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HomeMy WebLinkAboutZBA-03/29/2007 Hearing 1 2 . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 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 BOA R D o F A P PEA L S --------------------------------------------x Southold Town Hall 53095 Main Road Southold, New York March 29, 2007 9:30 a.m. Board Members Present JAMES DINIZIO, Chairperson RUTH OLIVA, Board Member GERARD P. GOEHRINGER, Board Member LESLIE KANES WEISMAN, Board Member MICHAEL SIMON, Board Member LINDA KOWALSKI, Board Secretary KIERAN CORCORAN, Assistant Town Attorney (ORIGINAL' COURT REPORTING AND TRANSCRIPTION SERVICE (631) 878-8047 . 4 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 1 2 CHAIRMAN DINIZIO: As we discussed at our last meeting, each member is going to take care of their application; is that what we agreed to? BOARD MEMBER GOEHRINGER: We're going to do the best we can. CHAIRMAN DINIZIO: Okay, our first meeting is for William and Alice Lehmann, that's Jerry's? BOARD MEMBER GOEHRINGER: Yes. BOARD MEMBER OLIVA: It's a carryover. CHAIRMAN DINIZIO: Mr. Cuddy? MR. CUDDY: Good morning, Charles Cuddy for Alice and William Lehmann. If I may, I just want to hand up a proposed covenant that I had submitted to the town attorney a couple weeks ago. Also, I have attached to it just for your information and to help you to recollect, the two lots that are involved in this matter. BOARD MEMBER GOEHRINGER: Thank you, sir. MR. CUDDY: I think you will recall when I appeared here, there are two lots on Rabbit Lane in East Marion, the Lehmanns own both of those lots. They have owned them for more than 30 years. They have used the lot that faces Lake Marion, which is Tax Lot 17, and is a 16,000 square foot lot, they have used that as accessory to their home. They have, as you can see on the survey, a bocce court; they have had a swimming pool and the swimming pool, incidentally, was approved as an accessory use as we discussed last time by a prior Zoning Board. This is a completely unique lot. The reason I say it's unique is that Rabbit Lane is a lane -- and Mr. Scott from the assessor's confirms this interpretation -- is a lane that part of the owners own to the center; some of them do not. It's hard to tell where the Lehmanns are but apparently they don't own to the center by their deeds. But the Town does not tax Rabbit Lane as a separate lot. It taxes the individuals who own the property facing that road or that lane for the lots. So effectively the town, the tax people are saying, we're not sure who owns to the center. So it's not set up as a public road; it's not even set up as many private roads are as far as the taxation goes. And I point out to you what they are trying to do is to put a garage on a lot that they have used as accessory, that they continue to use as accessory to their principal lot, which is 3 5 6 COURT REPORTING AND TRANSCRIPTION SERVICE (631) 878-8047 2 1 2 across the street. What I'm asking the Board to do is to acknowledge this as an accessory use on this lot, and whether it's separate or not, and assuming it's separate -- if it wasn't separate, of course we wouldn't have the problem -- but assuming it's separate, I will point out to you that I have prepared a covenant -- I have had this discussion with the Lehmanns at great length, they're willing to give up in perpetuity their right to use that lot as a building lot for a home. That has to be something that hasn't been done probably before. They have decided they want to use the lot as they have. They recognize that even though that may be a diminution in price to them and eventually if they sell it, that they will transfer it that way. That they will take a covenant that I have prepared, sign the covenant, record the covenant with the county clerk; the covenant says it will run with the land; it will be permanent. They understand that they are giving up the right, and quite frankly, it's a benefit to the community because there's going to be one less house in a fairly crowded area, and it will keep that open, and I think it will make it look a little more of an open area than it would if you put a house on the lot. We have DEe approval. We are going to get Trustees' approval. We first have to get Zoning Board approval. I think it's appropriate in this case, which is absolutely unique, to allow someone who is willing to give up the right to put a house on the lot, to use that lot, which is directly across, and the right of way that we're talking about is like a driveway, you can only travel one car at a time because I have done it several times. It's roughly graded; it has some stone in it, but it's basically the size of a driveway. So we're not talking about going across the public road; we're not even talking about going across a private, like Bay Avenue, which goes down there, which is a private road; we're talking about essentially a driveway. So I would ask the Board to very seriously consider approving this type of use as a completely unique -- I don't think it will come before you again; I don't think has come before you. And these are people willing to sign this covenant. They will sign it. It will be subject . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 3 1 2 to them delivering it to the county clerk, having it recorded and run with the land. So I would ask you to approve it on that basis. CHAIRMAN DINIZIO: Understood, okay. . 3 4 Jerry? 5 BOARD MEMBER GOEHRINGER: I have to tell you that we have had some of these in the past, but some people wanted to put swimming pools on them and so on and so forth, I'm talking about in the ground swimming pools or partially in partially out. But you're probably correct, Mr. Cuddy, that the perpetuity issue here is probably one of the 50s. This is not a grand stand, I have to tell you that I applaud you for suggesting it is, and I do applaud your clients for doing it. MR. CunDY: Thank you. BOARD MEMBER WEISMAN: Well, I would simply add, I think this is a very commendable solution since it essentially benefits the neighborhood by reducing density and number of occupants using that very small dirt road and path, as long as it's duly recorded. Because there are situations where lots cross a private small road that had been set aside for an accessory structure now are not recorded assuming they could build a small dwelling on it and they can't. As long as it's recorded properly, I think, it's a well-written C and R? MR. CunDY: Absolutely. It would be subject to having it recorded, and I would deliver the recorded copy to the Board. BOARD MEMBER WEISMAN: So I don't have any questions. It's very clear what you're proposing. ASST. TOWN ATTY. CORCORAN: This may not be a question best addressed to you, but I'm going to ask it anyway and I apologize in advance. How do you suggest that two owners down the line, this is recorded, fine, they take notice of this and it's binding upon them, but they decide either knowingly or unknowingly to go into the Building Department and ask for a permit to build the house anyway. How does the Building Department know that they're not allowed to build on it? MR. CUDDY: Well, one of the things that can be done is certainly to deliver a copy of the recorded covenant to the Building Department. If 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 4 1 2 I were in the position of a town official, I would do several things; I would have a copy of it -- and if you want, I certainly will do it -- to the assessors, and I would have a copy delivered to the Building Department so that everybody is aware of this and it's going to be very hard for them even someone who's starting to build to claim that they had no knowledge of it. ASST. TOWN ATTY. CORCORAN: able to, I'm comfortable with that law, that they take with knowledge recorded in the county. MR. CunDY: I understand you're talking about a practical problem. ASST. TOWN ATTY. CORCORAN: I am, which is why my caveat that it's not necessarily your problem, but it is our problem. CHAIRMAN DINIZIO: Michael? BOARD MEMBER SIMON: Yes. I think you made as strong an argument for this as probably could be made. Nonetheless, I am still not entirely convinced and I have a series of questions. First of all, the question whether it's one lot or two is not immaterial and so one would have to decide. Currently it is two lots. If it becomes -- and you call it an accessory lot, then it becomes a de facto merger in order for it to do that perhaps, which then raises the other question is if this right of way is not really a road, it is presumably not taxed to any of the owners so therefore again, as far as tax is concerned, it is a piece of town property, whether you call it a road or not. So they're not even contiguous lots, they're on the opposite side of the street. And if that analysis is appropriate, then it does raise the question of somebody essentially taking a separate detached old lot and encumbering it in perpetuity so no one else could ever build on it, and the purpose would be of course so that they can build a driveway on this rather than put another house on it, which they could legally do or selling it to somebody, which they're not particularly interested in doing because they want that garage so badly that they're willing to sacrifice the long term financial gain of keeping it a buildable. One wonders on the policy here, and people talk about the benefit to the town, I'm They won't as a matter if it's be of . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 5 1 2 not sure how narrowly or strongly we want to talk about a benefit. Among the benefits to the town of Southold are the benefits of prospective homeowners and home builders. If I live in that town and I'm renting, and I am looking for a lot to buy to build on and I am a member of this town, I am not benefited by having one lot taken off the list of recognized buildable lots for the so-called benefit of the town -- it's for a benefit of part of the town. It's kind of a balancing. In other words, the benefit for people who want to build houses who don't even live here is not insignificant. It's certainly not zero. So I have questions of this sort. So I am concerned about, I think it matters how we describe the property, and I think we're going to have to review this and I have no idea how the discussion will go further on. I agree that it's an original solution to a more or less original problem. That all by itself doesn't make it worthy of praise and acceptance but it's certainly worthy of giving a hard look at. It's more of a speech than a question. MR. CUDDY: I was going to say, I'm not sure where to start, but I can answer part of some of the things you pose. I think first of all that the tax authorities have indicated that this is not taxed separately. So what's happened is that the land that the road is on is taxed as part of the lot so the lot owner is paying for this road essentially as if he had owned to the center of it. And what Mr. Scott and I both agree upon, and I have done title searches and he's done them, is that some of the lots on this road actually go to the center of this road and the road came afterwards. In the case of the Lehmanns, it appears, although it's not completely clear and I have spent hours with Chicago Title doing this, it's not completely clear if their deeds were constructed -- at least on record it would seem that their deeds are constructed so that the road ends their lots, but some of the lots on that road it's exactly the opposite. So this is the case where you have a road that essentially isn't recognized by the assessor for tax purposes and that also makes it just about unique. And Mr. Scott has also said there's only one or two roads in the town like that. . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 6 1 2 BOARD MEMBER SIMON: Is there an answer to the question how much of that land is actually part of the two tax parcels of the Lehmanns. If the stuff in the middle of the road is not a road but not taxable, then it's not part of what Mr. Lehmann -- MR. CUDDY: It is taxable to them as if it were part of their lot. BOARD MEMBER SIMON: It goes into the square footage of their lot? MR. CUDDY: Yes. BOARD MEMBER SIMON: The size of your lot depends on the size of your tax bill or is it the other way around? MR. CUDDY: No. I think that the tax bill recognizes that you essentially go to the center and that's what they do because there are some that actually do and some that don't. If you look at the map, there's not a separate tax number. BOARD MEMBER SIMON: So by that analysis they really are adjoining lots? MR. CUDDY: That's right, and that's what I'm saying. BOARD MEMBER SIMON: With something in between as though there were no right of way. BOARD MEMBER GOEHRINGER: Mr. Cuddy, that situation that you're describing is done in almost every condo complex. Before the County of Suffolk used to own several of the roads and several of the common areas, and we've asked every assessor to please indicate that each 1/53 of each property owner be assessed for the owner of that particular piece, and that's very similar to what was done, as you probably are well aware. And I just wanted to offer that in reference to Michael. BOARD MEMBER SIMON: So it's commonly owned as a condo? BOARD MEMBER GOEHRINGER: Yes. BOARD MEMBER SIMON: Commonly owned by the residents of Rabbit Lane? BOARD MEMBER GOEHRINGER: Yes. CHAIRMAN DINIZIO: Okay. Ruth? BOARD MEMBER OLIVA: No, I don't deny the integrity and the good will of your client, but I would just like to take a little time before our decision to investigate ten, 20 years down the line how is this going to stand up, and who is going to know it as far as the town is concerned . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 7 1 2 because we have had other things that were years and years and years, things kind of fall through the cracks, and that is a buildable lot, and I do have concerns about that. So I will reserve my decision until the 19th. But I think it's a good covenant. CHAIRMAN DINIZIO: I think we heard quite enough about this and my own personal feeling on it is that we found out that we granted a pool on this by going through the record, which is our job, and certainly, anybody who would come after this owner that would purchase that lot would see a garage on there would have to go to the town and ask for a building permit to put a house on it, you know, at that point. Then a lot of things are going to come into play. It's going to be more restrictive than it is now. Certainly one of the things that's going to come to play is let's see how the ZBA put that garage there if they're claiming a separate lot. That's part and parcel of every day business in Southold town. So I think you have covered just about everything and certainly the covenant will be part of that record. I'm just wondering is there any way to put it on the tax card? Mr. Scott, can I ask you a question? We're discussing Rabbit Lane. I know that you're very familiar with that, somewhat familiar with it. I was wondering personally, and I'm glad you came in here, if there's any way to record a covenant on a tax card such and such date a covenant was issued for this lot? MR. SCOTT: Covenants are on deeds. BOARD SECY. KOWALSKI: Well, it's a Zoning covenant saying no house may be built on this property. MR. SCOTT: If you want us to make special notice of that, I think that can be done. CHAIRMAN DINIZIO: We could ask you to do . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 that? MR. SCOTT: I think you can, that's 22 fine. 23 ASST. TOWN ATTY. CORCORAN: You wouldn't necessarily have to say exactly what the covenant said, but there needs to be some notation that there's some restriction. MR. SCOTT: If you're saying if there's something that says that the ZBA says that there can't be a house built on it, it would be good for 24 . 25 March 29, 2007 8 1 9 us as well because then we would have to change the assessment on the property. We would have to take a look at it, and we would also take notice to somebody taking a look at it in the future that they wouldn't purchase it thinking they could build on it. BOARD MEMBER OLIVA: Right. CHAIRMAN DINIZIO: So two things -- one thing anyway. I think we need to explore, maybe you can, Kieran, whether it's legal for the town to record that type of information on a tax card; do you know what I mean? ASST. TOWN ATTY. CORCORAN: It's legal until somebody objects to it. CHAIRMAN DINIZIO: I'm just concerned about, if we make this a restriction, we say it must be duly recorded on your tax card, we're telling you to do something, requiring you to do something we find out later that for some reason you can't legally do that; this person comes back to us and says, look, I can't meet this restriction because it's not legally possible; you're requiring me to do something not legally possible. MR. SCOTT: If you gave us a letter or recommendation, something legally from the ZBA, we would put it in the form, and I'm sure we can put something on the card. CHAIRMAN DINIZIO: All right. Do you understand what I'm saying, Kieran? ASST. TOWN ATTY. CORCORAN: Yes. MR. SCOTT: And that would be something, if you're putting a restriction, a comment and/or restriction or something like that, that would be in a future deed, that would be automatically put on there. CHAIRMAN DINIZIO: We found something with deeds that some way they can play with them, again, during the course of our work, anybody would apply for a building permit in every day town hall business, they go to the ZBA, they look at all the records, they look at your files and find it too. Maybe the Board will be more comfortable with that? MR. SCOTT: You give us something official, we'll put it on there. BOARD SECY. KOWALSKI: Mr. Cuddy, time frame, how much time would you need to put a 2 . 3 4 5 6 7 8 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 9 1 5 covenant on the property? The Board might have a time constraint if they grant it. MR. CUDDY: I will get you back the signed covenant within maybe 10 days, and wherever you want it, I'll record it. I mean, if you say it's subject to being recorded within so many days, my office physically records deeds, so we'll go over there and record it. CHAIRMAN DINIZIO: So 90 days would be 2 . 3 4 6 enough? 7 MR. CUDDY: Certainly. 60 days would be enough. 8 CHAIRMAN DINIZIO: Is there anyone else who wishes to comment on this application? If not, we'll close the hearing and reserve decision until later. (See minutes for resolution.) 9 10 11 CHAIRMAN DINIZIO: Our next hearing is for Gerald Lang. BOARD SECY. KOWALSKI: Do you have the affidavits of posting and the mailings? MR. LANG: Yes. I remailed them again for this month, but I didn't receive the green cards. BOARD SECY. KOWALSKI: We would need all the receipts again, if you have them with it, I'll take it. And the affidavit of posting, you put up a new sign? MR. LANG: Yes. BOARD SECY. KOWALSKI: Just drop by the office later when you finish here and ask Jane if you can fill out a form for the signed posting. MR. LANG: I'd also like to submit this, which is actually the plaintiff who wrote the letter last time. I took pictures of his house and the view from his house towards my house. Do you guys want to look at it? CHAIRMAN DINIZIO: Sure, you can bring it 12 13 . 14 15 16 17 18 19 20 21 up. 22 BOARD MEMBER OLIVA: We like pictures. MR. LANG: And this is what we have to look at what when we drive by his house. From his house you can't really see it, you have to squint to see it, and he doesn't drive by my house. We have to drive by his house. CHAIRMAN DINIZIO: Okay. MR. LANG: I thought he'd be here today because he is off, I saw his truck in the 23 24 . 25 March 29, 2007 10 1 2 driveway. CHAIRMAN DINIZIO: Excuse me, just for one second, Mr. Lang. Mr. Scott? MR. SCOTT: I just wanted to go one step further. I just talked to the office staff on the RPS system, there's a folder we could put in for notes. So if there's a special exception, we could put it right on the RPS system and anybody could see it. BOARD SECY. KOWALSKI: You might just want to mention that this is on a different hearing. CHAIRMAN DINIZIO: Thank you. Okay, that was for the Lehmann hearing. Now we're back in the Lang hearing. Okay, so we're here today, basically this is a carryover hearing, and I guess do you have anything to add before we start grilling you, sir? MR. LANG: No. CHAIRMAN DINIZIO: Michael, this is your application? BOARD MEMBER SIMON: This is the second part of a hearing and the only new information is the letter from Mr. Burton, and it was the hope that Mr. Burton would actually be here, and we have the letter on file. You have seen the letter I assume? MR. LANG: You guys read it, I didn't see the letter, actually. BOARD MEMBER SIMON: Well, let me just, the objection that it raises is certainly not new over other information, but it raises the question about the effect of this structure, which is a play house combination bus stop, and the effect on the neighborhood from the visibility of this, the fact that it is there. And I would think that we should review this, not how does it look from him but how does an interested, legally entitled citizen feel that it should be from even the hypothetical person that does drive by that is necessarily him. You don't have to be in direct view of something which you find troubling in order to raise the question of is this consistent with the neighborhood. And the other question which was raised the last time was concerning the perpetuation of this nonconforming structure once the children are no longer going to school there if there comes a point when it is there merely as an ordinance; do you have any suggestions about . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 11 1 5 what would happen in that case? MR. LANG: I would totally donate it. I'd like to donate it to the Mattituck Yacht Club or the beach or even a school or something. BOARD MEMBER SIMON: To move it? MR. LANG: Yes. Why not let other kids enjoy it. I even thought Harbes in Jamesport there, he would take it. BOARD MEMBER SIMON: When you do raise the possibility of moving it, it does open the possibility that the Board might ask you to move it further away from the street. Admittedly that would reduce its value as a bus stop, bus shelter, but at least it waives the objection that it would be impractical to relocate it. MR. LANG: Well, it would be because I did put a brick foundation in so it is a little bit of a challenge to move it. And if I didn't put the foundation, it would have been moved already, and I wouldn't be here at all because I would have had it brought back to the 35 foot line and it wouldn't be an issue at all. BOARD MEMBER WEISMAN: Why wouldn't that be an issue when it came to donating it to Harbes or whoever, because you would have to get rid of the foundation in any case? MR. LANG: Well, if I had to move it now, then I'm going to move it 35 feet in so the kids can enjoy it to this day, then I wouldn't have to move it at all. Because at one point the kids are going to stop using it and I'd like to see it enjoyed by other kids. BOARD MEMBER WEISMAN: May I ask a question? Is it your preference to have that play house on your property, or if it has to be moved regardless, is your preference to continue to own it on your property in an appropriate location or donate it elsewhere? MR. LANG: Today or in the future? BOARD MEMBER WEISMAN: Today. MR. LANG: Today, I'd like to have it on my property or the neighbor's or at least have the kids in my neighborhood using it. I mean, when we do play dates and the kids come over, it's the first thing they do is they're up in the lighthouse all day long. BOARD MEMBER WEISMAN: Okay. MR. LANG: So today, but when they're 2 . 3 4 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 12 1 . 3 older and they stop using it, I have no problem moving. BOARD MEMBER WEISMAN: Where might you move it on your property? MR. LANG: Well, I'd have to move it back 35 feet and it wouldn't be an issue with the Zoning Board or the Building Department, nobody's issue. 2 4 5 9 BOARD MEMBER WEISMAN: Right. And do you have a location where you would be moving it that's 35 feet from the setback? MR. LANG: I could, yeah. BOARD MEMBER WEISMAN: Okay. CHAIRMAN DINIZIO: Ruth? BOARD MEMBER OLIVA: Again, it's real cute, I do like it, but I would prefer to see it 35 feet back because it really hits you as you drive down there. MR. LANG: I mean, I could tone it down, I could get rid of the red stripe BOARD MEMBER OLIVA: It's just that it sits so close to the road. CHAIRMAN DINIZIO: Jerry? BOARD MEMBER GOEHRINGER: I think from a health, safety and welfare point of view, I think if we were to garner three votes for a period of time to leave it in its present position, you would definitely have to put some barrier up between that and the road. But I don't know that's going to happen. We'll deal with the first deliberation on the 19th. Certainly the toning down aspect and certainly the situation of some buffering from the road in the way of plantings or whatever the case may be, that would certainly make it more palatable, there's no question about it. There is no doubt in my mind that it's probably one of the most unique structures that I have ever seen, except for the heron that we were dealing with for several years up in Paradise Point Shores. But needless to say, that's just my opinion. MR. LANG: When you say buffer, are you saying like guard rail? BOARD MEMBER GOEHRINGER: I'm saying guard rail for safety purposes, it doesn't have to be made out of steel or aluminum. MR. LANG: For cars or what? BOARD MEMBER GOEHRINGER: Yes, for cars, 6 7 8 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 13 1 8 you know, with a little opening for the kids to get through, but that type of situation. MR. LANG: Well, I had a fence already that I was going to put around the whole thing, like a white picket fence. BOARD MEMBER GOEHRINGER: Well, what you really need is something rather substantial, and it would be something like six by sixes put in the ground, and a four by six border around the top of it; that at least would in some way inhibit a car from going into this particular -- do you know what I mean? It's on a bit of a turn, the whole road is a horse shoe basically at that particular point, and one never really knows what the nature of the Southold Town Highway Department does a wonderful job plowing roads but that doesn't mean that all the ice is going to be off the road. It's a low speed area. It's probably not going to be a situation where anybody's going to intrude into it, and it's really a hypothesis on my part, but I do the same thing for people who want to put swimming pools on corners, and if they don't put it in, I don't vote for it. BOARD SECY. KOWALSKI: And sometimes people put both, they put a picket fence -- BOARD MEMBER GOEHRINGER: You can hide it behind a white picket fence, that's not a problem. MR. LANG: So you're talking about a guard rail for a car driving, for the safety of the kids playing in it? BOARD MEMBER GOEHRINGER: Yes. I've been a Mattituck Park District commissioner for 30 years in Mattituck and what we have been doing is using six by six rails -- four by six rails into a six by six post, and as I said, that can be hidden behind a fence. But we'll see how this goes. MR. LANG: I mean, that wouldn't be much of an eyesore, I mean, I do have bushes there already. I could either put it behind the bushes, I don't think that's too much of an eyesore. I mean, it would only have to be one rail, one four by six? Which you used to see on the roads before the steel came around? BOARD MEMBER WEISMAN: Yes. BOARD MEMBER GOEHRINGER: Yes, something that's paintable and conforms. CHAIRMAN DINIZIO: Leslie, do you have anything else to add? Okay, I just want to go 2 . 3 4 5 6 7 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 14 1 . 3 over what you're asking for here. First of all you have a small deck on the second story, which kind of sticks out a little bit, and you need a variance for that, correct? 2 4 MR. LANG: I thought that was a dead issue. 5 CHAIRMAN DINIZIO: No, it's not a dead 6 issue, we have to vote on that. BOARD SECY. KOWALSKI: He had asked the Board to reverse that. CHAIRMAN DINIZIO: We need to make a decision on that. MR. LANG: I thought that was a dead 7 8 issue. 9 CHAIRMAN DINIZIO: part of the application. BOARD MEMBER WEISMAN: And second you have this lighthouse and you'd like to keep it in the location that it's in right now mostly because it's on a fairly permanent foundation, right? MR. LANG: Right. CHAIRMAN DINIZIO: Your hardship isn't necessarily that you couldn't move it, it's that the foundation that you put in would be useless now. It's not like it's on wheels and it could be moved around. I just wanted to focus you that those two things are the focus of this application. The concerns of the Board is that we're granting and almost encouraging children to play near the street. That's basically how I see it. And us, me myself, granting a variance for that, implies that I take on some responsibility if something happens, not necessarily that they come after me, but it would be a shame that if one of the kids ran -- you know, they're out playing near the street to begin with because they're encouraged to go there because I encouraged them to go there because -- I don't want to have that on my mind. So any safety that we can have, which a fence would be nice, guard rail would be probably even a little better, part of as a compromise for you not having to have the hardship of moving this foundation is agreeable. And I think you're agreeable to most of that. MR. LANG: Yes. CHAIRMAN DINIZIO: You know part of that might be more than one of that, I think Could be but it's still 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 the guard rail board length March 29, 2007 15 1 2 MR. LANG: I'm sure you guys don't want to have an eyesore either. CHAIRMAN DINIZIO: No. But sometimes you have to see the poster where they have the interpretation of the insurance company how they want you to build a house, how the builder likes it, how the architect likes it, well the ZBA has one of those little squares too. MR. LANG: Well, the reason we actually bought in that neighborhood is because there's so many kids and it's like a dead end, it's just its own circle. So there's no speeders there, there's tons of kids, and all the kids are riding bikes in the street, everything happens in the street. CHAIRMAN DINIZIO: I hope you understand from our point of view. MR. LANG: I am starting to understand your point of view. CHAIRMAN DINIZIO: Any questions from the audience? Anything you would like to add, Mr. Lang? Anybody on the Board? BOARD SECY. KOWALSKI: I just want to mention that the Board will be making a decision on April 19th. It's an evening, 6:00, and it's in the other building on the second floor. BOARD MEMBER GOEHRINGER: I just want to add for the record, Jim, I think I'm going to go down there and do some measurements as to what I think a little barrier might be so you might see me down there. BOARD SECY. KOWALSKI: And there were four mailings you were supposed to do? MR. LANG: The fourth was the creek, which is the Town of Southold, which I didn't understand. BOARD SECY. KOWALSKI: Would you stop in the office and we'll go over it? MR. LANG: Okay. CHAIRMAN DINIZIO: Okay, I will entertain a motion to close this hearing. (See minutes for resolution.) . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 CHAIRMAN DINIZIO: Next hearing is for Lynne Cardaci. Ruth? BOARD MEMBER OLIVA: You are applying for a variance under Section 280-124, based on the Building Inspector's January 9, 2007 notice of disapproval concerning an application for a 24 . 25 March 29, 2007 16 1 2 building permit for a proposed addition to the existing dwelling at less than 40 feet from the front lot line, at 80 Jernick Lane in Oaklawn Lane in Southold. Actually, you have two front yards and the addition from what I can see from the survey here is about 28 by 13? MR. CARDACI: Correct. BOARD MEMBER OLIVA: Anything else you would like to add? MR. CARDACI: Not really. BOARD MEMBER OLIVA: I take it you're storing that boat underneath that plastic hut? MR. CARDACI: That's my boat. My wife calls it the circus tent. It's my boat that's actually going in the water hopefully this month. BOARD MEMBER OLIVA: You don't have much room to store it someplace else. I just want it noted that it is there. And the decrease is for what use? MS. CARDACI: It's going to be a master bathroom and closet space. BOARD MEMBER OLIVA: We all need more space, I know. CHAIRMAN DINIZIO: Okay, Jerry? BOARD MEMBER GOEHRINGER: I have absolutely no problems with it. CHAIRMAN DINIZIO: Leslie? BOARD MEMBER WEISMAN: No, your very heavy vegetative buffer, your landscaping, makes it virtually invisible from any direction, plus it's fenced and the setback is the same as the house. I don't have any problem. CHAIRMAN DINIZIO: Michael? BOARD MEMBER SIMON: When we are talking about an addition which hasn't yet be constructed and presumably the architect works with the zoning code in mind, and if it's going to exceed even by a couple of feet what the zoning code says, you pretty much would know, or your builder would know that you're going to be denied a building permit and you're going to have to appeal for an exception, which is why you're here. Now the question is, if in many cases when you get an exception it's because there are specific features about the property or the lot or the circumstances or the terrain that make it difficult, expensive, impractical to do it according to the code, so I take it that the burden is on the applicant to . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 17 1 2 say -- this is a general principle I will apply to all applications -- what is it about this particular project which makes a compelling case for asking for basically relief from two feet of the building code? The statement which is useful is that you want to build a bath and closet, which is certainly generous in size, and we all need more storage is a pretty good sized closet and bathroom, right you would say luxurious, so that alone for me doesn't explain why it could not have been designed consistent with the building code; I'll ask you if you have anything further to say in support of the decision to design it this way? MR. CARDACI: We wanted to go as far out as we could because our master bedroom is small as well. The rest of the house is large and when it got to the bedroom parts, all the rooms were shrunk down and our master bathroom now consists of a stand-up shower and a sink and a toilet and then we have one closet that's only two by seven in our master section of the house. So we were trying to go a little larger, open up our room a little bigger so we could walk around our bed and plus put another bathroom in there. BOARD MEMBER SIMON: What are the dimensions of the bedroom now? MR. CARDACI: Roughly 13 by I would say 14, the house is 25 feet wide, maybe 12 and a half by 14. . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 BOARD MEMBER larger, if I'm right is itself? MR. CARDACI: SIMON: So this is actually about this, than the bedroom 18 19 to be larger than the intending the bedroom little bit. BOARD MEMBER SIMON: So part of that is going to be expanding the bedroom, so you don't have the situation of a small bedroom with a large closet in the back. I'm sure I would have discovered that when I looked at your plans. more questions. CHAIRMAN DINIZIO: Okay, well, I mean it's obvious that you're going to expand your master bedroom and we can see the reason why, it looks like you're building basically a master suite. Do you have anything else to add? MR. CARDACI: No. Yes, the addition is going bedroom, yes. But we were into that room as well a 20 21 22 No 23 24 . 25 March 29, 2007 18 1 2 CHAIRMAN DINIZIO: Anybody in the audience like to speak for or against this application? Hearing none, I'll entertain a motion that we close the hearing pending decision. (See minutes for resolution.) . 3 4 5 CHAIRMAN DINIZIO: Next hearing is for Steven and Clara Wong. Michael, that's yours. BOARD MEMBER SIMON: This is a request for a variance to allow the building of an accessory garage in what is technically a front yard and with this being a house that exists between two roads. So that the front yard is on East Gillette and the backyard is on Gillette proper or West Gillette. So that no matter where the garage is it looks as though it's not going to be in the rear yard for the simple reason that there is no rear yard. So the question is, well, how would you say beyond what I have already contributed I think to your help in some way to support this application? MS. TOTH: Okay. Good morning, Mr. Chairman, Members of the Board, my name is Vicky Toth. I'm here on behalf of the property owners, Steven and Clara Wong. I have two letters in support of this application from neighbors and I also have some photos (handing). As you know, this is not a self-created hardship with this garage. This is a lot that's very large in size in comparison to the whole overall neighborhood. It is a lot that has two front yards according to town code because it's in between two roads. The placement of the garage that they're proposing can no way meet a code because they do not have a rear yard. Looking at their survey and what they're proposing, they're not even going to be close to their lot coverage. So they're not going to be going over anything as far as lot coverage goes. The reason they're requesting this garage is that Mr. Wong is a restorer of antique cars. It's his hobby and that's what he loves to do. This is what the garage is proposed for is for his hobby. As you can see, I presented you with photos. We're not asking for anything that would set a precedent in the area. There are three other homes, one is two parcels away that have detached garages in their front yards. They're also keeping this garage in 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 19 1 2 keeping with the style of the home that's existing on the property now. There are neighbors that have signed letters. There's an association there that nobody has objections, they actually thought he was doing a swimming pool, then when they realized he was doing a garage, nobody has objections to it. As you can see, on the one side of the property where they're placing it, there is a tree line that will be blocking that garage pretty much from the neighbor on the other side to the north. And basically the reason their yard isn't even landscaped yet is because they're waiting for this garage, because they're going to also have a pergola that's going to go onto this garage, and that's going to be part of their landscaping. BOARD MEMBER SIMON: Will the garage front on Gillette or will it front on East Gillette? MS. TOTH: Actually it's going to go through, doors on both sides. BOARD MEMBER SIMON: Right. So you have to have elevations here so the question is -- MS. TOTH: Okay. You can enter from Gillette. BOARD MEMBER SIMON: Okay, so from the point of view of people who live on Gillette, will it look as though here is a building that is as far as they're concerned in the front yard? What will it look like on their side; will it look like a house or will it look like a garage where a house ought to be if there were but for the fact that this house already is on East Gillette? MS. TOTH: Actually, it's just going to look like an accessory garage that's not attached to the garage. You can tell from the elevation that the architect designed or the drawing that was provided for the Board that it's going to be in keeping -- it's not going to look like a house. BOARD MEMBER SIMON: So the overhead doors will be facing Gillette? MS. TOTH: Correct. And I provided -- BOARD MEMBER SIMON: I know, we have the elevations on this. So if you go down Gillette, you'll see a house, a house and a garage and then another house. MS. TOTH: Actually, you're looking at backs of houses because the two houses that are . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 20 1 2 side by side are exactly the same size lots with the same type lots. BOARD MEMBER SIMON: I forget, are there other lots on Gillette that face Gillette? MS. TOTH: Yes, but the uniqueness of this situation is that this was originally two lots that now is one, and that's the same thing with the property to the north. The property to the south actually has two houses on it. But it's two separate lots so you're seeing the front of the house. The garage is being placed on the opposite side from where that house is. So it's not going to look out of character or out of place and especially once they get their landscaping done it's really going to blend in nicely with the rest of the neighborhood. BOARD MEMBER SIMON: I see, I have no further questions. CHAIRMAN DINIZIO: Ruth? BOARD MEMBER OLIVA: How high is it to the ridge, the garage? MS. TOTH: 20 point -- it's just under 21 . 3 4 5 6 7 8 9 10 11 12 13 feet. . BOARD MEMBER OLIVA: You have plenty of 14 room. 15 MS. TOTH: I guess 20.9 or 20.10. CHAIRMAN DINIZIO: Anything else, Ruth? BOARD MEMBER OLIVA: No. Fine. CHAIRMAN DINIZIO: Jerry? BOARD MEMBER GOEHRINGER: Why do I think when you bring an application -- not you in particular, but an application comes before this Board -- for a building of this magnitude, I've never used this phrase but because I've been studying it more -- this is the size of the houses they built in Levittown in reference to a garage, okay, the 16,000 houses they built in Levittown, not necessarily your client, your situation, whatever the case may be, but there are other reasons to build something of this magnitude, and I think you have significantly stated what the purpose of this is. My suggestion to the Board is that we put the normal restrictions on it that it only be used for accessory purposes. Because you do have a second floor even though it's a cape style roof with a reverse gable, and the upstairs could be utilized, and again, this has nothing to do with your clients, it's clients in the future 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 21 1 2 or proposed property owners, whatever the case may be. . 3 MS. TOTH: Right. CHAIRMAN DINIZIO: Leslie? BOARD MEMBER WEISMAN: Yes. As you may well be aware of, we have a new accessory structure code recently passed in January, and I looked that up, based on your lot size, you meet all of the requirements. It's large, it's 720 square feet but 750 is allowed for your lot size since it's a double lot. The height is also in keeping with that new code. So the only problem you face is the fact that you have this unique situation of a drive through lot and you will never have a rear yard. But it is the architectural rear yard in that the house, the front elevation of the house is on East Gillette. More information came into the office and was stated on the application, and you have stated it for the record that this is to be used for additional cars. Because my original question was when you have a two-car attached garage, why do you need another garage. MS. TOTH: Right. BOARD MEMBER WEISMAN: That was my first observation. Clearly you have answered that reason, which is for his hobby. As I understand it it's to be unfinished? MS. TOTH: Correct. BOARD MEMBER WEISMAN: And unheated? MS. TOTH: Correct. Only a water spigot on the exterior. MS. TOTH: And minimal electric for code. BOARD MEMBER WEISMAN: Right, just to code. I now also understand why it has a domestic quality to it in terms of the actual architecture. The barn doors are meant to be a drive-through: is that it? 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 MS. TOTH: Right. BOARD MEMBER WEISMAN: So you can actually access cars in both directions, and the trellis is related to a future garden? MS. TOTH: Correct. BOARD MEMBER WEISMAN: Okay, I just wanted to make sure I understood the facts of the application accurately. I have no further questions. MS. TOTH: Thank you. 22 23 24 . 25 March 29, 2007 22 1 2 CHAIRMAN DINIZIO: Okay. I guess the only question I have is are there any future plans for a pool? MS. TOTH: Not that I'm aware of. I know that they're waiting on this because they're going to put down a patio and then their landscaping. It all hinges on what the Board decides in regards to the detached garage because that will be incorporated into their landscaping. I honestly right now can say that I don't believe there is a pool issue. CHAIRMAN DINIZIO: It sounds like you're okay with any restrictions that we might put on it concerning water and no heat, that's acceptable? MS. TOTH: That is acceptable. CHAIRMAN DINIZIO: Okay. Let me ask anybody in the audience if they have any questions? Anybody up on the Board? I'll make a motion that we close this hearing pending a decision on the 19th. (See minutes for resolution.) . 3 4 5 6 7 8 9 10 11 12 13 CHAIRMAN DINIZIO: Next hearing is for Paul R. Cadmus, that's yours, Ruth. BOARD MEMBER OLIVA: It's a request for a variance under Section 280-124 based on the Building Inspector's January 26, 2007 notice of disapproval concerning an application for a building permit for a covered porch addition at less than 40 feet from the front yard line at 7005 Main Road, East Marion. MR. UELLENDAHL: My name is Frank Uellendahl, I'm the architect. BOARD MEMBER OLIVA: You want to make a nice front porch. MR. UELLENDAHL: I am here with Paul Cadmus, the owner as well, if there are any questions. BOARD MEMBER OLIVA: You just want to really fill in that little alcove there? MR. UELLENDAHL: Correct. We're not taking up the entire quadrant, we're keeping the front of the porch two feet beyond the face of the main house. BOARD MEMBER OLIVA: Just two feet out? MR. UELLENDAHL: Correct. The porch is eight feet deep and it will be the entire width of that setback, which is 20 feet. . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 23 1 2 BOARD MEMBER OLIVA: So it will come out about eight feet according to your plans here and 20 feet across? MR. UELLENDAHL: Correct. BOARD MEMBER OLIVA: And still leave two . 3 4 feet? 5 MR. UELLENDAHL: Yes. BOARD MEMBER OLIVA: It's a nice house. MR. UELLENDAHL: It's a beautiful house. It's more than 200 years old and it deserves a front porch, and the front porch can only be in the front, unfortunately it's within the 40 foot front yard. BOARD MEMBER OLIVA: I think it will be a very nice addition. MR. UELLENDAHL: It's beautiful on the inside as well. BOARD MEMBER OLIVA: I have no further questions. CHAIRMAN DINIZIO: Okay, Jerry? BOARD MEMBER GOEHRINGER: No questions. CHAIRMAN DINIZIO: Leslie? BOARD MEMBER WEISMAN: I have no questions except the receipt of a letter that we had from a neighbor concerning an existing hedge, and the concern about retaining that hedge for purposes of privacy. Supposedly the hedge was planted by the neighbor on Cadmus's property. MR. UELLENDAHL: That's correct. BOARD MEMBER WEISMAN: Can you address 6 7 8 9 10 11 12 13 . 14 15 16 17 that? 18 MR. UELLENDAHL: Yes. I actually went out, Linda faxed me the letter yesterday, and I went out to take some photos. This is the hedge looking south and this is the view from the future porch and you see already the trees in between the neighbor's porch. I don't think there's any problem. BOARD MEMBER OLIVA: May I just see the picture? BOARD MEMBER WEISMAN: No further questions. CHAIRMAN DINIZIO: Michael? BOARD MEMBER SIMON: I have no questions. CHAIRMAN DINIZIO: I read the letter from your neighbor and it seems like she's basically asking if you would consider, and I use that term 19 20 21 22 23 24 . 25 March 29, 2007 24 1 . 3 kind of loosely, agreeing to not take off or maintain that hedge in perpetuity. My personal opinion is what's on your property is on your property, and I don't know if that lady is in the audience? MR. UELLENDAHL: No, she's not, I don't 2 4 5 think. 6 CHAIRMAN DINIZIO: If she had been before us, I certainly would have asked her some questions concerning, you know, she said she had paid for it and did all that, and she could get us some receipts. She's not here. It was a letter, we're all aware of that letter now. So I have no further questions other than to ask the audience if they have anything to say in support or against this application. Hearing none, I'll make a motion to close this hearing until the 19th. (See minutes for resolution.) 7 8 9 10 11 12 CHAIRMAN DINIZIO: Next hearing is for Lee and Marie Beninati. That's Jerry's hearing. BOARD MEMBER GOEHRINGER: Request for variance on under Sections 280-15 and 280-38C-1 based on the Building Inspector's January 4, 2007 notice of disapproval, amended February 22, 2007 concerning an application for a building permit for an accessory garage with storage loft (a) in a yard other than the required rear yard, (b) set back less than 25 feet from the property line, (c) height exceeding the code limitation of 22 feet to the top of the ridge, and {d} dormer exceeding 40 percent of the roof width. Location of the property: 3070 Peconic Lane and CR48 Middle Road or North Road, Peconic. BOARD MEMBER GOEHRINGER: Good morning. When you bought this property -- and I just wanted to clear this up -- in and around 2000 is when you purchased it. I believe that originally there was a variance from the prior owner granted dividing this into two pieces of property. You have kind of merged into one now; is that correct? MR. BENINATI: We never merged any subdivision. BOARD MEMBER GOEHRINGER: You never merged 13 . 14 15 16 17 18 19 20 21 22 23 24 it? . 25 MR. BENINATI: No. BOARD MEMBER GOEHRINGER: asked that question is isn't the The reason I swimming pool March 29, 2007 25 1 2 actually on the other lot? MR. BENINATI: No. The proposed subdivision submitted by Mr. Dart, the prior owner, would eliminate -- if I may approach? BOARD MEMBER GOEHRINGER: Sure. MR. BENINATI: The proposed was to subdivide the property, this way, three-quarters of an acre on 48 and one and a quarter -- BOARD MEMBER GOEHRINGER: So you haven't done anything with the other piece? MR. BENINATI: I haven't done anything for now, it's a two acre lot. BOARD MEMBER GOEHRINGER: I see, okay. MR. BENINATI: And I just proposed to put my garage in here but the Building Department told me that would be front yard, I have two front yards, so they want it in the back yard. We put it here because geographically it's the best place to put it. I corne up from Peconic Lane. BOARD MEMBER GOEHRINGER: Thank you for clearing that up. I thought it was the reverse of that. Let me just ask a couple questions regarding the building itself. And as we have heard from you in a prior hearing on another piece of property that you're definitely in need of garages for the storage of your vehicles. MR. BENINATI: I have no garages at all. BOARD MEMBER GOEHRINGER: Why did you suggest that location and that close to the property line as opposed to pushing it back a little bit farther, thereby giving you greater width to the westerly, northwesterly property line, which is the one next to, it's Waxler, and I mean, I realize there's a shed that's there, but you're going to remove it anyway. I would have pushed it it back farther thereby gaining more setback to that property line. I've been there two or three times, and I mean, it's a beautiful back yard, but I'm just, I think it's just too close to the property line, that's number one which, of course, under the new code, which requires 25 feet. MR. BENINATI: You would suggest that I put it between the house and the pool? BOARD MEMBER GOEHRINGER: Yes. Push it back almost to the end of the Waxler's property line, which is your property line. MR. BENINATI: But that would be front . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 26 1 2 yard. would According to the Building Department that be front yard from Route 48. BOARD MEMBER GOEHRINGER: I don't care, it doesn't bother me. . 3 5 MR. BENINATI: It bothers them. BOARD MEMBER GOEHRINGER: It's just another variance. I don't mean that sarcastically. It would give you more room, more access. And again, I know that the back yard -- MR. BENINATI: As you expressed, it's a beautiful back yard and we take a lot of pride to see the pool in the back yard from the house. We have a patio in the back. Now, if I put a garage there, it will kill my back yard. Right now we are planning on making a little walk from the house to the pool, right now it's all grass. If I put the garage there, besides -- since there is a large parking lot, driveway, whatever you would call, to me made a lot of sense put it right there for many reasons, number one the economics, economics is just need to do nothing with the driveway. Just drive right there and again, I understand that you are concerned with the property -- closeness to the property line, but if you look at the site plan, Mr. Waxler's garage is nine inches from my property line. And the other neighbor on the other side is 1.7 feet from my property line. Yes, I do understand that there are new codes, but the fact of the matter is that they are there and they are a three-car garage and two-car garage nine inches from my property line. We think of this location long and hard my wife and I, and we thought this was the most strategic for my needs. Also, I do plan on having another door in the back of the garage only on one of the three-car garage because the entrance from Peconic Lane, it's uphill and I do have a couple cars they're very low, and they will never make it. I tried already and they just scrape the bottoms and they will never make it. So I figure I can go out with one car at least to North Road, which I do have an entrance there. BOARD MEMBER GOEHRINGER: The specific use of the second floor is what, Mr. Beninati? MR. BENINATI: Storage only, and also I do not need any plumbing, my house is large enough. I have enough water in my house. It's strictly for storing my toys and upstairs to make storage 4 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 27 1 2 for parts or whatever I need. Also, about the height, I'm planning on since I have more than my wife likes me to say I have quite a few toys, I was planning on putting car lifts as I explained to Mr. Simon, when I met him at the property, so I can park my toys, let's call them top and the cars that we use daily on the bottom. And the original requirements for this lift was 10 feet high ceilings. I've been talking to the manufacturers and they tell me it's 12. Now, if I go 12 feet that means that my second floor is going to be even lower. It doesn't make a difference to me because I am going to use it strictly for storage. I need minimum electric, I need electric just to operate the lift and just to see what I'm doing. Again, no plumbing, no heat, nothing at all. It's strictly for convenience. At night, instead of watching TV, I like to be in my garage and play with my toys. BOARD MEMBER GOEHRINGER: So you don't have any objection to a restriction that it only be used for storage purposes? MR. BENINATI: I have no problem at all. BOARD MEMBER GOEHRINGER: Let's go on to the extension of the dormer exceeding 40 feet of the roof width. Is there any reason why you can't meet that 40 feet or it architecturally appears that you're trying to do something here? MR. BENINATI: Well, we have what I consider, and a lot of people have been telling me the same so I assume that it's true, a very special home. Very unique. It's over 45 feet, if if not 50 feet tall, and I need to build something there that somewhat brings everything together. I don't want to bring what I call -- my wife don't like me to use this term -- chicken coops. I want to build something that belongs there. We have some sort of precedent in the town of Southold that as late as today we get letters from people about some of the work that we have been doing in town tastefully, and I just want to do something that belongs there. And I like to give you something like I would like to achieve. I show you this four bay, I don't need four bay, I need three. That we believe is something that somewhat achieves some of the details that we have. BOARD MEMBER GOEHRINGER: So this is . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 28 1 9 basically going to look like an old-time carriage house? MR. BENINATI: Somewhat, yes, the details, the finials belong in a house and I just went to the website to try to pick up something that matches, and I will work with the architect to come up with something like that. It's going to be painted the same colors of the house. It's not finished inside. Again, it's strictly storage. I'm paying for three locations right now, rental monthly, and I'm tired of it. Besides it's hard for me if I want to do something to drive to three different locations. If I want to change oils, I do it in one week. MRS. BENINATI: I just want to add that it really is a necessary addition to the home. I mean, we're in real estate, you know that. And not having a garage is a negative in terms of value aside from a necessity. The other thing is the aesthetics of this garage will be seen from the street, and we have a very, very high house and a very, very low garage. I think the aesthetics wouldn't be balanced as does our architect. Unfortunately, the garage should have been built years and years ago or a barn or there probably was a barn there many years ago with the appropriate heights that are consistent with the house, but it's not there and it's needed, and we feel that we would ask you to consider that in terms of granting the variance so that it will be consistent, and it will be beautiful and from the street it will look like it belongs there and was there for years and years. BOARD MEMBER GOEHRINGER: I just need to ask your husband one more question, thank you. The only other concern I have is if the Board was inclined to grant this as the minimum of five feet, you have some relatively steep roof lines here, how are you going to contain the water runoff, you know that close to the neighbor? That's what I'm concerned about. MR. BENINATI: If that's a concern for the Board, there is a well, which is a runoff well, dry well. I can contain the runoff from the roof. BOARD MEMBER GOEHRINGER: You're talking about a substantial amount of water here, Mr. Beninati, a lot of water. There's no question in this world from the people of Southold town of 2 . 3 4 5 6 7 8 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 29 1 2 what you did next door to this Town Hall in reconstructing that beautiful historical building, but you're talking commercial gutters on something like this to contain that kind of water runoff. MR. BENINATI: Well, if I understand you're suggesting that I should put some dry wells, I will do that BOARD MEMBER GOEHRINGER: You're talking brass gutters, expensive brass gutters to retain this water runoff. Let's be honest with you, if it doesn't go into the ground, it's going to run down your driveway, and it's going to be something you'll be toying with all winter, running up and down that driveway. MR. BENINATI: We'll do whatever it takes to do it. BOARD MEMBER GOEHRINGER: Thank you. CHAIRMAN DINIZIO: Leslie? BOARD MEMBER WEISMAN: Yes. CHAIRMAN DINIZIO: May I interrupt you just for a minute? You're the architect, tell us where the dormer is on this so he understands. Because I'm looking at exceeding 40 percent of the width of the roof and maybe the front doesn't, but the back does; am I looking at that? MR. BENINATI: Not necessarily going to be exactly that picture. BOARD MEMBER WEISMAN: That was my question. In presenting -- this is your application, this is an image that you're considering you think may be reduced in size, have a more appropriate look. This is more of a barn structure type look, which would be certainly appropriate as well. So my question is we need the final documents. MR. BENINATI: Right now my biggest concern is the height, I'm staying within 25. BOARD MEMBER WEISMAN: 25 foot one inch? MR. BENINATI: Right, and the size which is 26 by 40 I believe. BOARD MEMBER GOEHRINGER: But we need to see the dormers. BOARD MEMBER WEISMAN: Yes. You have a beautiful historic property and as an architect. I would be as concerned as you about making sure whatever structure was in that close a proximity had a sense of scale and character that was appropriate to your house. It's conceivable -- we . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 30 1 2 don't even have calculations from the Building Department on what the overage beyond 40 percent is on these dormers, and because these are not in scale they're Xeroxed. I couldn't calculate it because a scaled ruler won't work on a Xerox, you have to have the actual scale drawings, so I don't really know the exact to which you're over on the dormer height. The height to the ridge that's allowed according to the new code is 22 feet, so you would be requesting a three foot one inch height variance. You are fine on the square footage. It shouldn't exceed on your size lot, plus three percent of the total and at 1,081.6 square feet, which is huge, you're still only 1.2 percent, so although it's very large, it still is to code. So the real question is the setback on the side yards, you also have a stand of an old holly and a couple of other -- MR. BENINATI: Yes. BOARD MEMBER WEISMAN: That I think probably screen that shed a little bit from your view from the back of your house. You would have to move a little bit of that, it looks like you'd probably have to move the shed and the holly. MR. BENINATI: Where the stakes are. BOARD MEMBER WEISMAN: Right, I'm not talking about -- the shed's here {indicating}. MR. BENINATI: I'm going to move this, one or two of them. BOARD MEMBER WEISMAN: You're going to have to move those over. MR. BENINATI: Yes, and I'm going to replace. BOARD MEMBER WEISMAN: Well, if you're doing that, it's possible that you could scoot back a little bit. Here, if you are in this zone, then you're in a front yard, but if you don't go past here, you're not in a front yard; in other words, this constitutes your front yard off of 48. This can come back slightly. MR. BENINATI: If I come with my car this way and I want to swing in -- BOARD MEMBER WEISMAN: So you'll need a turning radius. MR. BENINATI: Right. BOARD MEMBER WEISMAN: So you're going to come through this alley of trees as sort of just unpaved -- . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 31 1 9 MR. BENINATI: Grass. BOARD MEMBER WEISMAN: You're going to come in on grass, you just have a little fence here if I recall. MS. BENINATI: Let me just ask you, what would we accomplish by scooting back? We still have to be pretty close to the side yard. BOARD MEMBER WEISMAN: You do. But see how it's slightly tapered here, if you came back you'd increase that slightly, so you'd probably wind up with instead of a five foot, you'd probably have a seven foot. MR. BENINATI: We thought of that. I'll tell you what the argument was, is that when you look from the driveway and instead of seeing the building, you would see trees, and then just one of the garage, instead you would look at the whole garage. Also here, there is a huge, huge tree that we don't want to cut. If we move this way, then we're going to have to cut the tree, that is another issue. BOARD MEMBER WEISMAN: This is information that's very important for us to understand. It's not in the application. So issues like ingress and egress become -- MR. BENINATI: You see where the tree, the branch -- BOARD MEMBER WEISMAN: We see, sure. The thing I'm concerned about now is that in order to make a judgment, I would really like to have your final architectural plans; in other words, exactly what percentage of increased dormer coverage you would be requesting; is it that design or this design? MR. BENINATI: Most likely -- BOARD MEMBER WEISMAN: Because this looks like a two-story house. MR. BENINATI: Actually the steeper roof, and the greater number of peaks is more appropriate to Victorian. BOARD MEMBER WEISMAN: I understand. But what we really need is a recalculation because we can't grant you a variance for one set of conditions -- well, your design shifts. So how do we handle that? I'm done with the questions. BOARD MEMBER GOEHRINGER: There's never an anticipation of turning this building around and having the side of the building facing the road? 2 . 3 4 5 6 7 8 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 32 1 5 MR. BENINATI: It could present that way but we need to cut down this huge, huge tree. We thought of that too. But it's still going to be five feet, seven feet -- five feet away in terms from me to come from my driveway and swing around. I have to put the building as far back away from the yews. BOARD MEMBER GOEHRINGER: Are those yews on your property? MR. BENINATI: Part of it, some of them mine, some of my neighbor. BOARD MEMBER WEISMAN: Given the circumstances that I now understand in terms of turning radius and access from two directions because of the clearance of the undercarriage of your antique cars, I think it's a very logical location. A five foot side yard is very tough, I have to say, for a building that size. And I also have the same concerns Mr. Goehringer has for runoff. MR. BENINATI: Runoff, we'll take care of 2 . 3 4 6 7 8 9 10 11 12 it. 23 BOARD MEMBER WEISMAN: The more peaks you have, the more steep they are, the more runoff you're going to have. That would have to be a condition. MR. BENINATI: I have no issues. We can do dry wells. BOARD MEMBER WEISMAN: My concern is, and I'll reiterate and stop, is just making sure that we're making decisions for the application before us, and right now we would have to decide on this. If you don't want this to be your final design. MR. BENINATI: You can decide on that, just so you know it's not a two-family home and upstairs is going to be basically storage. BOARD MEMBER WEISMAN: You may need to increase the downstairs height in order for your lift. MR. BENINATI: Definitely, we need to go to 12 feet, upstairs. I don't care if it's seven, eight, nine, we need that height to be somewhat SYmmetric with the house that we have. BOARD MEMBER WEISMAN: It's for the scale of the property more than for the actual interior. MR. BENINATI: Right. BOARD MEMBER GOEHRINGER: The last question I have, the purpose of the lifts are 13 . 14 15 16 17 18 19 20 21 22 24 . 25 March 29, 2007 33 1 9 what, to work on the cars? MR. BENINATI: No, to store, three cars on the top and three on the bottom. BOARD MEMBER WEISMAN: You do have a lot of toys. BOARD MEMBER GOEHRINGER: Similar to what you would see in the city in a parking garage. MR. BENINATI: Exactly. Four posts, one on top and one on the bottom. BOARD MEMBER WEISMAN: Actually, I have one last question. I was born and raised in Detroit in my next life time, I'm coming back as an environmentally responsible automotive engineer. Can I come see them? MR. BENINATI: One of them is stored right here, you can walk there. CHAIRMAN DINIZIO: Michael? BOARD MEMBER SIMON: I have a couple of questions. First of all, I realize we have this design picture and I'm not quite sure, I'm following up the question on the lift. Now, if these are just simply a lift for storing cars, does that mean there will be no second floor? MR. BENINATI: Yes. BOARD MEMBER SIMON: How are we going to get it from the lift to the second floor? MR. BENINATI: Assuming this is the first floor of the garage, there's a four-post lift, one car will be there, and one car will be this high, and one car will be parked underneath. BOARD MEMBER SIMON: And the cars will not be worked on when they're on the lift? MR. BENINATI: Of course not, for storage 2 . 3 4 5 6 7 8 10 11 12 13 . 14 15 16 17 18 only. 19 BOARD MEMBER SIMON: And the second floor will be used for storage? So the actual second floor 20 21 MR. BENINATI: Empty. BOARD MEMBER SIMON: Will be empty and has nothing to do with the car operation. MR. BENINATI: I can store tires. BOARD MEMBER WEISMAN: And there's a stairway I presume? MR. BENINATI: A little stairway. BOARD MEMBER SIMON: Couple questions that I have is that first of all, come up with a novel concept which I think should not go unrecognized is while it's certainly a concern that there be 22 23 24 . 25 March 29, 2007 34 1 5 harmony on the lot between various buildings, that seems to be running contrary to the part of the code that indicates that accessory buildings should not be as high as principal structures. So you have a very tall principal structure. So one of the arguments for asking for a height variance on the accessory building is to make it more like the principal structure, which is an argument that I haven't heard before, maybe people who have been on the Board longer than I have -- so whether this becomes a route by which people can justify building their accessory structures as tall as the principal structures for the sake of aesthetic and architectural harmony. So that may be a question as to whether we want to go down that route. And of course, the reason for it as far as the height is practical it has to do with the requirements of a lift for doing this. But there's another problem, and that has to do with the future use of the property. I don't think I'm disclosing anything but you did indicate to me that you ultimately would be expecting to move to the house, where we would consider granting a variance down in Cedar Beach, and if this house is sold as you indicated, it might be here we would have this very impressive, very appropriate secondary -- this accessory structure for a very wonderful interesting purpose and presumably you wouldn't be limiting the potential buyers to people who are also collectors of toys and who would be needing a lift. So it kind of weakens the strength as I see it of the argument that of saying because we have these particular needs, this is why we need a height variance. And one other point, this is an aesthetic point, I admire the main house enormously and I also like this design, but one thing as far as consistency is concerned, it strikes me at least as far as these drawings are concerned that the principal structure has gently sloping roofs whereas the dormers on the accessory structure will be a great deal steeper, so they're not going to be entirely consistent with that. There's no objection to that but it does seem to weaken the argument for aesthetic harmony. MR. BENINATI: Mr. Simon, I'd like to answer that question, the plans that I submitted, they were done by an architect which never saw my house originally. I talked to her on the phone. 2 . 3 4 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 35 1 5 She's a wonderful architect. She's working on my house on Cedar Beach. I think she's doing a fantastic job. I was telling the architect, I'm planning to build a garage for my property, I need to submit plans. She was very busy and after many phone calls, she said, let me give you something, and she sent that. And I had to submit it. She never even knew what the house looked like, number one. Number two, as soon as I saw that I knew that that's not what we were going to do in the house. 2 . 3 4 6 7 8 BOARD MEMBER SIMON: Okay, so you're sensitive to my problem. MR. BENINATI: Right. But I tried to keep the plan going. Answering your question about us moving into Cedar Beach, the house that we presented to the Board previously, as I mentioned to you, the permits are with the DEC, and as you can teach me, DEC we might not see that house developed in our lifetime, number one. Number two, selling the house on Peconic Lane, that's a pipe dream because I don't know if you noticed what's next door to my house, and I called the South Bronx, and I don't think that house is sellable until something happens that the town should do about our next door neighbor so we might be in Peconic Lane for the long haul. I might be selling Cedar Beach before I sell Peconic Lane because economics and because timing. BOARD MEMBER SIMON: These are responsible answers and I appreciate them. And one would hope, I'm echoing Leslie here, that we have some idea what the architectural plan or the accessory building would look like when the architect has some time to create something. MR. BENINATI: I can get them done by somebody else in a week, I hope. BOARD MEMBER SIMON: Okay, I have no other questions. CHAIRMAN DINIZIO: Ruth? BOARD MEMBER OLIVA: I think most of the things have been gone over about ten times, but I would appreciate the new architectural drawing of the garage so that we have something in the file for that. MR. BENINATI: Okay, I will do so. BOARD MEMBER OLIVA: Otherwise it's a beautiful piece of property. 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 36 1 9 MR. BENINATI: Okay, what I need to know from the Board if you can answer that, assuming I get these plans that shows you what the ultimate garage is going to look like, the set that we talked about is still something, should I planning on moving, because I don't want to present this plan and then delay another month or so. CHAIRMAN DINIZIO: Ruth, are you done? BOARD MEMBER OLIVA: Well, the five foot. BOARD MEMBER SIMON: We didn't debate on that question yet. CHAIRMAN DINIZIO: I can probably give you an answer to that all now. When I looked at the application quite honestly, not many questions were answered by what was in the file. You're asking for a five foot setback when our code asks for 25, that's an 80 percent variance on the first application that we have with respect to this new law, we're going to grant an 80 percent variance on a law that's not even a month old yet, I don't know about that. MR. BENINATI: Mr. Dinizio, as you can see this application was written before the law was changed, and there was a little dispute there between the Building Department and the ZBA, which of course I went with the ZBA even though I was suggested that it was not the right route, but I understand. CHAIRMAN DINIZIO: I hope you appreciate 2 . 3 4 5 6 7 8 10 11 12 13 . 14 15 16 that. 17 MR. BENINATI: I do appreciate that very much. 21 CHAIRMAN DINIZIO: And we have to corne to some kind of grips with that. MR. BENINATI: I do. It's just that I'm trying to present something which blends in with the property, blends in with the house and blends in with the neighborhood. It's only a garage and again from Mr. Simon saying that the precedent with the lifts with someone else, I would just need 13 feet, because I don't care about the upstairs to be very honest with you. But if I put 13 feet next to a 45, 50 foot building as we talked about, it's not going to look nice especially looking from the road, it's not going to look nice at all. MS. BENINATI: May I say something, Jim? Also, when you're saying an 80 foot variance, 18 19 20 22 23 24 . 25 March 29, 2007 37 1 9 that's based on the fact that it's two acres, but the width of the property and where the garage logically goes, it's really not two acres that you're looking at, so I think you should take that into consideration. I know you made a statement with another person who was applying that you really have to look at the particular property and what makes sense and where it can go. It's when you're looking at the front of the house, it's very narrow, I think it's only 80 feet across if it's that. So it would be kind of absurd to try to put it in the middle of the yard. It doesn't work anywhere else. We're not doing it because, gee, we really like it there. It doesn't work anywhere else. BOARD MEMBER GOEHRINGER: I would like you to consider turning that building around because then you would have a greater setback from the property line. MS. BENINATI: But how would you get to the bay, then you would be looking at the side of the building from the road. BOARD MEMBER GOEHRINGER: But you can make the side of the building as pretty and as gingerbread-ish as possible. MS. BENINATI: How would you get to the 2 . 3 4 5 6 7 8 10 11 12 13 . 14 15 bay? 17 BOARD MEMBER GOEHRINGER: You would have to come in like this and go around. MS. BENINATI: You would have to go into the garden; is that what you're saying? MR. BENINATI: Drive against the yews and turn around into our back yard. MS. BENINATI: So basically you're putting the garage in the garden, it doesn't work, that's the problem, no matter what you try to do. CHAIRMAN DINIZIO: Honestly, that's why we're here, we look at the application, I do personally, and then I get my questions and I can ask them. The setback thing, that is a huge problem with this new law. I mean, if we're going to start off granting an 80 plus percent variance, where do you go from there. I understand you've been in the pipeline for a few months. I'm kind of familiar with the discussions you had with the Building Inspector. But quite honestly, if you move this back 30 feet, you wouldn't need the variance 16 18 19 20 21 22 23 24 . 25 March 29, 2007 38 1 2 MS. BENINATI: It would be in the front . yard. 7 CHAIRMAN DINIZIO: But front yard that's 180 feet away from the road. MS. BENINATI: But do you realize how far you would have to walk from the garage to the house? I really do think that there isn't any other place we could really put this garage. Unfortunately, you do have the setback and the concerns but the fact of the matter is we really don't have a rectangular two acre lot. We have an L-shaped lot. And a very narrow piece of it where the house is and a garden and a pool and the only place you can really put that garage and the other fact is that all the other garages, all of our neighbors are right on the property line. Every neighbor that's close to us, the neighbor that this would be closest to, his garage is right on our property line. CHAIRMAN DINIZIO: It has existed there for a number of years? MS. BENINATI: Yes, exactly, but it's consistent with what the neighborhood is like. It is a hamlet area. It is a little town. Actually our property is zoned RO, it's not agricultural, it's not AC. I think that you should consider that as well. We're right in the middle of town. We're not in a more suburban area with different setbacks. CHAIRMAN DINIZIO: I have one more glaring question, that is the dormer exceeds 40 percent. We need to have that defined. Quite honestly, the Building Inspector, if he's going to deny you for that basically he should be telling us what percentage it is over the code. I realize this is a new application to the new law, what do we grant, 100 percent variance? Do we say, well, 40 percent but you're going to go 60 percent, we don't know. And certainly we don't know because if it's not what you submitted to us, which to me looks like a 100 percent variance, in other words, you're going to have a dormer that goes all the way across that building; can you confirm that for me, the dormer you were turned down for? MR. BENINATI: I'm going to have the architect draw new plans. It's not going to be 100 percent. CHAIRMAN DINIZIO: When you have him do 3 4 5 6 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 39 1 2 that, can you have him calculate the percentage? MR. BENINATI: Of course, for the . 3 dormers. 9 CHAIRMAN DINIZIO: We would benefit greatly from that. So, anybody else have any questions? BOARD SECY. KOWALSKI: There was a question Mr. Beninati had quite a while ago, whether he should have different setbacks on the plan. Procedurally, if you want to give an alternative location, if you want to make it 60, 70, if you want to give a couple of different diagrams that you feel you could live with, we would recommend it. It would save you time. MR. BENINATI: It doesn't save much, architects charge by the minute. BOARD SECY. KOWALSKI: You don't need to have the architect draw it in. MR. BENINATI: I will. Okay. BOARD SECY. KOWALSKI: Also just the driveway, I notice that the driveway into the garage area, if you could show how you get access into the garage that turning angle. BOARD MEMBER GOEHRINGER: I think I need to have an appointment with you on Saturday morning if at all available. MR. BENINATI: Has to be Saturday morning? I'm in real estate. Okay, 7:30 coffee. BOARD MEMBER GOEHRINGER: Okay, can I ask we make it about 8:00, 8:l5? CHAIRMAN DINIZIO: Anybody in the audience have anything to say about this application? All right, motion to leave this hearing open until April 6th at 10:30. (See minutes for resolution.) 4 5 6 7 8 10 11 12 13 . 14 15 16 17 18 19 23 CHAIRMAN DINIZIO: Next hearing is for Nancy Boris. BOARD MEMBER GOEHRINGER: I'll read the notice of disapproval into the record. This is a request for a variance under Section 280-124 based on the Building Inspector's October 24, 2006 notice of disapproval concerning an application for a building permit for an addition to the dwelling at less than 35 feet from the front yard lot line and with lot coverage exceeding the code limitation of 20 percent. Location is 335 Pierce Drive and private right-of-way in Cutchogue. 20 21 22 24 . 25 March 29, 2007 40 1 5 Good morning. Let me summarize a couple of things. Your property fronts on pierce and on a 25 foot wide paper road, undeveloped right of way. You state in your application it's to the south, but your survey shows north at a diagonal, it sort of looks southeast. MS. BORIS: Yes. BOARD MEMBER WEISMAN: And what you're proposing to do is to create a one-story 16 by 14 foot, three-season room on the back of your house. Your existing front yard setback on the right of way, that's why it's a front yard instead of a side yard -- MS. BORIS: Exactly. BOARD MEMBER WEISMAN: is four foot seven inches, and you are proposing an addition at six foot six inches; is that correct? MS. BORIS: Yes. BOARD MEMBER WEISMAN: You'll be adding two walls and a roof over an existing patio that the new deck is going to be going on to, correct? MS. BORIS: Yes. BOARD MEMBER WEISMAN: What I want to ask you is that your property is about 5,750 square feet; that's just about an eighth of an acre, 0.132 acres. I have a question about lot coverage because the notice of disapproval says on the Building Inspector's handwritten disapproval on this survey says 21.6 percent, the survey dated September 17, 2004 four that was presented on January 21, 2007 to the ZBA calculates the lot coverage with the new addition at 21.77 percent. Your application says -- MS. BORIS: Which I did by hand. BOARD MEMBER WEISMAN: -- says the increased lot coverage is going to be 23 percent. So my first question is what is your proposed lot coverage? MS. BORIS: I'm going to go with the surveyor. I sat with a pencil and I guess I shouldn't have. BOARD MEMBER WEISMAN: It looks like the Building Department did that as well. So you're going to say and that seems like a reasonable thing to say that this survey dated September 17, 2004, received by the ZBA on January 29th, which stipulates the percentage of lot coverage of this structure to include the proposed three-season 2 . 3 4 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 41 1 . 3 room is 21.77 percent? MS. BORIS: Yes. BOARD MEMBER WEISMAN: That clears 'that up. My next question: will this be an unheated space? 2 4 5 MS. BORIS: Yes. BOARD MEMBER WEISMAN: You'll have electric in it? MS. BORIS: Yes. BOARD MEMBER WEISMAN: Will it be insulated? MS. BORIS: That's a good question. I don't have an answer to that because we didn't get into plans. We were going to get into Penny Lumber to get the fellas to give us some suggestions. BOARD MEMBER WEISMAN: Well, if it's not heated, it's not that I have an issue with it being insulated, I just want to get a sense of the the extent that you want to finish. MS. BORIS: Well, the interior two walls, the inside is going to be finished to look finished, we're not going to leave it looking like stud. 6 7 8 9 10 11 12 13 . 14 BOARD MEMBER WEISMAN: Sure, and those two will be insulated anyway, those two walls. It's just for the record so we make sure we understand what you're proposing fully to do. BOARD MEMBER WEISMAN: Let's see, one lot to the north I guess is your neighbor's, they would be to the northwest, it's a sort of wooded area. 15 16 17 24 MS. BORIS: Yes. BOARD MEMBER WEISMAN: The only real visual impact would probably be on the side where the paper road is. MS. BORIS: Exactly, no one else is really going to see it. And it's an area right now that the patio and the backdoor opens up there to a stoop. So we're just squaring it off. Started out as a deck and it grew to this. BOARD MEMBER WEISMAN: Well, it will provide you with a nice view of the water diagonally. I have noticed that the lot sizes and house sizes along pierce vary substantially. Your house was built on 48 on two small lots totaling 50 by 115, so it's narrow and long? MS. BORIS: Yes. Obviously when it was 18 19 20 21 22 23 . 25 March 29, 2007 42 1 5 built they did it based on what they could do then, and there isn't much space. But at the time my grandfather owned those lots and he also owned the lots that were on the water, so where the paper road was all part of the family compound. BOARD MEMBER WEISMAN: Have you spoken to your neighbor? MS. BORIS: Yes, with them on the phone. have talked about this. far as I know. the Fosters, yes, I spoke They got the letter. We They think it's fine as 2 . 3 4 6 7 9 BOARD MEMBER WEISMAN: You assume there is no objection from them because we don't have anything in the record from any neighbor. MS. BORIS: Right. No, I just spoke to her when we sent the letters out because I wanted her to look for it. BOARD MEMBER WEISMAN: Well, you don't exceed the lot coverage, so it's really just that front yard setback along that -- it's really the neighbor's driveway. BOARD MEMBER SIMON: one and a half percent. BOARD MEMBER WEISMAN: Right. The one and a half percent increase in lot coverage and front yard setback that would essentially keep what you have got and be a little bit less. MS. BORIS: Exactly. BOARD MEMBER WEISMAN: Okay, I don't have any further questions. CHAIRMAN DINIZIO: Michael? BOARD MEMBER SIMON: Yes, I'm curious about this paper road. I mean, I'd like it if you would explain a little bit about the history. Am I right that this so-called paper road has trees running right in the middle of it? MS. BORIS: Yes. BOARD MEMBER SIMON: It's hard for it to know it's a road unless you read it on the piece of paper. I mean, we have paper roads which need the brush cleared to be usable. Can you tell us about the history of that? MS. BORIS: Why it's there? BOARD MEMBER SIMON: Why is there a paper road at all. MS. BORIS: The lot coverage is 8 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 the water run from and back then they Because the lots that the water to the paper were all 25 foot lots. are on road, So if March 29, 2007 43 1 2 you sold off the two inside lots it would have been no access to it. BOARD MEMBER SIMON: Was that supposed to be a way to get to the westernmost lots by the water? . 3 4 5 MS. BORIS: Yes. And that's what it's used for now. My neighbors who own the four lots on the water, part of their driveway comes out over that paper road. BOARD MEMBER SIMON: But if they're going from Pierce they can only walk that paper road right now. How do they drive? MS. BORIS: Their driveway is half on their property and half on the paper road. BOARD MEMBER SIMON: But not the part of the paper road that abuts your house because you can't drive on that? MS. BORIS: Right, it's all wooded. BOARD MEMBER SIMON: I have no further questions. CHAIRMAN DINIZIO: Ruth? BOARD MEMBER OLIVA: No, no questions. CHAIRMAN DINIZIO: Jerry? BOARD MEMBER GOEHRINGER: No questions. CHAIRMAN DINIZIO: And I have no questions. BOARD SECY. KOWALSKI: If I could ask for one little item, an affidavit of signed postings. MS. BORIS: Right here. CHAIRMAN DINIZIO: Is there anyone in the audience that wishes to comment? So we'll entertain a motion to close the hearing pending a decision on the 19th of April. We'll meet on the 19th of April over at the bank building upstairs, you're welcome to come. We'll take no testimony but we'll be discussing your case and we'll vote on it. MS. BORIS: Okay, then you will notice 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 me. 23 CHAIRMAN DINIZIO: You can call the day after and Linda will let you know. (See minutes for resolution.) 22 24 CHAIRMAN DINIZIO: Next hearing is for Thomas Ryzuk. And Jerry that's your hearing. BOARD MEMBER GOEHRINGER: Yes, this is a request for a variance under Section 280-124 based . 25 March 29, 2007 44 1 . 3 on the Building Inspector's January 19, 2007 notice of disapproval concerning a proposed new dwelling, after demolition of the existing structure. The dwelling is proposed at less than 15 feet on a single side yard and less than a total of 35 feet combined side yards setback. At 790 North Sea Drive in Southold. MS. DROZOWSKI: Good morning, I'm Agnes Drozowski, I'm representing Mr. and Mrs. Ryzuk. Existing there is a one-story house surrounded by exterior decking on the side. It's set back about 190 feet from the front face of the decking from the street side. The existing house sits on concrete foundation wall, which is in need of repair. Needless to say our client has come to us, to our office and asked us to design a new dwelling. We had proposed a two-story structure, which conflicts one side yard setback at the moment as is shown on the site survey. It is the westerly side of the property. It comes into the nonconforming site of about one foot nine, if I'm not mistaken, which decreases the 15 foot allowable setback on that side of the property to 13 foot three inches plus/minus, give or take a little bit. And we are here in front of you to request a variance. BOARD MEMBER GOEHRINGER: Aggie, why can't you push it over a little bit more because the wires? 2 4 5 6 7 8 9 10 11 12 13 . 14 15 16 18 MS. DROZOWSKI: If we push it over to the easterly side of the property it's going to not be conforming with that side. We have conforms with the 20 foot setback on the east side and it ended up pushing the house over to the right a little bit, which now creates a nonconformance. BOARD MEMBER GOEHRINGER: Okay. This octagon, this five-sided portion of where it says two-story house, is that a turret or is it an outside deck? MS. DROZOWSKI: It's actually a habitable space. It's two master suites basically, the first floor master suite and the second floor master suite, follows right above it. BOARD MEMBER GOEHRINGER: Thank you. CHAIRMAN DINIZIO: Anything else? BOARD MEMBER GOEHRINGER: No. CHAIRMAN DINIZIO: Leslie? BOARD MEMBER WEISMAN: The corner piece is 17 19 20 21 22 23 24 . 25 March 29, 2007 45 1 2 also a stairwell that's lit by a cupola at the top. . 5 MS. DROZOWSKI: It's a BOARD MEMBER WEISMAN: MS. DROZOWSKI: There It's purely -- BOARD MEMBER WEISMAN: It's a light well? MS. DROZOWSKI: It's a light well above a staircase. To draw you through the journey upward. What else? BOARD MEMBER WEISMAN: Am I right it's a clear story. There is no floor? is no access to it. 3 4 6 7 8 37'8" inch? MS. DROZOWSKI: 34'9" actually to the mean of the 9 BOARD MEMBER WEISMAN: -- to the median? MS. DROZOWSKI: Yes, to the clear story. BOARD MEMBER WEISMAN: One of those situations again where you're building on sand and it goes up and up and up and what looks like two stories becomes three stories before you know it in visual impact. MS. DROZOWSKI: Yes. The fortunate thing though I think for everybody's sake and piece of mind, the house is located within an AE flood zone. We can't ever possibly make anything other than above the flood elevation, which is 11, habitable, so it's like that kind of. I hope that kind of puts an ease to everybody's mind. BOARD MEMBER WEISMAN: It's simply as I go up and down North Sea on the other side of Kenny's these really out-of-scale structures are being built everywhere. MS. DROZOWSKI: Yes, that happens is then you have to go up on pilings if that's the case it creates a taller structure. BOARD MEMBER WEISMAN: Yes, up so much so that the elevator is needed. MS. DROZOWSKI: Well, that's a necessity these days. We have been noticing that more and more. 10 11 12 13 . 14 15 16 17 18 19 20 21 23 BOARD MEMBER WEISMAN: Yes, well, the good news is in this situation is that at least the setback situation from the road is enough that unlike so many other structures that are smack in your face. MS. DROZOWSKI: Very much so. The house is set back so far in fact, where even the houses in front of it as they will fit are still in front 22 24 . 25 March 29, 2007 46 1 2 of it. . 3 BOARD MEMBER WEISMAN: It's nice you're not going to be casting shadows. MS. DROZOWSKI: We're not going to be casting shadows on anyone. It's a nice site to have. 4 5 BOARD MEMBER WEISMAN: live around the corner. Okay. questions. CHAIRMAN DINIZIO: Michael? BOARD MEMBER SIMON: Yes, I don't have concerns for the height and I understand that that's an accommodation to the sand and other issues, but I am going to raise my general question, which is given that this house is essentially being started from scratch, being a demo and the code is such that you are called upon to design something with certain setbacks, the setback of the pre-existing house really has no bearing on that, what I think we need to hear is some reason why it was impossible given the ample room both in the front and the back to extend beyond the code set side setback. MS. DROZOWSKI: When we originally started the design of the home, we had a wish list from the owner of the property. When we started designing very little concern goes into the size per se at the very beginning, when we start the preliminary set of plans. At completion of our preliminary site plans, we realized that we were in conflict with the setback. We sat down with the owner and we explained to them that the size of the rooms are what they are and we actually still made compromises to make them smaller per se because mainly I guess of the vast care area in the middle of the core of the home. The decision was then made to come in front of the Board to see if at all possible to ask for that little square footage of the 18 square feet of a variance, and not make any more compromise within the square footage of the home. So in essence is it a lifestyle we're asking for in a little way, maybe, we just felt if it was worthwhile to come in front of you and see if it was, it's something that could be -- BOARD MEMBER SIMON: Well, there's no question that it's appropriate that you be coming before us. It's just that one of the things that I know it well. I I have no further 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 47 1 5 you also indicated -- you said it yourself -- is that in the time of working with the client and drawing the design is conforming to the existing legal setback is simply not a high priority item. Only as an afterthought you said, oh, I guess if we thought about this, if we took it more seriously at the outset, we might have come up with a different kind of design. Now, the variances are that because of other conditions, it's not reasonable to do it any other way. In fact, that's always one of the questions, as you know that's in the code that we're supposed to consider is was there another way of doing it because clearly this is a self-created difficulty. It could have been avoided so that's something that I think we would want to address and inviting you to give as much as you can to help us decide if you can give anything further to help us decide. 2 . 3 4 6 7 8 9 10 11 12 MS. DROZOWSKI: If I may, in fact, in reality as everyone knows, we have done it, and a lot of people do it, we could have used the existing footprint of the existing home and actually used some of that existing square footage lot coverage that's very nonconforming. And I know it really doesn't have a relevance to what we're proposing, but in reality we could have taken that bulk of the house that we have now created, which is the proposed new dwelling, and situated within the same footprint and still be in front of you asking for a much greater nonconformance. So in the back of our minds it does make that a part of the application to an extent due to its existing nonconformance. And I hope it's making a lot of sense. I've gone through it in my mind so many times and we would have, but we said it's so nonconforming, let's shift the house, let's take it, let's start from scratch and it so happened that unfortunately, yes, we did go beyond a little bit with the octagon tower and that is self-created, I agree with that 100 percent, but it's something that we would like to see if at all possible to get approved based on the design that we have in front of you. BOARD MEMBER SIMON: I have no further questions. CHAIRMAN DINIZIO: Ruth? 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 48 1 2 BOARD MEMBER OLIVA: No, I think they have covered everything. CHAIRMAN DINIZIO: And I have no questions. Anybody in the audience who would like to comment on this for or against? Are you finished with your presentation? MS. DROZOWSKI: I'm finished. CHAIRMAN DINIZIO: I'll entertain a motion to close this hearing until we make a decision on April 19th. (See minutes for resolution.) . 3 4 5 6 7 8 CHAIRMAN DINIZIO: Next hearing is for Pericles Notias. This is you again, Jerry. BOARD MEMBER GOEHRINGER: Request for a variance under Section 100-30A.3 (280-18), based on the Building Inspector's March 30, 2005 notice of disapproval concerning an as-built dwelling exceeding the code limitation of two and a half stories at 675 Summit Drive, Mattituck. BOARD MEMBER GOEHRINGER: How are you today, sir? MR. GOGGINS: Good. I'll put my appearance on the record. William Goggins with the Law Firm of Goggins and Palumbo, 13105 Main Road, Mattituck. I'm doing good, Jerry, how are you? BOARD MEMBER GOEHRINGER: Good, thank you. Of all the applications we have had before us I find this one somewhat baffling in reference to the Building Inspector's determination, and I'll tell you the reason why. There's a huge change of elevation between where the actual pool deck and porch, that magnificent porch area, and the lowest portion of the lowest floor of this house, which is of course the garage floor. It's my understanding there's about an 18 foot difference between those two elevations. I stood, and don't live terribly far from here, and watched cement truck after cement truck putting probably one of the most expensive foundations I have ever seen while this house was being constructed and the retaining walls that exist primarily on the east side. There is no doubt that there is room downstairs adjacent to the garage, but the actual house itself sits on that pedestal of evenness where that actual flagstone deck area is and that really is the first floor of the house. So I have 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 49 1 2 to tell you that my normal questions in reference to three stories are pretty much out the window. I really can't see it based upon this. It's built into the hill, and that was really the only way it could be constructed. As you know, this piece of property has been for sale for many, many, many, many, years. It took probably 20 years to get the right person to even attempt to make this construction. I don't even want to think of what that foundation cost. I was with a gentleman in Florida recently at the Outback Steakhouse and he told me he just finished a foundation in Pennsylvania County in North Carolina that cost $318,000. That was the foundation, and I don't think Perry paid anywhere near that for this foundation, but I got to tell you just seeing those truck loads of cement coming up there and struggling that hill. There's no doubt that he has a wonderful water view, I have not been in this house, but I'm speechless on this one. I don't know what to say other than the fact that I know how difficult it was to build on this, and I'll leave it at that. I reserve the right to ask any other questions. CHAIRMAN DINIZIO: Leslie? BOARD MEMBER WEISMAN: Can you -- it would appear that the height from the lowest grade to the ridge is 45'5". Can you tell me what the lot coverage is? I don't see it on the survey. MR. GOGGINS: I think we submitted the document in conjunction. I didn't bring that. BOARD MEMBER WEISMAN: Let me see if it's on the application, 27.39 percent. I am getting that off the applicant's project description right here. It says the lot coverage is 27.39 percent. BOARD SECY. KOWALSKI: That might be the DEC's lot coverage calculation because they need BOARD MEMBER WEISMAN: Well, okay, it just says percentage of coverage of your lot by building area is 27.39 percent. BOARD SECY. KOWALSKI: The DEC includes driveways and sidewalks. Other areas that Southold doesn't. BOARD MEMBER GOEHRINGER: It would have to be that entire area around the pool too. BOARD MEMBER WEISMAN: I would think so. . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 50 1 2 BOARD MEMBER SIMON: I think we need to see some numbers, we need something more quantitative. BOARD SECY. KOWALSKI: That's the figure the applicant gave, but we don't know how they came to that. BOARD MEMBER WEISMAN: That's why I was questioning. BOARD MEMBER SIMON: It certainly was not in the applicant's best interest to put in that high percentage without further explanation, especially if there is further explanation. CHAIRMAN DINIZIO: I think the applicant can give us calculation based on the Southold town code. . 3 4 5 6 7 8 9 10 MR. GOGGINS: That's correct. And actually, I don't think this issue is before the Board. CHAIRMAN DINIZIO: No, it's not, but there's a question that certainly should be answered. MR. GOGGINS: Yes. And I don't know what the answer is other than I'm not a surveyor, I'm not an engineer. When I was asked for the calculations I went to the professional and they gave them to me. BOARD MEMBER GOEHRINGER: You could do this basically, the advantage of having these day hearings is go over to the Building Department and say does this exceed the lot coverage. CHAIRMAN DINIZIO: Well, he wasn't turned down for it. So I don't know that that -- BOARD SECY. KOWALSKI: I don't think they furnished the Building Department with percentages because they thought it probably meant 20 percent. MR. GOGGINS: Right, I don't know. BOARD MEMBER WEISMAN: I raise the question because this is such an unorthodox application to have a completely inhabited as-built structure that is that high obviously it varies from grade to grade, but in my mind, this is not a very straightforward situation. MR. GOGGINS: If I could address that? BOARD MEMBER WEISMAN: Yes. I mean, I wonder why it didn't get some sort of disapproval to begin with before it was built. MR. GOGGINS: We feel that that isn't really an aberrant situation. I'm going to go 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 51 1 2 through these (handing) one at a time to show that this isn't really an aberrant situation. Property Number 1 on the left -- let me back up. I have a couple pages, they are a list of properties by tax map number, name and address and then I've got Section 106 of the Suffolk County Tax Map, as well as Section 99 of the Suffolk County Tax Map. What I did was I put a relationship between the numbers of locations of properties and put those numbers on the tax map and will relate them. Then the photographs, on the back are numbers. So Number 1 is the applicant's property, photograph Number 1 is a picture of the applicant's house, and Number 1 is Section 106, which is the location of the house. I have also highlighted in yellow where all these houses are. So this is the applicant's. You go to Number 2, actually this house is directly north of the applicant's house, and this shows the same situation, is the cellar with the sliding glass door and certainly all above grade, the first floor and the second floor there too. You go to Number 3, this property is on Suffolk Drive, it goes along the beach. This one shows a two-car garage on the base level, then that's the first story, then second story's above that. If you look at this one, there are three sides that have no grading on it. So 75 percent of this house is not under grade and this thing was built according to the assessor's code in 1985. Go on to Number 5, which is under construction right now. That shows the same thing, two-car garage and what appears to be the cellar floor and first floor and second floor. If you look at this this would be the north side, and the east and west side, there's no grading at all. So I guess they're going to backfill it, who knows, and I think that's what happened with the applicant's property. They put the foundation, they went to backfill it, and they didn't backfill it enough to comply with the code. I think that's what happened. This is just down the road and it's exactly what we have with what the applicant has. . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 If you go to the next one, Number 6, you have 6A and 6B, 6A shows what appears to be a normal two-story house although 6B photo is kind of blurry, you can't really see it, but there's a garage on the side, and there's no grade around . 25 March 29, 2007 52 1 2 the foundation. The next one is Number 7, this is also on Summit Drive. It's tough to get photos all around these houses without trespassing, but I didn't trespass. This shows the same thing, we have a two-car garage, the house is built on a hill and around the side, you can't really see obviously the deck and probably the whole basement on that side. . 3 4 5 6 7 Number 7, Number 8, this is almost across the road from the applicant's house, and on the front you have this enclosure. I drove up the driveway on 8B. That also shows a two-car garage and what appears to be the cellar level. Number 9, again, it shows the garage on the basement level, and again it's tough to tell from the pictures, but it just appears that the whole front of this house is not upgrade at all, there's no grade against it, and the east and west side also, there's really no grade. So this is about 75 percent of the basement is exposed. Next one is Number 10, it's on Central Drive also in the neighborhood. Same situation, two-car garage, the grade currently is not at 50 percent either. That's also in the neighborhood. Number 11, Michael and Karen Davidson, photograph 8A on the front the house is fine, normal house; then go to 8 -- llC, go around back and the whole back is exposed, there's a sliding glass door, it's obviously living space. I think that's what you looked at at the applicant's house; you see the front is, oh, gee, look at how huge this is. But the back of the house, you maybe don't notice it as much. MR. GOGGINS: Next one is Number 12, John Cleary, 1350 Central Drive. The same situation it's pretty obvious. Number 13, on Karen Stitman, I think this does meet the 50 percent rule, but it's tough to tell. Number 14, go off the road a little bit further. It's probably owned by Luck Miller, she's a nice woman, I know her. She had a building permit in 2003, if you look closely at this photograph you can see that all three sides of the basement are exposed. And I didn't want to go around either but we have three sides that are exposed not on the grade, and the Building Department gave a CO on this. Next one Number 15 I intentionally deleted; that was on Bayview 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 53 1 2 Drive. Number 16, Robert Buckingham, the reason he built the house on Bayview Drive, same thing, it's built on a pretty substantial hill. The next one Number 17 is 1956 Bayview Drive took this from a friend's house from her driveway. I'm not sure when this house was built, it looks like the siding was done probably in the '80s sometime. Moving on down the road, Number 18 the back of this house, definitely the whole back of this house is exposed. And the house next to this house is owned by the superintendent of Mattituck High School, this is the back of his house. So you can see 18 of the houses in that area, I'm sure I could have found more in that area. All these houses are part of the hamlet of Mattituck and the reason why I guess these photos are important it shows the topography of the area. It's a very hilly area. Almost all the houses have some sort of exposure, and it appears that sometimes the Building Department looked closely at it, sometimes they didn't. And I think what happens is when they build these foundations, there's a full expectation to bring the grade back to 50 percent and sometimes the contractors don't do that, and I think that's what also happened with Mr. Notias. I found a correspondence that was dated October 17, 2003 that was given to the Building Department stating that what they're going to do is make it comply with the 50 percent rule, and I don't think the contractor backfilled it as much as the contractor should have, and I'm not sure because of the severe grade after they put the foundation in or not, but that's what happened. So they don't have the more than 50 percent grade against the foundation as they should. Actually, instead of having less than 50 percent exposed, they have got 60.1 percent exposed as set forth in the plan that we submitted to your Board dated January 16, 2007, where Inspector Jeffrey T. Butler did the calculations. BOARD MEMBER GOEHRINGER: So 60.1 percent is covered? MR. GOGGINS: 60.1 percent is covered, which means that we're asking for an 8.3 percent variance. You saw the cost, you sawall the brickwork, Mr. Goehringer alluded to it before. I mean the cost to redo the decking, the entrance . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 54 1 2 around it with all the brick and the cement, the cost would just be prohibitive in addition to bringing the fill in and doing it. So, I don't know if the Board has any questions, but certainly, this is not abnormal in this neighborhood. CHAIRMAN DINIZIO: You got me totally confused about this, quite honestly, and it's not -- it has more to do with the notice of disapproval because I thought we were looking at a two and-a-half story house or a three-story house, you're discussing grading. MR. GOGGINS: Well, because that's what makes it a three story. It's more than 50 percent of the basement is exposed, then it's deemed a third story. BOARD MEMBER OLIVA: You're right. MR. GOGGINS: In order to keep it that way you'd have to put in a sprinkler system, according to New York state law. CHAIRMAN DINIZIO: Okay. But I don't think you're trying to avoid that. MR. GOGGINS: Of course not. CHAIRMAN DINIZIO: You're just trying to get approval or some remedy concerning grading. I mean, could you now. I mean, could you now, I guess, take dirt and pile up it up and at 8 point -- whatever it is -- 3 percent more and then go back to the Building Inspector and say, go back here, I meet the code? MR. GOGGINS: I'm sure we could and probably it's already been done, just throw some dirt against the foundation so you can't see it and we comply, and I'm sure the Building Department said no, you can't do that. But I don't know, I'm guessing it's a hypothetical question, but yeah, theoretically, yeah, throw some dirt against it, you don't see the actual cement and you're good. I mean, I think that goes against the spirit intended probably, but technically, yes, that's what you could do. I think the proper avenue is through a variance. CHAIRMAN DINIZIO: I mean, it's just my unfamiliarity with how this comes about. I'm just unfamiliar with that. MR. GOGGINS: Well, I think it happens every time you build a house on a hilly piece of property. . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 55 1 2 CHAIRMAN DINIZIO: Well, obviously it . doesn't. 3 MR. GOGGINS: Well, obviously the Building Department just doesn't enforce it or they look the other way if they see that there's a deviation in it and apparently this time they didn't. Because it was all these homes in that one area, I could probably go throughout Southold town and probably find another five hundred to six hundred houses like this. BOARD MEMBER OLIVA: I agree. MR. GOGGINS: And if I was able to go after everyone of them and measure them with an engineer, I would bet you 50 percent of them violate this 50 percent rule. CHAIRMAN DINIZIO: Okay. Now, where are we? Jerry, you asked the questions. Leslie? BOARD MEMBER WEISMAN: Yes, I have a question. In a couple instances here, like this Number 5 on Sound Beach, I believe that this property is within the flood zone, and deemed by law cannot be inhabited at the bottom level, and we have been receiving applications all around, which are again creating really visually three-story structures, as a consequence of being in the flood zone, and many of them are sprinklered because they do constitute three story. So of the examples provided, do you have any idea of how many of those are in the flood zone and how many are sprinkled? MR. GOGGINS: Only two are in the flood zone, they're Number 4 and Number 5. BOARD MEMBER WEISMAN: So all the others it's a grading issue primarily that makes them three stories? MR. GOGGINS: Yes. BOARD MEMBER WEISMAN: So, I think we're just going to really think this one through because I presume the house is not sprinkled? MR. GOGGINS: It is not. BOARD MEMBER WEISMAN: Okay, I'm done. CHAIRMAN DINIZIO: Michael? BOARD MEMBER SIMON: I think your fascinating narrative is very useful. One thing it does is it gives a very good answer, not a very pleasing answer, but a very good answer to the question I was going to ask in the first place: How did this happen? Where was the Building 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 56 1 2 Department? And what you have shown is it happens all the time. And it's not even direct speculation, but it's still speculation of whether it's a grading problem or problem of a failure to build or it's simply a matter that we have one thing happening after another. It's as though there are two worlds; one is the world of the code and the other one is the world of what happens on the ground, especially Captain Kidd. Now, as you are a lawyer and your argument depends on acting as if this is a common law regime rather than a code regime, in other words, the fact that something happened in the past that's contrary to the code is really not of prime importance, it's simply the fact that it happened and lots of people have been doing it, and we can guess as to why it was they were going to fill. One could also say that the problem was not the lack of filling, the problem was designing a house higher than it needed to be, and then with the hope or not caring whether it was going to be filled or not. I mean, I looked at this house pretty carefully just yesterday, and I looked around and saw it was made to look kind of two and a half stories on the road side, and then kind of like two and a half stories on the south side, but of course, they're different stories, and it's 13 steps and of course we notice that when you walk around the first floor, we want to know exactly what kind of rooms are they. They're all shutters, green blinds. So whether there are bedrooms there or whether it's the utility room, we don't know, and that might be relevant if we were concerned at all with the 50 percent rule with regard to what counts as a first floor and what doesn't count as the first floor, but your argument depends essentially on the fact that everyone is doing it. And this is no worse than the rest of them. And we, the Board, had a similar case, also on Sound Avenue I believe, very much like Number 5, although I don't think it's the same one, where the additional wild card -- not wild card but the additional factor of the proviso came in to justify doing something which I think we all were unanimously embarrassed about because we produced something, which regardless of what the technicalities were, looked awful. It shouldn't have been that high, and they went to us . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 57 1 2 for a variance because this is one that didn't get passed on by the Building Department, and we passed on it, and I was hearing people -- I happened to be the only one who dissented on it I believe, but maybe I was persuaded by everybody else and now, guess what, not only is it continuing to happen, but it happens all the time. Yes, something that we have to look hard at but it may be bigger than the Zoning Board; it really has to do with the frustration of how a town government deals with the code when it treats the code as it's a set of guidelines and the effect of this depends entirely on how many people deviate how far from what happened. And that was brought up before by Jim with regard to the new accessory code. If there's a new line in the code beginning in January and having to do with setbacks for accessory buildings. So he hit one where we're almost asked to give I think something like an 80 percent relief to the recently enacted setback. As Jim I think correctly pointed out, boy, that's sure sending a message of that particular code that was debated for a long time. So it's a big issue. Your client is no worse than everybody else's. But the argument is to a lawyer it's kind of embarrassing. MR. GOGGINS: Well, you know, you couched my argument that I'm not making it that way. I'm not saying that because everybody else is doing it, why can't we. What I'm saying is when somebody builds a house on a hill and they try to do it in conformity with the building plan and getting the right grading, that sometimes they make a mistake that when they put the foundation in, and the property has such a steep grade that they get the grading required to meet the 50 percent rule and I think that's happened here. The builder probably said the Building Department said yes, we see the property, we see the plans, go ahead and build it, then when they built it and went to regrade it, they didn't do it all the way for whatever reason, it wasn't that they looked around and said everybody else is doing it why can't we do it, that's not my argument. My argument -- BOARD MEMBER SIMON: I know, it's not your argument. We can only speculate upon as to motives whether somebody -- . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 58 1 2 MR. GOGGINS: It's not a motive. They made a mistake. The builder forgot -- didn't forget, the builders didn't regrade it as much. BOARD MEMBER SIMON: Do you have any evidence that the builder intended to regrade it and simply failed on that particular part of it? This is speculation. MR. GOGGINS: Yes, I do have evidence. There was a submission to the Building Department which I alluded to before. It was a fax transmission dated October 17, 2003, and I believe this one to the Building Department where they talked about what was going on with the property and what they needed to do and how to get it back to grade and that was the intention to do it, no question. So when they did it and the house was finished and the grading was done and all the landscaping and the brickwork and so forth, and the Building Department came and did an inspection they found that, you know, it violated the 50 percent rule, and they decided it was a three story. So the reason why we're coming here for a variance and again, it's not a huge variance, it's not an 80 percent like the other application that was heard today, it's an 8.3 percent variance. And you know, was it self-created? Well, not by the owner. The owner hired a contractor to build the house and comply with the New York state building code and the contractor didn't backfill it as much as the contractor should have. So, that's why you come to the Zoning Board for variances because there are aberrant situations that happen. Those photographs show other situations where this also happens. So I don't think it's uncommon that it happens especially where you have the topography that you have in Captain Kidd Estates where the slopes are pretty severe. I mean, I walked up that driveway. I actually was having a hard time walking down the driveway because it was so steep. BOARD MEMBER WEISMAN: Wait until the snow . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 hits. 23 during MR. GOGGINS: the winter it BOARD MEMBER the car up. MR. GOGGINS: BOARD MEMBER Thank God for that because will be a nightmare. OLIVA: I wouldn't even drive 24 . 25 I agree. It's very steep. SIMON: One more thing, we March 29, 2007 59 1 9 had a case two months ago in which the argument of honest mistake was raised, and we looked at it closely and asked for testimony and we were convinced, and I was realized that was one of a very, very few cases of a mistake which didn't somehow resound with the interests of the applicant. So somehow honest mistakes don't distribute both ways, they only distribute into the favor of the applicant and against the writing of the code. So it's very hard to take that -- we're not allowed and we shouldn't be talking about motives or intentions or what people thought. I guess we have to look at the facts as we see them. And if we have to say that in order to justify a variance we have to convince ourselves that it was an honest mistake, then I think we're kidding ourselves. BOARD MEMBER WEISMAN: Can I have a follow-up question? BOARD MEMBER SIMON: Yes, I'm done. BOARD MEMBER WEISMAN: I have one follow-up question. On site inspection I didn't observe nor do I see on photographs of the property any gutters or leaders, and it's an incredibly severe slope, which is causing all the problems. It's very full lot coverage based upon how it's graded and the retaining walls, so the runoff is going to be severe. MR. GOGGINS: There was a drain on the driveway. BOARD MEMBER WEISMAN: I noticed that a cattle drain. I know, right at the bottom that only has to do with the runoff on the driveway capturing that groundwater runoff. But I am a bit concerned about the lack of roof runoff control on the premises, and I simply want to bring it up for the record that that is a condition that although not cited in the notice of disapproval is something much like lot coverage, which is also not cited. It's of concern to me in any case. MR. GOGGINS: I understand. CHAIRMAN DINIZIO: Okay, Ruth. BOARD MEMBER OLIVA: No. I went all around it and I saw the other properties too and the difficulty in building anything -- I don't know how the contractors got some of the tough stuff up there frankly. I don't like the idea of a third story, but what's there is there. You 2 . 3 4 5 6 7 8 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 60 1 2 couldn't come back there and cover that. It would wash away. And they're all like that up there. Not that one's better than the other or worse than the other, but they all are, some of them are 50 foot high with retaining walls that have fallen on the side and had to be replaced because the other next door neighbor was lower, whose fault -- CHAIRMAN DINIZIO: Do you know when this house was built? MR. GOGGINS: No. Recently. I think it was around 2003 but I could find out. BOARD SECY. KOWALSKI: The calculations were October, 2003. MR. GOGGINS: Those are the ones I gave . 3 4 5 6 7 8 9 you? 12 BOARD SECY. KOWALSKI: We don't have a copy of the building permit. MR. GOGGINS: I could go get it today. I can walk over and get the building permit. BOARD SECY. KOWALSKI: Just the date. MR. GOGGINS: You want a lot coverage, correct, I could get that. CHAIRMAN DINIZIO: Okay. Anybody else have any questions? I have no questions other than my confusion. BOARD MEMBER GOEHRINGER: The purpose of my testimony was very simply to reinforce the fact of my observations during the construction of this because I live in the neighborhood, and I have to tell you, it was an extremely expensive foundation and in an attempt to do what they needed to do for code to put that foundation in to build this house as it exists today, and because of the steepness of the grade, I can see why it's very difficult to get more fill in there. I mean, you couldn't even turn a truck around in there if you tried to bring fill in and put it up on that western side, you couldn't back a truck up that road. MR. GOGGINS: Not now. BOARD MEMBER GOEHRINGER: And try and transverse that front lawn and get around that corner, there would be no way you could do it. BOARD SECY. KOWALSKI: The reason I asked for the building permit date that calculation was given to the building permit in 2003, why was there so much time to find out that -- MR. GOGGINS: It's just something I found in the file and I looked at it because I was 10 11 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 61 1 . 3 thinking about the calculations and the percentages. First I thought it was new and I started looking at it more closely and I thought, oh, it's fine, and then I looked more closely and I realized it was old as compared to the January 2007 calculations that we submitted on that large map. So it wasn't until then I realized it was an old calculation. CHAIRMAN DINIZIO: What brought the Building Inspector to the house; was it because it didn't have a CO? MR. GOGGINS: I think. And I don't know but I'm assuming they went to issue the CO, they went to do the final inspection. CHAIRMAN DINIZIO: Just like three years 2 4 5 6 7 8 9 after? 11 MR. GOGGINS: Right. But you know this has been sitting in my office a long time because I kept on waiting to get information from the engineer and from the surveyor. I was hoping to submit this I think back in June, 2006, but I wasn't getting the information the Board needed. So that's why it took so long to get here. 10 12 13 . 14 CHAIRMAN DINIZIO: Then I'll ask anybody in the audience if they have anything to say about this application? Okay, I'll ask the Board members what their preference would be. We can close it pending information that he would like to submit, or we can leave it open in case something that he submits is not what we need. BOARD MEMBER GOEHRINGER: I think we should close it and let Mr. Goggins bring the stuff back for us this afternoon. If for any reason he needs to explain something, we'll give him five minutes to explain it if he needs to. BOARD SECY. KOWALSKI: I don't think you can give him a time limit. CHAIRMAN DINIZIO: Okay. So that's your motion, Jerry. (See minutes for resolution.) 15 16 17 18 19 20 21 22 23 CHAIRMAN DINIZIO: Next hearing is for Joseph Gulmi and Susan Braver, that's Michael's application. MR. GULMI: I am Mr. Gulmi and this is my wife Susan. BOARD MEMBER SIMON: We have already 24 . 25 March 29, 2007 62 1 2 discussed this, have we? This is a request for a variance under Zoning codes Section 280-105 based on the notice of disapproval request for relief from the condition under ZBA Number 5340 concerning the setback location of an as-built pool at less than 30 feet from the front lot line. And I don't see it on here, but there was an issue about the height of the fence as I recall, which was -- I don't have the notice of disapproval in front of me, but does it mention it on there? BOARD MEMBER WEISMAN: Yes, here's the . 3 4 5 6 7 notice. 8 BOARD MEMBER SIMON: It doesn't say anything about the fence, though. BOARD SECY. KOWALSKI: Yes. BOARD MEMBER WEISMAN: Hold on, here it is. Not in the legal notice but in the notice of disapproval. BOARD MEMBER SIMON: Okay, that wasn't covered in the legal notice. The as-built fence is not permitted. There is a four foot fence there, and the applicant has argued that under the circumstances a four foot fence is insufficient, and there is a question regarding the location of the swimming pool and there is some communication from neighbors on this and I will let Mr. Gulmi address this application and to speak for it. MR. GULMI: Certainly. Thank you, good morning. There are two requests. One is to actually modify a variance that this Board previously gave permitting us to install a built-in pool in our front yard. We abut the wetlands and have essentially no backyard. When that variance was granted, we were allowed to put the pool in, but it needed to be 30 feet from the northerly and westerly property line. You'll see there's a blow up of the survey that we had done after the pool was installed and this was a fiberglass pool that was set into the hole. The northerly boundary of our property, the pool sits 32 feet from that property line, and on the westerly property line -- the southern portion of the westerly property line, the pool sits 30 feet from the property. However, in the -- I'll use the term northwesterly area of the property line, the pool is two feet closer to the property line, it's 28 feet. And I think when they set the pool down it canted a little bit and nobody picked it 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 63 1 2 up. It was set in with a boom and I don't think the boom arm went out far enough, so it didn't quite make the 30 foot mark on the northerly line, and I think the weight of the pool started to take over and it went down. I wasn't there, but that's my speculation. Certainly the contractor, I don't think was trying to set the pool akimbo to the property line. I think it just happened and it didn't get picked up until it was plumbed and backfilled and functioning. So that's just a mistake that occurred, and it's not what we intended nor is it what we want, but it exists and it's impossible to pick the pool out; it's set in. Insofar as the fences are concerned, I didn't understand that there was a problem with my neighbor, and I read a letter now, which has opened my eyes. We installed a six foot high cedar spindled fence down most of the westerly property line and a six foot high black chain link fence in the northwest corner on the northerly portion of our property line. On the north side of our property line there is about a 25 foot, 20 foot buffer of existing plants, and there's a 50 foot right of way, and my neighbor's property in that area has a tennis court, which is set back from the road, and I believe he got a variance to do that. I have submitted photographs of the chain link fence that I'm talking about along the northern property line. It's not visible, it's very difficult to see it. Along the westerly property line where I have the six foot cedar spindle fence, and then it joins the six foot chain link fence, we put that in and it was somewhere around August. I left in the existing oak trees that were there. There are some that are about three-quarters of an inch and they go to about a two inch size. When those trees are in leaf, I have photographs that I took just this morning, the lower branches on them sit about a foot and a half below the top of the cedar spindle fence. My intention is to landscape the area; in fact, we installed a sprinkler system and there are some sprinkler system heads out there so I can water. But two things arose. To begin with, the plants I wanted to put in at the end of the summer weren't dug and it wasn't prudent to plant them in the fall. So my intention was to put some more . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 64 1 . 3 landscaping in in the spring. Although I disagree with what I read in this letter that it should be evergreens, and I am assuming that my neighbor is referring to the cedars that grow around, right across from us right on the opposite side of the right of way, the house built there is surrounded by cedars and eight or nine years ago you couldn't see a thing behind them, now I look at the front yard because they just lose their foliage all the way up. I intend on adding more landscaping. The real concern that I have in the area, and I said this in the application, is that this year we have a herd of deer that are about 12 or 15, they are everywhere. When we were building the pool initially I put up a temporary four foot high fence, and they just -- it didn't matter, they were in the pool area all the time while it was under construction. I know they can jump a six foot fence, but since that's been up, there hasn't been a deer around, they just divert and they go into the wooded area. I'm concerned for two reasons. One I don't want a deer in my pool. I dealt with that years ago, and not only if it dies it's a problem, but it will damage the pool liner. We have a solar cover which is over the pool almost all the time, and the deer are not the brightest animals, they walk on everything, they're curious. Also, the smell of water might bring them in. And we have landscaped the area pretty extensively on the inside, and there's nothing that deer won't eat. They eat just about everything and they eat it before they figure out they don't like it, and when there's a large herd, they all sample it and they all decide they don't like it. So I understand that my property is considered a front yard, just about most of it, certainly in the area of the swimming pool. When I went and installed the fencing I spoke with the fence guy and he knew it was a front yard, and he didn't raise the question, and I certainly was more interested in keeping the deer out not recognizing that it was in violation. So essentially I have existing trees there. I do intend on landscaping under them. I know that the letter that you have received talked about the fact that there are deciduous shrubs planted on there, it's not quite true, I was able to pick up 2 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 65 1 2 very cheaply last year some Caroline thododendron, which I amassed toward the front yard driveway. I like the look of the thododendron and the oak. I'm amenable to planting other plants in front of it. I didn't want to have a wall of evergreens just so that it hid the fence completely, but that's essentially where we are. CHAIRMAN DINIZIO: Okay. Any other questions, Michael? BOARD MEMBER SIMON: Regarding the misplacement of the swimming pool, does that confer any benefit on you or anybody else? MR. GULMI: No, it's in an area, the pool is a scalloped-shaped pool, so one of the areas where it bumps out it's closer than it's supposed to be, but no, there's no benefit at all. In fact, I was unaware of it. BOARD MEMBER SIMON: And the other one, since this is going to be held open, this hearing, is there any possibility that you can provide some further support of what you have said about the deer and the deer habits? I know you have a six foot fence now, I again ask you to take pictures of the deer after they have jumped the fence because it wouldn't be reasonable to ask you to cut down the fence. MR. GULMI: I can take photographs of the vegetation that I have outside the fence. I planted a New England cypress last year under the belief that deer didn't like them, but the deer in my neighborhood didn't know that. They're narrow wasted about four feet up and then they branch out again. They're everywhere. They come right up onto our back. They eat the day lilies, they eat the hydrangea, they eat all the buds off the hydrangea, much to my wife's chagrin. BOARD MEMBER SIMON: I have no reason to doubt what you're saying. I think in other cases though, it would be useful to be able to ask when something is less plausible than yours that we could ask someone if they have anything to support what they're saying. You can set a precedent for us by giving us evidence which we don't really need. . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 MR. GULMI: It's pretty much like proving the negative. But I can take paragraphs of the foliage and the plants that are inside the fence area that are in great shape and photographs of . 25 March 29, 2007 66 1 . 3 the area outside. BOARD MEMBER SIMON: That would be relevant as a nontrivial gesture in the way of supporting what you're saying here. MR. GULMI: Okay, I'll do that. CHAIRMAN DINIZIO: Ruth? BOARD MEMBER OLIVA: No, I've been there. It's a beautiful fence. I can't blame you for wanting to keep the deer out. I have the same problem. I'm thinking of an electric fence. MR. GULMI: I'm afraid I might touch it. BOARD MEMBER OLIVA: It's allover, I live in Orient. My husband's coming home down the road, there's 15 deer on this side, there's 15 deer on that side. They come, they get into my koi pond. We have to fill up the koi pond every day. MR. GULMI: They're very prevalent in the early morning. They're everywhere. BOARD SECY. KOWALSKI: For the fence, what I'll do, I'll include in the legal notice, when they put it in the next time around, I'll include the fence area. BOARD MEMBER SIMON: Right. MR. GULMI: It is on the posting. CHAIRMAN DINIZIO: Leslie? BOARD MEMBER WEISMAN: I do have just one question. When I did the site inspection, I personally observed and counted 17 deer on your wooded and wetland property and noticed extensive hoof prints all around your house because it's very sandy right up to the pool fence. There's also four feet off the ground of denuded rhododendrons. But I do agree that is there any way of photographing those hoof prints? MR. GULMI: I'll get up real early in the morning and sit in my back yard with a camera. BOARD MEMBER WEISMAN: I mean they're absolutely magnificent. I mean, that's their terrain, we build in a habitat that we shouldn't be building in, but everybody's got that problem. One question though, I think I heard you say you were not aware when you built the fence that you would need a variance for a six foot high fence? MR. GULMI: Yes, I guess I wasn't focusing on the fact that a six foot high fence would need a variance. I mean, now that it's there, there was a disapproval I understand that it's supposed 2 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 67 1 2 to be. I guess what confused me most in my neighborhood, there are six foot high fences but what I observe now, my wife pointed this out, they all seem to be at the same plain that the house is. The front lawns are there and there are fences running off the house and down the property line. . 3 4 5 6 BOARD MEMBER WEISMAN: So they're in the side yard. MR. GULMI: I guess that's what you would call it. You walk out of the house, the garage, then there's a fence to the end of the property and down, so I never thought much about it. BOARD MEMBER WEISMAN: And the individual who built the fence, who installed the fences for you never told you that your right of way was considered a front yard? MR. GULMI: No, we didn't have any discussion. We knew it was a front yard. He sold his business, so it was interesting. I paid him for part of the job. The guy who finished the job, and I'm very happy with the way the fence is, but it never came up. No one said to me, this is higher than it should be. BOARD MEMBER WEISMAN: I think we need fence education for local builders. They know, they just aren't advising you. They claim they don't know. CHAIRMAN DINIZIO: As I contractor, I prefer to get the job, quite honestly. We'll talk about that later on. Jerry, do you have anything? BOARD MEMBER GOEHRINGER: Not at this 7 8 9 10 11 12 13 . 14 15 16 17 18 time. 19 CHAIRMAN DINIZIO: Okay, so you're aware that we did get a letter from your neighbor. MR. GULMI: I got a copy of it from the 20 office. 21 CHAIRMAN DINIZIO: We normally grant at least one recess. MR. GULMI: I would need to be here the next time. CHAIRMAN DINIZIO: It would be to your advantage to be here. MS. BRAVER: I just want to say one thing, he built there long after we have been there, and he never once opposed us about anything that was going on during any of this time, never asked a question, never brought anything up where if it 22 23 24 . 25 March 29, 2007 68 1 2 was possible to fix it to his satisfaction, if that's what we were going to do where it could have been addressed, never said a word. He looks with binoculars. CHAIRMAN DINIZIO: Well, I'll tell you, ma'am, I've been on this Board for about 18 years, and I say to anybody who wants to find out who their friends are, apply to the ZBA for a variance. And we have had people who come in here and apply for a variance and on a piece of property that the person that sold them the piece of property that came in here and was against the variance. So it happens and you listen to what they have to say, and if it makes some sense -- it will work out. I would like to entertain a motion that we keep the hearing open until April 26th at 11:00 a.m. (See minutes for resolution.) CHAIRMAN DINIZIO: I'd like to make a motion to recess for lunch and reconvene at 1:00. (See minutes for resolution.) . 3 4 5 6 7 8 9 10 11 12 ------------------------------------------------- 13 CHAIRMAN for Vicki Haupt. Ruth. DINIZIO: The next hearing is I think that's your application, . 14 15 BOARD MEMBER OLIVA: It is and we would appreciate it if Pat and Mike or both would get up and to explain the notice of disapproval. I'm not going to read the whole thing because we've all been through it, we're aware of it. Because we're not too sure why we're here. MS. CONKLIN Okay. Basically when I reviewed the permit, I looked at the history of the lot and what I found was in the '60s a so-called single-family dwelling was erected on the site legally with an apartment. It said "shell" on the application. Single-family dwelling, it ended up being two shells. One which has kitchen and habitable space as far as we can see. No other permit has been taken out since the '60s. Now, the proposal was to put in a master suite, replace windows along the walls, patchwork where needed, exterior patchwork, a complete double bathroom and master bedroom, habitable suite. 16 17 18 19 20 21 22 23 24 . 25 Heretofore I didn't think there was anything habitable about the thing and now it's going to be very habitable so therefore -- March 29, 2007 69 1 2 ASST. TOWN ATTY. CORCORAN: This is the second structure. MS. CONKLIN: This is the second structure I'm describing in the data that we have, which is very limited. BOARD MEMBER OLIVA: But why would you call that habitable on the top in the second floor there, the second structure, because there's no kitchen there, there's just the bedroom and a bath. . 3 4 5 6 7 MS. CONKLIN: There's no kitchen but the history on the lot shows a mere shell of a structure, and then in reality what they want to do is put in a lot of new windows, doorway, patchwork exterior, and renovate the interior to include a master suite where it will become habitable where as far as I could tell from the evidence, it was not habitable before then. BOARD MEMBER OLIVA: Isn't this more reconstruction rather than new? Mike, maybe you can help us out. MS. CONKLIN: I think it's an alteration. MS. CONKLIN: They are two independent structures and it stands alone at the top of an open staircase, so-called very -- BOARD MEMBER OLIVA: Very unsafe. MS. CONKLIN: Very rustic and unheated space. Now it's going to become very habitable with the amount of work that's being done to it. So that's how I viewed it as an alteration fitting into that section of the code. It would need to be looked at by you guys in my opinion. CHAIRMAN DINIZIO: Do you mind if I just ask this one question, this is what's been bothering me. BOARD MEMBER OLIVA: Sure. CHAIRMAN DINIZIO: I am wondering why it didn't meet say the Walz decision. In other words, an increase in the degree of nonconformity. MS. CONKLIN: Because I didn't see it going up or out in the dimensions of the footprint. Even though it's only 11 feet from the property line, which is nonconforming for its size lot, but I didn't see it as that. I saw it fitting that other little piece of the code that I quoted, and I hope I quoted it correctly. I don't know that I absolutely did. ASST. TOWN ATTY. CORCORAN: It looks like 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 70 1 . 3 the notice of disapproval concerns use not going up or out like Walz talks about, but are we turning this into some new use? CHAIRMAN DINIZIO: Well, just on that, I know that what the notice of disapproval says but that's probably not my confusion, but my confusion is that they have a nonconforming use there now. BOARD MEMBER OLIVA: Not exactly. MS. CONKLIN: The problem is this CO is so ambiguous it doesn't really tell us what was going on out there. CHAIRMAN DINIZIO: Right. MS. CONKLIN: Just single-family dwelling, just two sections, shell, just a shell and then what it's going to become to me is just an alteration to that alteration of that. BOARD MEMBER OLIVA: The only new part, Pat, Mr. Williamson can comment, is just that new little patio and stairs on that I think it would be the west side of the building, but that's the only other new thing. But otherwise it's just redoing and restructuring the windows, the floors, hopefully those stairs. A lot of it to me is safety issues. MS. CONKLIN: Those were your concerns? BOARD MEMBER OLIVA: Yes. ASST. TOWN ATTY. CORCORAN: What if we had a more typical situation where there was a main house, and to use a difficult word, an accessory structure, whatever it was, garage-type thing, and somebody wanted to come into that accessory structure and put into that they're putting into this shell now, a bathroom, jacuzzi and all that stuff; would that be disapproved? MS. CONKLIN: I assume, yeah, you would 2 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 need -- 20 MR. VERITY: That's basically the way we're viewing that, Kierane ASST. TOWN ATTY. CORCORAN: That would be disapproved because you're turning that accessory structure into habitable space? MR. VERITY: A nonpermitted use, today's standard would not allow you to build that structure. Actually, it's even questionable at the time, but we're not going back. ASST. TOWN ATTY. CORCORAN: Now, to ask another question, if this second structure, this shell, if it was clear that there was bedroom 21 22 23 24 . 25 March 29, 2007 71 1 2 facilities, area, sleeping area or some habitable area that was previously approved, then they probably wouldn't need a variance, right? Because they would be sort of updating and remodeling that prior use. MR. VERITY: As long as they're not expanding in any way, shape or form. If they were going one for one into that effect, we wouldn't have a problem with that at all. ASST. TOWN ATTY. CORCORAN: I think what this Board needs to decide is whether there was enough in the record to bless that prior use in the structure. If so, they might not even need a variance; if not, they will need some variance to bless that second use. BOARD MEMBER GOEHRINGER: Let me just say this, by severing everything out of the western portion of it, and having a plain room as it exists when we inspected it, one really -- I mean, there can be numerous affidavits done, but it's just a room now. That's all it is. It was my suggestion at the hearing to merge the two pieces together, get rid of the stairwell. BOARD MEMBER OLIVA: Make a hallway. BOARD MEMBER GOEHRINGER: Make it one unit, I don't care if it's heated or unheated, as you know today, Mike and Pat, all you've got to do is insulate it, and you can have an alternate type of heating system in it. Heating has no bearing on the situation at all. It would not make sense to me to rebuild walls without putting insulation in any way. That's just a thought regardless of their situation. My suggestion to the architect who was present, who by the way is a very nice man in the back, I said put them together. They have got to be put together. I don't mean physically move them together, but put some sort of a unit together to make them one. ASST. TOWN ATTY. CORCORAN: Wouldn't you have then a new structure being built near the natural protective feature and you would need a variance for that and to get past the LWRP for that as well? CHAIRMAN DINIZIO: Right. Our remedy, which is what we started with, would need a variance. MR. VERITY: There's a question of a side yard variance for that too. . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 72 1 2 CHAIRMAN DINIZIO: When we said join the two buildings, that would be Walz, right? MS. CONKLIN: Right, because you're 11 feet from the lot line. BOARD MEMBER GOEHRINGER: Do Walz because that's the way to do it. It's still in the conventional floor plan regardless. CHAIRMAN DINIZIO: Quite honestly, it hasn't met that criteria because in order to put new windows in you don't have to change the structure of that building in any way. BOARD MEMBER OLIVA: No. CHAIRMAN DINIZIO: Well, I'm asking the Building Inspector. MR. VERITY: If they're taking the same size windows out and putting the same size windows back. . 3 4 5 6 7 8 9 10 11 BOARD MEMBER WEISMAN: changing some of the windows. way to code. MR. VERITY: It was questionable at the time it was written, but like I said, we're not going to go back on that. There was a CO issued, but in my review of the code, new and old, I don't see how it was really allowed to be honest with But they are The stair is in no 12 13 . 14 you. 15 CHAIRMAN DINIZIO: You're saying it has a CO? 16 MR. VERITY: That's correct. CHAIRMAN DINIZIO: And the CO is what it 17 is. 18 MR. VERITY: That's correct. And our view now is if you want to alter the main building, where the kitchen area is, the main dwelling area, have at it, but you can't alter the nonconforming section. 19 20 BOARD MEMBER WEISMAN: How in the world could that possibly be used then? MR. VERITY: If they want to repair that as is, keep it as is. BOARD MEMBER GOEHRINGER: But we don't know what the as is was. BOARD MEMBER WEISMAN: I suspect it was sleeping quarters. MR. VERITY: It's basically an open room, that's as much as we have. BOARD MEMBER OLIVA: It was used as sleeping quarters, the second shell. 21 22 23 24 . 25 March 29, 2007 73 1 2 MR. VERITY: We have no guarantee of . that. 3 BOARD MEMBER WEISMAN: I think the goal here is to figure out how to proceed. We can't give them setback variances when that's not before us. 4 5 MR. VERITY: You have two options. It's either the use or by connecting it by condition space then it would be -- BOARD MEMBER WEISMAN: Walz. MR. VERITY: That's correct. And the possibility of a side yard setback as well. Right now the use according to the CO is a single-family dwelling. We're going to consider it; it's technically an accessory building of some sort. BOARD SECY. KOWALSKI: Like a bunk house. MR. VERITY: Exactly. ASST. TOWN ATTY. CORCORAN: But the CO says single-family dwelling in two parts. The second part is really blessed as a dwelling. MR. VERITY: Yeah, but if it's done incorrectly, I feel as per the code it was done incorrectly, and if that's the case I don't think we can keep blessing that. At some point in time if you want to do something with it, you're going to corne back to us, you have to address the issue. BOARD MEMBER GOEHRINGER: I haven't addressed this, but I'm going to address it right now. And this is the most interesting portion of this because this is the first one that has ever corne before us in the 27 years I've been here. But over the years, people built -- this happens to be a relatively small lot in reference to the size of some of the lots in Mattituck, take the ones down on Ruth Road, they were five acre parcels, and what people actually built were tree houses, okay. I'm talking about 600, 800 foot tree houses and they actually lived and habitated in those tree houses. This is the first one that I saw that had a CO on it. And all of those tree houses have subsequently been knocked down, and single-family dwellings have been built on them. Some of the properties have been subdivided, some of them have not. But the ones that exist presently on Ruth Road, from Xena Road out, had these places on them, and as I said, everyone has been destroyed since. This is the only one that I have ever seen a CO on. 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 74 1 2 MS. CONKLIN: Was it in two parts, though? BOARD MEMBER GOEHRINGER: Some were in two parts, some were multistory, it was absolutely amazing. And one of them belonged to a U.S. Congressman where he wrote most of his prose before he spoke before Congress. BOARD SECY. KOWALSKI: I was just wondering if it's possible, 30 years past, if it was habitable back in the '60s, suppose they had a bunk in there and had temporary sleeping quarters, 30 years or 40 years have passed, you had a house in that situation and you never upgraded it, you never altered it, you never maintained it, after 40 years, wouldn't that house become nonhabitable because of safety and neglect? MR. VERITY: Not by town code but by state code, there's a possibility, yes. CHAIRMAN DINIZIO: You're not making that decision? MR. VERITY: No. BOARD SECY. KOWALSKI: Just in general. CHAIRMAN DINIZIO: So, can you sum up in a nutshell what you're asking us to do? MR. VERITY: Certify the use basically. BOARD MEMBER OLIVA: As habitable space? MR. VERITY: Yes, that's correct. And that will allow them to continue and there's two methods to do that. CHAIRMAN DINIZIO: You want us to certify the use. Do we need to put conditions on? MS. CONKLIN: It's up to you. CHAIRMAN DINIZIO: Say, if we join these two then we need to grant a variance on that. If we just certify the use, as is right now, they can work within the confines of the building permit, correct? . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 MS. CONKLIN: That's an option. CHAIRMAN DINIZIO: They may have to come because they're going to destroy the porch. If they destroy the porch and redo it, what does that do? Can they rebuild that porch in-place/in-kind? BOARD MEMBER OLIVA: Or even the stairs. CHAIRMAN DINIZIO: That's what I'm talking about, the stairs? MR. VERITY: Replace that, but what about the building that they're attaching to, what about the building? Where are we at with the building? CHAIRMAN DINIZIO: If the use is a use, 21 22 23 24 . 25 March 29, 2007 75 1 2 and I don't think we're going to delve much into one or the other, we're just going to -- MR. VERITY: Yes, I would say in-place/in-kind or condition space, that would be the only two options. CHAIRMAN DINIZIO: Even though the stairway is not a stairway, it would not be allowed today, you would allow them to disconnect that and put a stairway in the same narrowness of top step or would it have to be -- BOARD MEMBER OLIVA: Bring it up to code. MR. VERITY: As long as it was state code compliant. CHAIRMAN DINIZIO: So it would have to meet today's code for the stairway? MR. VERITY: That's correct. CHAIRMAN DINIZIO: The treads would have to be eight inches. MR. VERITY: That's correct. CHAIRMAN DINIZIO: Does that change now the building? MS. CONKLIN: Not the building. MR. VERITY: No, I would say you're basically giving your blessing of that as a single-family dwelling not as an accessory building. ASST. TOWN ATTY. CORCORAN: You would also have to give a variance to the bluff. BOARD MEMBER OLIVA: But they would have to give us -- ASST. TOWN ATTY. CORCORAN: If they did the stairs, if that was a condition, then you would have to get LWRP approval and all that. CHAIRMAN DINIZIO: If we just today say okay, we're going to agree with the building inspector, this is a use that cannot be altered and all that stuff, and basically what we've said is, okay, they can do basically what they applied for as long as they don't exceed, make it bigger. MR. VERITY: Yes. ASST. TOWN ATTY. CORCORAN: It's not dissimilar from cases where you have old lots that have two houses on them, and we have learned through the courts that where they have two houses on them, you can give them an area variance to alter the second house. You know they're not supposed to increase that degree of nonconformity, but you can let them. If you decide in this case . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 76 1 2 that that second structure is a dwelling or part of that first dwelling or has that use as a dwelling, you can allow them, give them a variance to allow them to do what they're asking for right now. . 3 4 5 BOARD MEMBER GOEHRINGER: What it is is a tree house without a tree. CHAIRMAN DINIZIO: One more question then, what if we say no, what is their recourse? MR. VERITY: Not to allow the rebuild or no to us and reverse our decision? CHAIRMAN DINIZIO: No, I don't think it meets today's -- we're not going to give you a use variance. MR. VERITY: Then your other option would be -- I'm pretty sure it's landward of, Kieran, you mentioned something in reference to the bluff, any construction attaching that would be landward of -- they could attach it by conditioned space then there's no question, then there's a question whether or not it was constructed at the time to the proper setback. If it was in the '60s constructed to the proper setback, then there wouldn't be a side yard setback. CHAIRMAN DINIZIO: We would just be issuing a building permit? MR. VERITY: That's correct. BOARD MEMBER WEISMAN: In other words, that preexisting nonconforming setback would be the precedent? MR. VERITY: That's correct. BOARD MEMBER WEISMAN: And if they rebuilt it in-kind/in-place, made it a permanent year-round, clearly single residence -- MR. VERITY: They're making it better so that everything we talked about is going away. That's basically how the code reads in my eyes. They want stuff like that to go away. CHAIRMAN DINIZIO: I'm confused. Are you saying that if they tear that building down and build in the same footprint -- BOARD MEMBER OLIVA: No, no. MR. VERITY: No, any tear-down it's done, I was talking about the connection. CHAIRMAN DINIZIO: Oh, talking about if they go landward of the bluff on the house. ASST. TOWN ATTY. CORCORAN: He's correcting what I said because if it's behind the 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 77 1 2 first structure, it actually wouldn't need a variance. . 3 CHAIRMAN DINIZIO: MR. VERITY: Yes, alternatives. CHAIRMAN DINIZIO: That's all I have. Anybody else have any questions? Maybe somebody in the audience would like to comment? CHAIRMAN DINIZIO: Sir, would you like to come up? MR. WILLIAMSON: I am Nigel Robert Williamson, Architect, representing Miss Vicki Haupt. I just want to disagree with Miss Conklin on one thing and that I have kind of an issue with -- and it's been thrown around -- is the issue of the wording of "shell" because that connotation is unfinished, and we spoke about two shells. I mean there was a CO issued for the two sections of the house, and I just want to say that I'm sure someone inspected it to say that it was habitable, and that it was finished as opposed mentioning shell. I just wanted to say that. I know there's been the issue about Mr. Goehringer has mentioned about tree houses, and I know there's been the point of the connection between the two, and I did mention to my client the next time and she was distraught. And if I may give you a look at this, it's just a larger picture of the blow-up I gave you. I mean, the picture is basically showing you what it is. It's a tree house, and if there's any way without this connection issue, it would be greatly appreciated. Because she's trying to keep the integrity of it, and I know that Miss Weisman the last time had asked me if the structures were sound, and I said I wasn't going to hang myself, and I did mention they were reasonably sound and there was the issue about whether this was going to turn into whatever it could be if we discovered rotten wood or whatever. And I truly believe that that's how my client, her intent is to have it right now the way it is with these alterations and keep it basically as a tree house. And it may not be what you and I would love, but that's what she has gotten in her head about this Japanese tree house. BOARD MEMBER GOEHRINGER: Just as we said, Mr. Williamson, or I have said -- I can't say we have said -- there's an issue of health, safety We have alternatives. there's a couple 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 78 1 2 and welfare here. My expertise over the years has been in health, safety and welfare both from a volunteer fire department situation to a situation of an ex-captain of the rescue squad and apart from all the other capacities I have held in Suffolk County at the time and still do, this does not meet anything, okay. It is very simply a room. It's nothing more than a sitting room or a reading room. To put a bed in there to habitate in that unit, to sleep there, violates anything and everything I have ever seen on the 27 years I have been on this Board. To connect those in the most primitive type of way is the easiest thing in the world and the best thing in the world regardless of when you go up there, what time of year, if they are heated or unheated, it can be to a common lobby area, it can be simply two units together in that situation; we have done it before; we have asked for it before, and it's been done before, and I'm sure you have the expertise to do it. So I think you just need to mention that to your client. No one is trying to take anything away from the beauty of this. I don't care if it's all glass to be honest with you. We just did a house couple years ago in Fishers Island. It's 27,000 square feet. It's all glass. You can see from one side to the other. For the director of the Met in the city, probably one of the most beautiful pieces of construction I have ever seen in my life, but that's the issue. The issue is we need to update it if you're going to use it as habitable space. BOARD MEMBER OLIVA: I agree with Jerry, especially as far as those stairs it should be redone, it should be enclosed, they should be made safe. The bottom stairs should somehow get into the lower building so it's a safe ingress and egress because to me this is not safe at all. The big problem I have -- I don't have any problem with your fixing the windows and that, that's all interior things, the only exterior thing is that little patio, which to me is not a big deal. That to me is such an unsafe situation, the stairs, it's more of a safety issue than anything else. Nigel, I know you've been very cooperative, and you want to do the best you can. MR. WILLIAMSON: It's not about cooperation, we all want to do the best we can. . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 79 1 2 BOARD MEMBER OLIVA: And you have to deal with your client too. MR. WILLIAMSON: It's the best we can, it's all we're doing. BOARD MEMBER WEISMAN: I think the task before you is to demonstrate to your client, as I know you're capable of doing, how aesthetically you can to code bring these two structures into one structure, the legal definition of one dwelling, without radically transforming the sense of openness and stilt-like quality and rather ramshackle kind of step down. It probably will cost a bit more in order to do that, but she will in the end have a very clearly legal to code habitable space that is then definable in a way that the code will recognize. So I suspect you don't have to really radically transform the way it appears in order to do that. MR. WILLIAMSON: Okay. CHAIRMAN DINIZIO: Michael? BOARD MEMBER SIMON: I have no questions. CHAIRMAN DINIZIO: Okay. MR. WILLIAMSON: I want to just give the Board one piece of paper, please, that Miss Oliva had asked for last time, the square footprint of the structures. BOARD MEMBER OLIVA: Great. Thank you so . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 much. 16 CHAIRMAN DINIZIO: Does anybody have any questions on this? I have one more question for the Building Inspector, if I could. He heard what Mr. Williamson had to say, he heard what we had to say, they enclose the stairs from one building to the other, what does that do? Does that make it more nonconforming; do you know what I mean? They say fill in that gap, they're going to make it one house basically. MS. CONKLIN: Where the attachment would go I don't think would affect setback. We'd have to do some research and see what side yard setback was in the '60s and confirm what we, as we discussed before, what was legal then and if it was, if that line doesn't change and Walz isn't affected then really it shouldn't affect the code. BOARD MEMBER OLIVA: Wouldn't that be like having a breezeway? CHAIRMAN DINIZIO: are we talking about, and How long of a breezeway how does that go into 17 18 19 20 21 22 23 24 . 25 March 29, 2007 80 1 2 the code? MR. VERITY: Breezeway wouldn't be acceptable more than 80 feet. CHAIRMAN DINIZIO: It's going to well exceed that. MS. CONKLIN: It will have walls on either side, that would be a given, not a breezeway. We would want something structural. I meant corridor. BOARD MEMBER WEISMAN: It could be a multilevel step-down corridor, but it will be considered an internal corridor. CHAIRMAN DINIZIO: Mike? MR. VERITY: It would be working towards conformance, Jimmy, but you then broke that down a little more, you said setback. A setback is questionably whether you would be making that a nonconforming setback, but in general the entire property would be becoming more conforming which we are all looking to do that. CHAIRMAN DINIZIO: I'm just concerned about seeing this application again, quite honestly, or being the cause of them having to wait another three months because we did something as a condition that makes them have to come back to us. . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 MR. VERITY: What type of condition? CHAIRMAN DINIZIO: Just the stairwell, I just want to be clear on the corridor leading to these two buildings. Once you look at that on a plan, say if it's not a breezeway, does it meet the building codes for square footage of a room or is it now just a long hallway? MR. VERITY: It's a long hallway; it's conditioned space. BOARD MEMBER OLIVA: An interior corridor. MR. VERITY: As long as it meets the three foot wide requirements as per state code, it wouldn't be a problem. CHAIRMAN DINIZIO: So, if I had a house and I had a garage and I wanted to build between those two houses, that would be acceptable? MR. VERITY: As long as it was conditioned 16 17 18 19 20 21 22 23 space. 24 CHAIRMAN DINIZIO: Right. met the principal setback? MS. CONKLIN: It would be CHAIRMAN DINIZIO: Okay. If the garage . 25 fine. Thank you very March 29, 2007 81 1 2 much. . 3 BOARD MEMBER OLIVA: Thank you. MR. WILLIAMSON: Just one more before Mr. Verity goes. CHAIRMAN DINIZIO: Hold on, Mike. MR. WILLIAMSON: When you say "conditioned space," Michael, you were talking heated or enclosed? MR. VERITY: Conditioned space is normally heated area as per state code. MR. WILLIAMSON: So you're looking for conditioned space with heat? MR. VERITY: Yes. CHAIRMAN DINIZIO: So you would be looking for that? MR. VERITY: Yes. MR. WILLIAMSON: I just have one more other issue with that. That this may snowball way out of disbelief that if it's now conditioned space, then we're dealing with engineer code, correct, New York State engineer code? MR. VERITY: That's correct. MR. WILLIAMSON: Is that New York State engineer code only conditioned on this connection, Michael, or you're looking for the whole building to be? 4 5 6 7 8 9 10 11 12 13 . 14 15 MR. VERITY: Obviously it would be just any new additions or alterations to the building would have to be the entire dwelling unit, or structures would not be able to -- MR. WILLIAMSON: Okay, but you're saying any alterations, I mean, the fact that we're removing the windows and trying to put it in somewhere else is an alteration which would mean that the upper structure and lower structure would have to be heated then by definition of altered? BOARD MEMBER OLIVA: No. MR. VERITY: The connection would have to be engineer code compliant and depending on what you do to the other part, the other structures. MR. WILLIAMSON: But you're saying any alterations to the other structure, correct, would bring us back to the engineer? MR. VERITY: That's correct. MR. WILLIAMSON: Okay. CHAIRMAN DINIZIO: It may be something you will have to deal with. MR. WILLIAMSON: Right. I just want to be 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 82 1 2 clear that I went to a different ballgame when I went to engineer code level. BOARD MEMBER WEISMAN: Didn't you anticipate leaving it seasonal? MR. WILLIAMSON: Zero heat, correct. BOARD MEMBER WEISMAN: So it's important to understand that the proposed use is in a seasonal dwelling, which, of course, doesn't include any kind of heat. Now you could solar if you want to get crazy in this little piece, but this is a very anomalous situation where the actual dwelling becomes one principal dwelling instead of a dwelling with a flimsily attached accessory habitable structure. It's falling between all the definitions that we have in the code, not one single thing about it is clear. So if you go and make them attached, then the new attachment has to be heated whereas the pieces of the dwelling on either end of that condition are not. MR. WILLIAMSON: No, that's incorrect, . 3 4 5 6 7 8 9 10 11 12 ma'am. 13 BOARD MEMBER WEISMAN: Unless it's altered, but your alterations are including essentially replacement of windows; are those considered alterations? MR. VERITY: Yes. BOARD MEMBER WEISMAN: So then you're talking about year-round habitable structure. MR. WILLIAMSON: Correct. I just wanted to be sure. BOARD MEMBER WEISMAN: But I want the record to also clarify that so we don't have to go back and revisit. So now you're talking about changing the whole thing into one structure that is heated throughout. MR. WILLIAMSON: Correct. Let me just add that if it's falling through all the cracks, why did it have to be me? BOARD MEMBER OLIVA: But you've done such a good job, Nigel. CHAIRMAN DINIZIO: Okay. Does anybody else wish to say anything about this application for or against? I want to thank the Building Inspector and Pat for coming in today. We appreciate that. MR. VERITY: Any time. CHAIRMAN DINIZIO: I entertain a motion to . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 83 1 2 close this hearing. (See minutes for resolution.) . 3 ------------------------------------------------- 5 CHAIRMAN DINIZIO: Our next hearing is John and Patrice Keitt. That's yours, Ruth. BOARD MEMBER OLIVA: This is a request for a variance under Section 280-15, 280-116B and 280-124, based on the Building Inspector's January 11, 2007 notice of disapproval concerning an application for a building permit for an as-built shed, new porch construction after removal of a screen porch, and a new addition to dwelling. reasons stated in the disapproval are: (A) decking construction is shown with zero setback from the bulkhead; (B) the as-built screened porch is less than 75 feet from the bulkhead; (C) the rear yard setback is less than 50 feet; (D) the as-built accessory shed does not meet the required five foot required minimum setback under ZBA Number 3229. (Note: Variance relief is not requested for the trellis structure.) Location of property: 280 Basin Road, Southold. Now, you're going to have to walk me through this whole thing from where the bulkhead was previously to where the bulkhead is now because when I was down there the other day, it seems to me the bulkhead is far more landward -- not far, but more landward than it was before when I was down there. MS. DOTY: When you were down there before I believe there were two retaining walls and one bulkhead, and now there's just one bulkhead and one retaining wall. On the site plan that Mr. Samuels did, and he's here to talk about it, it reflects where the current bulkhead is as does the survey, and it also reflects where the retaining wall is. The retaining wall as it exists is landward of the middle retaining wall. You remember when you were there in September, I believe it was, you saw those collapsing retaining walls and bulkheading. And the distances on that plan are accurate. So I'm not sure what you're asking -- and to start out, my name is Debra Doty, I represent John and Patrice Keitt. Mr. Keitt is here and Tom Samuels is here. BOARD MEMBER OLIVA: I took the going to the Trustees because it was so into the drink, so to speak, when I was The 4 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 liberty of falling down there March 29, 2007 84 1 2 in September. I was really worried for these people. A bulkhead had been built say in the early '90s. Well, this is only a little over 10 years later and the thing is falling down again. MS. DOTY: The prior bulkhead? BOARD MEMBER OLIVA: Yes. I went to look at the Trustees for the permit for the previous owner, and to have that degree of erosion toe out under that bulkhead to make so much of that land kind of sink, you know, I know you had a very good contractor doing that, but I'm just worried in another 10, 15 years is it going to start doing the same thing that their house is going to end up being right on their bulkhead; is there enough protection there? MS. DOTY: The bulkhead is actually a little further away from the house than it was previously, and it's about half a foot, maybe a foot, and I can assure you that they intend to keep that bulkhead maintained so that it doesn't collapse. Part of this problem was that this planning started in 2004. BOARD MEMBER OLIVA: That would have made it even closer. MS. DOTY: And it takes a while to get through Trustees, and DEC, and Army Corps. BOARD MEMBER OLIVA: I know, I'm quite . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 aware. 16 MS. DOTY: And we actually started discussing this last summer to come to the Board for the variance, and in fact, I had the application virtually done in August, then I submitted it in September, and we are at the position where the bulkheading had to be done, when I say bulkheading, I'm talking about the bulkhead and the retaining wall. It absolutely had to be done. And the Board was reluctant to put it on for a hearing for the variances until the bulkheading was complete. So, now we have a mess. We have land that is eroding because it's not covered with any kind of lawn, and Mr. Keitt was just saying to me he's very concerned about how long we're going to have to wait to replace the pool because it doesn't make sense, let me put it this way, to seed the lawn, and then have it all ripped up again to replace the pool and the deck. Now, if you have been down there recently -- 17 18 19 20 21 22 23 24 . 25 March 29, 2007 85 1 2 BOARD MEMBER OLIVA: I was just down e there. 3 MS. DOTY: Okay. What the contractor did was he picked up the old deck, moved it away, did his work on the bulkhead and the retaining wall and then put the deck down again so that you could see where it had been originally. We acknowledge that part of it was done in the '80s without a permit. It went a little bit beyond the permit. Much like the shed that went a little bit too close to the property line. BOARD MEMBER OLIVA: Porch. MS. DOTY: And the screen porch. BOARD MEMBER OLIVA: I just want to make sure, Debra, that they spent so much money doing this, I don't want to have to see him lose any of this in another 10 or 15 years. MS. DOTY: I don't believe they're going to allow it to deteriorate again. BOARD MEMBER OLIVA: You know, you're very nice people, it's a lovely area, you have a lovely home, and it's not your fault that the whole thing was sliding into the drink in the first place. I just want to make sure that you're not going to have the same problem in another few years again. MR. KEITT: We agree 100 percent on that. And what we were advised when we had this looked at, and by the first contractor and then Chesterfields again -- BOARD MEMBER OLIVA: I know he's a good contractor. MR. KEITT: -- was that there was no backing back from the bulkheading to the retaining walls; in fact, they were kind of connected. So when the retaining walls started down, it pulled everything off. Plus they found that when they took the bulkhead up, there was very little below the surface, we've gone down 20 feet. We've got helical anchors. BOARD MEMBER OLIVA: I feel better. MR. KEITT: So do I. But we spent a lot more money to make sure and Chesterfield said hopefully we're not going to have to deal with this again even if we live there until we die. BOARD MEMBER OLIVA: I hope so, because you had told me because originally 25 years ago it went, the land went much further out in the bay and your neighbor to the right there is up much 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 86 1 2 higher than you, and I notice his slope near you is starting to come down. MR. KEITT: We're going to be fixing all . 3 that. 4 5 BOARD MEMBER OLIVA: All right. My next question is the old pool was vinyl; now you want to put in a gunite pool? Just for the sake of everything, for your safety and my safety for seeing a pool I would prefer seeing a pool approximately the same size or smaller than what you're proposing, because you're having gunite that has weight on it and the water, I know it's not as heavy as soil but gunite is heavy. MS. DOTY: But my understanding is that the water and pool apparatus pretty much equal the weight of the soil. So you're not really increasing the impact behind the new retaining wall. It's going to be a shallower pool. MR. KEITT: It's only going down four and a half feet, it's not going down eight feet. BOARD MEMBER OLIVA: Okay, that makes me feel better too. MS. DOTY: Keep asking. BOARD MEMBER OLIVA: Then what type of docking are you going to be using around the pool? MS. DOTY: Mahogany, cedar. BOARD MEMBER OLIVA: Or stone? MS. DOTY: Mahogany decking. The Trustees application says stone. I have been to the Trustees Department. I showed them the plan, and they said come in after you have been to the ZBA and have a determination from the ZBA and we'll put it on as an amended permit. They saw no problem with what we were proposing. We were planning on mahogany decking around the pool, and the rest of the decking to be mahogany as well. BOARD MEMBER OLIVA: That's just going to be laying on top of sand or how; what is the drainage going to be? MS. DOTY: Well, there's dirt underneath it and it's going to be standard drainage permeable. BOARD MEMBER OLIVA: Okay. I think. MS. DOTY: If I could note, originally the plan with Trustees did have a stone patio. Suffolk County Soil and Water actually objected to the stone patio down below and would prefer us to have wood. 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 87 1 2 BOARD MEMBER OLIVA: Really? MS. DOTY: Yes. Can't win for losing. BOARD MEMBER OLIVA: And the new porch, is it going to be on the stilts the way this one is? MS. DOTY: I think it will be on stilts but it will be to code. BOARD MEMBER OLIVA: And what is the other new addition? MS. DOTY: But it will be enclosed like there's I think lattice work around it now. BOARD MEMBER OLIVA: Yes. MS. DOTY: So the underneath would be enclosed. BOARD MEMBER OLIVA: And there was another new addition to be put on according to your notice of disapproval. MS. DOTY: The only other addition I believe has to do with the -- BOARD MEMBER OLIVA: Trellis. MS. DOTY: Are you talking about the trellis or are you talking about the deck going out to connect up to the retaining wall, which was not under a permit previously. BOARD MEMBER OLIVA: Right. MS. DOTY: That way you don't have to step off the deck and walk through soil or rock or whatever to get to the steps. The trellis is landward of a permitted structure. The CO'd structure therefore, it's not on for the variancee BOARD MEMBER OLIVA: And is the sun porch going to be the same dimensions as the old one? MS. DOTY: Yes. You mean the screened e 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 porch? 19 BOARD MEMBER OLIVA: Screened porch. MS. DOTY: Yes. BOARD MEMBER OLIVA: And you're going to have the new liftable stairs? MS. DOTY: Liftable from the water and ice. You have a hurricane coming, you raise it up. I know most of those get raised up in October, chained and locked up. BOARD MEMBER OLIVA: I probably forgot something else, so I'll let some of my colleagues carryon. CHAIRMAN DINIZIO: Okay, Jerry? BOARD MEMBER GOEHRINGER: Can we see the plan, the specifications some time for the 20 21 22 23 24 . 25 March 29, 2007 88 1 2 swimming pool? MS. DOTY: The new one? BOARD MEMBER GOEHRINGER: The proposed one, right. Does that 18 by 35 include the steps going in or is that the actual size of the pool? MR. KEITT: The steps are in addition to the 18 by 35. MS. DOTY: So it will be cut out backward. BOARD MEMBER OLIVA: It looks as though it's just the pool that's 18 by 35. BOARD MEMBER GOEHRINGER: The pool is 18 by 35 then the steps are more. MS. DOTY: I nearly killed myself as an infant or a two year old child on pool steps like that, so I don't focus on it. BOARD MEMBER GOEHRINGER: Debra, you also said that Soil and Water suggested a wood deck instead of rock? MS. DOTY: Yes, they did. BOARD MEMBER GOEHRINGER: It's amazing. MS. DOTY: As I said, you can't win for . 3 4 5 6 7 8 9 10 11 12 losing. 13 BOARD SECY. KOWALSKI: They didn't say why . either? 14 MR. KEITT: It was a drainage thing. MS. DOTY: It was a drainage thing, I guess it was more permeable. BOARD MEMBER WEISMAN: Than a permeable surface. I have a couple questions. I don't see it called out on here, what about a dry well for the pool? MS. DOTY: We're going to do all of that. This is just a preliminary site plan for you all. We'll have dry wells for the pool and for the down spouts. BOARD MEMBER OLIVA: Away from? MS. DOTY: Away from. BOARD MEMBER WEISMAN: I also see you're adding, while we're getting specifications for a pool, you're adding a spa. MS. DOTY: That's within the decking. BOARD MEMBER WEISMAN: Can we see the specs within that as well? There's also weight on that and I'm sure it's shallow depth. You're actually expanding the deck from 16 by 20 to 21 by -- 21.6 by 22. Slightly larger. MS. DOTY: Yes, part of that takes into account what was built but without a permit. Did 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 89 1 2 everybody get out there when the property was staked? e 3 BOARD MEMBER WEISMAN: Yes. MS. DOTY: So you don't need these photos? BOARD MEMBER OLIVA: Sure, we'll see photos too. If you want more photos I have lots of them I took. BOARD MEMBER WEISMAN: One more question. BOARD MEMBER OLIVA: I do that every month so we have some sort of record of what we see. BOARD MEMBER WEISMAN: In view of the recommendations by Soil and Water, which you acknowledge in your most recent letter for native planting of some sort, your site plan proposes a lawn, a seeded lawn, which of course suggests potential chemicals and so on, and does not do the same thing that native plants would do in terms of retention of groundwater runoff and things like that. How important is that seeded lawn to your landscape plan; would you be willing to consider the creation of a landscape plan that takes up some of the recommendations of Soil and Water for native planting? MS. DOTY: As I recall, and I'm going to have to look at the letter again, the beach grass and native plantings were around the edges and they did say seeding rather than sodding. They wanted the area seeded rather than sodded, and we certainly will listen to that and do that. I imagine they're not going to use pesticides. BOARD MEMBER WEISMAN: Most lawns are chemical lawns. MS. DOTY: I was going to say you haven't been to my house. BOARD MEMBER WEISMAN: Well, I think Ruth has asked most of the questions. CHAIRMAN DINIZIO: Michael? BOARD MEMBER SIMON: My questions have essentially been answered. Just to follow up on one, the reason for the expansion of both the pool and the deck is obviously because the client wants it, but that is being sort of paid for by the fact that there is going to be a shallower pool. MS. DOTY: That's correct. BOARD MEMBER SIMON: And the calculation that shows that's going to be consistent. MS. DOTY: In addition you need areas for people to sit and I think that's the reason for 4 5 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 90 1 2 the expanded deck. We had a deck that was slightly larger anyway than it should have been. There's one extension on the west side that's getting lopped off entirely. So, we're just trying to allow for various seating areas on the deck which being water side of the house that's where one would want to congregate. BOARD MEMBER SIMON: That's fine, thanks. CHAIRMAN DINIZIO: I have no questions. I'll open that up to the audience, see if anybody has anything to say? MS. DOTY: If I may, I would like to ask the Board to move as quickly as possible because we have been waiting since last fall and we have had erosion on the property. We'd like to get moving on it as soon as possible. CHAIRMAN DINIZIO: We'll take that under advisement, Miss Doty. Thank you very much. Does anybody else need to testify? Does anyone need to say anything for or against this application? BOARD MEMBER GOEHRINGER: I have to say, Jimmy, we have to close this hearing pending receipt of those two things, specifications on the hot tub or spa and specifications on the pool. CHAIRMAN DINIZIO: So you're making that motion, Jerry? BOARD MEMBER GOEHRINGER: Yes, I am. (See minutes for resolution.) . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 ------------------------------------------------- 17 CHAIRMAN DINIZIO: Our next hearing is for Robert Seeley and that's Jerry's. BOARD MEMBER GOEHRINGER: Yes. This is a request for a variance under Section 280-116 based on the Building Inspector's April 12, 2006 notice of disapproval concerning a proposed accessory swimming pool structure in a location at less than 100 feet from the top of the bluff adjacent to the Long Island Sound at 1250 Sound Drive, Greenport. Is Mrs. Mesiano here? MS. MESIANO: Yes. Catherine Mesiano on behalf of Mr. Seeley. We're reconvened, there were a number of issues raised at the initial hearing. And there was a postponement and we have since addressed the issues that had arisen. I think you have in your possession a copy of an engineering report prepared by Douglas Adams of Young and Young, and Mr. Adam's report deals with the issues raised in the earlier report by 18 19 20 21 22 23 24 . 25 March 29, 2007 91 1 2 the Soil and Water Conservation Board with respect specifically to what appears to be erosion on the bluff. And upon greater study we see that it's actually the foot path for the deer. They scale the bluff at that point because the naturally vegetated area seaward of Mr. Seeley's house and on the face of the bluff is the bedding area for the deer. So it's been observed numerous times, see the deer up and down, witnessing their bedding areas, et cetera. I have also retrieved some photographs, aerial photographs that were taken prior to the development of the site, and it's interesting to note that the same disturbance, degree of disturbance appears to be or is apparent in those photographs let me give you the best of them (handing). These are photographs taken prior to the development of the site. This is our site here. This is the house to the east of us, and this is the area west (indicating). There's a number of photographs, some of them are closer. CHAIRMAN DINIZIO: We should mark those. Let's mark this "deer path." MS. MESIANO: So I think the gist of what I'm trying to say is that the area identified by Soil and Water is not an area of erosion that's caused by storm water runoff going over the face of the bluff, but rather it's the area that the deer use to get to their bedding areas. The neighbor to the west has chain link fence all the way around his property, and if you look at those photographs in more depth, you'll see that the neighbors on either side have far more extensive lawn areas. They have fenced areas around their perimeters and their natural vegetation, the area of natural vegetation has been diminished significantly over time. Whereas our area of natural vegetation has remained untouched. So in considering the Board's objections with respect to the Soil and Water Conservation Board's report, Mr. Adam's, our engineer, addressed those points and his report covers those points. I believe his report goes on to say that storm water runoff is not being pitched over the bluff . . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 Another point that was made regarding dry wells, there are dry wells to contain the storm water runoff from the roof of the structure, and the proposed pool would of course have its own . 25 March 29, 2007 92 1 2 discharge dry wells, and that's noted. I do have surveys also to give the Board. We have had the topographic data added to the map, and we have tightened up and snugged up the proposed pool to the extent practical, we're able to maintain a 77 foot setback. How many copies would you like, Linda? . 3 4 5 6 BOARD SECY. KOWALSKI: I think it would help if we could have seven, if you have that many. Seven is always that magic number. MS. MESIANO: Would you like me to wait so you can review what you have? BOARD MEMBER GOEHRINGER: Thank you. BOARD SECY. KOWALSKI: Cathy, I was wondering if I could ask you a quick question. I faxed over a copy of a letter we got from the Planning Board; did you receive it? MS. MESIANO: Yes, I did, and I'll address 7 8 9 10 11 that. 12 BOARD SECY. KOWALSKI: I just wanted to make sure you got it, thank you. BOARD MEMBER GOEHRINGER: All right, we're 13 ready. . 14 MS. MESIANO: All right. As far as the new survey is concerned, just to reiterate, the greatest setback we can achieve is 77 feet to the top of the bluff and the pool discharge is noted. Now, setting that aside, I would refer to Mark Terry's LWRP assessment, and I would like to note that this matter has been before the Trustees, and the Trustees have approved this plan. So I don't know how relevant the LWRP is in light of the fact that the Trustees have received an assessment. I submitted to them what I submitted to you. So I don't really -- I appreciate what's being said in his report relative to policy Number 6, but the Trustees have approved an inground pool. ASST. TOWN ATTY. CORCORAN: Cathy, is the only basis he finds it inconsistent is nonresponsive compliance with the Trustees jurisdiction? MS. MESIANO: No. He's saying the minimum setback of 100 feet is required by 280-116A. ASST. TOWN ATTY. CORCORAN: So that's what we're talking about right now. MS. MESIANO: Yes. But we offered various points of mitigation which the Trustees felt was significant, thereby offsetting the inconsistency. 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 93 1 2 ASST. TOWN ATTY. CORCORAN: If they issue the permit that will take care of the inconsistency as related to Chapter 275. So this Board doesn't need to worry about that. This Board needs to worry about this jurisdiction. BOARD SECY. KOWALSKI: Cathy, can I ask you a question? This map is different than the map we had on file; is this revised? MS. MESIANO: It's a new map with a new . 3 4 5 6 topo. 7 BOARD SECY. KOWALSKI: It's revised, the shape and the setback is revised, right? MS. MESIANO: The shape and the setback, we increased the setback and reduced the size of the pool. BOARD SECY. KOWALSKI: Then the setback is to a different measurement than what the other pool was; it looks like it's not the closest point. MS. MESIANO: I would not agree with that because the surveyor normally has to take the measurement from the closest point. So I would -- BOARD SECY. KOWALSKI: They don't always, that's why I'm asking. I just want to be sure. MS. MESIANO: I have a scale. BOARD SECY. KOWALSKI: Thank you. The other map is measured to a different point on the bluff. 8 9 10 11 12 13 . 14 15 16 MS. MESIANO: After the topographic survey was done and the pool was moved closer to the house and made smaller, the dimensions and the orientation was different. BOARD SECY. KOWALSKI: But they measured at a different point to the top of the bluff. The top of the bluff line is at a different mark on this map than what the previous maps were, which appears that it might be a couple of feet. It's not a big difference, but it might be a couple of feet. MS. MESIANO: Could I just see what you're referring to? BOARD SECY. KOWALSKI: Sure (indicating). MS. MESIANO: I think the best answer I can offer you is the original, the earlier map is based on a different configuration and a different orientation, and we have since changed both, the configuration, the size, and the orientation of the pool. 17 18 19 20 21 22 23 24 . 25 March 29, 2007 94 1 2 BOARD SECY. KOWALSKI: You're saying that the different plots on the top of the bluff don't matter, you're still going with a 77 figure whether it's correct or incorrect, right? MS. MESIANO: I'm relying on it being correct because this is a certified survey by Young and Young. BOARD SECY. KOWALSKI: We don't question . 3 4 5 6 that. 7 MS. MESIANO: And also because I had a new topo done, I would rely more on the actual topo than the earlier map which I believe was the -- and I will quote it from the filed map, there was a line imposed that said approximate top of bluff, and I think we identified the top of the actual, the actual top of the bluff rather than going with approximate. Just two different measurements, I'm just making that point. BOARD MEMBER SIMON: But it is still apparent from the new map that there is no arrow from the pool to the closest point on the top of the bluff as the map. The only one you have is the one that goes off on an angle at 77 feet. So we really don't know how much less than 77 it would be if there had been a measurement point taken at that point. How different that would be from the 66 of the original application. MS. MESIANO: If we use the approximate top of bluff. BOARD MEMBER SIMON: If we use that dotted line on the diagram there's no -- I don't know if you can do to scale or not. There's simply no direct line between the pool and the closest points to the pool on the top of the bluff. CHAIRMAN DINIZIO: Michael, I think that that 77.71 is the -- BOARD MEMBER WEISMAN: That is the closest distance. When you swing a line east and west, then you will find the 77.7 is the closest point of that pool. MS. MESIANO: That's how I read the 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 survey. 23 BOARD MEMBER SIMON: If you took a compass and swung it. BOARD MEMBER WEISMAN: That diameter is going to be the shortest. MS. MESIANO: That's the shortest. BOARD MEMBER WEISMAN: If you arc the 24 . 25 March 29, 2007 95 1 2 radius. e 3 MS. MESIANO: Thank you. That's what I meant to say. So I hope that I answered your question that we believe based on our survey, our updated topo, our identification of the top of the bluff and our redesigned pool plan that we are able to maintain a setback of 77.71 feet from the top of the bluff. BOARD SECY. KOWALSKI: At the closest 4 5 6 point? 7 MS. MESIANO: At the closest point, yes. I believe another issue your Board has raised is with respect to a covenant that was raised that was filed for the Planning Board that refers to a limitation, no grading shall be permitted within 100 feet of the top of the bluff except that which may be necessary to control or remedy erosion or to prevent storm water from flowing over the edge of the bluff. The opinion that came to you from the Planning Board, or I should back up and restate that and say that in the Planning Board's opinion they believed that installation of a swimming pool constitutes grading. I'm not sure that I agree with that statement because it is the intention that a swimming pool installed in this site would be installed at grade and any excavation would be restored to grade. Further, with the points that were made about the concern to the bluff, the potential for storm water runoff, it's Mr. Seeley's intention to install a low berm that would eliminate the possibility for any storm water running over the bluff and causing any further degradation. Even though the erosion that's there is not caused by storm water runoff in the event of a large storm, extraordinary storm, there could be a situation that would arise where storm water could flow over the bluff and those areas that are weakened by the animal paths would certainly be prone to wash out because they're not vegetated. So Mr. Seeley would be inclined to put in a berm that would mitigate that problem. Now, that item Number 11 in that covenant and restriction does make an exception for grading and change of elevation, et cetera, for the purpose of mitigating storm water runoff. So there is an exception in there and I would further address the point that in the covenants 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 22 23 24 e 25 March 29, 2007 96 1 2 and restrictions there appears to be a covenant or restriction rather on any disturbance within 100 feet. While that is a recorded covenant, I would like again to point out to you in the photographs that I have given to you is that the houses on either side of Mr. Seeley's property have swimming pools, the house to the east admittedly is not part of this section of this subdivision, however, the lot to the west is part of this subdivision. And it's our understanding that the information on the filed map was not the information that was used on the survey when that building permit was obtained. Whether or not any attention was given to the covenant with respect to the 100 feet, I couldn't say, but I think it's irrelevant at this point because that house and pool are closer than 100 feet to the bluff. It's the same subdivision, and we're asking for no more than what that property owner has regardless of the manner in which he came to obtain it; it has been done in the recent past under the same set of rules, under the same covenants, that house is certainly closer, everything is one within 100 feet. Our mistake was going by the rules and showing everything as it was displayed on the filed map. And we're caught between a rock and a hard spot. I would further like to add that in matters concerning the covenants, I think that that's a matter for us to take up with the Planning Board. We're not asking you to override the Planning Board's covenants. We're asking you to consider only what's before you, which is a request for a variance from a setback from a bluff, which is a request that's not unlike many that have come before you. We're asking for 77 feet and an earlier person was asking for zero clearance to a bulkhead. So we're not asking for a significant setback variance. We understand that we need to go back to the Planning Board because there is a mechanism written into that covenant that provides for amendment to those covenants. Further, that mechanism provides that notice be given to all the property owners, adjacent property owners within the subdivision. I have a letter, which I believe you have received from the homeowner's association that supports this application for the primary reason that Mr. Seeley is unable to sell this . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 97 1 2 house. Everyone who looks at it is very taken by the house, very interested by the house and the reaction is the same, I love it, but I'm not going to buy it without a pool. So the point of the homeowner's association who represent all the property owners is that the inabilities for that house to be sold is negatively impacting their property values, and I think that's a factor that is relevant to this argument. BOARD MEMBER GOEHRINGER: Mrs. Mesiano, then why don't you hold this application in abeyance and go to the Planning Board? That would have been much easier for us than soliciting this most recent memo from them. You know, I am not making a statement for the Board but that would be my normal situation that I would suggest. MS. MESIANO: My answer to that is that we would be willing to take a decision from this Board subject to the Planning Board's decision. I saw this Board as the greatest obstacle. So I like to start with my greater obstacle and pick my way through them. And with the homeowner's support in the neighborhood, I think that the Planning Board would have an easier time in modifying the amendment because at most it affects two lots out of the entire subdivision. So, I would rather conclude this matter with your Board, even if your decision is subject to the Planning Board's positive decision. BOARD MEMBER SIMON: You can urge us to ignore the question about the covenants, and pretend it doesn't exist, and it looks as though the way things are moving is a suggestion at our last hearing was that before we decided we wanted to know about this covenant, and unless you can argue that we would be correct in saying that really isn't our business, that for us is one of the hard questions that we have to get past before we can do a full assessment of this application, which would include that. It seems to me that would have to be wiped away before we could give a full review. MS. MESIANO: If I might say, I have heard this Board and other agencies within the town stating to me directly that it is not their responsibility to enforce covenants. And that's the only thing that's before you is the setback, but I will like Mr. Bressler to address that. . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 98 1 2 MR. BRESSLER: If I may for the applicant, Eric J. Bressler, Wickham, Bressler, Gordon and Geasa, Main Road, Mattituck. Mr. Goehringer raised a very interesting question which now, Mr. Simon, you're following up on. I think I would like to amplify on Mrs. Mesiano's comment, why here -- actually why the Trustees first and here second, and the Planning Board last, because to do otherwise would put us into a vicious circle. When we go to the Planning Board, we want to have in hand a plan that has been blessed by the Trustees, which it now has been, which we're hoping that you will bless, so that the Planning Board is in a position to determine, A, whether or not it even constitutes a regrading or if it does, exactly what it is that they will be considering that other boards have said is okay with them within their jurisdictional purview. Otherwise we're going to go to the Planning Board and they're going to say, where is this pool going to be; how far back is it going to be; what shape is it going to be; how do you measure to the bluff line. You're going to ask all these questions, now we're done and we have a project that they can rationally consider. Now, in terms of the covenant, that's a very interesting question and I think the answer is, if you look at your enabling statute, you ask yourself, how do those factors apply to this particular project, and if you look, you will find that some of the issues for example that are dealt with by the Trustees are not necessarily within the purview of this Board. Similarly, the enforcement of covenants is not directly within the purview of this Board, but what this Board has done in the past is say we are going to grant approval based upon our statute and based upon the factors that we look at, but we are not going to make a determination or express an opinion as to what other approvals mayor may not be necessary. And in this case you don't need to say that with respect to the Trustees because we have their approval in hand, and we have given you their survey. To the extent that the Planning Board has informally said we think there is something that has to be done, we're not asking you to opine on that; we're asking you to opine and make a decision as to whether or not 77 point whatever . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 99 1 2 feet is something that weighing all the various factors is something that's appropriate subject to whatever else anybody may do. The Planning Board has not seen fit to do anything with respect to the neighbor. Now that's not necessarily determinative on us, nor will the Planning Board in its consideration, I would think because they're concerned about a certain item, which I do believe kind of overlaps with the Trustees because they're talking about storm water, nor will they consider the factors that you consider, what it's going to do to the neighborhood because that's not within their purview. BOARD MEMBER SIMON: I want follow-up, if we could, if we could argument. BOARD MEMBER GOEHRINGER: Could I question that argument for one second before you bring that follow-up? BOARD MEMBER SIMON: his argument. CHAIRMAN DINIZIO: It's Michael's turn. BOARD MEMBER SIMON: One of the reasons this is brought is it looked as though we needed an interpretation by the Planning Board of something which is in their domain, which is namely the covenant. You're saying if there were a covenant which we knew about, which was totally unambiguous, unequivocal but we knew that it precluded the approval of this because it was very clear, it didn't matter the interpretation, that we should go ahead and approve it or not as though we didn't know anything about that. MR. BRESSLER: No. What I'm saying is you cannot sit there and cover your eyes and your ears and say I don't know anything about it; but what you can say is we're aware of it, it's not within our purview and our approval doesn't constitute an approval with respect to what anybody else has to do. So therefore, if we have a Trustees permit in hand, and we have a Zoning Board in hand, and we go to put a shovel in the ground and the building department says, hey, wait a minute, you don't have this and you don't have that, then we're going to be stuck with that. I'm not saying that you can't acknowledge its existence, but it is not for you to apply that. It is for whatever board, and in this case the Planning Board, to say upon a to ask a accept your . 3 4 5 6 7 8 9 10 11 It's a rejoinder to 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 100 1 2 full presentation, either, gee, we've looked at your project as approved by these boards and you know what, it's really not a regrading. They could say that because they haven't seen an approved plan by anybody yet. BOARD MEMBER SIMON: But they have seen the application and they decided it is a regrading. Are you suggesting that if you go back to them armed with our approval that they may change their mind? MR. BRESSLER: I'm saying that nobody has sat down with them and walked them through it and given them the type of presentation that we're giving you. And I'm saying, yes, when a board is actually educated as to what the details are, they may very well say, well, you know what, maybe it's a temporary regrading, maybe we don't care about it, maybe if you put up hay bales, maybe if you put up the berm, it's no problem. But this is something that has to be presented to them, and I think it's a place respectfully where this Board shouldn't go, doesn't have to go and it can protect itself by saying it's subject to whatever -- for example, suppose we didn't have a Trustees permit, one of you would probably suggest this doesn't constitute an approval with respect to any permits that are necessary from the Trustees. Necessarily we have to go someplace first and we did. We went to the Trustees. BOARD MEMBER SIMON: As you know our legal relationship with the Planning Board is not the same as it is with the Trustees; and that's well known, so I don't think the analogy is very useful. I don't think the Trustee argument is particularly relevant on this particular dispute. We don't have the authority to trust what the Planning Board told us because you haven't had a chance to make your pitch to say that they wouldn't take this very seriously, maybe you're right. MR. BRESSLER: We don't know, that's exactly what I'm saying to you; we've not been there yet and we shouldn't put the cart before the horse. And this Board, all it has to say is we're not ruling on that. That is something for some other board and our approval cannot be construed as giving the applicant permission to do that which he may not otherwise be able to do, and you . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 101 1 6 apply the balancing test and hopefully you'll say, yes, this pool is consistent with the neighborhood and we'll move on and make our pitch. BOARD MEMBER SIMON: So you think it was inappropriate for us to ask the Planning Board for an interpretation? MR. BRESSLER: I'm not saying it's inappropriate. BOARD MEMBER SIMON: We're not supposed to pay any attention to the answer. MR. BRESSLER: I'm not saying that it's inappropriate because suppose the answer had come back and said it's no problem at all. Then you don't need any cautionary language, you don't have to cover your backside by saying, gee, you better think about this Board because you're protected but now that they have said maybe there's something there, you put that in the decision and we move along down the road and let those people do whatever they're going to do, and we're done here hopefully with a plan that you can live with, the Trustees can live with and we'll go elsewhere in the building or some other building or whatever they may be. ASST. TOWN ATTY. CORCORAN: I think we all agree that you're going to need the Planning Board's blessing to get a building permit for what you're seeking to do. I see your practical argument, I also see your legal argument, but practical argument also has some risks because you have to be careful for what you wish for, you may get this Board to issue you a decision that you're asking politely for and they may decide that among other reasons, the Planning Board's input on the issue leads them to deny your variance, then you're going to the Planning Board without a variance and, in fact, a denial from this Board without the opportunity to present your case to them to say, no, it's really not a problem, which sounds like you have argument towards. MR. BRESSLER: I don't believe that this Board would do that. I think if this Board took the factors that are applicable to its decision, made a determination and then carved out whatever other approvals are there, I could go armed with that. If this Board sees fit not to grant this relief, then it's not going to grant that relief and we'll have to do whatever we have to do, you 2 . 3 4 5 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 102 1 2 know, and there's nothing I can do about that. I don't think it's appropriate for this Board to say no, and then send me someplace else and then say . 3 6 ASST. TOWN ATTY. CORCORAN: Well, there is something you can do about it if this Board is asking you to go present your case to the Planning Board and see if you can convince them otherwise other than that they have already said. But if you don't want to do that, you obviously don't have to do that. You can tell this Board I want a decision. You have all the information you're getting from me, and please decide. MR. BRESSLER: As a practical matter, I want to know that that's what I want to present to them, I want to know what I have in hand so that I can go to them and say all the other boards have said, this is okay; now, what do you guys say, this is an approved plan. I don't want to ping-pong back and forth and have the Planning Board say, well, now where exactly are you going to do this, and what are the dimensions and how are we to evaluate this in terms of our covenant if the Zoning Board or the Trustees won't say this is what would be approvable to us. I want to do it in a manner that makes sense so that the last people in line are truly the last people in line and I don't get bounced around. And I don't think anybody wants to see that, and by doing it that way, there's no violence done to the process or the merits because everybody considers the factors that are relevant to them. If somebody along the line says no, then no. BOARD MEMBER GOEHRINGER: This statement is both to Mr. Bressler and to the town attorney, you are absolutely correct that we're not bound by covenants, but I don't normally breach covenants. I'm not speaking for the Board, I don't, I honestly don't. And I think in the matter of the last 27 years we have breached a couple covenants and environmentally sensitive lots where we had to push the houses a little closer to the road, but those were the covenants of the individual property owners, when a board in this town creates a covenant, be it this covenant or the covenant of a building area, this Board, in my opinion, this Board goes out of its way to stay within the confines of that covenant; in other words, we 4 5 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 103 1 9 don't breach each other's covenants usually. And I have to tell you the only place I have ever seen it is in the possibility of a lot division where there may have been agreement on our Board to grant it or a disagreement on their board not to grant it, but I have never seen it in a situation like this. And I have to tell you by you saying that I disagree with you, that doesn't mean that I don't like you; that means that I disagree with you and we don't normally do that. We will normally discuss it with them as we have just done in asking them what their opinion was regarding this particular covenant. MR. BRESSLER: Yet by doing what I propose, you do not do violence to that particular notion. Which is they by virtue of the covenant, they have the power to vary that, and by your saying the factors we recognize there's something out there. It's not within our power to do something about it, but within our power. We have no problem with our standards. What you want to do with it is up to you, and I don't think that that does violence to the division of authority, nor does it put you in a position of overruling them since you have specifically stated, we're not doing that, we're not overruling you. BOARD MEMBER GOEHRINGER: My suggestion is again, hold it in abeyance and go over to the Planning Board and talk to them. BOARD MEMBER SIMON: One way that we could cut the Gordian knot would be to say, look, the issue is not how much or how little we should respect the covenant, but since this particular covenant goes to the root of precisely the kind of thing that the Zoning board is concerned with, we can say covenant schmovenant, let us look at the problem of potential erosion with respect to the surface and we could pretend there was no covenant, and so we could make a decision one way or another by ignoring the covenant. I'm not sure it would necessarily be in your best interest, unless you believe we're relying solely on the language of this covenant, which has really nothing to do with what we really do. MR. BRESSLER: No, it doesn't. And it seems to me when you look at the balancing test, and you look at the character of the neighborhood, you look at the size of the 100 foot variance 2 . 3 4 5 6 7 8 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 104 1 7 that's being requested, all of those factors militate in favor of the grant of a relief. Yet, to stick shovel in ground, may very well result in the Building Inspector coming out saying you got to go and you got to get relief from this covenant or the determination that the covenant doesn't apply or something of that nature. But I don't think that prevents you from saying all other things being equal of that Board, 77 point something feet is something that this Board can live with. It's not a problem, it doesn't change the character of the neighborhood. Those are the factors that I think this Board should consider and by doing what I have proposed, it saves additional procedural steps. Trustees did not take that position, they said we'll measure it against our standards, and you got to go somewhere else, and if you folks do the same thing, and say okay, measure it against our standards, it passes muster, but be careful, there's something else out there, you've got to go somewhere else, don't send us yo-yoing back and forth. Suppose we go there and the Planning Board says, well, what is it that the Zoning Board said, is 77 feet going to be okay with them? How do we know? You know, chicken and the egg. We've come in a logical sequence and we don't expect anybody to take responsibility for other people's decisions, and that's basically where we're coming down here, I think it's a simple approach. I think it works. I think you're not overruling covenants, you're not side-stepping covenants, you're recognizing them and sending us to a place where they will be dealt with one way or the other. 2 . 3 4 5 6 8 9 10 11 12 13 . 14 15 16 17 18 19 23 BOARD MEMBER SIMON: Just one thing I want to say for clarification, and then I'll shut up. I'm assuming that we could consider the 77 feet and the question about excavation of a lawn that close to the bluff as if there were no covenant. It wouldn't be that our decision would necessarily be based entirely on the 77 feet, but it might be based on previously the same things that turn out to be behind the covenant. MR. BRESSLER: It may very well be and I'm sure you would take into account the fact that the Trustees have permitted it, you would take into account the fact that we have offered to berm 20 21 22 24 . 25 March 29, 2007 105 1 9 further down, even though we don't see any present necessities for it, it's possible Soil and Water want us to do that, we have no objection to that. You want dewatering dry wells, we're willing to do that, Trustees insisted on it, we have agreed. So we expect this Board to look at all of those things, and we're confident that when you look at them, you will say, that this is sensible in applying the balancing test, doesn't do any harm to anything. We hope you'll then say but we're not making a determination as to what other people have the ability to enforce or not enforce, and that's that covenant. And even if you were to rule you get this and it's an exception from the covenant, that wouldn't be binding on them because you don't have the power to do that. So I think that's a long answer to a short question. BOARD MEMBER WEISMAN: It's pretty clear what the arguments are and what your procedural expectations are. We do have jurisdiction over environmental impact as part of our balancing test. My question actually is since you have come up with a very specific plan, do you have specifications for the proposed kidney-shaped pool with the landward spa? Because I would like to know the depth of that pool. MS. MESIANO: The maximum depth of the pool would be eight feet at its deepest point. I believe our engineering report also addresses the question as to the potential risk to the bluff in the event of such a structure constructed or installed, and in the engineer's opinion that poses no risk to the bluff because of the -- I think you would say the physics of it as well as the proximity to the bluff, and I think one of the big factors that we haven't talked about is the hardship that I wouldn't call it self-imposed because I don't think that there was any intention -- what I'm trying to say is I don't think that Mr. Seeley anticipated that there would be such difficulty in selling the house without a pool. It's been shown many, many times and I know I'm repeating myself but that really is the crux of it. Mr. Seeley built the house with the intention of using it for his own personal use. Re got the house done and his wife had other plans and the house went on the market. And I don't 2 . 3 4 5 6 7 8 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 106 1 6 think he ever anticipated that there would be that degree of difficulty in selling the house without a pool. So the cost to him every month is very significant. The neighbors have set forth their concern to their property values because the house is not saleable as it presently exists and that's a principal driving factor here because it's the opposite of what you usually see, not granting the variance causes a negative impact to the neighborhood and continues the hardship on Mr. Seeley because that's the biggest objection to the property is that it doesn't have a pool. BOARD MEMBER WEISMAN: I just want to make sure you're maintaining a 15 foot side yard? MS. MESIANO: Yes, we're not asking for any other relief. BOARD MEMBER WEISMAN: And you have added to this a pool discharge? MS. MESIANO: Yes, we have. BOARD MEMBER WEISMAN: And a four foot fence around the pool? MS. MESIANO: Yes. BOARD MEMBER WEISMAN: And the spa is now located landward as opposed to seaward? MS. MESIANO: Yes. CHAIRMAN DINIZIO: Okay. BOARD MEMBER WEISMAN: No further questions. CHAIRMAN DINIZIO: Ruth? BOARD MEMBER OLIVA: First of all we have the LWRP determination to be 100 foot back. We have a covenant and restriction from the Planning Board. I have been up at this site a couple of times, the land slopes down toward the top of the bluff. There is a bit of a vegetated area at that top of the bluff. There is erosion on that bluff in a couple spots and it is not caused by deer. It was caused by some recent rains because of the pile of dirt sitting down on the toe of the bluff, and I have pictures of it and that path he calls a deer path must have been an old walking path people have had for many, many years. MS. MESIANO: That's an old road that exists on the bluff. That's different from the vertical paths where the deer -- BOARD MEMBER OLIVA: They're not vertical paths, they're erosion, I disagree with you. They're erosion you can distinctly see on the toe 2 . 3 4 5 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 107 1 2 of the bluff where this pile of wet soil is sitting there. For all these reasons, I myself, I could not -- MS. MESIANO: I would just like to say that those areas where the moist soil is sitting at the toe of the bluff are those areas that have been eroded -- I mean, I don't want to argue with you, but that was my point previously, that those areas will be disturbed in the event of heavy rains and I must repeat myself by saying that installation of a berm to mitigate that is part of this plan. We don't believe that installation of a pool at grade, and the end result will be the grade that we presently have, constitutes grading as such. We believe that installation of the berm is permissible given the wording of the covenant. I don't know what else to express. BOARD MEMBER OLIVA: I just say I respectfully disagree with you MS. MESIANO: And I respectfully accept your comments. CHAIRMAN DINIZIO: Ruth, are you done? BOARD MEMBER OLIVA: Yes. CHAIRMAN DINIZIO: Okay, I would like to make a statement here because I'm holding it in. Number 1, I don't think that they're deer paths either, any more than Ruth does. And I am very familiar with that area quite honestly, and the deer used to go down where the road is. MS. MESIANO: Right. CHAIRMAN DINIZIO: They don't go down there any more because there's a fence that blocks that. . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 MS. MESIANO: That's right. CHAIRMAN DINIZIO: So these are not deer paths, these are where the deer are either getting so frustrated they can't go up that path and going down, or it's erosion in some way or the deer are causing erosion, in any case it's all human made and it's recent, it's not -- MS. MESIANO: We don't disagree with that statement. I think you said what I said in a different manner. We're both getting to the same place. CHAIRMAN DINIZIO: But the deer I know used to go down that all the time. I live in that area, I walk by that house every day. MS. MESIANO: I believe one of the other 20 21 22 23 24 . 25 March 29, 2007 108 1 2 covenants in this subdivision is that the only fencing to be utilized is natural plantings on the property line, and I have to note that the property to the west is chain link fenced around the whole perimeter. So that is discouraging the deer from taking their natural path. CHAIRMAN DINIZIO: Right. I agree. And beyond that, now, I can kind of agree with Eric's argument about the cart before the horse kind of thing, but we have to consider all the information. And one of the things that is glaring to me is that this lot, this subdivision, would not be there were it not for someone agreeing to this covenant. So, in changing the neighborhood, I mean, if we make this decision, if we decide that, we're changing the neighborhood in a huge way. MS. MESIANO: I have to disagree with that respectfully because two of the four waterfront lots are developed, the other developed lot is not in conformity with the covenants. CHAIRMAN DINIZIO: But that's not a subject of this application. I'm talking about us making a decision on this application. One of the factors that we're going to consider is the very reason why, how this subdivision came to be. MS. MESIANO: And I promised myself I wouldn't go here, but I have to say this, I have had experience with a number of projects where it's always nice to be a Monday morning quarterback, and you have the benefit of being able to look back and question why things were done the way they were, but I have found a pattern of there being subdivisions created and on paper, on its face, the covenants appear to be reasonable, they're covenants used in other applications, however, when you look at site specific conditions, the covenants don't work, when you look at the impact to the property owner, the end user, this lot is not -- there's practical difficulties in the lot. The house itself that was built is out of the ordinary because it's not designed as a house normally would be because of the practical difficulties in developing a site where the building envelope which is created by taking away everything isn't and you come up with an area that's 26 feet on end, 45 feet deep on the other and you're not left with any alternative. . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 109 1 5 CHAIRMAN DINIZIO: No, Miss Mesiano, I think you're putting the cart before the horse again too, because what we have here is the existing house that's taken up by the footprint. Now, what a Planning Board looks at, they're just looking at a lot. They put on whatever covenants that they want, and Joe Developer signs it. He says, I can live with this and he goes on his merry way. Now, someone came to this lot and built a house on this lot, nice house, beautiful house. And quite honestly, it doesn't have a pool because the buildable lot is taken up by the house. 2 . 3 4 6 7 8 9 MS. MESIANO: And I would have to say in response to that to have created a house that would have allowed for a reasonable size pool would then have created a house that instead of the potential buyers coming along and saying, gee, I really love it, the pool's great, but why did you design such a poorly designed house? CHAIRMAN DINIZIO: Again, that's whole part and parcel of when you buy a house. I mean, come on -- MS. MESIANO: It is what it is. I can only present to you what is there, what facts we know, what work we have done to try to satisfy the questions that you have raised. We have gone to the expense and the time and the effort to give you a reasonable engineering report to address the issues that arose. That's why we're here because we need relief because the property is less than perfect, and we're asking for your relief so we may go on and ask for further relief down the line. CHAIRMAN DINIZIO: Just to be fair to you, this gentleman that is speaking, right now, me, I'm not inclined to grant this simply because I find myself wondering why this covenant exists. That's what's bothering me from this. I don't mind 71 feet, we've done 71 feet plenty of times. BOARD MEMBER WEISMAN: 77 now. CHAIRMAN DINIZIO: 77, I have no objection to that, I have no objection to your erosion control, the whole nine yards, but I'm finding myself faced with an application that went through years of trying to be approved and when it came down to putting pen to paper, someone agreed to this particular lot. I'm not going to say what 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 110 1 7 the other lots are, I don't know what they got away with and I don't care what they got away with until they come here. But you got caught, and you got caught in this kind of a bind. I can't make a decision until I know why that covenant exists, there's got to be a reason for that because it's not normal. And like I say, the entire neighborhood was created based on this covenant, and I'm unwilling to break that covenant. Not even the fact that you're trying to convince me that digging a hole is not worse than grading, I'm not going to even bring that. MS. MESIANO: I don't want to go there. CHAIRMAN DINIZIO: Grading to me is raking your lawn, digging an eight foot hole is a whole lot more obtrusive and detrimental to this particular covenant than just raking a lawn. MS. MESIANO: Then I would like to say this. I would like to not be foreclosed from making our presentation and presenting our arguments to the Planning Board and have the opportunity to have them look at a site-specific situation with factors that are specific only to this site. CHAIRMAN DINIZIO: So, what is your preference? MS. MESIANO: Well, you know what our preference is. CHAIRMAN DINIZIO: Do you want us to hold the meeting open? MR. BRESSLER: We want you to grant the variance. ASST. TOWN ATTY. CORCORAN: Well, hearing what you have heard, what would you like this Board to do, to rule or to wait? MS. MESIANO: I would like to have this Board wait for us to go to the Planning Board because I do not want a negative decision without the opportunity to be heard by the Planning Board. BOARD MEMBER WEISMAN: And you will be presenting this? MS. MESIANO: I will be presenting that. BOARD MEMBER WEISMAN: The contours for the proposed berm, by the way, do not seem to be indicated on here; is that correct? MS. MESIANO: That's correct. BOARD MEMBER WEISMAN: So this is just the 2 . 3 4 5 6 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 topo. March 29, 2007 III 1 2 MS. MESIANO: This is just the topo. It's the tightest, smallest thing we can do. BOARD MEMBER WEISMAN: I just wanted to make sure I wasn't missing the berm you're talking about. . 3 4 5 MS. MESIANO: No. We asked the surveyor only for the as-built, as-is conditions. CHAIRMAN DINIZIO: I would like to entertain a motion that we leave this hearing open with no date until the applicant can come back. (See minutes for resolution.) 6 7 8 CHAIRMAN DINIZIO: Next hearing is for Edward Fergus. This is an application requesting a variance under Section 280-18 (100-30A.3) based on the Building Inspector's May 31, 2006 notice of disapproval concerning an application for a building permit to build a single family dwelling in a location less than the code-required 50 feet from the rear lot line, at 1854 North Bayview Road, Southold. Jerry, that's your hearing. BOARD MEMBER GOEHRINGER: Mr. Anderson, how are you today? MR. ANDERSON: I'm well. BOARD MEMBER GOEHRINGER: Tell me where we are from where we left off the last time in a relatively brief and concise way, particularly the issues that concern the neighbor and those issues that concern the variance application as it appears, which is very simply a setback for -- MR. ANDERSON: What I handed up will summarize my arguments today. What we have here is we have a single-family dwelling with an attached garage which will occupy 3,000 square feet, and this is to be placed on a lot at 63,302, and therefore it's going to occupy approximately eight and a half percent of lot area where 20 percent is required. It is a waterfront lot. And as a result of that, the regulatory forces including most particularly DEC and the Town Trustees, forced the development of this house to what would be the southeastern corner of the property. The rear yard setback in this R40 zone is 50 feet and because there's an attached garage to this house, it becomes part of the principal. That detached garage is 25.2 feet from the rear lot line, so it is its attachment that triggers 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 112 1 2 this variance. That is to say that if it were detached, I would not need this variance. The dwelling itself is a one-story dwelling and the attached garage is attached at the request of the applicants, Mr. and Mrs. Fergus, who are here today. Also here in support of the application is Mr. Tuttle, who is our engineer. We have actually had two engineers working on this. The Ferguses are older in years and particularly Mr. Fergus has a great deal of trouble walking. So he simply wants to be able to park a car in his garage and walk from the garage into the house through heated space, and in order to do that it must be attached and because it's attached, I need a zoning variance from this Board. . 3 4 5 6 7 8 9 10 The last time we were here, which was in November of last year, Heather Cusack representing the Trustees came in and informed of a survey discrepancy which amounted to two cubic yards of fill placed on top of a septic area, the septic tank, specifically. The actual fill was beyond the 100 feet from the wetlands boundary, but nevertheless, you requested that we go back to the Trustees. The Trustees had mentioned or Heather had mentioned that there was a runoff concern with that. So we reengineered our survey, which is attached to our information package. We increased the store run by placing a French drain around the perimeter of the property away from the wetlands, went in and secured an amendment to a permit, and that occurred in January. The neighbors who are also here, the Lanes, in objection, objected to that amendment and demanded a rehearing, which took place in February. February 14th the Trustees reaffirmed the amendment they had granted in January. In addition to that, one thing I did notice in your file, you have an LWRP form. I want you to know it's identical to the form addressed by the Trustees. So the LWRP matters have been resolved in this matter. I invite you and I request that that Trustee file, however it may be useful, may be considered part of this application because it now contains three approvals from the Trustees. Now, the final concern was raised by Leslie, and that had to do with the potential flooding of the basement. The contractor, who is 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 113 1 2 also here, had stated that when they install sump pumps quite often -- and we reengineered the plan for that. So there are two sump pumps located in a basement which sump pumps are piped into two leaching pools or dry wells in the event there's a flooding in the basement. We also went back to Mr. Tuttle to determine what the actual risks of the flooding of the basement were, and Mr. Tuttle -- and I have given you a letter in my package that the risks of flooding are actually minimal. So that's what we have here. Throughout this process, I feel the Ferguses have been just harassed by their neighbors, the Lanes, and they have objected at every step of the way, and it took me awhile to understand why, and I finally did by reading one of the letters that they put in which bears the name Property Angels and contains a website and then it all became very clear to me. What we have next door from the Lanes is really a group rental hotel commercial enterprise and yes, Ruth, even you could live there and stay there for $4,500 a month -- a week in high season. Credit cards are accepted. They will finance your stay, they will pick you up, they will even rent a boat for you to park at the dock. This is not something that would impact -- as I thought initially -- we were impacting someone's home that they were living in. They actually live in Wagon Wheel Lane in Cutchogue, where Property Angels, a commercial business, is operated in that home, which is in a residential zone. I have supplied you all that proof in the memo before you. Now, because we are next to a group rental, the concern it appears to me is that income might be lost. I don't think that it is this Board's job to guarantee someone's group rental income. And I can tell you that you also have in your files a letter from a Peter Bochavich in support of the application, who writes: "I am told the Lanes object to the Fergus development of the property for several reasons for which I disagree. I believe the Lanes do not have an accurate basis on which to base their objection, and do not actually reside on their property." Which is true. "It is seemingly occupied by short-term transient renters, who are less than respectful of our quiet and family-oriented . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 114 1 5 community. During the summer months especially there are numerous cars parked on the property and street and frequently loud parties and bothersome dogs barking. I have looked at the survey and the plans of the Fergus planned retirement home and believe it to be an asset to our neighborhood. I understand the Fergus family plans to make this property their primary residence" -- which they do plan to do so -- "and expect they will be respectful of the neighbors and their properties. The house seems entirely reasonable, a valuable addition to our neighborhood as I am sure Dorothea and Edward Fergus will be themselves." So I understand now what dilemma and why we have had such resistance we have here. You know these group rentals are not something that this Board should be protecting in its determination. We have not had a chance to express what this has done, what this opposition has done to our application in every step of the way in front of every regulatory board, but the difference here is that we come to you and the Ferguses have gone to every regulatory authority with jurisdiction over this matter with clean hands and they said, I want to build this house. And every regulatory committee, the Trustees have done it three times, have approved this house. They appeared for over two years and they should not be having these problems here. This application should be approved because the practical hardship is obvious. It's a waterfront lot. He's constrained to placing it against the property line. He wants an attached garage because he wants to be able to walk from his garage into his house through a heated space. The area it occupies doesn't exceed any coverage restriction, and it is a one floor house, why, because the man has trouble walking. So see he's building his house laterally. If I came to you with a house half the size being two floors, the end result would be the same, a practical hardship is the age and the condition of the client and the environmental constraints placed on the site, and for that reason this application should be granted. Thank you. CHAIRMAN DINIZIO: Okay. Jerry, do you have any questions? BOARD MEMBER GOEHRINGER: Mr. Anderson, 2 . 3 4 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 115 1 5 you sat down rather quickly. What are we going to do about this Saratoga Associates? MR. ANDERSON: The Saratoga Associates letter was just handed to me. It has absolutely no bearing on this application, but I can address it very quickly for you. BOARD MEMBER GOEHRINGER: The only thing, one of the things that's mentioned in here is the issue of at least some sort of buffering from the garage to the property line. Regardless of how people use their property, that's their business and I understand your opinion regarding that. MR. ANDERSON: The Ferguses have said that they would put up a fence, they would landscape, they're completely flexible on that point. BOARD MEMBER GOEHRINGER: I am keeping this strictly to this variance application and I'm I'm going to leave it at that situation. I'm going to ask you to supply the Board with an opinion regarding the Saratoga Associates comments, who are property owners and have standing in this application as property owners, in my opinion. BOARD MEMBER WEISMAN: Right next door? BOARD MEMBER GOEHRINGER: Yes. MR. ANDERSON: In writing I assume? BOARD MEMBER GOEHRINGER: Yes. I'm asking you to do that. I'm not asking you to do that today, it's not necessary, you just received it, just as you gave us that nice little packet you just gave us, within the next two weeks or so; would that be okay? MR. ANDERSON: That's perfectly acceptable. CHAIRMAN DINIZIO: Stay there, Bruce. Leslie, do you have any questions? BOARD MEMBER WEISMAN: Actually there was one question simply to get some geographic bearing in doing the site visit because there are brambles even though paths are cut through. It's a little difficult to actually determine where the corners are, you can see where the property lines are but it's a little difficult to see where the stakes are part of the house. MR. ANDERSON: Did you see the aerial photographs with the paths and the directional arrows? 2 . 3 4 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 BOARD MEMBER WEISMAN: Yes. March 29, 2007 116 1 2 MR. ANDERSON: I don't know if we can do any better than that. BOARD MEMBER WEISMAN: No, I don't think you can, I'm not asking for that. There is a kind of a boat dock and steps right on the water's edge. . 3 4 5 MR. ANDERSON: Right. BOARD MEMBER WEISMAN: I want clarification, is that on the Ferguses' property or is that on the neighbor's property. MR. ANDERSON: The Ferguses have a permitted dock on their property. BOARD MEMBER WEISMAN: That's what I thought, yes. It just helps me get their bearing. I just wanted to know if that was on their property. BOARD MEMBER WEISMAN: All right, that's all I have. CHAIRMAN DINIZIO: Leslie, I know you had some questions concerning the sump pumps, I was wondering if you were satisfied? BOARD MEMBER WEISMAN: Well, I need to review additional information. You vocalized it, I presume there's some information. MR. ANDERSON: That's fine, I'll have two weeks to write a letter too. That's fine. BOARD MEMBER WEISMAN: Pardon? MR. ANDERSON: We're going to leave it open for some time, I imagine. CHAIRMAN DINIZIO: We may, we may not. MR. ANDERSON: I would like the opportunity to address that letter and two weeks would seem reasonable for me to do that. CHAIRMAN DINIZIO: We won't take testimony in two weeks unless it's going to be in writing. MR. ANDERSON: That's what I would be 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 doing. 23 BOARD MEMBER WEISMAN: If you could just simply put in writing the information you just stated about the sump pumps and the dry wells, that's not in the current information we have, or is it someplace? MR. ANDERSON: It's specified. You want to know how big the sump pump energy is and everything. CHAIRMAN DINIZIO: No, is it in this 21 22 24 . 25 packet? MR. ANDERSON: Oh, yeah, it shows the March 29, 2007 117 1 5 location of the sump pump and the dry wells. BOARD MEMBER WEISMAN: Okay, then I just need to read it. Just as you need to read this and respond and we now have the data from you. MR. ANDERSON: I wrote you that as to shorten my presentation. I have been accused of being long-winded in the past. CHAIRMAN DINIZIO: Yeah, you are. Hold on, Bruce, stay right there. BOARD MEMBER WEISMAN: I am simply saying there's a message in here stating to be read into the hearing on 3/29/07. BOARD SECY. KOWALSKI: It doesn't need to be read. 2 e 3 4 6 7 8 9 CHAIRMAN DINIZIO: It doesn't need to be read unless you want to read it. BOARD MEMBER WEISMAN: I read it earlier. CHAIRMAN DINIZIO: Michael? BOARD MEMBER SIMON: I reread the transcript from the original hearing back in what was it, December, November, and I am quite happy, looking forward to reading this packet and to reading it more closely, I just got a hold of it, the letter from Saratoga Associates and also your reply, and I believe I have no questions assuming that those materials will be forwarded in due course so we can review them at our meeting on the 19th of April. MR. ANDERSON: Thank you, sir. BOARD MEMBER WEISMAN: Can I ask another question? The survey indicates that your lot is 63,302 square feet. MR. ANDERSON: Correct. BOARD MEMBER WEISMAN: Can you tell me what percentage is under water or in wetlands? MR. ANDERSON: Well, the area of wetlands is 3,300 square feet, so if you deduct that you're talking about half of the property. MR. ANDERSON: No, 3,300 versus 63,000. So it's a tiny, tiny amount. BOARD MEMBER SIMON: Less than 10 percent, five percent. BOARD MEMBER WEISMAN: About five percent. MR. ANDERSON: If you were to subtract out the wetlands, the coverage goes from about eight and a half percent to nine percent. BOARD MEMBER WEISMAN: Okay. It's a very large lot, I realize that. 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 118 1 5 MR. ANDERSON: That's correct. BOARD MEMBER WEISMAN: But we're in discussion about what is a buildable area as opposed to lands underwater, because there are many properties that have -- MR. ANDERSON: Well, for a purpose of the subdivision you would subtract out the wetlands. BOARD MEMBER WEISMAN: Correct. Many people are building very large houses on what appear to be small pieces of property when in fact their property according to deed is maybe seven or eight acres because a good deal of it is wetlands, so it appears smaller, that is not the case here. MR. ANDERSON: You have to keep in mind, we are pushed into this corner of the property to maximize those wetlands setback. If I were to take this and just center it on this property, I wouldn't be here. BOARD MEMBER WEISMAN: You wouldn't need a variance, I understand. MR. ANDERSON: If I were to detach the garage, I could build a detached garage 20 feet from the side and rear lot line as of right, and I wouldn't need a variance; it's connection that causes my problem. BOARD MEMBER WEISMAN: Okay. MR. ANDERSON: Thank you. CHAIRMAN DINIZIO: Bruce, stay there. BOARD MEMBER OLIVA: The right of way is being included in your buildable land. MR. ANDERSON: It's included in lot area. We're not proposing to put the house in the right of way, and it's not a right of way, it's a flag lot. They have fee title to that. It is part of the lot. It's not a right of way. CHAIRMAN DINIZIO: I have a couple of questions, I just want to clarify some things here. Bruce, I know we have been friends, but I still have to ask these questions. I want some clarification. If you detach this garage under the new code, accessory code, you could build a garage how big, just approximately? Could you build a three-car garage? MR. ANDERSON: On lots over 60,000 square feet, no accessory building shall exceed three percent of the total size of the parcel. So I could build a garage three percent of 63,000, that's a darn big garage. 2 . 3 4 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 119 1 5 CHAIRMAN DINIZIO: So it's fairly large, basically 21 feet high, 20 feet -- 22. MR. ANDERSON: You could put it closer to the rear lot line than what we're proposing. CHAIRMAN DINIZIO: If we did not grant this variance, how much less of a house would you have? 2 . 3 4 7 MR. ANDERSON: I could still build the same house, I could build a larger house. CHAIRMAN DINIZIO: Without needing a variance? MR. ANDERSON: Yes. CHAIRMAN DINIZIO: So, what are you going to lose a bay, two bays? MR. ANDERSON: No, because we're crowded so much into the corner there, I lose the whole garage because of its attachment, because the garage, I believe is 24 feet wide, it's 25.2 feet from the rear lot line, so when you net exact 50 feet back from the rear lot line, you lose the whole shooting match. CHAIRMAN DINIZIO: Okay. I just want to be clear on that. We're talking about the need for a variance that you could do something else on that piece of property and gain about the same? MR. ANDERSON: Totally, I said why don't you build a detached and here's the reason, the man has trouble walking, and he wants to walk from his garage into his house. This is going to be their full time retirement home. They purchased this lot in 1984 and had all kinds of troubles. They have had kids die, but they have grand kids, but they have some family left and we're down to an attachment between a garage and a house that stands in the way of their dream. CHAIRMAN DINIZIO: Okay. Do we need to hear from Mr. Tuttle at all? MR. ANDERSON: I don't know. He's very eloquent and handsome. CHAIRMAN DINIZIO: Do you have anything to 6 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 add? 24 MR. TUTTLE: Just if you have any questions, that's all. CHAIRMAN DINIZIO: Well, we know that you built the dock, Mr. Tuttle, and we know that you built it according to all the standards in the Town; is that correct? It's not like this dock was built illegally, or it was here before you 23 . 25 March 29, 2007 120 1 6 followed all the permits? MR. TUTTLE: No, in fact when we built the dock originally, it went out straight and with the Trustees' approval, then all of a sudden one of the neighbors came over, hey, although it's very, very wide there, maybe 3 or 4,000 feet wide, when they originally developed the area they came through and they trenched a channel right close to the shoreline, and if you go out 60, 70 feet out from where the uplands is, then you're in the real shallow water. But there was a trench built there and I didn't realize it, and we were in the middle of the trench and blocking all the traffic from going through. So instead of going out perpendicular, we took it and put it parallel to the shore. CHAIRMAN DINIZIO: And that's all approved, approved by all the agencies that need to do those sorts of things, right? MR. TUTTLE: I haven't heard from them 2 . 3 4 5 7 8 9 10 11 12 yet. 23 CHAIRMAN DINIZIO: Is there anyone else that would wish to speak for this application? MR. HILL: My name is Ronnie Hill and I'm with RLH Land Planning Services. I'm here on behalf of the Lanes, Dennis and Joanna. They initially came to me asking for assistance in determining the impact of storm water runoff as a result of the construction in the proposed development of the property adjacent to them. That property is in fact the Fergus property. Just to be clear, from what they have told me, and I have no other reason to believe otherwise, and I have heard the comments that were made by Mr. Anderson, the Lanes' primary concern is the impact of storm water as a result of the Fergus construction on their property and on Goose Creek. And I will repeat that again. Their primary concern is the actual impact of storm water runoff as it results to the Fergus construction on their property and on Goose Creek. They're asking that a thorough analysis be done to guarantee to the extent possible that there is no long term impacts as a result of that construction. They are not opposed to the Fergus development of their property. Again, I will repeat that, they are not opposed to that development. 13 . 14 15 16 17 18 19 20 21 22 24 . 25 March 29, 2007 121 1 9 You may remember on November 30th of last year that Joanna Lane spoke with respect to some particular issues at the public hearing. She expressed her concern regarding those issues and the primary issue was a thorough and consistent review among all involved agencies. To summarize, basically what she spoke about was in fact the scope of the project, the discrepancies and changes of documents that had been submitted for review. A grading plan to determine what the final grade of the plan would be and to determine what and where the storm water runoff would flow. She discussed and mentioned things about the self-created hardship, adverse effects of the physical and environmental conditions of the neighborhood. The difficulty in meeting the requirements of the Southold Town code. RLH Land Planning Services is not a hydrologist or drainage expert, we are a land planning firm. We agreed, being myself, Joanna Lane and Dennis Lane, that a thorough analysis of a detailed grading and drainage plan could help to bring their mind to rest with respect to the issue of storm water runoff. Therefore, I ask on behalf of the Lanes, Paul Boyce, who is with P.W. Grosser, Incorporated, P.W. Grosser is a civil engineering company which specializes in water resources, sanitary issues hydrogeological and civil site engineering. Paul Boyce is here today and will speak regarding issues pertaining to drainage at the Lane's property. That should be at least considered if not fully analyzed. I have another portion of this that I would like to add but I'll wait until after Paul speaks. CHAIRMAN DINIZIO: Could I just ask you a question? MR. HILL: Sure. CHAIRMAN DINIZIO: We're here because they need a variance of about 25 feet of this and I am wondering if you could just hold your testimony to the effects of that. MR. HILL: Well, I think it's within that context that I do speak, and that has to do that the construction is ordinarily -- the setback would be 50 feet from the rear yard setback. They are here because of the variance and as part of that variance and as part of what I believe the actual Zoning Board of Appeals has to consider is 2 . 3 4 5 6 7 8 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 122 1 5 in fact of the construction and the storm water runoff as a result of it. CHAIRMAN DINIZIO: No. We are to consider the setback. Okay. We have a very small part of this building that we're considering. MR. HILL: I understand that but still the issue becomes the construction itself, the impact on the adjacent -- CHAIRMAN DINIZIO: But sir, we are not determining the construction, neither are we determining the size of this house with the exception of this small part of the garage that needs a variance. So I'm wondering because it would be clearer to me if we vote for or against this, if we know the impact of exactly what it is that we are granting. The rest of the property, the rest of the house, quite honestly, is not of my concern. So any drainage or any nondrainage problem that that may cause is probably the purview of another agency, if at all, more than likely the Building Inspector. But I won't hold you to that. So I would like to hear, if you have a problem, I want you to address specifically what we are here for today, which is a variance that concerns a garage that has no basement, that is approximately how many square feet of this building; do you know, Bruce? MR. ANDERSON: You mean of the garage? CHAIRMAN DINIZIO: Yes. MR. ANDERSON: The garage is approximately 650 square feet. CHAIRMAN DINIZIO: Okay, and the house is? MR. ANDERSON: The house would be including decks, porches and everything, I'm going to say 4,350, something like that. CHAIRMAN DINIZIO: So we're looking at maybe about 15 percent of that house? MR. HILL: I understand. CHAIRMAN DINIZIO: Fifteen percent of the coverage that is a concern with this lot. So, if you're going to address us on that, it's only my opinion, sir, other people may have other opinions, and I offer to have them speak on that. But quite honestly, I have been reading all the information that has come to us concerning this, and I can't see any of that that necessarily addresses the application before us. I understand all the questions. To my mind, those questions 2 . 3 4 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 e 25 March 29, 2007 123 1 9 are better answered with other agencies if at all. My assumption is that there's a lot of things that they can do drainage-wise that the state code covers and as long as they meet those codes, okay, as long as they have not been turned down for those codes, or they're not asking us for a variance from those codes -- I'm talking about drainage and whatever else, because we don't grant drainage variances, sir, quite honestly. So I would hope that your expert will address the application before us. Does anyone else wish to comment on that? BOARD MEMBER WEISMAN: Yes, simply in fairness of due process, one of our considerations in granting this variance has to do with impacts on the environment and the character of the neighborhood and neighboring properties and to the extent that granting a variance of 25 or 26 feet may have an adverse environmental impact I would like to hear testimony from all those concerned. BOARD MEMBER SIMON: Can I add a point, if the issue is, as Jim said, a 25 foot variance in order to have an attached garage, if the variance is rejected then the house will be built and there will be a garage in some other place on the lot. So it's not clear how we can generate a drainage problem on the basis of this application since whatever the outcome of this variance proceeding, it isn't going to effect those kinds of concerns. CHAIRMAN DINIZIO: Right. Anything in our control, Michael? BOARD MEMBER SIMON: Right, anything in 2 . 3 4 5 6 7 8 10 11 12 13 . 14 15 16 17 19 our control. CHAIRMAN DINIZIO: Ruth, do you have anything you want to comment on? BOARD MEMBER OLIVA: No, but I wouldn't mind hearing it, though. MR. HILL: I understand that and I ask you to consider one thing, you are quite right with respect to the fact that it is in fact the variance that is of the utmost importance and within your purview. Yes, under normal circumstances, it would normally need a 50 foot setback. They're here from that asking for something less than that 50 feet. CHAIRMAN DINIZIO: No, that is the 18 20 21 22 23 24 . 25 reason. MR. HILL: That is the reason why they're March 29, 2007 124 1 5 here. It's still construction and the construction of it being so close that as a result of that it will have some impact, that impact being the generation of storm water runoff. CHAIRMAN DINIZIO: I agree, sir, but I want you to address it for the amount of the 600 square feet as opposed to the 4,000 square feet. MR. HILL: We were not trying to limit it to any portion -- CHAIRMAN DINIZIO: I am, sir. I am asking you to limit your testimony to what is relevant to this hearing. MR. HILL: Fair enough, and I believe Paul Boyce will do that. CHAIRMAN DINIZIO: So any quantities I want to hear with respect to less than eight percent I suppose it is; but that eight percent or 10 percent, whatever it is of coverage that is affected by us granting a variance. BOARD SECY. KOWALSKI: 650 square feet. CHAIRMAN DINIZIO: 650 square feet. The rest of it, sir, is not relevant to this. So, if he feels that he can do that without having me interrupt him every few minutes because I'm going to ask them to divide it by that percentage, then by all means, I don't want to stop your -- MR. HILL: I understand and I can't answer that but I am asking you to hear him out. I'll ask him to see how he will answer those questions for you. CHAIRMAN DINIZIO: Okay. MR. BOYCE: Members of the Board, thank you, I will try to confine it to just the drainage issue. My name is Paul Boyce, I'm a civil engineer retained by the Lanes and I work for P.W. Grosser Consulting. The applicant is proposing to install a French drain along partial boundary between the two properties. We were privileged to take a look at some of the design calculations of that and it's based on retaining a two inch rainfall over a certain area. I looked into those calculations briefly and the French drain it's basically a trench with gravel in it. It was sized to capture the two inches over that area. However, what it didn't account for was the gravel in the trench. So it's got storage or retainage capacity for the two inches of rain we're talking about. 2 . 3 4 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 125 1 9 But once you put the gravel in there, it about 60 to 70 percent of the trench, so you're really left with 30 or 40 percent to capture runoff from the site that is potentially making its way to the Lanes' property. CHAIRMAN DINIZIO: question about that? MR. BOYCE: Sure. CHAIRMAN DINIZIO: Is a French drain, is its purpose to store water? MR. BOYCE: It's not to store. CHAIRMAN DINIZIO: So, why would the gravel have anything to do with it? MR. BOYCE: It's sized to retain a certain capacity then infiltrate, allow it to percolate into the subsurface, but it's got to be sized for a certain storm event. So it's got to have a capacity. CHAIRMAN DINIZIO: So what would that capacity be for about 10 percent of the property? MR. BOYCE: I don't have that off the top of my head. Again, and this wasn't sized for the entire property, and it was a specific catchment or tributary area on the site, which they're suggesting the potential to runoff on to the Lanes' property. CHAIRMAN DINIZIO: What size? MR. BOYCE: Based on the calculations I was given or prepared, sealed by a Mr. Joseph Fischetti, Professional Engineer, Mr. Metzgar, Peconic Land Surveyors letterhead, it's an area about 7,125 square feet. CHAIRMAN DINIZIO: a low lying area? MR. BOYCE: occupies then capacity 2 . 3 4 5 Could I just ask you a 6 7 8 10 11 12 13 . 14 15 16 17 18 So, what is that, like 19 I'm assuming, I don't have a 20 map. 21 CHAIRMAN DINIZIO: I'm assuming that's why the French drain's there. MR. BOYCE: I don't have that off the top of my head, and again, this wasn't sized for the entire property, it was specific catchment or tributary area on the site, which would have the potential -- or what they're suggesting -- the potential to run off on to the Lanes' property. CHAIRMAN DINIZIO: What size? MR. BOYCE: I'm assuming. Again, I don't have a map. 22 23 24 . 25 March 29, 2007 126 1 6 CHAIRMAN DINIZIO: I'm assuming that's why the French drain's there at the bottom of that 700 and something square feet? MR. BOYCE: That's what I would believe. But like I said, it's sized to retain or capture that two inch runoff on that area based on a certain runoff coefficient, and it makes no mention of the gravel in the trench. Also, typically when these things are designed, you want to put a little factor safety into them because over time you're going to have sediments and debris or dirt and other things tend to wash into that gravel and reduce its storage capacity as well as its leaching effectiveness. CHAIRMAN DINIZIO: Is it normal to maintain these things? MR. BOYCE: That's another thing I was going to bring up, there's no mention of a maintenance plan. You're going to cut this gravel trench between two pieces of property, then what happens; who is going to keep an eye on it; who is going to fix it when you have a problem; how do you even know you have a problem before it's too late? 2 . 3 4 5 7 8 9 10 11 12 13 . 14 CHAIRMAN DINIZIO: Who is responsible for that? 15 MR. BOYCE: I would assume it would be the applicant or the person installing it. CHAIRMAN DINIZIO: So, why would they need a plan if the assumption is that the homeowner is going to maintain that? MR. BOYCE: Again, I'm just assuming. If there were something in writing based on visual observations or inspections or groundwater level readings or something along those lines that they can maintain it. Maintenance of these things typically involves removing the gravel that's been silted up and replacing it. So there's some cost associated with it. The other issue with the French drain is we know we're in a low lying area with poor soils and not very good drainage characteristics. We have an existing soil boring from Mr. Metzgar's survey from 1989 which indicates we have sand and clay sand and bog material, all of which doesn't have a very good permeability. On this French drain it's a shallow structure. It's right at the surface. The depth of the water looks like about 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 127 1 6 five feet, but through that soil column you've got that poor draining material. So what is going to happen when you put this stuff a foot and a half into the ground; where is it going to go? It's going to go someplace but it's going to go very slowly. So what you're going to do is create this artificial groundwater mound. Has anyone considered the effects of that? Again, we're just asking these questions. Also in terms of how is the site going to be covered? I see we have gravel driveways, hard surfaces, are there going to be other types of vegetation or turf, things like that that effect runoff coefficients? How much water would be able to leach into the surface as opposed to how much is going to run off. We see they used a .3 coefficient, which is generally associated with like a turf or some sort of hard soil type surface. Again, there's no mention or plan that shows that. Then some of the roof drains on the site which also affect drainage, and as I mentioned, there was groundwater recharge mounds. The sanitary plan that's proposed here around the leaching pools, which I assume was approved by the Health Department, I don't know, it shows sand collars or sand drains beneath the pools. What those are are basically you go down to the bottom of the leaching pool and you excavate clean -- you excavate beyond that pool elevation down to leaching material or suitable sand, and then you backfill that with clean material that's going to be able to be readily leached. Same thing I would assume would have to apply for the roof drains, yet I don't know what is proposed in terms of their construction. So, how are these things going to leach? Where is the water going to go again? In terms of the groundwater, we have a boring from 1989; was this the historic groundwater level; do we know? Has anyone searched, has anyone looked? Again, we're just asking flow direction as well. Which way is the groundwater flowing; is it flowing toward the water; is it flowing toward the Lanes' property; is it flowing towards the applicant's property? We don't know that will have bearing on which way the water's going -- if it's going on relatively impervious material, clay, sand, it's going to 2 . 3 4 5 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 128 1 2 want to move horizontally because it's not going to go too far vertically. In conjunction with that, we know we're on Goose Creek, Southold Harbor. It's tidally influenced, that's going to have bearing on water levels as well. Does anyone know about high water levels, low water levels, where those are, where they're established? That's going to have bearing on the drainage as well. The site topography, we've got some partial surveys or plans that show some contours and spot elevations, but nothing is conclusive between the two properties that show which way is the water going to flow, which direction, how much; how do we establish these tributaries areas, watersheds, whatever you want to call it, as to where water's going to head. I think that's one of the biggest things that should be developed before any decisions were made with respect to drainage. Lastly, I noticed some cut/fill type of volumes. The application that went not to you guys but to the Board of Trustees has a question; does the excavation involve cutting and filling; it was answered yes. Next question was if yes, how much material will be excavated. It indicates over 7,000 cubic yards. That's a lot of material. If you're talking about a 5,000 square foot footprint approximate to the building with an eight foot basement, that's about 40,000 cubic feet. That's less than -- CHAIRMAN DINIZIO: Can you do me a favor, can you tell me how this pertains to this garage? MR. BOYCE: It pertains to the drainage. CHAIRMAN DINIZIO: Which is what I'm talking about. How does your testimony bear any resemblance -- and it must some way, but you're going to have to tell me what it is -- to the garage variance, the application that's before us. I understand that there is no basement in this garage so that would be out of your calculations. MR. BOYCE: As far as the garage goes, . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 yes. 24 CHAIRMAN DINIZIO: So I need from you maybe not necessarily a hard number but an estimate as to how much, if we granted this variance, worse would it be? MR. BOYCE: In terms of runoff? . 25 March 29, 2007 129 1 2 CHAIRMAN DINIZIO: What more detriment would we be adding if we granted this variance to your client's property. MR. BOYCE: Again, just asking for additional information so that a thorough analysis can be done. CHAIRMAN DINIZIO: Sir, you're the expert. MR. BOYCE: I don't have all the information to give you an answer. CHAIRMAN DINIZIO: You have a garage that doesn't have a basement. So you stated something about digging a basement, excavating. MR. BOYCE: That's right. CHAIRMAN DINIZIO: There's not a lot of excavating. We're relying on you to give us information concerning this addition that's going to be on that needs a variance. The rest of the house, the rest of the property, quite honestly, you have to convince me that if we added this garage on to the house and instead of allowing the person to build a much larger structure without the need for a variance, which would mean you would not be before us, you would have to go find someplace else to go. Quite honestly, we are concerned about that garage. MR. BOYCE: I understand. CHAIRMAN DINIZIO: I understand the sand -- I don't understand it, quite honestly, I'm not an engineer. You've got to convince me, though if we granted a variance we would somehow or what is the percentage that increases the detrimental part to your client? Can you give me that? MR. BOYCE: Not off the top of my head, not like I said, if I had most of this information that I asked or questioned where is it, do we have it, can we get it, yeah, I can probably get you an answer. e 3 4 5 6 7 8 9 10 11 12 13 e 14 15 16 17 18 19 20 21 CHAIRMAN DINIZIO: What is that? MR. BOYCE: Yes, I just ran through. CHAIRMAN DINIZIO: Quite honestly, you can get that from your client, they're on the same piece of property. The water that falls on their property is the same direction it flows on this property. They're right next to each other. MR. BOYCE: If you're familiar with the groundwater divide, I simply don't know. CHAIRMAN DINIZIO: Your testimony concerns 22 23 24 . 25 March 29, 2007 130 1 2 this whole lot, and we're not concerned about this whole lot. We're not concerned about the water flow or the house even. We're concerned about 600 square feet on this land without a basement. BOARD MEMBER WEISMAN: May I make a suggestion? We have permitted Mr. Anderson to have some time to address information he just received, during that same time period perhaps he would be able to obtain what us necessary in order to answer Jim's questions and permit that information? . 3 4 5 6 7 8 CHAIRMAN DINIZIO: it out for us. MR. ANDERSON: May I make a suggestion? CHAIRMAN DINIZIO: Yes. MR. ANDERSON: I have given you information on the Lanes' property which is directly next door. They share the same property line where this French drain goes. They haven't spent one nickel on a runoff trough. Runoff goes directly onto a splash pad over the lawn into the creek. For such concern over drainage -- and I want to hear about groundwater divides because that's ridiculous, but if that's the concern what is to preclude the Lanes from installing some drainage? They have no drainage control, and they're on a waterfront property; why are we talking about this? CHAIRMAN DINIZIO: I think I have expressed, and I'm hoping the rest of the Board if they want will express that although you gave us some nice information, I think probably it's not pertinent to this application unless you can break it down to the percentage that we need that would be useful to us. Are you finished? MR. BOYCE: One last issue, to break it down to percentage-wise but it really was to the whole site MR. HILL: Just to conclude, what I would like to say is we recognize that the Board is here to grant their variance request or relief for Sure, two weeks, break 9 10 11 12 13 . 14 15 16 17 18 19 20 and I'll try if it applies, 21 22 23 variance -- CHAIRMAN DINIZIO: No, sir. We're here to hear the hearing and make a decision. We're not here to grant a variance. MR. HILL: They're asking for relief from Southold Town Code in that the setback is only 50 feet and they're asking for less than that. 24 . 25 March 29, 2007 131 1 2 That's the only thing that I'm saying and that given the same circumstances what we're asking is not so much trying to answer any question other than the one that's important to you, and if it's just about the garage and it's proximity to the Lanes' property line, then I think Miss Weisman gave what I think would be equitable for us, give us time to go back, given the information that's been submitted, allow us the opportunity to do as you have done in any other circumstance, to evaluate it and see if we can answer your questions. That's all the Lanes want. CHAIRMAN DINIZIO: You gave us an evaluation, and quite honestly, you just need to break it down now to the relevant. MR. HILL: But we can't answer that right now because -- . 3 4 5 6 7 8 9 10 11 BOARD MEMBER WEISMAN: you need? How much time would MR. HILL: I'm not sure. I can't answer 12 that. 13 BOARD MEMBER SIMON: What we need beyond what Miss Weisman asked for not just simply you provide lots and lots of information, but lots of information which will be relevant to the narrower question, and that's a much smaller task than doing a thorough study of doing storm water runoff for this parcel. MR. HILL: We were never by any means trying to suggest that we wanted to do a complete storm water runoff of detailed grading and drainage plan for that entire property. We were only concerned about that portion of it as it abuts up to the Lanes' property. So with respect to that, yes, we will voluntarily go off and do our very best and do our diligence to try and provide our information to you, but what's required for us to do that is in fact certain data, for instance topographic contours at certain intervals that is absolutely mandatory. It could be mandatory for the entire property, but it is certainly mandatory for that portion of the property where the garage is going to be constructed, and it abuts or is adjacent to the Lanes' property. Otherwise we can't answer the questions of where the water is going to go, how it's going to percolate. I think that's fair. So I thank you for having suggested that, Miss . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 132 1 2 Weisman, and I hope the rest of agreement with it, and we'll go the best that we can to provide with an answer to your question MR. ANDERSON: The topography has been on the survey for two years. CHAIRMAN DINIZIO: You can make the decision based on the record, and what has ever been submitted and let us know. MR. HILL: I understand and I just want to make sure that it's thoroughly clear, from my perspective and I believe from the Lanes' perspective, they're not here to try and deter the Ferguses from constructing or developing their property. What they're trying to do is get a reasonable answer to a very simple question. And that is what are the likely, if any, long term impacts of the construction with respect to storm water runoff onto their property and on to Goose Creek. Simple, that is it. CHAIRMAN DINIZIO: And I think absolutely right in what you're asking you're at the right place with respect percent of that building. MR. HILL: I agree. CHAIRMAN DINIZIO: So we're making a decision based on that 11 percent. MR. HILL: That's correct. CHAIRMAN DINIZIO: We also want to take into consideration that they could cover much more of that lot legally without being before us. MR. HILL: And to that I would say to you, Mr. Dinizio, if that were the case, it would even more so to have some type of evaluation at the impact of that construction. CHAIRMAN DINIZIO: It would not be before this Board, sir. We wouldn't be making that decision based on that is what I'm saying. We're looking at a plot plan, not necessarily where the water runs to. That's someone else's purview. If you want to give us testimony that you think is going to be deleterious to your client that the additional 11 or 12 percent that we may approve or disapproval is going to be a detriment to your client's property, fine, just give us those numbers, we need the numbers. MR. HILL: I have agreed. CHAIRMAN DINIZIO: It seems to me that you the Board is in back and try to do you, Mr. Dinizio, . 3 4 5 6 7 8 9 10 11 12 you're for and to about 11 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 133 1 2 have gotten plenty of information and the record holds enough information for you to give us an answer based on that. If you don't think that it does, then let us know what it is that we can legally ask for. We can't ask you to go onto their property. They don't have to let you go on their property. We don't base our information necessarily on contours. We have a map that has contours on it. Just give us based on what the applicant is asking for. MR. HILL: Fair enough and I understand that. But I would like to ask you a question: Where then should we start when it comes to matters of construction that ultimately have consequence onto adjacent property owners? We seem to be faced with -- and especially in Southold Town -- the issue of containment of storm water on site. So where does it begin, where does it start? Not here. I'm not an expert. So I don't know. I don't know if the Building Inspector takes care of that, or the Planning Board. Then we get into this vicious cycle. CHAIRMAN DINIZIO: Yes, but it's not -- MR. HILL: I understand. So we're going to go back and do the best that we can. We're going to do the best that we can based on the information that we have. We're going to try and answer your question, but I would also like to make sure you understand that if it's necessary to have additional information, and it may be two foot contours versus the spot elevation and the contours that are currently on any other maps that the Board has reviewed. CHAIRMAN DINIZIO: Well, I for one, sir, would not require that of the applicant. But we vote as a Board, and if you come before us in two weeks and ask for that, because I'm assuming that we're going to have this information, my assumption was we were going to close this hearing today. BOARD MEMBER SIMON: Subject to receiving this information. CHAIRMAN DINIZIO: Right, I know, we're going to close this hearing. He's going to hand us the stuff in writing, and we're going to make our decision. MR. ANDERSON: That's acceptable. CHAIRMAN DINIZIO: Okay. So I want to be . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 134 1 2 clear on that, sir, what you hand us is going to be what we make our decision on. BOARD SECY. KOWALSKI: I have a question then procedurally, then they don't get to rebut it in writing? MR. ANDERSON: I don't care. BOARD SECY. KOWALSKI: You're waiving . 3 4 5 that? 6 MR. ANDERSON: That's fine. CHAIRMAN DINIZIO: It's pretty much, we had testimony on what you wanted to present and we just want you to present it. I personally just want you to present it as it relates to the amount of relief we can grant. MR. HILL: It is clear to me, Mr. Dinizio, that our focus is strictly the garage. I have no doubt that I'm going to walk away from this podium understanding that. CHAIRMAN DINIZIO: Okay, thank you. Is there anyone else who wishes to speak for or against this application? MR. ST. PIERRE: My name is Joseph St. Pierre. I'm the property owner to the south on the other side of the creek. One matter with regard to the drains in the basement, my property is considerable higher than their property and on an easterly wind, when the water is forced into the creek, we get an extremely high tide and my property being higher, I get water in my basement. So I think they definitely got a problem there. The only other question I had was in regard to this recent letter that was evidently sent to the Board from some adjoining property owners, this would be reviewable at the office or? BOARD MEMBER WEISMAN: Yes. It's public 7 8 9 10 11 12 13 . 14 15 16 17 18 19 record. 20 BOARD SECY. KOWALSKI: It's part of the file. 21 MR. ST. PIERRE: All right, that's all I have to say, thank you. CHAIRMAN DINIZIO: Anybody else? MS. HEALY: I'm Harriet Healy, 580 Goose Creek Lane. I'm also the neighbor on the south, same block as Mr. St. Pierre, and we're basically here for the environment. We would all like to know where this water's running, whether it's just from the garage, wherever it's going to be going into the creek and we'd like to know what you're 22 23 24 . 25 March 29, 2007 going to do about it. I'm sorry, I'm very sick of hearing it's not the issue, that's not the issue here. I don't think you can turn a blind eye to this. This is one of the last bits of remaining property on this creek. Cornell Cooperative Extension's there, SPAT's there, everybody enjoys the creek, everybody goes clamming, so it is an issue. It's very easy to sit there and snicker like this is a big joke, and I think it's rude, I really do. I think this should be considered and if no one will speak for the creek, I mean, what is this world coming to? It's not just the Lanes', I feel for them, but what about the creek? Where is this water going to go? I think it should be addressed not just swept away or take a break or fall asleep. Thank you. CHAIRMAN DINIZIO: Anybody else wish to speak for or against this application? MR. HEALY: My name is Mike Healy, Harriet's husband. I second everything she said. I also would like to say that despite the quite amicable relationship that Mr. Anderson has with the Board here, I find that, Mr. Dinizio, you almost argue his point on some respects when you make a statement as to why wouldn't it be any different on the Lanes' property as far as the where the water runs, we all know where the water runs. I live next door where the water runs differently on my property than it does to theirs. I find it highly insulting that you sit up there and you make an argument. You're supposed to be neutral, better than neutral, you're supposed to be sitting up there watching out for all our good will. CHAIRMAN DINIZIO: May I answer you? MR. HEALY: Yes, please. CHAIRMAN DINIZIO: Sir, I am up here to answer, to ask questions, okay. MR. HEALY: You didn't ask a question Mr. Dinizio, you made a statement about the way the water runs off on their perspective properties without any knowledge, that is arguing his case. Why are you arguing his case? That's all I want to know. CHAIRMAN DINIZIO: Would you like me to answer you? MR. HEALY: got to this point, 1 2 . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 135 I want to know how, why this I can't understand. I know March 29, 2007 136 1 2 this is way outside of the purview of what this meeting is about. CHAIRMAN DINIZIO: It certainly is. MR. HEALY: But I can't understand how a 5,000 square foot home is being built on that piece of property, but that's out of your purview, I understand. CHAIRMAN DINIZIO: It isn't, sir, quite honestly. The Zoning Board right here is a very narrow point. We have a very narrow mission here. That is to consider relief from the zoning code. The Town Board creates that code. They create the setback. They create how high a house can be, how wide a house can be, what lots a house can be built on. What lots can be built on, the criteria. We have nothing at all to do with that part -- . 3 4 5 6 7 8 9 10 11 MR. HEALY: I'm not questioning that; I'm questioning your attitude about this particular case and the way you seem to be arguing. And I want to tell you is something else, I happen to have spoke to two people who spoke to Mr. Anderson, and I'm probably out of line for saying this, but he mentioned to them, wait until you get a load of the house that's being built across the way from you. That sounded to me like he wasn't saying, you're going to love it. CHAIRMAN DINIZIO: I understand. Listen, I understand your frustration, quite honestly, I do, sir. When I have an expert in front of me and that expert makes a statement, I'm going to question that, sir. I'm going to say here -- MR. HEALY: You didn't question, you made a statement. Don't give me that you questioned. You made a statement. You made a statement you don't have anything to back it up on. You said the water runs the same way, he's got a neighboring property. You don't know that. CHAIRMAN DINIZIO: No, I don't know that. MR. HEALY: So to me you didn't like the answer so, quite frankly, I think that's something that should be outside those two doors right there. When you want to be pals with your pal, fine, but don't bring it in here. It doesn't sit well with the people sitting here, maybe it might sit well with those people over there who snicker and tell the witnesses over here to sit down for everybody to here. That might sit well, but it's 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 137 1 2 not the right way to do things in this room. CHAIRMAN DINIZIO: I take your opinion under advisement. I certainly do that, sir, I would hope that you wouldn't see me trying to defend his point of view. MR. HEALY: I did. CHAIRMAN DINIZIO: My whole reason for the questioning that I did, and you notice that I did it mostly was that I need to focus people on exactly what we are here for. What we have been advertised for. MR. HEALY: I understand that, you made that quite clear CHAIRMAN DINIZIO: Right. MR. HEALY: And then you stepped outside. CHAIRMAN DINIZIO: When an expert, an expert who he had before us, makes a statement about something, and I don't understand it, it's my duty to say to him, look, why doesn't the water flow this way, what is it. And you know what, I never got an answer? MR. HEALY: You didn't state it as a question, you stated it as a fact. CHAIRMAN DINIZIO: No, sir. That will all be part of the record. My statements are questioned in and of themselves. I have no expertise whatsoever in which way a water will flow in the ground, okay, I only make assumptions that if I have two lots alongside each other that somehow they have to be interconnected. AUDIENCE MEMBER: No. MR. HEALY: Thank you. CHAIRMAN DINIZIO: Well, then, give me the testimony, we had an expert. MR. HEALY: Don't sit up there and make somebody's case one way or the other. CHAIRMAN DINIZIO: I was asking him to explain that to me. MR. HEALY: Don't sit there as a member of the Zoning Board and take it all in and make your decision in a neutral way. What is the best in this town? CHAIRMAN DINIZIO: Well, listen that's what we're trying to do here. BOARD MEMBER WEISMAN: Can I simply assure you that this is not the place to deliberate. We will be deliberating and you are invited to attend that open meeting contingent upon receipt of . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 138 1 2 information. You can call the office and find out when that deliberation, which is open to the public, will take place and you are invited to attend. The purpose here is to hear testimony without bias and completely as possible. MR. HEALY: I think that should be shown. BOARD MEMBER WEISMAN: We are taking in all testimony today. We will receive additional testimony, all of those things including those things previously submitted will be thoroughly evaluated and we as a Board will deliberate among ourselves on the merits as we understand them based upon all oral and will written testimony. That's a public record and you have every right to examine it. You need to call the office. So, what took place here today is a small fraction of what will be on going in the way of conclusion and recommendation. . 3 4 5 6 7 8 9 10 11 12 CHAIRMAN DINIZIO: anything to contribute to Lane? Does anyone else this application? have Miss 13 MS. LANE: Good afternoon, Joanna Lane, owner of the property. I will be brief. I just wanted to -- I'm not speaking for myself here, I'm speaking for Mr. William Kuhl, I believe you were discussing his letter earlier and he did ask me to read it out on his behalf. So I just want to establish whether I can do that or you don't need it. . 14 15 16 CHAIRMAN DINIZIO: You're welcome to read 17 it. 18 MS. LANE: This is from Mr. William Kuhl who is the senior principal and vice-president of Saratoga Associates, which is a professional corporation of landscape architects, architects, engineers and planners. It's addressed to "Dear Chairman Dinizio: Unfortunately because of prior commitments I cannot attend tomorrow's hearing concerning Mr. Fergus's request for a rear yard setback variance. I delegate authority to Mr. and Mrs. Dennis Lane to speak on my behalf in my absence and to insure my concerns are entered into the record. "As owners of 1790 North Bayview, which abuts the property in question, neither my wife nor I are opposed to a home of appropriate scale and sensitivity being constructed as long as it is responsive to the existing site conditions. 19 20 21 22 23 24 . 25 March 29, 2007 139 1 5 However, the current proposed size and layout causes us great concern for a number of reasons. "The major concerns are as follows: The fact that the existing grade has to be raised to accommodate the proposed septic field is a serious issue. I am aware that the reason the grade is being raised is because of the presence of a clay strata located four foot below the existing grade and approximately eight foot of that subpervious soil is needed for the septic field to function. However, raising the grade to provide the needed depth in this case doesn't necessarily address several critical issues. "The coarse, sandy nature of the existing soil may actually have a very high percolation rate. Perk rates of less than five minutes are considered too fast to provide adequate treatment. This will reduce the chance for the natural systems in the soil to properly remediate the effluent before it reaches the underlying clay. The clay will prevent the effluent from reaching the underground water table, but the effluent will then have to flow horizontally into Goose Creek adversely impacting the water quality. Has a percolation rate study been done? Are there calculations taken into consideration, taken into consideration the worst case scenario of the potential load being generated that the septic system will have to handle from a house of approximately 5,400 square feet? "I also have concerns about the accuracy of the existing contours being shown on the survey, it shows a contour of nine foot as the high point. We had to obtain a survey of our own related to obtaining flood insurance requested by our bank. We received a map of the flood zone and the Fergus property was all below the grades of our property, which has its highest elevation a little more than elevation eight foot. I would like the information on the survey verified as it has implications on storm water runoff and the amount of fill needed for the septic fields. "In addition to the concern about the septic fields and the potential pollution generated from it, the need to raise the existing grade has serious implications on both the existing vegetation and storm water runoff. Based on the survey and the very schematic grading shown 2 . 3 4 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 140 1 5 to accommodate the fill needed between the increased size of the house from its earlier approximately 2,400 square foot size, the site will be basically cleared of all vegetation outside the buffer area. This action will have a very negative impact on the site's overall aesthetic character and more importantly it will be a major negative impact on the abutting Lane property and ours as well. More critically it will significantly alter the existing drainage patterns. Compounding this pattern is the reduced waterfront setback for which a variance was granted. This means that the steeper grade will increase the velocity at which storm water flows and with a buffer by 50 percent of the removal of most if not all existing vegetation beyond the buffer, there is a very real probability that there will be increased surface runoff entering into the creek containing pollutants such as fertilizer, oil, residues, et cetera. "Also if the variance is granted for the 20 foot rear yard setback, it will provide insufficient space for the French drain to function. The proposed French drain will have limited to no impact on controlling surface runoff. The raised elevation will cause water to run off at high velocity and it will flow right over the drain along the property line into the Lanes' property before any water can have a chance to percolate down into the French drain system. Only a French drain will have some major impacts on controlling the runoff based on the current layout and grading. However, this would be aesthetically very unappealing. "In addition, why is there no requirement for a rear yard buffer landscape treatment? There will be absolutely no visual impediment between the Lanes and the new house when it is constructed. I would ask, have members of the Zoning Board physically gone to the site to see this firsthand? The potential impacts the proposed building of this size will have on the site itself and the abutting properties, have the various Boards coordinated their actions findings with each other to assure that there has been consistency in the material submitted for consideration to each Board to confirm decisions are being rendered on the same materials 2 . 3 4 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 141 1 9 throughout the process for the various approvals being sought? "I would also like to go on the record stating I don't believe my wife and I have been properly notified of all the meetings that have taken place regarding this application. Has DEe been notified of the increased house size and the need to raise the existing grade to accommodate the septic fields and its potential impact on the creek? Has the Cornell Extension Service been notified of this project and the potential adverse impact it could have on their scallop nursery located right around the corner from this property? Have the visual impacts of the proposed new home been analyzed regarding potential obstruction of views? Has a study been done to determine whether there are endangered species nesting in the reduced setback area, such as the piping plover? Many birds have been observed by me personally using this area for nesting. "In closing, I would like to again restate my wife and I are not opposed to a new house being built on the Fergus property; however, the proposed structure under consideration is inappropriate in size and scale in relation to the existing character of the site. To accommodate this application, the existing site has to be totally manipulated and as a result posing severe adverse environmental impacts on the adjoining property owners, the Lanes, and the walls and on Goose Creek itself: We adamantly oppose that any further variances be granted until all the outstanding issues in this letter and the issues raised by Mr. and Mrs. Lane are adequately addressed, and we are sure that all the various boards have based their decisions based on the same materials. Respectfully, William B. Kuhl, Senior, Principal, Vice-President Saratoga Associates." MS. LANE: I would just like to add a little bit to that in reference to the questions that I posed at the last November hearing; when am I going to get answers to those? CHAIRMAN DINIZIO: I don't believe, and I could be wrong, that we are the ones to give you those answers, quite honestly. We don't investigate, we're not experts on drainage, we're not experts on even some of the things that were 2 . 3 4 5 6 7 8 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 142 1 2 mentioned there. MS. LANE: That was Mr. Kuh1's questions, sorry, I was asking with reference to my questions from November. . 3 5 CHAIRMAN DINIZIO: Right. didn't think they had relevance to before us. MS. LANE: Well, a turnaround for emergency vehicles is not relevant to this application? CHAIRMAN DINIZIO: No, ma'am, because the house can be built unto itself, therefore it wouldn't be relevant. MS. LANE: Isn't the location of the garage relevant to that? CHAIRMAN DINIZIO: Only if we grant the I personally, I the application 4 6 7 8 9 12 variance. MS. LANE: If you don't grant the variance, he's going to put a detached garage but it's still relevant, isn't it? CHAIRMAN DINIZIO: Then he can have it. Then the turnaround, the fire department, anybody else has to deal with whatever the applicant puts on there. Whatever the Building Inspector gives him the CO for. That's only my opinion, and certainly there's four other members on this Board that could take that information and feel that it's very relevant. MS. LANE: So then in regard to the discrepancies in the survey that we highlighted in terms of the discrepancies between our respective surveys, that's not relevant to you to establish where the actual boundary line is between us? CHAIRMAN DINIZIO: Only to the point where a building permit will be approved. MS. LANE: So when you're inspecting the property you don't need to know where the boundary line is to our property? BOARD MEMBER SIMON: These are relevant but the question you're raising, when we read these letters, all of us do, and we find them relevant or we assess their relevance, and we all make inspections, yes, we do. It has not been the practice, that I know of or even other agencies, to manifest our concern with their relevance by writing specific replies to the people who send the letters. We find them quite relevant. CHAIRMAN DINIZIO: Thank you, Michael. 10 11 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 143 1 2 BOARD MEMBER SIMON: office as congressmen would. write answers to all of your reasons. We're not running They have people letters for their for to . 3 own 9 MS. LANE: It's just that you asked Mr. Anderson to respond to them and I never received that response. CHAIRMAN DINIZIO: My question was about sump pumps. BOARD MEMBER WEISMAN: That was one thing that we requested. I believe Mr. Anderson did address that in his earlier testimony about appearing before the Trustees and taking care of some of the discrepancies. MS. LANE: He didn't answer the questions in my letter in his earlier testimony. BOARD MEMBER WEISMAN: You pointed out a series of discrepancies on surveys and wondered were we as the Zoning Board looking at the same survey that the Trustees were looking at. MS. LANE: I pointed out discrepancies between our respective surveys, his survey and my survey don't agree. BOARD MEMBER WEISMAN: Right. Well, I believe that Mr. Anderson was made aware of that point at the November hearing and that he has addressed that in front of the Trustees and that we are now looking at the same survey; is that not true? 4 5 6 7 8 10 11 12 13 . 14 15 16 17 MR. ANDERSON: No. The answer is, we addressed it right after she raised it, and it appears in your minutes, and the answer is that we hired a licensed surveyor, who surveyed the property and his stamp is affixed on that survey as being accurate. If there is some boundary dispute, that's not before this Board. What I did often, because this is not uncommon that dates of surveys vary, the erosion or accretion on land will vary a distance, a stake to the high water mark, which is what all these deeds reference, they reference a high water mark, which is subject to interpretation, some degree of erosion, some degree of accretion because high water lines move, that's how we addressed it. I think that's a good response, frankly. BOARD MEMBER WEISMAN: Didn't you say earlier that you corrected survey discrepancies of two cubic yards of fill? You went to an engineer, 18 19 20 21 22 23 24 . 25 March 29, 2007 144 1 6 then you went into the Trustees in January, then you reappeared before the Trustees to get an amendment in February again because of objections made in January, and in all cases there was the inconsistency was then resolved by the Trustees. MR. ANDERSON: Yes, this has been reviewed by the Trustees three times. BOARD MEMBER WEISMAN: Did you attend, Miss Lane, any of those hearings before the Trustees? MS. LANE: The first one with the notice was sent out for a time of 7:00 and the hearing was held at 6:30, so that's why we asked it will be held again, then we were indeed allowed to make comments at that hearing, yes. But there was no addressing, that wasn't the venue for the questions that the ZBA had asked Mr. Anderson to respond to me on. CHAIRMAN DINIZIO: But that's the same point here, ma'am. We have to rely on the evidence that's presented to us. If there's a dispute, we have an expert that affixed his stamp to that. We have to take that as the testimony before us. If you dispute that, there are other avenues. Kieran, maybe you can help me with that, maybe you would need to -- that's not for me to make the decision of whether your survey is right or his. 2 . 3 4 5 7 8 9 10 11 12 13 . 14 15 19 MS. LANE: It's not a question of disputing it, it's a question of clarifying the facts. And I think we all want to do that because you can make a decision based on the facts, but if there's some confusion about the facts, then how can you make a decision? That's the only reason for me to ask all these questions that Mr. Anderson was supposed to answer to me. BOARD MEMBER WEISMAN: Excuse me, let me just finish my conversation or query. Mr. Anderson was asked to make responses to questions raised at the previous hearing to us, not to you. He has no obligation to reply to you. If a point is raised and we request clarification because he raised it, he must respond to us, that is a public record that you can go to the ZBA office and obtain. So any of the information that you want in terms of clarification is available to you that way. MS. LANE: Okay. 16 17 18 20 21 22 23 24 . 25 March 29, 2007 145 1 7 BOARD MEMBER WEISMAN: I have a question for you. The letter that you just read into the record from the other neighbor, Mr. Kuhl, was that information presented in some form or another at the hearings before the Trustees? MS. LANE: No, not at all. Mr. Kuhl has contacted me very recently in the last few days and I can't speak for him, but it's my understanding that this is his first involvement. BOARD MEMBER WEISMAN: The issues raised are compelling and important. The concern is that the Trustees are meant to be stewards of the environment, which does not abrogate our responsibilities as citizens to also be stewards of the environment. As a Zoning Board, we have limited purview over many of the things that we do. And there are some circumstances in which it would be reasonable to expand some of those issues that we consider, other times we can't. So, all I can say is that I believe that in good faith this body will consider all evidence presented and apply it to the variance before us. That's all really we can do, which is why I asked the question about information the Trustees had. place to argue about environmental decisions, those kind of impacts are before the Trustees. That doesn't mean we don't consider environmental impacts because one of our criteria is will the variance have a negative effect on the character of the neighborhood and detriment to the environment. But it is not as sweeping as the purview of the Trustees. So I just want to make sure that the record reflects what we are considering, and certainly, I'll consider everything that is presented at hearing, that's what we have to do. But I think it's important for you to understand that this kind of information has a kind of focus, a process of in terms of granting various setbacks and so on, and we do have some strictures legally determined by the state in terms of the things that we are allowed to consider. MS. LANE: I have something relevant to the garage here. ASST. TOWN ATTY. CORCORAN: Can I just a point of information on the drainage be of help? Two days ago, the Town Board storm water and drainage code, which is The 2 . 3 4 5 6 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 give you that may passed a March 29, 2007 146 1 6 very new for this town and it was intended to try and fill the gap that people are talking about here today that this Board has not traditionally dealt with and other boards have not. In recent years the Trustees have tried to address drainage issues, and I believe they tried to address them on this project maybe not to your satisfaction, that law is not in effect yet, because I think it needs to go to the Department of State, Secretary of State, it needs to be received by them, it needs to be stamped; that's a matter of weeks. I think if Mr. Hill's drainage and the consultant's arguments about the drainage calculations that have been done today are ready by the time this law gets into effect, and they're made available to the Town engineer, who is going to be de facto the person who signs off on whether particular plans have adequate drainage, he can look at it and see whether there's a problem or not. And I think he would probably be the most qualified person at least that we have in the Town, that's a suggestion. MR. ANDERSON: May I say this, for the record, we stipulate to compliance with the draft law adopted two days ago. Whether or not it's filed or whatever, we'll stipulate to the draft legislation. ASST. TOWN ATTY. CORCORAN: In all likelihood before you get before the Building Department for a permit, it's going to be in effect but you're really going to want to put your arguments in front of people before it goes it merry way. CHAIRMAN DINIZIO: It certainly is here, and all the information that you presented is available to anyone that chooses, including Town employees. And I just want to say that when I first looked at this lot and I stood among the phragmites and could not see anything but, my first thought was for Ruth because I know how much she feels for the environment. My first thought was Ruth is not going to like this at all, okay, quite honestly, and it turned out I was right, but even myself, I looked at it and said how can a house be built here, this is right on the edge and all of that. Then I did a little study myself, I asked some people and I find out that phragmites is an invasive species, they could be mowed down 2 . 3 4 5 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 147 1 7 at will and nobody pretty much cares about it. I always thought that they were part of our land, then I find out that the land was filled, 100 years ago this didn't exist this lot, but then I found out that pretty much the whole developments in town have been built on filled land, and it's not within my purview. I wish it was -- no, I don't. I don't even want to make that decision, the way I think would not probably be conducive to anybody's thinking. But quite honestly, I myself have to abide by what we have before us. The exact application has to be that. If not, then it's not fair to anybody and if I want my opinion on what you gave us, it seemed to me like it was an indictment more on the Trustees and how they made their decision. MS. LANE: Yes, right. You see -- CHAIRMAN DINIZIO: Right, and honestly, ma'am, it seemed like you were asking us to be the judge of their decision, we're not that. We're just looking at a setback. MS. LANE: I hear what you're saying and I understand what you're saying, honestly, I do. I would like to just say on the design of the garage, that I don't see why it has to have a window overlooking my property wherever it's located. It's for storage, the second story, and you know, I don't see why I have to give up my privacy for that. I don't see that it needs a window facing directly into the interior of my house. 2 . 3 4 5 6 8 9 10 11 12 13 . 14 15 16 17 18 CHAIRMAN DINIZIO: If someone looking from there were to look into the garage, what would they look at? MS. LANE: The bedrooms. Into the master bedroom, yes. CHAIRMAN DINIZIO: Through your window? MS. LANE: Through the bedroom window, yes. It faces the house with the bedroom window, so I would like for that to be eliminated from the design, please. And I'm a little confused and just want to clarify about this topographical map because I myself couldn't find one in my file, and Mr. Boyce, who as you know, we engaged to give his advice, was very insistent to give some actual contours to give a really accurate, valued opinion, and I'm aware that that exists, and I just chatted with Mr. Hill now and he says that 19 20 21 22 23 24 . 25 March 29, 2007 148 1 6 it's not in the file. So it's been around for two years. Where is it 'cause I can't find it. MR. ANDERSON: They're on the survey. MS. LANE: There's no topographical. CHAIRMAN DINIZIO: Do you have a specific criteria that it was? We really don't look necessarily at contours other than a spot elevation. MS. LANE: It has spot elevations but not sufficient to consider drainage. CHAIRMAN DINIZIO: Again, this goes to the heart of your argument that someone in Town did consider that based on something. Honestly, we're not qualified to do that. Again, I understand your argument, ma'am, but your indictment is on a Board that we have no expertise in that we have no concern over. I don't mean for that to be heartless, we can't judge what they do other than they can judge. MS. LANE: But it French drain to go in not MR. ANDERSON: We Town's drainage law. BOARD MEMBER WEISMAN: This is the survey that we got, is there any additional survey submitted? MR. ANDERSON: That is the survey and we've given you a breakdown in my submission of what every submission date, what occurred as far as the changes, which is what you requested in your November 15th meeting. BOARD MEMBER WEISMAN: was your request the Trustees. will comply with for the 2 . 3 4 5 7 8 9 10 11 12 the 13 . 14 15 16 17 18 lot of good information on it, have contours on it. You have flood zone line. MS. LANE: The flood zone line is also -- BOARD MEMBER WEISMAN: You have building envelope on it, you have hay bales defined on it. Can you show me where there is a contour interval? MR. ANDERSON: (Indicating.) BOARD MEMBER WEISMAN: Those are the proposed grades or the existing grades? MR. ANDERSON: The land is so flat they don't show up. BOARD MEMBER WEISMAN: They are called out tandem then eight, you are doing them at two foot but they're absolutely negligible because of the essentially flat terrain. It's very poorly drawn, Well, this has a but it does not setback from the 19 20 21 22 23 24 . 25 March 29, 2007 149 1 6 very minimal. CHAIRMAN DINIZIO: Okay. Are you satisfied? BOARD MEMBER WEISMAN: I don't think they need to provide anything additional. MR. LANE: Dennis Lane, right here, I have the Town Code that actually calls for the two foot intervals. BOARD MEMBER WEISMAN: There's two of them 2 . 3 4 5 on here. 7 MR. LANE: They're not at two foot intervals. BOARD MEMBER WEISMAN: Yes, they are. MR. LANE: May I see them, please? BOARD MEMBER WEISMAN: Sure, very poorly drawn. I don't see that as a very well drawn contour. 8 9 10 12 AUDIENCE MEMBER: It's a pretty flat lot. BOARD MEMBER WEISMAN: Which is why there are not many intervals. CHAIRMAN DINIZIO: Honestly, sir BOARD MEMBER WEISMAN: Well, just for the record, they are rather unclear in terms of their callout on this survey, but there are two contour intervals on it. MS. LANE: What we'd like is the proposed as well as the existing, so, do we have the proposed? CHAIRMAN DINIZIO: That's in their package. MS. LANE: What is the final grade of this property in the boundary line with mine? CHAIRMAN DINIZIO: I'm not an expert, but you have one. Have him take a look at it. BOARD MEMBER WEISMAN: I think the thing for you to do is to come in and take a look at the record with the new material submitted by Mr. Anderson. BOARD SECY. KOWALSKI: Well, he has it. BOARD MEMBER WEISMAN: All right, then your engineer has material submitted by Mr. Anderson, and you are free to look that over thoroughly and see what information's available. CHAIRMAN DINIZIO: Okay. Anybody else wish to make a comment on this application? Hearing none, I will entertain a motion to close this hearing with only written testimony to be presented from the applicant and from the 11 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 150 1 . 3 neighbor's expert, Mr. Boyce. We will make that decision on the 19th. BOARD SECY. KOWALSKI: Well, we have 62 2 days. 5 CHAIRMAN DINIZIO: We'll start deliberations on the 19th. (See minutes for resolution.) 4 9 CHAIRMAN DINIZIO: Next hearing is for Zupa. Michael, would you just read the appeal? BOARD MEMBER SIMON: Mary Zupa. This is an appeal for an interpretation or other action, based on the Building Department's December 21, 2006 return of a building permit application to construct a single-family dwelling at 580 Basin Road, Southold. There was no statement of disapproval, and just going back, what the ZBA found at its last time it considered this, is we were asked to consider a very narrow question having to do with the interpretation of a particular clause within the code independent of the merits of this particular case. And it was felt that -- and the question was whether the realignment of the dock, whether that constitutes a change, and it's prohibited under that particular part of the code. That is, and we held that -- and this is very far from the immediate question -- we held that a dock which has been rebuilt in a new place loses its status, its legitimacy, once it has been destroyed except under certain kinds of conditions, such as when it is moved by the order of a legitimate agency, in this case it was the Trustees. So when this dock was moved at the behest of the Trustees, then it does not render the dock illegitimate. Now, the relevance of this to the Zupa 6 7 8 10 11 12 13 . 14 15 16 17 18 19 20 case 21 CHAIRMAN DINIZIO: Michael, Kieran is saying that we should allow the applicants to explain their position and that we have heard the hearings. BOARD MEMBER SIMON: Okay, I won't go over that again. CHAIRMAN DINIZIO: I know that was part of what we discussed. BOARD MEMBER SIMON: That's ASST. TOWN ATTY. CORCORAN: arguments, I think the parties will fine. Maybe once be able to the 22 23 24 . 25 March 29, 2007 151 1 9 make their arguments as best BOARD MEMBER SIMON: that, fine. MR. HENRY: My name is Patrick Henry, I'm an attorney in Central Islip, and I represent the Zupas on this application. Thank you very much for hearing us today. Basically in 2004 this body granted a variance on its own application or motion on an application for a building permit concerning the modest amount of square feet. And you, this body, granted that variance. And you also ruled that the building permit would be forthcoming as soon as one of two things happened, basically, the marina that allegedly coexists on the property either be done away with or go away or in the alternative, a new variance be granted for coexistence of a marina and a private home of the Zupas as they were seeking a permit for. And until and unless something happened to change that situation, there would be no building permit forthcoming. We have maintained that after a lot of litigation borne out of frustration I suppose -- I wasn't in the picture then -- and appearances before other bodies, there has been two significant changes. primarily, the decision that Mr. Simon was alluding to, which called for an opinion of whether or not the nonconforming use enjoyed by the association would be destroyed if the docks were ordered to be removed were removed, because they constituted the very essence of the purpose and function of the nonconforming use, the existence of those docks. If there were no underlying docks, there would be no nonconforming as anyone else. Okay I'm happy with 2 . 3 4 5 6 7 8 10 11 12 13 . 14 15 16 17 18 use. 19 Now, they were ordered removed by the Trustees. Back in 2004, when our first initial application was made, it was claimed by the association that they owned and had title to the bottom of the basin in question. Since then, it's been established beyond I think any doubt that the Trustees are the sole title holders of the bottom of that piece of water. Even the record, the deed as I understand it was submitted for recording indicating that the association owned it, when in fact it was not so. In any event, it's the position of the Trustees, and we agree with them, that they have sole title to the bottom. And this body decided that the question of whether or not 20 21 22 23 24 . 25 March 29, 2007 152 1 8 the zoning extended to the docks, which were under the jurisdiction of the Board of Trustees, did not, and therefore you don't have jurisdiction zoning-wise over the existing docks. And that it's up to the Board of Trustees to order their destruction or existence or nonexistence or whatever they choose to do about it as long as there is no adverse impact on the environment. And we are strongly in favor of that. My clients are outstanding environmentalists and have devoted a lot of their time to a lot of that long before this issue ever arose. So we are saying that the Zoning Board of Appeals has held that the Board of Trustees has sole jurisdiction over the docks. They wanted them removed therefore there's no nonconforming use from your perspective, and if there's no nonconforming use, there is no marina. We maintain, of course, there never was a marina, it's nothing more than a few docks where people can tie up their boats. And if there's no marina, there's no dual purpose use of the Zupas' property, and there's no impediment about issuing a building permit. Basically in a nutshell, I'm condensing it in view of the hour, and parenthetically, let me commend you on your patience, I'd be very pleased to go back to referring to our original situs, and point out to you the building plot that we encompass, which is the basis of our application, you already have that before you. If you want me to, I will point out the boundaries on it and the proposals. I kind of think you're already familiar with it. CHAIRMAN DINIZIO: We are fairly familiar with it, sir. BOARD MEMBER GOEHRINGER: We're down there 2 . 3 4 5 6 7 9 10 11 12 13 . 14 15 16 17 18 19 20 a lot. 21 BOARD MEMBER WEISMAN: A whole lot. MR. HENRY: How did I know that? I would also say that there had been some local objections to the Zupas moving in. Some of it got a little ugly. There were epitaphs exchanged. If I may bore you with one incident, Mrs. Zupa was told to go back to where she came from; and the irony of that is that she comes from Southold. Her parents are buried here as are many other relatives, that's the kind of indignities they had to put up 22 23 24 . 25 March 29, 2007 153 1 2 with during this litigation. CHAIRMAN DINIZIO: Sir, could I just ask you to just speak to the relevant issues? I understand the personal stuff but -- MR. HENRY: I'm just telling you that emotions got introduced into the big picture on both sides, and basically all the Zupas want is to build their home within the confines of the limitations that exist. We don't object to a dock for the association, the Zupas have even offered to give a 75 foot parcel of land to them, give them title to it and bulkhead it for them and whatever else incidental they might need in that regard to further this their enjoyment of the basin as well. ASST. TOWN ATTY. CORCORAN: May I ask, have you made the application that you were implicitly invited to make in the 2004 opinion of this Board to seek a variance to allow the two uses to coexist? MR. HENRY: No, we did not. Because it's our perception that the association would have to consent with or agree with it, with our application for it to be granted. ASST. TOWN ATTY. CORCORAN: What makes you think that? MR. HENRY: I think that's an educated . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 guess. 16 BOARD MEMBER SIMON: May I ask a question? It's my understanding that the result of our 2006 decision that the Zupas' property is still burdened by a preexisting use and we were not deciding the question of marina versus dock or even where it was, whether it was the bottom of the bay or -- this is not what we were deciding, but the outcome of this as I understand it was that the encumbrance continued to exist when the dock was moved and rebuilt because of the Trustees. Therefore, the Zupas were in the unenviable position of finding that their property was still encumbered. And what I really want to know, it wasn't clear to me what we as a ZBA can do about this. You make some interesting points about who owns it and whether it was ever encumbered, but what can we do; what are you asking us to do? It looks as though we're supposed to find it not a nonconforming use so that the Zupas can go ahead and build their house; 17 18 19 20 21 22 23 24 . 25 March 29, 2007 154 1 2 do we have the power? I don't understand. CHAIRMAN DINIZIO: Hold on. Again, we need to keep this on the application that's before us, on the published notice. And I think any notion concerning a variance that might be granted by this Board would be better -- BOARD MEMBER SIMON: I was merely inquiring whether that was part of this application or not because they are asking to do that same thing, which is to build the house. MR. HENRY: That's all they ever wanted all along, regardless of the litigation. BOARD MEMBER SIMON: We're being asked to remove the encumbrance; is that the idea? MR. HENRY: Essentially yes, and then the alternative to not apply it to the area where they want to build their own their home. It's not appropriate to encumber that specific property. ASST. TOWN ATTY. CORCORAN: Didn't the original filing before the ZBA also ask in the alternative for any variance that might be needed to build the home; am I wrong? Did I not see that in the application? MR. HENRY: I don't think that was incorporated in it. Let me say this, that we're perfectly willing to request a variance. BOARD MEMBER SIMON: I don't think that we have seen that application. It would be a highly relevant application. ASST. TOWN ATTY. CORCORAN: I saw it when it was first filed, and it said that. BOARD SECY. KOWALSKI: The misunderstanding I think is which application, we have had so many. ASST. TOWN ATTY. CORCORAN: No, I mean this one. BOARD SECY. KOWALSKI: This particular application had a lot of attachments to it. MR. HENRY: Let me say this, whether or not it was included, we will submit a variance application. If it will make things easier for this Board then by definition it would make things easier for all of us. BOARD MEMBER SIMON: I think that would respond to our puzzlement about what exactly we are being asked to do, whether we can in fact decide that we do in fact have the authority to accept or not accept an application for a . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 variance. The problem is what we have today is not an application for a variance. It's essentially a reapplication for what has been litigated before. MR. HENRY: Yes, but it's our position that one of the impediments is no longer in existence, therefore we've come back. BOARD MEMBER SIMON: Okay, I was looking for evidence of that, and I haven't found it. I've seen arguments. I mean, the argument that says it really was never an impediment in the first place because it was Trustee property, that would eliminate, it's true, but this is new to me. I haven't been on the Board for more than two and a half years or so. That would simplify things too. I'm quite puzzled, and I do know something about the law, and I can't make sense of this. MR. HENRY: Give me one moment. MR. ZUPA: My name is Victor Zupa, as you know, good afternoon, you're very patient, I agree. You made the change in 2006, September 2006, when you said the docks are on -- there's a nonconforming basin use, and it's on the basin, and therefore Section previous 241 now 280, prohibiting certain things to be done with nonconforming uses, i.e. rebuilding or relocating, is not applicable. Well, if that's the case, if the nonconforming use, which you didn't call a marina and in minutes disclose that you're careful to say this is not a marina, that it was silly to define it as such, it's a community dock BOARD MEMBER SIMON: It's a very good point, but the thing was, I went to look over the minutes and I wasn't able to find that. It doesn't appear in the decision. I don't know whether it was a slip of the tongue or a mistake or a misuse of a term in the minutes, because I couldn't find that portion of the minutes. I don't remember the Board ever officially deciding something which may have been implied by what actually appeared in the minutes. MR. ZUPA: If you say there is a nonconforming use on Mary's property, on our property, then you have to apply Section and simple as that. These docks, if you the exhibit, their permit calls for them relocated and rebuilt in their entirety. 1 2 . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 155 280, pure look at to be Here's March 29, 2007 156 1 2 an existing dock, there's the new dock I'm in. It's a whole new dock, it's moved. That clearly is prohibited by Section 280. BOARD MEMBER SIMON: Well, we gave an interpretation which said that it's not prohibited by 280. MR. ZUPA: Yeah, but, because you said -- BOARD MEMBER SIMON: That's what that hearing was about. I mean, a lot of other things happened during that hearing. MR. ZUPA: Yeah, but if it's not CHAIRMAN DINIZIO: Hold on. MR. ZUPA: If it's not covered by the . 3 4 5 6 7 8 280 -- 9 CHAIRMAN DINIZIO: Hold on, Mr. Zupa. MR. ZUPA: Okay. CHAIRMAN DINIZIO: I understand how passionate you are about this because I don't know if you're a lawyer or not but you're sounding like one. 10 11 12 ASST. TOWN ATTY. CORCORAN: Don't apologize for that. CHAIRMAN DINIZIO: No, I apologize for that. But I think you know more about this than we do quite honestly. But we're here today, I just want to point us in the direction that it seems we're here today that you applied for a building permit and the Building Inspector said, no, I'm not going to give you a building permit, and on top of that, I'm not going to give you a disapproval; is that basically what happened? In other words, you don't have a notice of disapproval? MR. ZUPA: We don't have an official notice of disapproval. The way we interpret it, so I explained to the Building Inspector, that there's the original decision in 2004 which says there's a marina use on the property, nonconforming use, so either remove it and they referenced a lawsuit, which is still ongoing, or get a variance. And I applied to the Building Inspector and said, look, here's the first case but now there's a second case, you've got to interpret this. The second case basically says there's no nonconforming use on Mary's property. If there were, you would have to say you cannot relocate or rebuild that nonconforming use, but you didn't. You said essentially, the 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 157 1 2 nonconforming use was on the basin. BOARD MEMBER SIMON: Suppose we used the wrong word. Because I'm not sure that that wasn't just simply the problem. It was the question of whether the nonconforming use had become extinct because they were rebuilding the dock, and we were asked to interpret that question, either it was rebuilt on another location, and we found in the reading of the code that the code specifically said that you did not lose your nonconforming status if your move and rebuild of the dock was in consequence of an order of the Board of Trustees. So, therefore, the nonconforming use was still continuing. Now, if you say that the minutes seem to reveal that we reversed ourselves in things that we said, that we really didn't think there was any nonconforming use after all, that's embarrassing at least because it looks like it contradicts the decision when that we published when we reached our decision after the whatever it was, December 2006 meeting. That's why I'm confused. But in addition to that and maybe there are other ways to get to the Board of Appeals, but ordinarily, as you know as well as any of us, that the way you get before the ZBA is to get a notice of disapproval from the Building Department. And if the Building Department doesn't give a notice of disapproval, I'm not sure what authority they have is we're not going to say, yes, we're not going to say, no, you take it up to the ZBA. And that's a very awkward situation for us to be in because we don't even know if we have jurisdiction. ASST. TOWN ATTY. CORCORAN: I will speak quickly to that. What happened what would happen then, if the Building Inspector refused to issue anything to someone who made an application, they would never have any recourse, the enabling statutes allow this Board jurisdiction if what they request is refused to be granted. So, they are properly here. However, there is another issue that another party's brought up jurisdictionally, which I would like to hear both sides talk about, is whether as a basis of reis judicato, which to those who don't know means if the issue's already been decided, this Board can't hear it again. That to me is the relevant issue of jurisdiction. I think had this already not . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 158 1 2 been decided, yes, this Board does have jurisdiction because relief was requested, a permit was requested, it was in de facto denied. So they have to have somewhere to go to appeal that denial. The real question is, does this Board have jurisdiction because we may be talking about an issue that has already been talked about at this level. CHAIRMAN DINIZIO: Linda wants to make a statement. BOARD SECY. KOWALSKI: The Building Inspector, when he had an application from Mr. Zupa asked me whether it's been resolved in the courts and how should they proceed, and I told them that I didn't know the answer to that because it's in litigation, so much litigation, there's civil litigation, there's town litigation, and I had also referred them to again to speak with counsel. So that's probably why he refused to process the building permit application. He knew it was in litigation. MR. ZUPA: Technically, the Building Inspector cannot refuse to consider an application. He can disapprove, that's what the law is. I treated it as a disapproval even though basically he said, look, I'm giving you back your card, it's been decided. So I went ahead and treated it as a disapproval and applied an appeal to this Board based on his failure to interpret the 2006 decision, which explicitly says the nonconforming use is on the basin. Therefore, we have no jurisdiction, 280A is not applicable. Pure and simple. It changed. Previously, the nonconforming use was on Mary's property. BOARD MEMBER SIMON: That was not the issue that the ZBA considered. MR. ZUPA: How can it be that in applying for the building permit you tell the applicant the nonconforming use is on your property, you can't have a building permit. And then when the association comes back and says, well, I want to rebuild the dock, does that opinion still apply to it? Am I bound by that? And they say, Oh, no, for the purposes of rebuilding, 280A is not applicable, you can rebuild. BOARD MEMBER SIMON: That's a reasonable argument, but I don't know who made it. We didn't make it. I thought you were reporting that we had . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 159 1 2 said you're right -- BOARD MEMBER WEISMAN: No, we had not. CHAIRMAN DINIZIO: We're here today to decide whether or not he can come back before us. ASST. TOWN ATTY. CORCORAN: I think respectfully, and this Board can decide what it said, but I think its intention was not to say 280 or Section 241 is not applicable, I think what the Board decided was it was not violated. BOARD MEMBER SIMON: Yes. Yes, and what you did was maybe our minutes contained something to allow you to impute a certain interpretation to us as though we had already made your argument for you, which you are now making probably quite persuasively. But we're just spectators as far as I can see. MR. HENRY: May I please say something? Nonconforming uses are not welcomed by the law. The law does not like nonconforming uses basically because it deprives someone who owns the property a limited use of his own property through some antiquated apparatus that happens to be there. BOARD MEMBER SIMON: Right. MR. HENRY: So, that is the reason Southold and most other communities have a statute that says that you can't alter, extend reconstruct or restore that apparatus constituting a nonconforming use because then you could deny that person a property forever and ever and ever just by repairing whatever it is. BOARD MEMBER SIMON: You can repair it, you can't tear it down and rebuild it. MR. HENRY: It says you can't repair it should not be enlarged, altered, extended, reconstructed or restored or placed on a different portion or lot parcel and so on and so forth. ASST. TOWN ATTY. CORCORAN: We had this argument last year. CHAIRMAN DINIZIO: Yes, we had this argument already. I mean, you're absolutely right. MR. HENRY: I'm just saying that if this were allowed to be an exception of some manmade concept that I never heard of, why then you could repair all these things forever and ever and ever and very effectively deny the person the use of his own property. BOARD MEMBER SIMON: There's a good reason . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 160 1 7 for that part of the code. MR. HENRY: Yes. BOARD MEMBER SIMON: I agree. MR. HENRY: Now, coupled with this Board's comment which says in your decision, particularly since the alignment was at the request of an independent board -- the Trustees -- with full jurisdiction over the subject matter. Full jurisdiction over the subject matter. BOARD MEMBER SIMON: Well, that could mean the Trustees have jurisdiction over anything within 100 feet of the water. MR. HENRY: Suppose you don't agree with 2 . 3 4 5 6 8 them? 9 BOARD MEMBER SIMON: What? MR. HENRY: Suppose you don't agree with their jurisdiction, a decision they make arising from their jurisdiction? BOARD MEMBER SIMON: You mean, if we say that the Trustees do not have the jurisdiction that they claim with the Andros Patens and all that. I don't know what you do with that, not a lot. Because we disagree with the state law that gives the Trustees whatever jurisdiction it has. I don't think we can. MR. HENRY: I agree with you. It's our position that the Trustees have the authority as owners of the bottom basin to do what they think is appropriate for the people of Southold township concerning docks and other structures and what have you. BOARD MEMBER SIMON: Right. They can do it with personal docks and not marinas. They can tell you you can't build a dock. That's their jurisdiction. MR. HENRY: I think that's what we're really talking about. BOARD MEMBER SIMON: There was a talk about whether it was a marina or -- MR. HENRY: I think everyone pretty much agrees it's not a marina, it's a community dock. The nonconforming use is the key phrase here. Should we allow the repair and removal and reconstruction of a nonconforming use and that flies in the face of any understanding and any jurisdiction I can find. BOARD MEMBER SIMON: That's what our interpretation was for. 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 161 1 6 BOARD MEMBER WEISMAN: We already did that and the point is we can't -- there are no building permits required for docks. So there was no notice of disapproval for the ZBA for docks. The Trustees came to us for an interpretation because they wanted to reconfigure the docks, and our previous decision essentially said you will not lose your preexisting nonconformity if -- not a private individual but rather the Trustees who have jurisdiction over water bodies requires not rebuilding inkind but relocating for the same use; is that correct? 2 . 3 4 5 7 9 CHAIRMAN DINIZIO: No, that's right. But what's the relevance of that? BOARD MEMBER WEISMAN: To this application. Now they're asking us to interpret whether that decision eliminated a nonconforming use on your property. CHAIRMAN DINIZIO: of your property. Right? nonconformities? Well, it because it had two uses on MR. HENRY: Yes. CHAIRMAN DINIZIO: Now you're saying to us, it only has one use on it, it's residential. MR. HENRY: Well, one of the nonconformities arose out of the existence of those docks. CHAIRMAN DINIZIO: Right. BOARD MEMBER WEISMAN: But that will not be changed. Those docks are going to still exist in a different configuration, and they will still be considered pre-existing nonconforming, even though they have been rebuilt on a different location; that is my understanding. CHAIRMAN DINIZIO: Aren't they saying to us that, look, we made that decision, we said that it doesn't make much difference, and therefore, your decision from before, which says you have two uses that's not conforming is no longer relevant; is that Right. A restriction What are the was nonconformity it, correct? 8 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 ASST. TOWN ATTY. CORCORAN: That's what they're saying, yes. BOARD MEMBER WEISMAN: That's what they're saying, that's not what we said. MR. HENRY: That's an argument. You can't have it both ways. CHAIRMAN DINIZIO: Right. So, what is the 24 . 25 March 29, 2007 162 1 7 end product of that? What is your hope upon your application today? MR. HENRY: Our hope is that you will agree that there is no nonconforming use on the property; that they own, more specifically where they want to build their home, and it's not incompatible. That's all. We're not out to do away with the association or their boating enjoyment or -- they're even offering to give them property with a dock on it, brand new boat fitting. We're trying to be good neighbors. And may I just make one more point? CHAIRMAN DINIZIO: Yes. MR. HENRY: And I think in this room as I speak, everyone who owns lands on the basin is here, and I think they are all here to say a good word for the Zupas and their application. CHAIRMAN DINIZIO: Well, we will certainly hear what they have to say. MR. ZUPA: On your question before about the variance, I said well, look, and you're correct, we're saying that the condition has been removed. Why do we continue to litigate in court as the ZBA acknowledged in 2004, removal of the docks and continue all of this basically mooted the condition. But if that doesn't work, okay, we're applying for a variance. But I never said we'd apply for a variance with the consent of the association because that's impossible. ASST. TOWN ATTY. CORCORAN: I don't know that this Board required in its 2004 decision that you come with the consent of the association. MR. ZUPA: In the minutes of the last meeting, Mr. Corcoran, you said, that, Jim, our plan was that you would both come forth with an application for a variance. And you said that to me on another occasion. That would never, never work. But in the sense of portion, if you don't agree that I haven't been able to explain my logic, I think you would say that 241G is applicable to us, and 241A is not applicable. CHAIRMAN DINIZIO: Let's just clarify that then, okay. We can move on. Your contention is that you no longer have a nonconformity attached to your lot? MR. ZUPA: Correct. CHAIRMAN DINIZIO: Basically. And you're saying to us that the reason for that is because 2 . 3 4 5 6 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 163 1 6 of a decision we made, correct? MR. ZUPA: Correct. CHAIRMAN DINIZIO: Right? MR. ZUPA: That's a change of fact. CHAIRMAN DINIZIO: Now we just need to find now a way -- and I'm not speaking in agreement with you but I'm just speaking so I can get my thoughts out -- we need now to find a way to get you a building permit to build a house; is that basically what it comes down to? MR. ZUPA: Correct. CHAIRMAN DINIZIO: Your problem is that you applied for a house, and the Building Inspector wouldn't make a decision based on the litigation that's going on -- I'm just saying that he looked. He thought there were more problems of just plain old you got a building lot, that you can put a house on, that was his opinion, and he's welcome to his opinion, you don't agree with it, you're before us. MR. ZUPA: He actually cited the 2004 decision. CHAIRMAN DINIZIO: Right. Okay, we need now to find a course. Our duty now is to find a course for them to follow? ASST. TOWN ATTY. CORCORAN: Yes, I think we should hear from -- CHAIRMAN DINIZIO: Now we're going to go over here -- BOARD MEMBER GOEHRINGER: Yes, but the point in question here is where is the guarantee for the docks and that's the issue. We're still in litigation. CHAIRMAN DINIZIO: Okay, let's see what 2 . 3 4 5 7 8 9 10 11 12 13 . 14 15 16 17 18 19 goes on. MR. PASCA: Anthony Pasca, I'm one of the attorneys for the association. There are two obvious decisions that we have to talk about. The '04 decision and the '06 decision. In '04 you gave them two choices. You said come in with a 24lG application, which would give a variance to the docks and make them no longer nonconforming. If you give a variance to the docks, they would become a conforming use; therefore, you won't have this problem of having one nonconforming use and one conforming use on the property. They have never in two and a half years come to us and said, will you guys consent 20 21 22 23 24 . 25 March 29, 2007 164 1 6 to this application? Do you think that we would forego that opportunity to legalize these docks? This is something that we want as well. So the idea that it's impossible for us to join in an application, it's not true; we've never been asked to join in an application. I don't think we can make that application for the landowner because we weren't invited to the way you guys invited them to make the application. But I can tell you, they know that we're the lawyers and we have never been asked to join in that application. CHAIRMAN DINIZIO: Would you? MR. PASCA: I'll tell you the truth, as long as the application protected our rights, we would. I have to see the application because every time you agree to something you find a little glitch in it. But as long as the application protects our rights, and we can be sure they're not trying to get rid of our turnaround, our right of way, our easement, we have an easement over the entire shoreline. As long as they're not trying to get rid of our docks, we would. ASST. TOWN ATTY. CORCORAN: How does the applicant feel about that, a joint application? MR. HENRY: He just included more than the docks, he's talking about a turnaround. MR. PASCA: I'm just saying, these are our rights that have been judicially established on the property. As long as their application doesn't interfere with our rights. ASST. TOWN ATTY. CORCORAN: It doesn't have to mention those rights, right? MR. PASCA: I don't know. I haven't seen the application. That's why in principal, we want to legalize the docks by getting that 241G variance, I guess it's now 121G. BOARD SECY. KOWALSKI: Yes. MR. PASCA: Yes. So we're all for that idea. But that application's never been made, we've never been asked to agree to it. As far as the 2006 decision, I don't read it the same way they did. I think that what you guys decided, it's pretty clear, you decided that reconfiguring the dock in the same general area would not lose its nonconforming status. To say that all of a sudden the nonconforming status went from the property out into the basin, but it's no longer 2 . 3 4 5 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 165 1 6 attached to the property, I don't understand that because zoning applies to property; it doesn't apply to water. So, if the docks are attached to the upland and the upland is where the people park for the use, that's where the nonconformity exists. It doesn't matter what happens in the water; it matters what happens on the land. So even if you could interpret your decision that way, I don't think it would be legal to do so because it would be inconsistent with zoning. ASST. TOWN ATTY. CORCORAN: Can you address the jurisdictional issue? MR. PASCA, The reis judicata question? ASST. TOWN ATTY. CORCORAN: Yes. MR. PASCA, Well, I think you guys have picked up that they're making the same arguments that they made not only in 2004, the exact same plan that they're asking you to approve, but they're also making the same arguments they made in 2006, just last summer, where they're talking about how it's not proper to allow the docks to be relocated and reconfigured at the Trustees' order. So, I have presented you guys with a written submission, I'm not going to bore you with -- ASST. TOWN ATTY. CORCORAN: Right. But can you get us a copy of the Court of Appeals case you cited? MR. PASCA, MR. HENRY: Sure. May I ask you a question, 2 . 3 4 5 7 8 9 10 11 12 13 . 14 15 16 please? 17 MR. PASCA, MR. HENRY: to this Board? MR. PASCA: Yes. MR. HENRY: Did you know that I was the attorney to Mr. Zupa? MR. PASCA, I didn't, but I understand that they gave a copy -- BOARD SECY. KOWALSKI: I gave a copy to Mr. Zupa. MR. HENRY: I was never served. MR. PASCA, I don't know what to say. MR. HENRY: I'm asking the attorney. MR. PASCA, I wasn't served. I don't know what else to tell you. CHAIRMAN DINIZIO: Don't make me bang the gavel. You need to speak to us. MR. PASCA: I understand Mr. Zupa got a Yes. You have submitted something 18 19 20 21 22 23 24 . 25 March 29, 2007 166 1 5 copy yesterday. CHAIRMAN DINIZIO: Just let us know, if you need to give in writing that's fine, if there's some kind of thing that happens between lawyers that we're not aware of, please. We have it, it's part of the public record. Linda has told us that she gave that to Mr. Zupa. So that pretty much -- we're not going to negotiate the rest of that whatever you're talking about. MR. HENRY: I think it was very professional of Miss Kowalski to do that for the Zupas, I appreciate it. I just felt slighted, that's all, because I wasn't served. Customarily attorneys serve each other. MR. PASCA: It was not intended. CHAIRMAN DINIZIO: Do you have anything you want to add to this? MR. PASCA: Other than what I have submitted, I would like for the record, I would like this Board to incorporate the prior records of the prior two hearings in this because I do think it's impossible to talk about the issues that have been previously decided without incorporating those prior records and since they're your records, I just ask that you incorporate by reference the prior records. CHAIRMAN DINIZIO: Honestly, I don't see us being here for that reason. I think we're trying to create a gateway for you to come back. MR. PASCA: You did that in 2004. You told them what they had to do, and in two and a half years, instead of taking you up on an invitation, they fought you for two years. They went to the courts. It took two years because the Appellate Division finally ruled on September 20th of just this past year that your condition was a proper condition. But they kept saying to the courts, it's not fair to us, we shouldn't have to allow the docks to exist. So-- MR. HENRY: The Appellate Division did not sustain that position at all. They sent it back to the courts in Suffolk County. MR. PASCA: They sustained the condition of the Board's decision. BOARD MEMBER SIMON: The Board spent a lot of time and reached I believe a unanimous decision on the 2006 decision. And I think that we would probably be a lot more comfortable with the plan 2 . 3 4 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 167 1 6 that you were sort of suggesting, getting something where this is reinterpreted, rather than have us to reinterpret what we allegedly said in 2006 to make our published position exactly the opposite of what we all thought we were signing on to. And I think that's what's called upon by your suggesting that we really never did -- we really did say it was no longer encumbered, when in fact, we said the opposite. So I think Mr. Pasca has suggested a route, which if agreeable to both sides, may actually get us past all this and come up with the same results. So there's a good chance that Mr. Zupa will be able to build his house after all if you fellows can get together. MR. HENRY: Well, I'm sure that we can get together to a point. I don't think that we can be on all fours with the entire matter. But it would be -- the Zupas would be delighted to submit an application for a variance. ASST. TOWN ATTY. CORCORAN: A lot of the matters while very contentious, and I'm sure very important, a lot of the matters are of no interest to this Board, just the uses and the area and the feet are of use to this Board. MR. HENRY: Now the variance would be calling upon you to either grant or deny a building permit on that piece of property. ASST. TOWN ATTY. CORCORAN: Yes, either by a couple of ways, either by allowing two uses on one piece of property that doesn't have the normally sufficient amount of area or to allow a residential use to coexist with a nonconforming use. I can't tell you exactly how, but I'm sure there's a way to get a variance for one or two of those things. MR. PASCA: The decision of '04 said what type of variance you needed. It said you give them the 24lG variance. If you apply for a 24lG variance, which would allow the nonconforming use to continue, you give a variance to a nonconforming use, it becomes a conforming use. Then you don't have this problem of having a nonconforming use, plus a conforming use, you would have conforming uses. That's the solution that you gave them two and a half years ago, and we have yet to see them take you up on it. BOARD MEMBER WEISMAN: I suspect if you 2 . 3 4 5 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 168 1 2 put into writing what you verbalized 20 minutes ago, or at the beginning, about your willingness to grant the association access to the docks, and described how -- MR. HENRY: We would be very happy to do . 3 4 that. 6 BOARD MEMBER WEISMAN: You would all be in a much better position you to evaluate what their proposal was; and you to make your offer formally stated, we could get this passed. It's clearly a building site. There's a building envelope, all of the building conditions, the zoning conditions are potentially there. The question then is how you will resolve this dual use, right. And it seems to me Kieran has described two methods and you have described one yourself. MR. HENRY: Yes. BOARD MEMBER WEISMAN: But you must make an application that they purview of examining and corne to an agreement. MR. HENRY: We would be very eager and willing and grateful to have the opportunity to submit a variance application together with collateral propositions. BOARD MEMBER WEISMAN: They have the right to examine and agree or disagree. CHAIRMAN DINIZIO: Okay. So we can expect I suppose an application -- BOARD SECY. KOWALSKI: Probably close the hearing and then maybe -- the first step to get before us with an application is to have the Building Inspector write a disapproval. So if you apply to him for the dual use of the property as was described, you did a better job than I can describing it. ASST. TOWN ATTY. CORCORAN: Tony's right. It's got to conform with the 2004 decision. So we all have to be in agreement that whatever you apply for is what this Board allowed you to do, and once we can all do that, then I think we can have something that people will hopefully not sue upon if and when it's granted. MR. HENRY: Thank you very much. I would ask you to give an audience to several of the citizens here. BOARD MEMBER WEISMAN: Absolutely. MS. MESIANO: Catherine Mesiano. I would just like to add some factual information. 5 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 169 1 6 Subsequent to this Board's decision that you would grant a building permit on the condition that the docks either be removed or legalized through some form of a variance process, several things have happened. I submitted quite a bit of information to this Board, and I would just like to remind this Board that I submitted ample information to you to show that this dock, this preexisting, nonconforming dock in my humble opinion, doesn't meet the test of a preexisting, nonconforming use because the structure continued to grow and change and be modified over time, and I could document that from the early '60s to the present. The impact of that information has resulted in the Trustees, subsequent to their decision for the association to modify or move the dock, the Trustees then issued a -- I may have the terminology incorrect -- but issued a summons or a notice that the structures were illegal, and they were to be removed. And that continues to remain open. The DEC, based on the same information, has determined that the docks at best are in question and violations have been issued to the association for the existence of the docks for the continued existence, the construction, reconstruction, etcetera. So I have to ask this Board, I'm asking whoever might like to give me a brilliant answer, is this issue moot since the agencies having authority over the subject docks have deemed them to be illegal? What authority does this Board then have to say -- ASST. TOWN ATTY. CORCORAN: Currently 2 . 3 4 5 7 8 9 10 11 12 13 . 14 15 16 17 18 none. 21 CHAIRMAN DINIZIO: None, but I think that was the subject of the application in 2006. ASST. TOWN ATTY. CORCORAN: Also 2004. CHAIRMAN DINIZIO: And we considered that information, naturally you presented that to us, and we looked it over and gave it the weight that we thought was within our purview. MS. MESIANO: And since that time the violations have been issued which -- CHAIRMAN DINIZIO: That's not today. It's not something we need -- you can't get any satisfaction from us today concerning that information. Did they violate, has the Building Inspector not given them a permit; are you appealing the decision that anybody has made 19 20 22 23 24 . 25 March 29, 2007 170 1 7 concerning those docks right now? No, that's not what's been advertised. So I understand you want your information to be relevant, but I don't think ever, I don't know, I don't know that it is today, in particular, maybe in the next application it may very well be, or maybe that goes before the Trustees. But if you're saying they have violations on there, what kinds of satisfaction do you want from us that we can't even consider because it's not even part of our application today. MR. HENRY: We appreciate that. We just wanted to draw to your attention that it's our position that they're illegal, and they constitute an illegal structure. I know that it's not before -- ASST. TOWN ATTY. CORCORAN: Right. And we've made the point many times that the fact that in the Trustees eyes they mayor may not violating the Trustees' rules on getting a Trustee permit. This Board is not the Appellate Board of the Trustees. This Board is dealing with uses and zoning under the zoning code and the fact that they may be illegal in other jurisdiction's eyes, such as the DEC or the Trustees, it's interesting, but this Board does not rule on that. MR. HENRY: It was meant to be rhetorical and please don't feel obligated to respond. CHAIRMAN DINIZIO: Thank you. MR. HENRY: Thank you. CHAIRMAN DINIZIO: Anybody else wish to make comments? Dr. Samuels? MR. SAMUELS: Tom Samuels, Fisherman's Beach, Cutchogue. And I just want to thank my mother and my father for not encouraging me to go to law school. Because in fact, a settlement is available that will -- that should satisfy both sides of the question and get you guys off the hook, get the Town away from its legal bills, which it never should have been involved in in the first place; they got involved in a civil action, and they regret it, I'm sure they regret it at this point. But what bothers me more than anything is the Town Attorney's failure to support the Trustees, who are the oldest elected body in this town. CHAIRMAN DINIZIO: Tom-- ASST. TOWN ATTY. CORCORAN: I would 2 . 3 4 5 6 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 171 1 5 respectfully disagree with that. CHAIRMAN DINIZIO: We have to keep it on the relevant issue. MR. SAMUELS: When was the last time that this Board issued a use variance? CHAIRMAN DINIZIO: I can't remember one, but I'm sure there was at least one. MR. SAMUELS: I don't remember one, CHAIRMAN DINIZIO: But I'm sure there was at least one. MR. SAMUELS: Southampton did once, in 2 . 3 4 6 7 1640. 8 CHAIRMAN DINIZIO: The point is we can't make decisions on what the Trustees do. We're not the judges of the Trustees. MR. SAMUELS: What bothers me is that the Town Attorney is allowing the Trustees' authority to be emasculated. That bothers me a great deal. 9 10 11 12 CHAIRMAN DINIZIO: Take that up with the Town Board. MR. SAMUELS: A great deal and it's inexcusable. CHAIRMAN DINIZIO: Tom, listen, I can't let you sit here and attack the Town Attorney. MR. SAMUELS: It's done. CHAIRMAN DINIZIO: It's done, okay. MR. SAMUELS: I'm not going to say anything more about it. CHAIRMAN DINIZIO: Thank you. Anything else you would like to add? MR. SAMUELS: Duly noted. ASST. TOWN ATTY. CORCORAN: Duly noted. MR. SAMUELS: I talked at some length with members of the Board and so on and so forth, and I know most of them. And I think this matter can be settled. A very, very fair and equitable and generous offer has been made. I don't know why it hasn't been accepted. I really don't know. I'm sure everybody involved is tired of this, including the attorneys, including staff, everybody, including the ZBA. I don't know why it can't be settled in a two hour luncheon meeting to be perfectly honest. I'll be happy to buy. That's all I have to say. The Zupas are customers of mine. They have become friends of mine. I have many friends on Paradise Point, in the Paradise Point 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 172 1 5 Association, who I have worked for all of them. It's so unfortunate. It is so unfortunate, but yet, the principals in the Paradise Point Association can't see it, but it's as clear as it could possibly be, 75 feet by 75 feet, you get title and deed to the property. You probably deal with the DEC if you owned lands where the docks are, and the Trustees. That's what I wanted to say. 2 . 3 4 6 7 Now, Tony is a good friend of mine and he's a damn good lawyer because he's my lawyer, and this particular case, I would request of him to consider that offer. MR. PASCA: It doesn't work, Tom. I'm sorry. A, it would require us to give up our turnaround. MR. SAMUELS: No, it wouldn't. MR. PASCA: Yes, it would. The way you presented it to me for the first time today, I've seen the plan for the first time. CHAIRMAN DINIZIO: Hold on. Negotiate that later on. We're not here to MR. PASCA: You're right, you're right. But we have been accused of being stalwarts or something to a plan that is supposed to be eminently reasonable, and I can't let that stand on the record because these records are transcribed and it's not true. CHAIRMAN DINIZIO: But we're not here to decide that, sir, quite honestly. We're not here to decide if it's reasonable or not, you have to decide that. Thanks a lot, Doc, appreciate it. MR. SAMUELS: You're welcome, and I thank you all for serving on this Board and spending so much time, and I apologize if you were personally offended by my remarks. ASST. TOWN ATTY. CORCORAN: None taken. CHAIRMAN DINIZIO: Anybody else, the lady in the back had her hand up. MS. COLLIER: Andrea Collier. We live in Paradise Point, and I really don't like being here, but the reason that I show up is because if I don't, I'm then accused of not defending my property and acquiescing to things; so I feel a need to, until this is finished, to keep coming here. It sounds very promising. I think there's been a little bit of a softening in this situation, and I think that would be just great. 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 173 1 5 I want to say that if the association is amenable to the Zupas having a house, they should go ahead and let them do that, and if the Zupas are amenable to coexisting with the docks, I've never heard this being discussed before so I thought that was encouraging. I want you all to remember something, there are other people involved here, and I'm saying this for my husband and I on the record. This isn't just the association and the Zupas. The association does not represent us, okay, they might write it down in briefs, but they don't. In fact, their attorneys told us to hire counsel because we were in conflict with the association, which we have done. Thank God that hasn't had to go anywhere yet -- dot, dot, dot. But remember when you're making decisions on these docks that there are other people that own property and own docks on the basin and please try to refrain from doing what I've seen done in the past, where sentences were written down and decisions were made and opinions were granted where it kind of shores up the position of one group over another without considering the other people that are in there. 2 . 3 4 6 7 8 9 10 11 12 13 . 14 15 I know this is a little confusing, but I want to tell you that the association, we've tried to speak to them on a couple of occasions and had good conversations, but their position is that they have told us that if they wanted to tell us that we had to take our dock out and that we would have to walk around to the main dock, that's what they would tell us to do because they own the surface waters in the basin, that's what Jim Spiess told me on a phone call, and he told my husband the same thing. I don't think that would fly anywhere, we've run it by five attorneys and everybody has kind of scoffed at it, but you never know. So just, when you're rendering your decision, please remember that we're there too. It's not just the association and the Zupas, there are other homeowners. It would be nice if it were just like that, but unfortunately that's not the case. So I think you understand that. The other thing I wanted to say to Mr. Corcoran is not to start a fight or anything, but I specifically asked you at -- it must have been a Trustees hearing because everyone here said 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 174 1 6 that they hadn't heard this before, I asked for a specific reason at the time, who would have to apply for the variance, the association or the Zupas, and you told me it had to be joint. ASST. TOWN ATTY. CORCORAN: All right, well, I wasn't at a Trustees meeting where that occurred and if I said that to you -- MS. COLLIER: Then it was at a Zoning -- I can't keep them -- ASST. TOWN ATTY. CORCORAN: taking a different position today. question of the applicant, what led that, and -- MS. COLLIER: I think what led him to believe it is when you read the opinion, it's nebulous. It doesn't say the Zupas. It says a variance must be applied for and then that's why I asked the question, then I was given the answer that it was both. Okay. So-- ASST. TOWN ATTY. CORCORAN: That's what everyone here seems to be saying. MS. COLLIER: Okay. So I think it's hard because the Board's change over and you guys don't remember what happened before, but we do. And I'm glad that that was cleared up because I thought that you had cleared it up for me at the time. ASST. TOWN ATTY. CORCORAN: That's what everyone here today seems to be saying as well. MS. COLLIER: So now it's both. I think you remember me asking this. So thank you very much. And I'm not I asked a him to believe 2 . 3 4 5 7 8 9 10 11 12 13 . 14 15 16 17 18 ASST. TOWN ATTY. CORCORAN: That's what we're all contemplating here today, a joint application. MS. COLLIER: I think it's a great idea but it sounded like no one had ever heard about that before and I've been carrying around with me for a about a year I thought it was a joint application. BOARD SECY. KOWALSKI: It has to be worked out between the two parties. ASST. TOWN ATTY. CORCORAN: If I said that to you at the time, I'm sure I believed it. MS. COLLIER: I know, I'm sure you did but I'm just -- you know. BOARD SECY. KOWALSKI: If they asked me, I would have said the same thing. MS. COLLIER: Okay. Remember the point 19 20 21 22 23 24 . 25 March 29, 2007 175 1 5 though, it's not just two parties. There are other people involved and you're here to protect us as well. We pay taxes are, we're pretty good to the town in our support. So, please. remember us, okay. Thank you. CHAIRMAN DINIZIO: Okay. Anybody else like to make Yes, sir, please state your name. MR. DEAN: Good afternoon, Thomas Dean, Donna Mortimer. We live on the basin, and we don't oppose the Zupas having a house built. And previous on the record I think we have stated that we don't oppose a dock by the association based on the original submission application, which was the dock where it was. Subsequent to that there's been a lot of maneuvering around, and we definitely object to the resolution that was submitted to this Board of moving that dock and turning it because it now becomes right in front of our house. CHAIRMAN DINIZIO: Sir, that's not relevant to what we're speaking to today. So if you could keep it to what was advertised in the paper, then -- I mean, we understand there's plenty of problems with the dock. I understand from Mrs. Mesiano's testimony there's other legal stuff going on, but we would just like to still stick to the relevant part of this particular application that's before us, which is basically, they have been turned down by the building inspector and are looking for a way to remedy that situation. Thank you. any comment? 2 . 3 4 6 7 8 9 10 11 12 13 . 14 15 16 17 18 MR. DEAN: As neighbors, we don't oppose dealing with our neighbors. CHAIRMAN DINIZIO: Either side, right? MR. DEAN: Either side. However, I would like to say that the Paradise Point Association has not communicated with us except for maybe once a year. They don't represent us, and we don't support a lot of their applications. They have never sent over any applications or any of the correspondence, legal correspondences that they should include us in. They are making decisions, what they think is on the whole for 26 people, which is in dispute for the membership. We don't believe that there's 26 members. CHAIRMAN DINIZIO: You don't dispute that they have standing here? 19 20 21 22 23 24 . 25 March 29, 2007 176 1 5 MR. DEAN: I believe that they have standing, but they don't speak for us. MS. MORTIMER: Nor for half of the people who live there. MR. DEAN: And the people they're talking about for the basin or this dock should deal with people that have rights in the basin, not people who have traditionally paid to be able to dock there. 2 . 3 4 6 7 CHAIRMAN DINIZIO: Well, that's not subject to here either. I understand you guys need to vent, and I know that this is a good place, but quite honestly, this is not going to be the last opportunity you're going to have to make the statements. MR. DEAN: I wish it was. CHAIRMAN DINIZIO: Well, it's not because of the way things are. MR. DEAN: Thank you for your time. CHAIRMAN DINIZIO: I do appreciate the 8 9 10 11 12 fact -- 13 MR. DEAN: We want to protect our riparian rights. We don't want to lose any value in our house because something's getting moved and relocated into another position. CHAIRMAN DINIZIO: We are not going to make any decision that would affect that. MR. DEAN: Quite honestly, if the house was in a place that we didn't agree with, I would object -- I would be opposing that as well. But where it is is not objectionable to us. CHAIRMAN DINIZIO: Okay. MS. MORTIMER: Is there any way we could get a list of everybody who they claim is on the association? Because when they keep using the association, it's only a minor few people, and I would rather not use the association to -- CHAIRMAN DINIZIO: Hold on. I don't know what legally we can do. ASST. TOWN ATTY. CORCORAN: We take an application on behalf of the corporation that is the association so -- MR. DEAN: Can you just put it on the record that even though they're submitting applications, they're not representing everybody? CHAIRMAN DINIZIO: You have to decide what the corporation -- they have got their president and all that. You have to stand up for that . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 177 1 . 3 whatever that is. BOARD MEMBER WEISMAN: Let me ask a question and make a potential suggestion, which is beyond the scope of what the ZBA can do, but just for the sake of democracy and remediation or mediation and the sort of pervasive attitude of discomfort among many people in this whole process. Should the time come, and we hope it will in our lifetime that the Zupas and the association come to some sense of agreement about what will happen to those docks that are being used by the members of the association, regardless -- MR. DEAN: All the members, a limited 2 4 5 6 7 8 9 number. 11 BOARD MEMBER WEISMAN: Okay, a limited number. Usually when notices go out, legal notices and also hearings take place, neighbors are informed. MR. DEAN: We're not. MS. MORTIMER: We're never informed. BOARD MEMBER WEISMAN: I know, and there's a reason for that, this is not a typical -- CHAIRMAN DINIZIO: Land association. BOARD MEMBER WEISMAN: Right. My suggestion would be, I'm asking how you would feel about this and how the Zupas, or counsel would feel, when these things are under discussion, and there are some basis for consensus of letting those who have property on the basin know about it, simply be informed or at the very least, let them know that that information is in the Zoning Board's office and that you may as citizens, there's a FOIL law, you can come in and examine the information. MR. HENRY: That would be wonderful. BOARD MEMBER WEISMAN: No, I don't believe, I think people are attempting to resolve this situation to everyone's satisfaction so that it's a win-win situation that the fracturages that have failed considerably over time are ever resolved so that people can live comfortably and quietly in their piece of existence and everyone gets what they want and needs some way. There might have to be slight compromises, but everyone in the end, it's a win-win situation instead of one wins and one loses. If that can be resolved and you can be informed, it seems to me a 10 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 178 1 2 civilized and reasonable way to proceed so that misrepresentation does not continue and misinformation and gossip is not a part of this process. Maybe it's a request, I don't know exactly what it means. MR. HENRY: If it's a request, I'd love for everyone to -- BOARD MEMBER WEISMAN: But you need to understand, and the woman who spoke previously, that all of the information that we have is public in the office. And that it is available for you to come and look at it at any time. I'm simply saying that as a matter of civility that those who have property on the basin simply have access to what's going on. BOARD MEMBER SIMON: Sort of an informal call it a "Concerned Citizens of Paradise Point." Everyone can be members. MR. PASCA: I don't have a problem ~ith it, it's a good suggestion. BOARD MEMBER WEISMAN: Well, that answers the question. MR. DEAN: Most of the way we get information is by coming here to get it. CHAIRMAN DINIZIO: Well, certainly you . 3 4 5 6 7 8 9 10 11 12 13 . 14 can. 15 BOARD MEMBER WEISMAN: You can always do that, but I'm asking for a little bit more. CHAIRMAN DINIZIO: Honestly, we can take that under advisement, but quite honestly, we're not going to compel. BOARD MEMBER WEISMAN: Right. That's advice, we can't compel. MR. PASCA: I'll tell you, when we do notices, Miss Kowalski tells us who to send them to. I'm happy for you to put it on the list, all members of the association. CHAIRMAN DINIZIO: No, I don't think that we want to be compelled either. Because I don't want her in the position of making a decision as to who gets notices. So, no, you're not going to get Linda to make a list. MR. PASCA: I'll try to remember, how about that. CHAIRMAN DINIZIO: Why don't you be civil to each other? BOARD MEMBER WEISMAN: I'm suggesting a more transparent process, that's all. That way 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 179 1 6 any potential temper tantrums or getting their nose out of joint, it can all be remediated, it can all be prevented by simply granting each other the right to information. BOARD SECY. KOWALSKI: It's also advertised in the paper. We have a sign we post, there's the sign up for seven days. There are letters that go out to the association and the other neighbors close by. The office is open from 8:00 to 4:00; you can call us at any time and ask is there an application and what calendar is it on. You can call once a week if you like. We have many ways to communicate on that. CHAIRMAN DINIZIO: And I'm hoping in the next three or four months we'll have it on the website. MR. DEAN: The website is terrific. I found out all about nonconforming uses and who is allowed to apply for a permit. CHAIRMAN DINIZIO: That's on there now. MR. DEAN: It's great, I wish I could talk about that. But you're asking not to, I'll leave that to another day. CHAIRMAN DINIZIO: I am quite honestly. MS. MESIANO: I just want to say that I did send certified notices to the basin owners, not just the adjacent and contiguous owners, so that step was taken. Linda did give me a list and I sent beyond the list that she had given me. So I just wanted to make the point that that attempt is made. 2 . 3 4 5 7 8 9 10 11 12 13 . 14 15 16 17 BOARD MEMBER WEISMAN: Was that 2006 or 18 2004? CHAIRMAN DINIZIO: Cathy, do you have the 19 cards? 20 MS. MESIANO: Yes, CHAIRMAN DINIZIO: I do. Give them to Linda some time. 21 Okay, now is there anyone else who would like to make a statement concerning the relevant issues of this application? No, okay, then I'm going to make a motion that we hold this hearing open until April 26th pending perhaps an application for a variance; is that correct? BOARD SECY. KOWALSKI: A new application for a variance from the relevant parties. CHAIRMAN DINIZIO: A new application for a variance from the relevant parties, and if that's 22 23 24 . 25 March 29, 2007 180 1 2 not forthcoming, then we will probably close it at that time. MR. PASCA: Shouldn't that be renoticed? BOARD SECY. KOWALSKI: It will be put on another calendar when we get it. CHAIRMAN DINIZIO: We've got to get the application first. MR. PASCA: That's what I mean, it would be treated as a new application? ASST. TOWN ATTY. CORCORAN: No, we're just holding this one open until -- CHAIRMAN DINIZIO: We're not going to have a hearing the moment we get that. BOARD SECY. KOWALSKI: We'll still need a resolution to close it at that time. CHAIRMAN DINIZIO: I made that motion. (See minutes for resolution.) . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 25 March 29, 2007 181 1 2 . 3 4 5 6 7 8 9 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 24 . 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 29th day of March, 2007. March 29, 2007