 18 19 20 21 22 23 24 e 25 January 25', 2007 73 1 2 not still have the ability to have a swimming pool on there. Because I assume you'd take the position that that ZBA decision runs with the land. But you have removed the use. So that would be a more complicated question. But a new accessory use is open to discussion with this Board. That's obviously why you're here. It's not in their practice. BOARD MEMBER WEISMAN: Is there a difference, Keiran, between recognizing something as an accessory lot, as Mr. Cuddy's pointing out, and granting the right to place an accessory structure on a -- ASST. TOWN ATTY. CORCORAN: Well, we don't really know of such thing as an accessory lot. I think he's using that as a descriptive term, I think. e 3 4 5 6 7 8 9 10 11 MR. CUDDY: Yes. BOARD MEMBER WEISMAN: I think it's an accessory use. ASST. TOWN ATTY. CORCORAN: Right. We look if you have preexisting, nonconforming uses, the use has to be continued. There's no such preexisting, nonconforming use for an accessory garage on this lot, if that's your question. BOARD MEMBER GOEHRINGER: What we have done is asked people to merge their properties, okay. The question is -- ASST. TOWN ATTY. CORCORAN: Or you can say, we'll allow you the garage but you'll have to sterilize the lot forever, and say we'll only have this garage and you will have to do C and Rs that run with the land like those that did not exist for House of Daige. And I expect that that would severely diminish the value of a single and separate building lot though. BOARD MEMBER SIMON: I have a question about this. What you call an accessory lot, how is an accessory lot different from an adjacent vacant lot that you happen to own that you use for your children to play there and you put things there; is that also an accessory lot? MR. CUDDY: If you own the lot, and in this case it's been used that way, I have to describe it as an accessory lot. BOARD MEMBER SIMON: I'm wondering, is there any legal significance to the term "accessory lot"; does it distinguish it from a 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 74 1 2 vacant lot that you, yourself own? MR. CUDDY: No, as Counsel points out, I'm just using it generically. BOARD MEMBER SIMON: So it's not part of your argument? CHAIRMAN DINIZIO: Certainly the fact that there's a right of way between these two lots makes it different than an adjacent lot. BOARD MEMBER GOEHRINGER: Contiguous lot. MR. CUDDY: It's not contiguous. CHAIRMAN DINIZIO: Right. This lot could be in Greenport and the other lot could be where it is right now. BOARD MEMBER WEISMAN: I don't think they would want to park there, though. It would be a bit of a walk. CHAIRMAN DINIZIO: Well, we did have that kind of situation in Orient with the tennis court. They were a little bit a ways. It wasn't just across the street. It was across the street and caddy corner. MR. CUDDY: Maybe if you wouldn't mind that my client would be willing, remarkably somewhat, to do exactly what was posed, and that is to covenant that this would only be used for the purpose of a garage and not for a house. That's not my advice, but I think -- I have discussed this question with them. I want them to put it in writing so we all would understand it. But they may very well be willing to do something which certainly has benefit to the community because the density is not there anymore. And no one can complain that you could put a house there and you could have another family there. They actually have thought about that, more than I have thought about it. And I think they would be willing to probably say that we will use this only for this purpose and not for any dwelling purpose at any time and the covenant would run with the land. e 3 4 5 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 BOARD MEMBER WEISMAN: So that would be set aside. BOARD MEMBER GOEHRINGER: The question would be, Mr. Cuddy, as we had with the prior decision, would they be willing to covenant that they would only sell this and it went with the house? 23 24 e 25 BOARD MEMBER SIMON: It would go with the January 25, 2007 75 1 2 land, wouldn't have any choice. BOARD MEMBER OLIVA: It could only be a e 3 garage. 4 MR. CUDDY: They would have locked themselves into that. BOARD MEMBER WEISMAN: There is no building lot there. BOARD MEMBER GOEHRINGER: So what we would have then is really an artificial merger. CHAIRMAN DINIZIO: Why don't we take a look at that. Can you come up with something by the next meeting? We shouldn't close this. MR. CUDDY: I certainly would pose to you that we could do that. And we could certainly covenant that. I just want them to fully recognize that that's the proposal. BOARD MEMBER OLIVA: The ramifications. MR. CUDDY: They don't seem to be troubled by that. ASST. TOWN ATTY. CORCORAN: Can you merge a lot though, that's not contiguous with another lot? 5 6 7 8 9 10 11 12 13 BOARD MEMBER GOEHRINGER: I think you can because it's a private road; it's not a public thoroughfare. BOARD MEMBER SIMON: But they don't own the road. BOARD MEMBER GOEHRINGER: They have a right of way over it. BOARD MEMBER SIMON: But that's not owning e 14 15 16 17 it. 18 BOARD MEMBER GOEHRINGER: I understand. But having a right of way over it gives them much more than just a person like myself or yourself that rides down it. Okay. ASST. TOWN ATTY. CORCORAN: I don't know how you would enforce such a thing. If there's not going to be any further building on it ever, I mean the only time the Town would ever find out that one was transferred independent of the other is if someone came to try to build on it. MR. CUDDY: If you were putting a covenant on it, and it was being sold, there's absolutely no question that the covenant would come up and recognize that it's not the intended use. BOARD MEMBER WEISMAN: Only if it's filed in Suffolk County. BOARD MEMBER GOEHRINGER: Filed and 19 20 21 22 23 24 e 25 January 25, 2007 76 1 e 3 recorded. BOARD MEMBER WEISMAN: Filed and recorded. That's where we came into problems in previous cases where decisions were made and it wasn't filed. 2 4 5 ASST. TOWN ATTY. CORCORAN: It's an interesting question. BOARD MEMBER WEISMAN: If your client is willing to entertain that, I agree, Jim, I think we should hold the hearing open until you can find out if that's appropriate, and get it in writing and we can consider it on that basis, which is different from what we're able to consider today. CHAIRMAN DINIZIO: The problem with that is it would have to be some form of trust between you and us because we would have to insure that that's done before the permit's issued. ASST. TOWN ATTY. CORCORAN: It would be a condition. MR. CUDDY: It would be a condition of your decision. I would have to do that and I'd have to get it back to your counselor to you. CHAIRMAN DINIZIO: Okay. So we're willing to leave this hearing open until such date that he wishes to come back, right? BOARD SECY. KOWALSKI: Do you want February or March, Mr. Cuddy? February would be the 22nd and March is the 29th. MR. CUDDY: Can I have for the March meeting? I mean, I can get it back but -- CHAIRMAN DINIZIO: We would still have to view it and agree with it and then close the hearing. MR. CUDDY: Okay. CHAIRMAN DINIZIO: Okay. BOARD SECY. KOWALSKI: Put that you want to start at 9:00 or 9:30 that day? CHAIRMAN DINIZIO: Whatever is agreeable to Mr. Cuddy, he has his choice. BOARD SECY. KOWALSKI: 9:30 or 9:00? MR. CUDDY: 9:00. BOARD SECY. KOWALSKI: We just need someone to offer the motion on that. BOARD MEMBER GOEHRINGER: I'll offer it. CHAIRMAN DINIZIO: I'll second. (See minutes for resolution.) 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 CHAIRMAN DINIZIO: Next application is January 25, 2007 77 1 6 for Joseph E. Gulmi and Susan Braver. This is a resolution to receive testimony to be offered at this time, and a resolution to grant the applicant's request for an adjournment to March 29, 2007, 9:35 a.m. with required mailings and sign posting by applicants. This is an application requesting variances under Sections 280-13 formerly 100-33, and 280-105, based on the Building Inspector's December 11, 2006 notice of disapproval. CHAIRMAN DINIZIO: Do I have a motion? (See minutes for resolution.) 2 e 3 4 5 7 8 9 CHAIRMAN DINIZIO: The next hearing is for the East Marion Fire District. Public hearing reopened for the purposes of receiving testimony relative to the projected telecommunications coverage for tower and antennas over 80 feet. I'm going to read this whole thing: The variance under Section 280-69 (100-162A3, A5) is requested, based upon the Building Inspector's July 25, 2006 Notice of Disapproval, for the construction of a proposed wireless communication/telecommunications tower on property owned, leased or otherwise controlled by a special district approved by the commissioners of the special district. The proposed tower will exceed the code limitation with a height greater than ten feet above the average height of buildings within 300 feet of the facility, or if there are no buildings within 300 feet, these facilities shall not project higher than 10 feet above the average tree canopy height in that radius measured from ground level. If there are no buildings within 300 feet of the proposed facility site, all telecommunication towers shall be surrounded by dense tree growth to screen views of the facility in all directions. Location: 9245 Main Road, East Marion. Does anyone wish to speak? MR. BOYD: Mr. Chairman, Members of the Board, as you are aware, this is an application by the East Marion Fire District for a 120 foot tower upon which will be a fire service antenna. This variance as we look at it on the Board's motion to receive additional evidence as to factors that made the commissioner's decision to determine that 120 feet was the minimum height it would need to have for coverage. At the last session we had 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 . 25 January 25, 2007 78 1 9 testimony from Chief Wallace of the fire department, who spoke about the present problems they were having with the 450 megahertz radio frequency that all of the fire departments on the north fork and most of the fire departments in the County of Suffolk are in the process of installing. I have with me today two other commissioners of the fire district, Mr. Wallace and Mr. Anderson. If you would like, I would have Mr. Wallace also testify as to the present problems they are having with regard to the 450 megahertz communication. And after that I would have a series of questions for Mr. Scheidel. If you feel that Mr. Wallace's testimony would be cumulative, no assistance at this time, I am willing to dispense with that. If you would like to take a moment and listen to Mr. Wallace. CHAIRMAN DINIZIO: Sure. MR. BOYD: Bob? MR. WALLACE: Thank you. Recently, a few weeks ago, we had a rescue there was a man down on the beach, fall fishing in East Marion. We had no radio communication. The man had cardiac arrest. We have a bad problem. On the propagation maps, which you can see, 80 foot would barely get us to where we were. We still have no communication. The higher the tower, the better communication we will have. CHAIRMAN DINIZIO: Where was this? MR. WALLACE: Rocky Point Road, you go the steps and walk the steps, it's probably about the highest point. CHAIRMAN DINIZIO: You're not that far away from the firehouse? MR. WALLACE: No, we're not that far at 2 e 3 4 5 6 7 8 10 11 12 13 e 14 15 16 17 18 19 20 all. CHAIRMAN DINIZIO: As the crow flies any 21 idea? 23 MR. WALLACE: Maybe, probably as the crow flies a mile. CHAIRMAN DINIZIO: Okay, not five miles, not Plum Island. BOARD MEMBER SIMON: Because of the bluff. MR. WALLACE: Because of the bluff. CHAIRMAN DINIZIO: Let me ask you this question, at 120 feet, would that work? MR. WALLACE: It would, go to the 22 24 e 25 January 2~, 2007 79 1 e 3 propagation map it shows. CHAIRMAN DINIZIO: We'll have to hear that from the expert but in your opinion, you would feel safe? MR. WALLACE: Yes. CHAIRMAN DINIZIO: What about 100 feet? Just your opinion, Bob? MR. WALLACE: My opinion, I think it would be close. CHAIRMAN DINIZIO: Do you have anything else? Anybody have any questions of Mr. Wallace? Thank you. BOARD MEMBER OLIVA: I believe Mr. Boyd had mentioned that you were having interference too because of the high megahertz from other communities to the west; is that true? MR. WALLACE: On low band there's some interference, yes. BOARD MEMBER OLIVA: But not high band? MR. WALLACE: High band, I haven't used high bands that much. BOARD MEMBER OLIVA: You don't have that installed as of the yet? MR. WALLACE: Yes, we do. We have portable radios in all the vehicles and the Chief's vehicles for communication. CHAIRMAN DINIZIO: So you're saying currently at the height you're at now, you're having trouble with the new technology. What is that height? BOARD MEMBER OLIVA: 50 feet, 60. BOARD MEMBER SIMON: Are there other places that have been tested around town to see whether they're also inaccessible? MR. WALLACE: Yes. We took the new high band radios at one firehouse and sent a truck down to Truman's Beach to see and we failed to talk to them. Truman's Beach is about a mile, two, three miles down the road. BOARD MEMBER WEISMAN: It's pretty clear 50 feet is too low. CHAIRMAN DINIZIO: Would you be losing that if you went from 120 to 100; I mean how is that? 2 4 5 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 MR. WALLACE: 120 down to 100, I don't know how much we would be losing. CHAIRMAN DINIZIO: But that distance is a pretty flat distance, there's not a lot of hills e 25 January 2V, 2007 80 1 8 involved there? BOARD MEMBER WEISMAN: It's spelled out right here. CHAIRMAN DINIZIO: But I'm looking at a red dot. What is the distance, tell us, because we're all familiar with East Marion, Orient, that you would be using these radios commonly. In other words, even during say if you had mutual aid help Greenport, help Orient, God forbid something happened at Plum Island, would you gain anything from this 80 to -- MR. WALLACE: Because we have our own frequency, we have to talk back to our antenna, and they have to talk back to us. CHAIRMAN DINIZIO: So at 80 feet are you going to be able to talk to Orient? MR. WALLACE: It's a possibility, I'm really not sure. BOARD MEMBER OLIVA: 80 feet, I really don't think so. CHAIRMAN DINIZIO: We're going to ask you in a minute. I wanted to get someone who lives with the technology sometimes gives you a better feel when they're going out at two in the morning what the problem is and what they're comfortable with. Rescues out in the bay, say someone was hurt at Bug Light, would you normally get called on a call like that? MR. WALLACE: Yes, we would. CHAIRMAN DINIZIO: Mutual aid more than likely, it's Orient. MR. WALLACE: Right. CHAIRMAN DINIZIO: Ram Island could be a problem say? MR. WALLACE: Back side of Shelter Island, that area, Southold, that could be a very big problem. CHAIRMAN DINIZIO: I don't see you go into the Sound very much as far as dropping your boat in. 2 e 3 4 5 6 7 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 MR. WALLACE: Depends is. You cover yourself first somebody else. BOARD MEMBER OLIVA: in the sound. MR. WALLACE: But too dangerous, you're not CHAIRMAN DINIZIO: on how rough it before you go get 23 I think Orient's gone 24 e 25 if it's just too rough, going to go. I'm just concerned January 25, 2007 81 1 9 about what you guys consider your area coverage; you'd go into the Sound? MR. WALLACE: Yes, we'd go into the Sound. CHAIRMAN DINIZIO: Say this gas barge, you'd be there? MR. WALLACE: Yes, we would. CHAIRMAN DINIZIO: That's all I have. Anybody else? BOARD MEMBER SIMON. No further questions. MR. BOYD: Next person I'm going to ask to testify here is going to be Mr. Scheidel. I think you are acquainted with Mr. Scheidel from past experience, I would like for him for the record, from his experience, and what he does and the number of installations that he's been involved in. So we can be comfortable with his expertise and then after that I'm going to ask for an explanation of this high band system, vis-a-vis the low band with the use of from what I understand we had questions about interference from the west, and so forth. That's a substantial problem that we had with the low band. He can also explain further the propagation maps that you have. And it will also go into the question that Mr. Simon had at one of our last meetings where I think there might have been a misunderstanding that, for example, if Southold would be called on mutual aid to East Marion that we in Southold would be able to talk through the East Marion antenna; that's not the case. We would have to be able to talk back to our antenna here in Southold. And conversely, East Marion would have to be able to talk through their antenna, regardless of where they're performing a mutual aid task. But we'll let Mr. Scheidel explain that in his inimitable style. He has the technical expertise. I'm just a practical guy who talks on the radio and here's how it works. MR. SCHEIDEL: What am I some kind of 2 e 3 4 5 6 7 8 10 11 12 13 e 14 15 16 17 18 19 20 21 nerd? 22 BOARD MEMBER WEISMAN: That's a self description, nobody here said that. MR. SCHEIDEL: You know, in high school the pocket protector people, this is what we turn into. Let's look at the coverage maps first. I am now proud to say I have had Eastern Long Island Trauma Center for eight years. Prior to that I 23 24 e 25 January 25, 2007 82 1 5 was involved in public safety and emergency communications for a decade, so my personal experience is now pretty extensive. Eastern, my company, has implemented public safety radio systems for every major fire department, police department on the eastern end of Long Island. We're Motorola's number one subcontractor. We now maintain E911 for the whole east end of the island, and we're actually now involved, I just recently got dragged into the debacle in Nassau County, where you may have heard about where they went and purchased a new radio system, and hadn't figured where they would hang the antennas for the 14 sites they needed. For some reason they seemed to think, hey, we'd go to X and say, well, it's okay for us to put our antenna up there, right. And the answer was, well, no because we gave the rights to that site away to a third party. In some cases it's a carrier or in some cases it's a businessman who leases that site out, and the assumption was made in Nassau that they could hang antennas there without any problem, and it turned out to be a little bit of a problem. But the bottom line is public safety communication is near and dear to my heart. I'm also a volunteer for Suffolk County Fire Rescue, and I manage the amateur radio emergency service for all Suffolk County. Let it be said, I like my radio. That's really what I do. The coverage maps, I guess the last time we got together, you asked that I run it at different heights. BOARD MEMBER OLIVA: Right. MR. SCHEIDEL: At this point what you've got is three different representations. One at 120 and two lower. And you can see just based by the colors, the colors speak to the coverage, and you can see, if you just take, draw a circle with a compass or use the bottom of a pole, you can see that there's an incremental difference every time the height changes to a maximum of about 0 and 20 is where it seems that the coverage is what I would say adequate for what East Marion wants to accomplish. Which we have spoken to earlier, they would like to have that hand-held coverage across that whole fire district for the simple reason that that's how you get to talk back to your commander. 2 e 3 4 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 83 1 5 Now, you know the height can vary greatly. If you were in perfectly flat terrain and no basements and no trees, let's say you were going to build a radio system for the fire department in the Arizona desert. How high do you think you'd need that antenna to be? Guess what, I wouldn't need 120 feet. Because there's nothing around. There's nothing there. No trees. How tall is the biggest tree in a desert? Twelve feet. Cactus doesn't grow to 65 feet. So it's almost like a cartoon form of this is what the difference in height represents. I put together a little -- I didn't want to go crazy, bring my projector and everything. So I put together a little something in terms of discussion for you that addresses whatever outstanding issues there are. I'm going to hold on to one of these. Basically we were just going to do a quick review for the need for height but I think the desert versus Long Island story kind of gives you a feel for what that's all about. We did want to spend a little time on receiver versus transmitter of a portable radio. We want there to be a clear understanding of the repeater system and the difference between this particular transmitter site versus what we apparently are stuck with in terms of radio that you can strap on your belt. I'll also go over some of the other fire department installations I've been involved with and show you what some of those heights look like. Quick review because we have been through this a couple times. The basic rules of radio communication as it works for fire department radio systems design is like, the simple explanation is, if you take a laser pointer and you were to go to the top of your tower structure, in a perfect world you'd be able to shoot the laser pointer, and at every single radio you want to talk to. That's the definition of line of sight. There are certain things you can never talk through reliably, one of them is dirt. An example of being out over the edge of the cliff is a perfect example. So if you can visualize in your mind the line you have to draw, and the person standing on the beach with the radio, and where the antenna is, if the edge of the cliff is the edge of the piece of paper, it's clear to see why the radio doesn't work right because 2 e 3 4 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 2~, 2007 84 1 . 3 fundamental of radio, you can't talk through dirt. Everything in the air we breathe attenuates radio signals. The only place radio signals are not attenuated is space, and a perfect vacuum. There a couple of watts can travel hundreds of thousands of miles, which is why satellites are very effective, unfortunately they're very expensive and very hard to control subject of a different meeting -- bottom line is everything around us attenuates radio waves. The best thing you can do is eliminate whatever attenuators there are. Once again, referring back to the sight, between you and the radio transmitter/receiver that you plan on using. The elevation of the antenna is how is how you get over it and the cliff example is the best one I can give you. Receivers versus transmitters. A transmitter as used in a repeater or even in a base station like a taxicab uses, you can do things like crank up power of a transmitter, just like if you want to make your stereo louder, you can walk over and turn up the volume. Now the FCC puts limits on what you're allowed to do and what you're not allowed to do, but there's things you can do in terms of engineering a radio system to increase the outward power load. The piece of the equation you can't change is what's in your hand, for a lot of reasons. The simplest would be how big a battery pack are you going to carry. If I were to strap a small gasoline engine on my back and crank it up every time I wanted to use it, I could have that radio generate a lot more power. But if I want a small portable package that I could reliably use at a fire scene, I could have something that's easily mobile and easy to use and easy to carry, and that's the limitation of the hand-held radio. So to make up for that it all comes back to the antenna height equipment. If I have a fixed amount of RF energy that I'm allowed to generate not just because of the size of the radio, the FCC also has rather strict limits on how much energy I'm allowed to put next to my mouth, remember the big old cell phones in the bags? I haven't seen one of those in a while because the FCC figured out it wasn't a good idea to have all that high frequency energy in that bag so that's why they don't exist anymore. The small 2 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 85 1 5 phones we now carryon our belts makes about less than 15 percent of the energy that those little bag phones used to make. So that's a good thing for us. We don't have to worry about it. The downsize though that means the sites you use or the transmitter equipment you use at the central site, repeater site, has to be that much more capable of being able to listen for that smaller transmitter that much better. Other antennas, these are some -- believe me not all, I didn't want to bore you with the gory details of everything I've ever worked on or thing I've ever done, but these are some of the names and locations that you might recognize and these are either ambulance, police or fire systems. There's no commercial enterprises mentioned in this whatsoever. These are towers that I know of that I personally have been involved in that represent either fire, ambulance or police and you'll recognize a lot of the names. I left off anything out here in the north fork because I figured we already know about those. We're all involved in them to some extent. So, the chart kind of speaks for itself. Notice it's all in the same approximate realm of what we're trying to do. Plus or minus 10, 20 feet here because on Long Island given the geography we have to work with and the policy and the wild terrain, that's the number you consistently end up with, and the arithmetic supports that. Just to let you know how those coverage maps are derived is actually a computer program. I don't actually sit there and draw them. But you actually tell the computer program which specific geography you want to cover, it pulls mapping from U.S.G.S., U.S. Geological Survey. It actually goes and gets that topography map and loads it in the program. Then it takes the specifics of the portable radio, the antenna, the location, and then I change the variable called height, and it redraws the picture. That's how the computer program works. Beyond that, there was some question to cover of the thing that Ed brought up. The issue of should each department have their own antenna. When a fire department goes out to mutual aid, when we design a radio system specifically keeping in mind that the fire district they cover is not 2 e 3 4 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 26, 2007 86 1 9 the only place they're going to be expected to perform. We try to design, and the FCC even in terms of creating a license for the fire department, looks at what is the neighboring space that that fire department may have to respond to and thus we respect mutual aid. So when East Marion mutual aid would typically be one or two departments in every direction. When we engineered the radio system deputy and we go to the FCC and we say, what does the area coverage have to be, we take that into account. So when we try to place the antenna and feel the antenna system out, we try to accomplish that. What does that have to do with every other department? Well, if East Marion goes to Orient, East Marion's chiefs, their command is still East Marion. They want to talk back and call for extra resources from their home district department, which is East Marion. So they're in Orient for mutual aid or even as far as Plum Island, they want to have the ability to talk back to their command. They can't use Orient's tower to do that because Orient uses Orient's tower to talk to Orient's command, just as Southold police talks to Southold police dispatcher. Right, they cover the whole town of Southold but they don't try and talk to Suffolk County. If Suffolk County comes in here -- for instance, I'll use a more appropriate example, when Suffolk County helicopter comes in here there's a channel that they have with the helicopter that allows them to talk locally to Southold because they know that Southold doesn't have the capability to talk to Suffolk County system. Why would someone in Southo1d try to talk back to the transmitter that would be Yaphank? Talk to the helicopter that's up over your head. And that's the whole concept of how you build the radio system to the coverage area that you need to mutual. 2 e 3 4 5 6 7 8 10 11 12 13 e 14 15 16 17 18 19 20 21 e 25 There's nothing else unless I'm missing something. Oh, let's talk about low band a little bit. It's not just low band fire communication. It's low frequency communications in general that with the advent of microprocessor based things like -- and I'll give you a simple example, microwave oven in your home. Your microwave oven, the fact that you hit a button and it's going to run for a couple of minutes because you told it 22 23 24 January 2~, 2007 to, well, how does it know to do that because there's a microprocessor in the oven. All microprocessors use a clock to operate with, in other words, how does it know how to count off the seconds to equal the minutes of what you set the microwave to? Those pieces of technology all make our interference, radio frequency interference, even these things we carry around. Everything today is what's known to the FCC as a Part 15 device. If you ever open the first page of any of these little gizmos you buy these days whether it's a PDA or your Nextel or cell phone, right around Page 1 or Page 2, it tells you what Part 15 means. In the old days decades ago, the FCC spent a lot of time and they would put a lot of effort into making sure that all the manufacturers of any of every piece of electronic equipment that they never interfere with each other. Then they figured out that that was a really expensive thing to do. So then they came out with this terrific thing called Part 15, which basically means you can build whatever you want but it's on you the user to make sure it doesn't interfere with anyone else. Simply put, if my phone interferes with Ed's phone, it's up to Ed and I to figure it out. It's not up to the FCC anymore. What does that have to do with communications as a fire department? Simply put, those devices are all around us like microwave ovens, and VCRs and Nextels, all emit that RF interference. They're all Part 15 devices. So how do you somehow mitigate the potential of that interference? You move away from it, just like Ed and I would move away from each other. The whole concept of moving fire departments to higher frequencies, you're moving away from it. Because those processors in all these devices, over time, will they go faster and will they make more RF energy and higher frequencies? Yes. Probably not in the time frame that we have to worry about in the fire service today. So that's why you move to high density. Because all that interference, all that mandated electronics all resides down around the same band where the old low band fire service radio system was and still is in some cases; that's why we move to high density. BOARD MEMBER SIMON: frequencies, the numbers of 1 2 e 3 4 5 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 What are the the frequencies 87 of the January 25, 2007 88 1 9 low band? MR. SCHEIDEL: Low bands is 46.46 megahertz. UHF high frequency is usually between 450 and 490. BOARD MEMBER SIMON: What is the frequency of a microwave oven? MR. SCHEIDEL: 46. They also have -- there's a thing called band pass and band width, it's not that they make a specific signal or specific frequency, they do something called raising noise, which is if you look at it on a scope it monitors radio sequencing signals, you'd see huge splashes of energy that fall in that same place as approximately 40 46 dot. Simple example of that would be, if you wear your pager, your Logan fire pager and some type of cell phone on the same side of your belt, a lot of times when your phone rings, the pager will go off. When the pager goes off, your phone rings and no one's there; or worse than that, neither one of them work because they're so busy thrashing amongst themselves because of that Part 15 issue, while they're making noise, how do we know they're making noise? We don't know that except they stop working. BOARD MEMBER SIMON: Just for comparison and no relevance to this hearing, what is the frequency of television, VHF? MR. SCHEIDEL: VHF television is from 50 megahertz up to about 100. BOARD MEMBER SIMON: Okay. So that's even 2 e 3 4 5 6 7 8 10 11 12 13 e 14 15 16 17 lower. 18 MR. SCHEIDEL: That's VHF. BOARD MEMBER SIMON: Right, FM radio is what I mean? MR. SCHEIDEL: Right. When you go above Channel 6 you go up to the 250s and 300. I can't believe I knew that. Actually UHF, where we put fire departments now, rememb~r if you have an older television at home, after Channel 13 it was that other dial? BOARD MEMBER OLIVA: Right. MR. SCHEIDEL: UHF it went from like 14 to 83. Did you notice that Shirley, they went from 14 to 60; then they went from 14 to now I think it stops at something below 60? That's because slowly public safety, they're running out of channels, those channels weren't used, some of 19 20 21 22 23 24 e 25 January 25, 2007 89 1 2 them were educational television. The FCC is starting to migrate those people downwards and give that spectrum back to public safety and communications. In fact, the repeater that East Marion would use, that frequency used to be something like channel 71. So all that spectrum is slowly coming back. BOARD MEMBER WEISMAN: I have a question about these propagation maps. I have in front of me, I just sketched out the diameter of the green area versus the blue area, the difference between 100 feet and 120 feet in terms of the radius, and I don't have any measuring device other than my finger, but, if you could approach and just take a look at these two things and the diameters, and then interpret verbally what the difference is in terms of miles, let's say. MR. SCHEIDEL: You'll find the diameter of the actual circle isn't as significant as the change in the shading of that line. You see how the shading changes from green to blue and yellow to green? That's the difference. You watch the Verizon commercials -- "do you hear me now?" And he takes a few steps. There's a significance to two steps because if you were to blow this up to five by six feet you'd see that defining line between the change in the color shading gets greater. And that's the difference between can you hear me, can you hear me. BOARD MEMBER WEISMAN: So it's a matter of e 3 4 5 6 7 8 9 10 11 12 13 e 14 15 16 17 scale. 18 MR. SCHEIDEL: It's not just scale -- back to the attenuators again and the distance and the things between you and the antenna, and the picture this small, although if you were to make acetates out of this, you can actually turn this into plastic, like one over the other, it's a lot easier to see -- I have to actually try that. You'd probably be surprised to see, the difference it gets kind of pixilated, you can see over here where there's no coverage. That's the real difference. Look in the difference in Plum Island. See how much difference there is here and here. You have no coverage on this one there, and on this one it starts to turn blue. And what is that 10, 20 feet? BOARD MEMBER WEISMAN: That's what I'm asking really to interpret. Let's say at this 19 20 21 22 23 24 e 25 January 25, 2007 90 1 2 height and this height, the range of communication. How does it diminish? MR. SCHEIDEL: I would say probably 10 to 20 percent, 10 to 15 percent in that area. BOARD MEMBER WEISMAN: In terms of coverage, distance. MR. SCHEIDEL: Not just distance but the amount of coverage -- the circle you drew, let's say the circle ends up almost in the same spot, let's say it's a mile difference, the other difference you would see is the ability of the system to hear and to penetrate in the circle of coverage. So a good example would be if I'm on my way down into a basement and on I'm on Step 3, and I have good coverage on one map, I might get to Step 9 and still have coverage on the other map; you see the difference? As the antenna goes up, the cone and the penetration of the cone widens and actually deepens. BOARD MEMBER WEISMAN: See, I understand the concept I think pretty clearly, and I think by now most of us do because we've been dealing with this for a while. Obviously, what I'm concerned about doing -- and I don't know if it's obvious but I suspect it should be -- is to provide the absolute maximum condition we possibly can in terms of safety and communications capability while mitigating the impact on the viewshed from 25 and the neighbors and all that other, because that's our balancing test. So I'm trying to find out what the absolute optimum would be, and if it's deviated from that, what the amount of diminished communication is because we don't want to diminish it to the point where it's a problem for the fire department. But on the other hand, we do need to be sensitive to these other criteria. So I'm just trying to find out what the difference would be relative to life safety between 120 feet and 110 or 100. The other question I had was East Hampton Village has 110 feet. So that clearly is related to the topological conditions, the elevational changes. Can you roughly characterize the difference between say East Hampton and its topography and say East Marion, or is that just an impossible question? CHAIRMAN DINIZIO: I can speak from experience because I worked over there for three e 3 4 5 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 26, 2007 91 1 2 years. Where that antenna is I believe it's on the firehouse itself. MR. SCHEIDEL: behind it. CHAIRMAN DINIZIO: is at a fairly high place in BOARD MEMBER SIMON: hillier. CHAIRMAN DINIZIO: If you go up Cedar you go a little higher. Then Springs has their own fire department. MR. SCHEIDEL: The other thing that's interesting is the Town of East Hampton's an interesting case, they have adopted a town-wide strategy for communications as Southampton has recently. And actually, that's currently under further development. But the Town of East Hampton actually has as of this moment five tower sites. That's one of them. They actually have -- but I didn't want to try to say, well, yeah, they needed five sites. Well, yeah, that's a town system versus an individual fire department. So that individual fire department that was the tower they started with. The Town has since subsequently added to that communication system and now they actually have five sites all of which are all well over -- so the only thing that comes into effect is sea level. Where do you put your tower? They have got some great hills to play with over there. You got Noyak, you got Sag Harbor. You plant a 100 foot or a 200 foot tower on a site that's already 100, 200 feet above sea level now you have a potent radio signal. But to look at what they have done there is they have actually planted -- BOARD MEMBER OLIVA: They call it nesting. MR. SCHEIDEL: Simulcasting, which is where you have multiple transmitters on the same frequency at the same time and you use a satellite timing signal to lock them all in so the end user radio, it sounds like one signal. The inbound side of it is that each of those six sites all listen for a radio at the same time and a computer decides which site does that radio sound the best through right now and that's the one that connects the transmitter. BOARD MEMBER WEISMAN: So it's much more efficient. MR. SCHEIDEL: It's not on it, it's right e 3 4 5 It's on Cedar. That East Hampton. East Hampton is a lot 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 Much more efficient, way January 25, 2007 92 1 2 more expensive. The rebuild last summer, just the rebuild, we rebuilt the system after it's been in place for nine years just the rebuild was 4.2 million dollars. BOARD MEMBER OLIVA: That's a Cadillac e 3 4 system. 5 CHAIRMAN DINIZIO: But unfortunately that's not the subject of this application. I have a couple of questions I just want to ask about your receiver, transmitter thing. You can't increase the sensitivity of your receiver beyond raising that antenna. That's your limitations. MR. SCHEIDEL: There are physical limits to the ability of a radio receiver -- reliable audio carrier so to speak. The carrier wave travels in the air and the audio is imposed on it. There's physical limitations to the electronics and its ability -- things have gotten a lot better than they were 10 or 15 years ago, but the receiving equipment you put in police is the best receiving equipment available. CHAIRMAN DINIZIO: And you're governed basically by the FCC as to how much strength you can put on that tower? MR. SCHEIDEL: Yes. CHAIRMAN DINIZIO: considered that that is not public. Now the FCC has a detriment to the 6 7 8 9 10 11 12 13 e 14 15 16 MR. SCHEIDEL: No, no, no. They won't license anything. It's very strict. Remember we talked earlier about the bad cell phones. BOARD MEMBER OLIVA: Yes. BOARD MEMBER WEISMAN: Well, that was all part of FCC rules they did after because they realized it's very closely regulated now. In the old days it was cell phones wild, wild west, it's cell phones, build whatever we can build. CHAIRMAN DINIZIO: And you can't increase the radios, the hand-helds naturally, they are what they are. They are what they should be. MR. SCHEIDEL: Yes, the hand-held today, the technology available today is as good as it's going to get. CHAIRMAN DINIZIO: Attenuate means resistence, basically? MR. SCHEIDEL: Yes. CHAIRMAN DINIZIO: It's resistance to the energy going through the air? 17 18 19 20 21 22 23 24 e 25 January 25, 2007 93 1 2 MR. SCHEIDEL: Yes. CHAIRMAN DINIZIO: On the fire ground, say East Marion goes to Orient, they have a fire ground frequency also? MR. SCHEIDEL: Yes. Fire ground frequency is what you talk. The incident command system which is now National Management System, which is how part of it is how communications is used on a scene. There's a local communications channel that your patrol will use. You don't need to go back to command for that; that's for you to talk amongst yourselves and generate things like emergencies, like all men down. That needs to stay as local traffic. CHAIRMAN DINIZIO: Those are radios talking to radios. MR. SCHEIDEL: Yes. CHAIRMAN DINIZIO: I just want to clarify then, I guess, what you would lose from 120 to 80 feet. e 3 4 5 6 7 8 9 10 11 12 MR. SCHEIDEL: It looks on the map to be about 15 to 20 percent. BOARD MEMBER WEISMAN: Is it a 15 to 20 percent degradation every 20 feet? MR. SCHEIDEL: No, well, that's not linear because now you get into -- the smaller the height number gets, the more attenuators there are. I wouldn't say it's exponential, but it's not linear. 13 e 14 15 16 17 BOARD MEMBER SIMON: What do you mean by percent, 10 or 15 percent of what? BOARD MEMBER WEISMAN: Loss communication. BOARD MEMBER SIMON: Is it volume of 18 sound? 19 MR. SCHEIDEL: Lost communications. BOARD MEMBER SIMON: How do you measure 20 that? 21 MR. SCHEIDEL: That's an excellent question. We might be here another two hours. The simple explanation is, when you key up your radio, I'd like to get through the first time every time that would be 100 percent. BOARD MEMBER SIMON: Oh, I see. It's percentages of getting through. It's not like a measure of volume? 22 23 24 e 25 CHAIRMAN DINIZIO: your likelihood of getting buildings. Basically it would be through, the trees, the January 26, 2007 94 1 2 MR. SCHEIDEL: Also it's a measurement of the quality of the signal called PI through P5, which is if you're a PI you heard something but you have no idea what it was. If you are P5, it's like us standing here. BOARD MEMBER SIMON: Okay, so once the signal gets through, then you can handle it locally on your device. MR. SCHEIDEL: Yes, but the signal has to get through or you have to be able to strip the signal off the carrier before you can amplify it here. e 3 4 5 6 7 8 BOARD MEMBER WEISMAN: So at 100 feet high, what would the coverage be in your estimation? In other words, I'm asking you to interpret this. How far out are we going to go at 100 feet? CHAIRMAN DINIZIO: I think the question should be what are you going to lose between those two? 9 10 11 12 MR. SCHEIDEL: Reliability. The simple word is reliability. CHAIRMAN DINIZIO: Are you not going to be able to get to Truman's Beach? MR. SCHEIDEL: At 100 feet I think the answer is no, not reliably. CHAIRMAN DINIZIO: How about to Rocky Point Road? MR. SCHEIDEL: No. CHAIRMAN DINIZIO: Does East Marion cover that district; will they have incident to go down to Rocky Point Road? BOARD MEMBER OLIVA: Yes. CHAIRMAN DINIZIO: I'm trying to admit this as part of our testimony because I don't want our Town to eliminate something is that fire fighters need, the site of the tower notwithstanding. I don't want, because the tower's ugly have a guy go down to Rocky Point Road and not be able to get coverage that he could have gotten had the tower been taller. That's where I'm coming from. I'm looking at the light blue, the green and underneath there's a bar graph. It says la, 30, 40, 50. The one I'm looking at on the BO, there's 40 is at like the light blue, which has one square on Plum Island. My assumption is that that square is there, and it's dark blue in 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 2U, 2007 95 1 2 between because the island is higher. MR. SCHEIDEL: In other words you have gotten behind something. CHAIRMAN DINIZIO: Right. The island is higher than the water. MR. SCHEIDEL: The darker the color the worse it is. In fact, a good example of that would be if you look over towards the shore, right, notice there's some terrific green over there; what do you think those spots are? You're on top of something, you're on top of a dirt pile. CHAIRMAN DINIZIO: Which one are you looking at? MR. SCHEIDEL: You're looking at 100. See how there's green up here, that's because you're up on top of something, right. CHAIRMAN DINIZIO: They're nice and high and you're over the bank that is Rocky Point. You're over that. MR. SCHEIDEL: Sure. Then you see places over here that are purple and dark blue, which means you're behind something. BOARD MEMBER SIMON: I would think that there would be a technology whereby you could go to any selective part of town, let's say Truman Beach or the beach by Rocky Point Road and check by beaming it to something like a temporary pole above or an helicopter or something over by the firehouse, so you would know what you could get from -- . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 MR. SCHEIDEL: There actually is hardware and software to do that, and the cell phone companies own it. It's very expensive. BOARD MEMBER SIMON: Because the reason we seem to be guessing is because it depends entirely on terrain and terrain is something that's real on the ground not in a model. MR. SCHEIDEL: The best you can do is use the USGS information. You're absolutely right. And I guess if we did not have finite resources, we could go do that. BOARD MEMBER SIMON: Then or at least someone could come in and get a clear answer to you, how high does it have to be to be heard on Truman's Beach. MR. SCHEIDEL: Right. We use the tools that are available to us. Those are the same tools that even cell companies use, to be honest 18 19 20 21 22 23 24 . 25 January 25, 2007 96 1 2 with you. Unless they have a very specific coverage requirement, the system that does the plotting, first of all would only be as good as the resolution of the plotting you're willing to do. So if you're going to do plotting at every 10 feet that would be one resolution. If you're going to do plotting at every 100 feet it could be a different resolution. BOARD MEMBER SIMON: It's the same thing with calculating flood plains, it doesn't cover every square foot. MR. SCHEIDEL: But you use the U.S.G.S. BOARD MEMBER WEISMAN: Let me ask you a simple kind of concluding question. Based upon your expert opinion, what is the minimum height required for maximum communication for the East Marion Fire Department? MR. SCHEIDEL: My best opinion on the maps and data is 120 feet. If it's less than that, it will be something less than that. Could it be higher than that? Sure it could always be higher. What you end up with is base from Step 3, base from Step 9, base from Step 13 and issues of that nature. But once again you have to work with reasonable limits because we all know, once you get to the 200 foot level, there's all sorts of issues with that. I mean, in a perfect world, you'd hang everybody's repeater on a balloon and float it up to 1,000 feet. That's a science experiment you want to do over the summer. BOARD MEMBER WEISMAN: One follow-up question, assuming that something was built at 120 feet, knowing that what we are dealing with are residential properties behind and a viewshed along a scenic byway, what conditions, without compromising communications, could mitigate the visual impact, in your opinion? CHAIRMAN DINIZIO: I don't think he's much an expert on that. BOARD MEMBER WEISMAN: Okay. Let's see if there is an opinion on that? MR. BOYD: A monopole of a neutral color, minimize the number of things that are flying on the outside of it. A single pole. Not bright white like we have in Orient. I think we have learned something from the Orient experience. The poles, the antennas that seem to be most visually offensive are the ones that seem to have these . 3 4 5 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 97 1 2 growths hanging off them. And we're getting away from them as much as we possibly can and going to the monopole design. The one that we have proposed for East Marion will have I believe at the 38 foot level a couple of stand-offs on it, and then there will be one whip antenna at the very top, but aside from that, you'll just have a single pole. MR. SCHEIDEL: Interestingly, the manufacturers of the actual antennas now believe it or not have started offering them in sky blue, they basically disappear. BOARD MEMBER WEISMAN: That's what we talked about. I proposed getting rid of the flag, which is going to be noise pollution. Then you had to light it at night. Then you have the issues of hoisting it at half-mast and all the other requirements. MR. BOYD: We'd be more than happy to do that, as you know we sent you a letter to that effect. BOARD MEMBER WEISMAN: Yes, you did. I don't think at that height with that distance from the road, landscaping is going to do a great deal. Because you don't have the diameter -- if you look at the triangulate, the setback from the height, you'd have to have an 80 foot tree -- which you're not going to get -- which is going to then start to interfere with your communication. So it's going to have to be by essentially letting it be the most minimal structure visually that it can be. MR. BOYD: I think you're accurate in your assessment that a lot of different things have been tried that we seem to be reaching consensus that less is more when it comes to the decorations that go on it. We don't want 120 foot palm tree or pine tree or something like that. It is what it is. BOARD MEMBER WEISMAN: it's a piece of engineering. MR. BOYD: It's there; it's there to serve a very important purpose, and we can do things to mitigate it. But we cannot erase the visual impact entirely. What Mr. Scheidel is talking about with the height of the antenna and so forth that's optimally, certainly we can look to a 200 foot antenna -- e 3 4 5 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 98 1 2 MR. SCHEIDEL: 195 actually. BOARD MEMBER WEISMAN: Then you have whole other engineering standards based on whip or wind. MR. SCHEIDEL: The other thing is it's set so far back off the road, unless you're looking for it. BOARD MEMBER WEISMAN: That's the only problem I have with it. I have no problem with height at all. The problem is the context. You're in a small community, you know in a small scale and that's -- MR. BOYD: What we tried to do in East Marion is already do this balancing and to make this decision what is the maximum height that we can get for on our antennas preserving as much as possible the visual character. CHAIRMAN DINIZIO: Anyway, I think we have covered just what we need to cover on this. I would just like to kind of summarize so we know that an expert, Mr. Scheidel, has testified that 120 feet would be the height necessary for the East Marion Fire Department, I mean that's correct, right? MR. BOYD: That is definitely our position. CHAIRMAN DINIZIO: All the other stuff, the screening and other stuff, we're just going to have to deal with, I suppose. BOARD MEMBER GOEHRINGER: I do apologize, however, I did need to leave about an hour ago and this was so informative. So now I'm really in trouble, I will read the rest of this testimony. MR. BOYD: I am sure this will not be the last one you will hear. BOARD MEMBER WEISMAN: We're beginning to set standards for all cell towers because you're going to wind up with the same conditions. BOARD MEMBER OLIVA: They're going to put some cell towers on in East Marion. BOARD MEMBER OLIVA: Then we've got the one up at the point. CHAIRMAN DINIZIO: Is there anyone else that wishes to speak in favor or against this application? MS. BANDERCHUK: I'm Sheryl Banderchuk. I'm the neighbor right next door to the fire department. I was under the impression at the last e 3 4 5 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 2~, 2007 99 1 2 meeting that this tower was going to be built for the purpose of the fire department, and I just found out today that the cell phone companies want to come in and put their cell phone equipment on it. Do I have any protection as the homeowner next door living underneath that? CHAIRMAN DINIZIO: For what? MS. BANDERCHUK: To prevent that. I don't want the cell phone companies coming in and putting their equipment on the tower. CHAIRMAN DINIZIO: What is your fear? MS. BANDERCHUK: The radio frequency for the number of cell phone transmitters that they want to put on it. Because initially the fire department's meetings for the community was to say that the Cingular company was going to come in and put this tower up and they wanted it at the 120 feet so they could put five different cell transmitters on there for the cell phone companies. I feel that they're pushing for the 120 feet, not so much for the communications for the fire department but to make it more accessible for the cell phone companies now so they can come in and cover the cost of putting this tower. CHAIRMAN DINIZIO: Well, we did hear testimony that the 120 feet is an optimum for them, that anything under that they could lose coverage for certain parts of their area. So the height of the tower, not necessarily driven by what companies are on it. MS. BANDERCHUK: I think there might be some influence to that too. I mean, can they get by with the 100 feet. I wasn't privileged to hear the comments on that. How much loss will there be? CHAIRMAN DINIZIO: That's what we had the discussion about. At 100 feet they're going to lose something that they don't want to lose. And me personally, I don't want to make that decision. MS. BANDERCHUK: And I didn't want to e 3 4 5 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 be 23 CHAIRMAN DINIZIO: And as far as the cell companies are concerned, that's not the subject of this application. And unfortunately, I think once the tower's built, it's probably not the subject of many applications. I'm not sure how that will work. I don't want, leaving your fears, but I know from my experience in working with radio 24 e 25 January 25, 2007 100 1 2 frequency that the government doesn't allow a person a transmitter that's going to hurt somebody in any way. That's not to say that if you lived at the top of the Empire State Building you wouldn't have something seriously wrong with you after 40 years. But it is to say that they are governed by certain entities that I am certainly not an expert to say that what they're saying to me is not so. I understand your fear living next to one, I do myself or did. But you know, I don't know that we can make or break or not based on that because the most of the testimony before us is that this is safe. And the federal government does say so. That they have standards that are met and the standards are for public safety. MS. BANDERCHUK: Their standards are safe versus acceptable. CHAIRMAN DINIZIO: Well, like I said, I think more the cell phone thing is a misunderstanding on the part of the public as opposed to any real fear. But you know what, I've been wrong before and so has the government. MS. BANDERCHUK: I'm also concerned with the height now, again, this is only 80 feet off my property line. The tower of considerable height above 80 feet has -- I know we have discussed the collapse potential, but again, if this sucker goes down it's going down in my yard. CHAIRMAN DINIZIO: Honestly, I don't think it will, quite honestly. If it ever fell, it falls, it doesn't topple. Even a building doesn't. The World Trade Center were knocked over it wouldn't be 100 stories this way, it would probably be 65 stories. Because they fall going down. MS. BANDERCHUK: They still come down. CHAIRMAN DINIZIO: They do. I would not want to see that happen to anybody. Again, you live there and I don't, so don't take -- I'm not giving you any advice. MS. BANDERCHUK: It just makes me very uncomfortable. BOARD MEMBER WEISMAN: I just have a question relative to your question, when cellular carrier equipment is installed on that tower as inevitably that's how they're getting paid for. So let's face it, we're providing communications for us as residents through the fire department, e 3 4 5 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 101 1 2 but we're also offering a commercial enterprise to provide cell phone service. will they be as a monopole, will that equipment be housed on the inside, or will it require external apparatus? MR. BOYD: I would point you to the Orient tower as a perfect example. The cellular antenna that are not on that tower up there, they're in that tower. BOARD MEMBER WEISMAN: That's what I mean, it's internal; is it not? So the actual visual appearance is no different. MR. BOYD: Unchanged by the cellular. The antennas that hang on the outside of the Orient tower, the same as the East Marion proposal, are public safety antennas. They're not cellular. And public safety has certain requirements that there has to be a horizontal offset of the antennas for them to work properly, and the cellular is more or less a linear type of antenna. BOARD MEMBER SIMON: One further question. What is the frequency of cell phone communication? MR. SCHEIDEL: Relatively low frequency of about 810 megahertz to 890. And most of the newer cell phones that we have come to know as we have broadband service and personal services are 1.7 gigahertz. BOARD MEMBER SIMON: So they're higher than the 450 megahertz. MR. SCHEIDEL: The higher the frequency, the smaller the antenna. BOARD MEMBER WEISMAN: Does the diameter of the monopole at the base and the top change with height, or is it pretty much consistent? MR. SCHEIDEL: It gets smaller as it goes e 3 4 5 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 up. 20 BOARD MEMBER WEISMAN: So let's assume the diameter at grade remains the same regardless of height; is that correct? MR. SCHEIDEL: Pretty much. BOARD MEMBER WEISMAN: So the diameter of say 100 feet at the top and 120 feet at the top would be what, fairly negligible. MR. BOYD: Again, fairly negligible, undiscernible to the human eye. BOARD MEMBER WEISMAN: That's what I'm asking. I just want that for the record. I want to see what the difference in visual impact and the diameter of the monopole would be at 100 feet 21 22 23 24 e 25 January 25, 2007 102 1 2 and 120 feet. And you're suggesting it's fairly negligible. MR. BOYD: Again, look at the Orient installation, that is one of the common size towers that is available. That tower could be 120 feet by the simply adding another 30 foot section to it. Economically it is best to simply buy these towers the way they make them. There's a difference in the diameter at the top. MS. BANDERCHUK: The size is still going to be the same. BOARD MEMBER WEISMAN: Even if it was 80 feet, but you're not going to see the base because it's screened with landscaping at the base. MR. BOYD: Basically a tower in this height range, when you deal with monopoles too, you get into a 200 foot tower or something like that. e 3 4 5 6 7 8 9 10 11 BOARD MEMBER SIMON: I want to follow up with my question to Mr. Scheidel about frequency and height. A higher frequency requires a lower tower because there's higher energy, it goes farting. MR. SCHEIDEL: No, it's just the opposite. You have a lot -- the higher the frequency __ BOARD MEMBER WEISMAN: The higher the 12 13 e 14 15 tower. 16 MR. SCHEIDEL: -- the more difficult it is to make the energy. BOARD MEMBER SIMON: But the energy to make it. I'm talking about, concerned about radiation. The higher the frequency, the higher the energy and the greater the likelihood of a radiation problem? MR. SCHEIDEL: Yes. BOARD MEMBER SIMON: So that's why frequency is relevant. X-rays, for example, are very, very, very high frequency and they're very, very dangerous. On the low end, they're relatively low frequencies and low danger. That's the relevant consideration as to what is more dangerous. MS. BANDERCHUK: The absorption potential in your body, in living tissue. CHAIRMAN DINIZIO: Yes, but x-ray -- they're cellular telephone. BOARD MEMBER SIMON: I'm just talking about the relationship between frequency and 17 18 19 20 21 22 23 24 e 25 January 25, 2007 103 1 2 energy and possible danger. MS. BANDERCHUK: We're talking about two different types of radiation. BOARD MEMBER SIMON: All radiation is the same. Electromagnetic spectrum, from infrared to up to ultraviolet or x-ray, all the way up to longwave. MS. BANDERCHUK: Radio frequency doesn't to my knowledge cause ionization of human tissue, living tissue, but it does cause -- does generate heat. BOARD MEMBER SIMON: It's the energy from the radiation that generates the heat. And the energy is the direct function of the frequency. The waves carry more force. The only mention about x-rays or gamma rays is they're extremely dangerous and they're extremely high frequency. MS. BANDERCHUK: I'm an x-ray tech. I e 3 4 5 6 7 8 9 10 11 know. 12 BOARD MEMBER WEISMAN: I think she's probably got more expertise than anyone else in this room. BOARD MEMBER SIMON: The lower the frequency the safer it is, and that's why I was asking the question about where the frequencies are. 13 e 14 15 CHAIRMAN DINIZIO: Okay. Can I just ask Mr. Scheidel, it might help you, I don't know. Mrs. Banderchuk's concern is for the frequency coming off the antennas may harm her in some way. You're the resident expert. Can you just testify to that one way or the other? MR. SCHEIDEL: The FCC won't allow -- I'll give you a little point of fact. RF energy's cumulative. So if you were to put let's say 10 antennas on the tower, the amount of energy that would be off that tower from those 10 antennas would be 10 times greater than one antenna. The FCC standards are so strict that even with 10 transmitters the amount of energy coming off that tower, couldn't possibly affect anyone in the near field of the system. CHAIRMAN DINIZIO: We're just speaking directly to the fire department. Because my understanding is in March the cell towers come in here before us, which is certainly you want them to come, express -- BOARD SECY. KOWALSKI: We'll have that 16 17 18 19 20 21 22 23 24 e 25 January 25, 2007 104 1 5 hearing on that application. CHAIRMAN DINIZIO: Right. And hopefully there are other people that might come and have misgivings. Mr. Scheidel speaks directly to the fire department. One more question would be to you is how long over the course of a year do you think that thing is transmitting, that transmitter, one hour, five hours, 10 hours? MR. SCHEIDEL: In the course of a year, how many calls are there? MR. BOYD: In a year, if we had an hour and a half of actual transmitting time. I think East Marion had 99 calls last year, and if you put into that, there's enough transmitting for the entire duration of those calls. CHAIRMAN DINIZIO: I want you to say 2 . 3 4 6 7 8 9 10 that. 13 MR. BOYD: It's transmitting only from the -- Roger on your Signal 2, Unit 8-4-2 -- what is that five seconds? And multiply that by three or four trucks, you have 20 seconds of transmission at the beginning of the call. You've got another 20 seconds of transmission at the end of the call. Maybe 40 seconds there. Throw in a little bit of extra stuff. Let's be really generous and say we're going to have a minute's worth of transmission for each call, so we're up to 99 minutes. We throw in the signal 19s, the radio checks, okay, three hours worth of transmission. CHAIRMAN DINIZIO: Specifically to this application? MS. BANDERCHUK: I understand to the fire department. That's why I don't have qualms about it with the fire department. But with the potential of the cell phone companies coming in now, they're transmiting 24 hours a day. CHAIRMAN DINIZIO: Okay. And that you speak to at the hearing in March. I think we have to base our decision on what the requirements are for the Town naturally, and what the community of the East Marion Fire Department feels that they need to the radio transmission and a fire ground. The next step is when the cell companies come in and decide they want to attach this, that's the whole different ball game. MS. BANDERCHUK: Does that go through the Zoning Board too? 11 12 . 14 15 16 17 18 19 20 21 22 23 24 . 25 January 2~, 2007 105 1 2 CHAIRMAN DINIZIO: Yes, it's scheduled for the 25th. BOARD MEMBER SIMON: That's when these questions are particularly relevant. There will be more people to hear you. CHAIRMAN DINIZIO: Okay? MS. BANDERCHUK: Thank you. CHAIRMAN DINIZIO: Is there anyone else who would like to say something about this application? Hearing none, I'll entertain a motion to close this application. (See minutes for resolution.) e 3 4 5 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 January 2~, 2007 106 1 2 e 3 4 5 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 C E R T I FIe A T ION I, Florence V. Wiles, Notary Public for the State of New York, do hereby certify: THAT the within transcript is a true record of the testimony given. I further certify that I am not related by blood or marriage, to any of the parties to this action; and THAT I am in no way interested in the outcome of this matter. IN WITNESS WHEREOF, I have hereunto set my hand this 25th day of January, 2007. v wi Florence V. Wiles January 2f/, 2007